A. B. Veirs, Inc. v. Myers

311 A.2d 448, 19 Md. App. 330, 1973 Md. App. LEXIS 230
CourtCourt of Special Appeals of Maryland
DecidedNovember 21, 1973
DocketNo. 32
StatusPublished
Cited by1 cases

This text of 311 A.2d 448 (A. B. Veirs, Inc. v. Myers) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A. B. Veirs, Inc. v. Myers, 311 A.2d 448, 19 Md. App. 330, 1973 Md. App. LEXIS 230 (Md. Ct. App. 1973).

Opinion

Menchine, J.,

delivered the opinion of the Court.

For nine years prior to March, 1971, the trucking fleet of the appellant A. B. Veirs, Inc. had been insured by Aetna Life and Casualty Company [Aetna], The Aetna policy had included a provision for payment for: “Combined additional [loss] caused by (a) windstorm, hail, earthquake or explosion, (b) riot or civil commotion, (c) the forced landing or falling of any aircraft or its parts or equipment, (d) m,alicious mischief or vandalism, (e) flood or rising waters, or (f) external discharge or leakage of water. ” [Italics supplied]

It is claimed that the loss in the subject case would have been covered by one or both of the italicized subsections of the policy.

Aetna declined to renew the insurance for the year beginning March, 1971 and so advised the appellee, C. Clifton Veirs, Jr., t/a C. Clifton Veirs Agency [Veirs Agency] who through the years had placed the insurance of the appellant A. B. Veirs, Inc. The Veirs Agency was directed by appellant to secure insurance providing identical coverage. The Veirs Agency represented one other insurance company that also declined to write the insurance risk of the appellant. The Veirs Agency then contacted the appellee Lester W. Myers [Myers], an agent representing Fireman’s Fund Insurance Company [Fireman’s], A policy was written by Fireman’s that did not provide the coverage hereinbefore quoted.

The appellant, maintaining that it had sustained a loss [332]*332that would have been covered by the Aetna policy, brought suit for breach of contract and in tort against Veirs Agency; and in tort against Myers, for the alleged failure to obtain an identical policy.

The liability vel non of Veirs Agency or Myers necessarily must be determined by the terms of the Aetna policy.

Appellant in early 1971 purchased a used tractor (mileage 60,000 to 65,000). After use for about 40,000 miles in local hauling of a dump trailer, it was decided “to take the tractor and go over it completely and put it on a long distance haul.” Alvin B. Veirs, president of the plaintiff corporation, testified that in early November, 1971: “We went over it, the truck, put new hoses, new fan belt, tightened up everything; checked the oil, anti-freeze, filters and put new tires on the front because this truck was going to go from Baltimore to Pittsburgh, to Wheeling, West Virginia, where it’s rough. Q. You say ‘we went over it’ you did it? A. My mechanics and myself. Q. You yourself. You were actually involved yourself in it? A. Yes, I did.” The witness had many years experience in truck repair and maintenance and had changed water hoses on trucks of this type many times before. He said he noticed that the hose on the truck was cracked; that he had obtained new hose and clamps and had pulled the old hose, replacing it with new hose of the same length and affixing it by a new clamp. The work was done in Rockville. The tractor then was taken to Frederick, where it passed ICC inspection and was left at the terminal of the Comet Freight Lines. At least three persons, none called as witnesses, operated the vehicle in the Frederick area.

Another person, again not a witness, drove the tractor to Baltimore. After unsuccessfully attempting to hook up a trailer, that driver “got mad and came back and left it on the vacant lot in Frederick.” Mr. Veirs telephoned the driver that night. Angry words passed between them, with Mr. Veirs saying: “You know that I am not going to give you a recommendation for driving tractor trailers.”

Mr. Veirs thereafter personally drove the tractor from Frederick to Rockville and placed it on appellant’s parking lot. It remained there until another tractor of appellant [333]*333“burned up” while attempting to haul “too much of a load for the tractor to handle.” The operator of that other tractor sought and obtained permission to use the subject tractor. The witness then “started the tractor; drove it a couple of hundred feet; checked the oil and water; hit the tires to see if they had air in them; but not getting down to check the belt and hoses.” He checked the water by taking the cap off and found that there was water in the radiator. The tractor then was delivered into the possession of E. Richard Notnagle, who testified that it “stayed there in idle for 15 minutes” and then was driven away by him. Within a mile after leaving the parking lot “the starter started pulling down * * * and by the time I got off the road it stopped and locked up. I raised the hood and I could see the puddle of water. Small puddle. The radiator hose was off. Q. What hose was off? A. The rubber piece of hose maybe 4, 5 inches long.” He said that the end of the hose toward the engine was off, hanging down below the pipe with its other end still affixed to the pipe. The clamp on the loose end was still on the hose. He added: “We put the hose back on by pushing up the rubber hose and tightening the clamp. Q. You put the end of the hose back over the pipe? A. Yes. Q. Did that fit loose or tight? A. Rather tight to get it on there. Q. How loose was the clamp; how many turns, do you recall? A. It was loose. It was more or less hanging there. Q. Did you have to loosen the clamp up to get it back over the lip of the pipe? A. No sir — yeah. I had to loosen a little bit.”

The “freeze up” of the engine caused damage of approximately $5400.00.

The witness Alvin B. Veirs was recalled and gave the following testimony:

“Q Tell us what number of ways that hose could have come free from the pipe?
A There is no way for it to vibrate. The only way I know it could have gotten off is being loosened up by a screwdriver.
Q What other ways could the hose have come free from the pipe?
THE COURT: He said the only way was that if it were loosened by a screwdriver.”

[334]*334At the end of the plaintiffs case Judge Ralph W. Powers, sitting by special assignment in the Circuit Court for Montgomery County, granted motions by Veirs Agency and Myers for a directed verdict. This appeal is from the judgment thereafter entered.

Loss Caused by External Discharge or Leakage of Water

In Government Employees Insurance Company v. DeJames, 256 Md. 717, 261 A. 2d 747, the Court of Appeals said at page 720 [749]:

“It is well settled that in interpreting insurance contracts, words are to be given their customary and normal meaning. Absent ambiguity the construction of the contract remains within the province of the court and Maryland has not adopted the rule, followed in many jurisdictions, that an insurance policy is to be most strongly construed against the insurer. If the language of an insurance contract is ambiguous, however, construction is for the jury, * * *.” [Citations omitted]

Appellant argues that the language of the insurance contract is ambiguous and should be interpreted to include water flowing from within the radiator, suggesting that such water was being “externally discharged” and was “leakage of water.” We find no ambiguity and regard the suggested interpretation as tortured. Appellant has cited no case supporting its suggested interpretation and we have found none. “External” is the key word in the coverage phrase.

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Bluebook (online)
311 A.2d 448, 19 Md. App. 330, 1973 Md. App. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-b-veirs-inc-v-myers-mdctspecapp-1973.