Appicelli Sales & Service, Inc. v. Citizens Mutual Insurance

Michigan Court of Appeals

Appicelli Sales & Service, Inc. v. Citizens Mutual Insurance

199 N.W.2d 242, 40 Mich. App. 287, 1972 Mich. App. LEXIS 1211

CourtMichigan Court of Appeals

DecidedApril 27, 1972

DocketDocket 11576

StatusPublished

Cited by7 cases

This text of 199 N.W.2d 242 (Appicelli Sales & Service, Inc. v. Citizens Mutual Insurance) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Appicelli Sales & Service, Inc. v. Citizens Mutual Insurance, 199 N.W.2d 242, 40 Mich. App. 287, 1972 Mich. App. LEXIS 1211 (Mich. Ct. App. 1972).

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Opinions

Danhof, J.

The plaintiff brought this action seeking a declaratory judgment that there was coverage under a policy of insurance and that the defendant had a duty to defend it in a pending action. The trial court granted the judgment; however, we are compelled to reverse.

Appicelli Sales and Service, Inc., was hired by Transco Northwest, Inc., to unload a mechanical cherry picker from a flatbed trailer. This operation was to be accomplished by the use of a wrecker on which was mounted a 19-ton winch operating a homemade boom. Employees of both Transco and Appicelli Sales were involved in the operation. Transco’s employees directed the operation and rendered some physical assistance. However, an employee of Appicelli Sales was in actual physical control of the lifting. In the course of the operation, the cherry picker fell to the ground and was damaged. Transco then brought an action against Appicelli Sales and Service, Inc.

The defendant bases its failure to defend on an exclusionary clause which excludes coverage for "property in the care, custody or control of or being transported by the insured or property as to which the insured is for any purpose exercising physical controlThe general rule governing this type of clause is stated in Anno: Liability insurance of garages, motor vehicle repair shops and sales agencies, and the like, 93 ALR2d 1047, 1072:

"Most garage liability policies contain clauses which [289]*289exclude specifically or qualify the liability coverage provided for certain types of causes or losses. In passing upon these exclusion clauses, the courts have generally applied the rule that if such limitations are not expressed plainly and without ambiguity they will be construed strictly against the insurer and liberally in favor of the insured, in order that the purpose of the insurance will not be defeated. However, if the limitations are plainly expressed, the insurers are entitled to have such limitations construed and enforced as expressed, assuming they are not contrary to law or public policy.”

After examination of the record we can only conclude that this case falls within the exclusion.

Reversed and remanded, costs to the defendant.

Fitzgerald, J., concurred.

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Danhof, J.

The plaintiff brought this action seeking a declaratory judgment that there was coverage under a policy of insurance and that the defendant had a duty to defend it in a pending action. The trial court granted the judgment; however, we are compelled to reverse.

Appicelli Sales and Service, Inc., was hired by Transco Northwest, Inc., to unload a mechanical cherry picker from a flatbed trailer. This operation was to be accomplished by the use of a wrecker on which was mounted a 19-ton winch operating a homemade boom. Employees of both Transco and Appicelli Sales were involved in the operation. Transco’s employees directed the operation and rendered some physical assistance. However, an employee of Appicelli Sales was in actual physical control of the lifting. In the course of the operation, the cherry picker fell to the ground and was damaged. Transco then brought an action against Appicelli Sales and Service, Inc.

The defendant bases its failure to defend on an exclusionary clause which excludes coverage for "property in the care, custody or control of or being transported by the insured or property as to which the insured is for any purpose exercising physical controlThe general rule governing this type of clause is stated in Anno: Liability insurance of garages, motor vehicle repair shops and sales agencies, and the like, 93 ALR2d 1047, 1072:

"Most garage liability policies contain clauses which [289]*289exclude specifically or qualify the liability coverage provided for certain types of causes or losses. In passing upon these exclusion clauses, the courts have generally applied the rule that if such limitations are not expressed plainly and without ambiguity they will be construed strictly against the insurer and liberally in favor of the insured, in order that the purpose of the insurance will not be defeated. However, if the limitations are plainly expressed, the insurers are entitled to have such limitations construed and enforced as expressed, assuming they are not contrary to law or public policy.”

After examination of the record we can only conclude that this case falls within the exclusion.

Reversed and remanded, costs to the defendant.

Fitzgerald, J., concurred.

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199 N.W.2d 242, 40 Mich. App. 287, 1972 Mich. App. LEXIS 1211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appicelli-sales-service-inc-v-citizens-mutual-insurance-michctapp-1972.

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