104 N.H. 425 | N.H. | 1963
It is probably an understatement to say that the courts have not been harmonious in applying the care, custody and’ control exclusion clause in liability insurance policies. 2 Richards, Insurance (5th ed.) s. 301A (1962 supp); Annot. 62 A.L.R. 2d 1242. “The courts have been more reluctant to apply the care, custody and control exclusion to realty than to chattels. Where, for instance, the insured has contracted to and is actually in the process of erecting a structure at the time of damage to
In Sanco Co. v. Employers &c. Ins. Co., 102 N. H. 253, it was held that the care, custody and control of the insured included possessory control as well as proprietary control and that damage to an elevator by an insured’s employees was within the exclusion clause of the policy. See also, Hardware Mut. Cas. Co. v. Mason-Moore-Tracy Co., 194 F. 2d 173 (2d Cir. 1952). In the present case it is clear that the contractor had complete control over the removing of the debris from the building which had been destroyed by fire. The crucial question is whether the control of the contractor extended to the walls within the meaning of the exclusion clause of the policy. While the evidence in this case was not extensive on this issue, we think the Court was justified in finding that control of the walls remained in the owner and any work that needed to be done by the contractor in connection with the walls was incidental to his contract job of removing the debris. 7A Appleman, Insurance, s. 4493.4 (1962); Meiser v. Aetna Casualty & Surety Co., 8 Wis. 2d 233; Cohen v. Keystone Mut. Casualty Co., 151 Pa. Super. 211. The Court in making this finding and in its decree followed the general rule that where the property damaged is merely incidental to the property upon which the work is being performed by the insured, the property damaged is not in the control of the insured within the meaning of the exclusion clause in the contractor’s liability insurance policy. Thomas W. Hooley & Sons v. Zurich General Acci. & Liability Ins. Co., 235 La. 289; A. T. Morris Co. v. Lumber Mut. Casualty Ins. Co., 163 Misc. 715, 298 N.Y.S. 227; Mayronne Mud & Chemical Corp. v. T-W Drilling Co., 168 F. Supp. 800 (aff'd 272 F. 2d 710 (5th Cir. 1959).
The conduct of the operations by the contractor, the nature of the work, the agreement between the owner and the contractor, and the owner’s activities thereunder all point to the
Exceptions overruled.