American Alliance Insurance v. Keleket X-Ray Corp.

248 F.2d 920, 79 Ohio Law. Abs. 577
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 19, 1957
DocketNos. 12981, 12982
StatusPublished
Cited by4 cases

This text of 248 F.2d 920 (American Alliance Insurance v. Keleket X-Ray Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Alliance Insurance v. Keleket X-Ray Corp., 248 F.2d 920, 79 Ohio Law. Abs. 577 (6th Cir. 1957).

Opinions

OPINION

By MARTIN, Circuit Judge.

The Keleket X-Ray Corporation of Cincinnati, Ohio, plaintiff in the United States District Court and appellee-cross-appellant here was engaged in the manufacture of instruments utilized in the measurement of radioactivity, such as Geiger Muller counters, ionization chambers, pocket dosimeters, and associated equipment.

On July 24, 1951, an incident occurred, occasioning loss to Keleket which has brought about this litigation. Several companies insuring Keleket against two types of loss were the parties defendant in the district court and have appealed from its judgment.

The “stock policies,” so termed, issued by defendants Citizens Insurance Company, Home Insurance Company, Insurance Company of North America, and the World Fire and Marine Insurance Company, insured Keleket against direct loss by explosion to stock, materials and supplies. Under the second type of policies (business interruption policies), Keleket was insured by American Alliance Insurance Company, American Eagle Fire Insurance Company, American & Foreign Insurance Company, California Insurance Company, Mercury Insurance Company, and World Fire & Marine Insurance Company, against loss of gross earnings resulting directly from necessary interruption of business caused by destruction or damage by explosion. After the filing of notices of appeal, the Insurance Company of North America and Keleket entered into a compromise agreement in satisfaction of the judgment against that defendant. Insurance Company of North America is therefore no longer a party to either the appeal or cross-appeal.

In the district court, Keleket alleged that a capsule containing a highly radio-active radium salt had exploded with the direct and proximate result that this material was disseminated throughout the plant. Large quantities of stock and material were contaminated and rendered unsalvageable. The manufacturing operation was necessarily interrupted, at least partially, for about five months because of the serious radiation hazard to personnel in the plant building and for the reason that the nature of the instruments produced required that no radioactive material be present.

It should be observed that, under the extended coverage endorsements of the policies, Keleket was insured against losses due to explosion. There was no insurance protection against radioactive contamination of itself. If the plaintiff were unable to establish the occurrence of an explosion, no liability would arise under any of the policies of insurance. The accident alleged to be the explosion here was not a high [579]*579order detonation accompanied by severe blast damage, but was of quite small proportions. Therefore, substantial issues were raised in the district court as to whether the accident was an “explosion” contemplated and covered by the several policies of insurance. Secondary issues arose as to whether the damages sustained by Keleket resulted directly from such explosion; and, if so, the extent of the liability of the insurers under the policies.

The case was tried in two stages. By stipulation, the only issue submitted to the jury was whether there had been an explosion of the radium source located in the plaintiff’s plant. It was the verdict of the ,iury that there had been such an explosion. Pursuant to the stipulation and by further agreement of counsel, the remaining issues were submitted to a special master. He found that the damages were the direct result of such explosion and fixed the liabilities of the various insurers.

On July 2, 1956, the district judge entered judgment against the nine insurers in favor of Keleket, in consonance with the verdict of the jury and with the report and the supplemental report of the special master. In Case No. 12981, the insurance companies have appealed generally from the judgment for $103,932.11 entered against them; in No. 12,982, Keleket, on cross-appeal, has raised the sole issue of whether the special master erred in determining the amount of plaintiff’s loss of gross earnings under the “business interruption policies.”

The salient facts in relation to Case No. 12,981, will be stated. An indispensable step in the manufacture of radiation measurement instruments is the calibration of those pieces of equipment. The appellee produces a device known as a “pocket dosimeter,” which, in outward appearance, is not unlike a fountain pen. It consists of a plastic tube with a clip that may be worn in the pocket in the same manner as a pen is worn. The plastic tube contains a small electrometer for measuring the amount of radiation to which it (and hence the wearer of the dosimeter) has been exposed. The calibration procedure determines whether or not the instruments accurately indicate the amount of exposure.

The method of calibration utilized by the appellee required a known source of radiation. A “radium needle” commonly used by the medical profession in radiation therapy was the source employed. The strength of its emission was known, having been measured by the Bureau of Standards. By placing the source for a given period of time at a known distance from the dosimeter to be tested, an accurate mathematical computation can be made of the radiation to which the instrument has been exposed. Comparison of the correct computation with the actual reading of the device would indicate the error, if any.

In order to expedite the calibration operation, the company used a specially constructed calibration stand. Its function was to store the known radium source within a protective lead vault, or “pig,” when not in actual use (thus keeping personnel exposure to a minimum) and to facilitate the proper positioning of the source for calibration operations. The dosimeters to be calibrated were charged and placed in holders in [580]*580the calibration stand. Compressed air from an ordinary tire pump was then employed to raise the radium source from the lead vault to the “calibrate” position, where it would be retained by a catch until released by an electrical timer after a predetermined period of time. Gravity would then return the source to its storage vault. The dosimeters thus exposed could be read to determine their accuracy.

The known source of radiation used in this calibration stand consisted of an iridium-platinum capsule, approximately 15 millimeters in length and 4 millimeters in diameter, which contained a highly radioactive radium salt (radium barium sulphate) in the form of a finely divided powder. Its actual radium content was approximately 49.1 milligrams. This compound had been sealed within the capsule by a plug-type cap, brazed on with gold solder. The evidence is uncontradicted that this weld was poor, inasmuch as the solder had penetrated the joint only one, or two, thousandths of an inch.

On July 24, 1951, a Keleket physicist was using the stand for routine calibration operations. Upon depressing the plunger of the pump to elevate the capsule to the “calibrate” position, the physicist testified, he heard a “pop” and observed the emission of a white “mist” from the vent holes at the top of the stand. Subsequently, this “mist” was determined to be the finely powdered radium salt previously contained by the capsule. This radioactive powder released from the capsule, along with radon gas (a highly radioactive decay product of radium), permeated the plant and contaminated it throughout.

Appellants contend that the verdict of the jury that an explosion had occurred was not supported by substantial evidence.

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Bluebook (online)
248 F.2d 920, 79 Ohio Law. Abs. 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-alliance-insurance-v-keleket-x-ray-corp-ca6-1957.