Industrial Chemical v. Hartford Acc. & Indem.

475 So. 2d 472
CourtSupreme Court of Alabama
DecidedJune 21, 1985
Docket83-1244-CER
StatusPublished
Cited by15 cases

This text of 475 So. 2d 472 (Industrial Chemical v. Hartford Acc. & Indem.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Industrial Chemical v. Hartford Acc. & Indem., 475 So. 2d 472 (Ala. 1985).

Opinion

475 So.2d 472 (1985)

INDUSTRIAL CHEMICAL & FIBERGLASS CORP., A Corporation,
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, A Corporation, et al.

No. 83-1244-CER.

Supreme Court of Alabama.

June 21, 1985.
Rehearing Denied August 23, 1985.

*473 Don B. Long, Jr. and Thomas E. Walker of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.

T. Thomas Cottingham, Julia Smeds Stewart, and F.A. Flowers III of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellees.

*474 PER CURIAM.

The issue presented by these certified questions from the United States District Court, Northern District of Alabama, is whether Hartford Accident & Indemnity Company is obligated under the terms of its policy to defend Industrial Chemical & Fiberglass Corporation.

On July 6, 1980, Terry D. Chandler and Dewey Edward Ensley, employees of J.M. Foster, Inc., were working within the line and scope of their employment repairing cracks in the floor of a fiberglass storage tank located at an acid regeneration plant in Fairfield, Alabama. The repair process required the use of certain chemicals, particularly methyl ethyl ketone peroxide (MEKP), a catalyst which is mixed with a promoter, cobalt naphthenate, to cause the polyester resin placed over fiberglass matting to gel and become hard. The MEKP, which was still in its original container, was placed inside a galvanized metal bucket and lowered into the tank where Chandler and Ensley were working. As a result of cobalt contamination, the MEKP decomposed, began to smoke, and erupted into flame. Both Chandler and Ensley suffered severe burns, which resulted in their deaths.

The MEKP was manufactured by Reichhold Chemicals, Inc. (Reichhold) and distributed by Industrial Chemical & Fiberglass Corp. (Industrial Chemical). Chandler and Ensley's widows and children brought wrongful death actions against Reichhold and Industrial Chemical, and based their claims on negligence, breach of warranty, and the Alabama Extended Manufacturer's Liability Doctrine. Thereafter, Industrial Chemical brought a declaratory judgment action in the United States District Court for the Northern District of Alabama, seeking a determination that Hartford Accident & Indemnity Company (Hartford) is obligated to defend it in the wrongful death actions based upon certain provisions in an insurance policy issued by Hartford to Reichhold. Those provisions are as follows:

"COVERAGE A—BODILY INJURY LIABILITY
COVERAGE B—PROPERTY DAMAGE LIABILITY
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A, bodily injury or
Coverage B, property damage

to which this insurance applies, caused by an occurrence, if the bodily injury or property damage is included within the completed operations hazard or the products hazard, and the company shall have the right and duty to defend any suit brought against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent ...

"* * *
"II. PERSONS INSURED
"Each of the following is an insured under this insurance to the extent set forth below:
"(a) if the named insured is designated in the declarations as an individual, the person so designated but only with respect to the conduct of a business of which he is the sole proprietor, and the spouse of the named insured with respect to the conduct of such a business;
"(b) if the named insured is designated in the declarations as a partnership or joint venture, the partnership or joint venture so designated and any partner or member thereof but only with respect to his liability as such;
"(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such;
"(d) any person (other than an employee of the named insured) or organization while acting as real estate manager for the named insured.
*475 "This insurance does not apply to bodily injury or property damage arising out of the conduct of any partnership or joint venture of which the insured is a partner or member and which is not designated in this policy as a named insured.
"* * *
"DEFINITIONS
"* * *

"`bodily injury' means bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom;

"* * *
"`named insured' means the person or organization named in Item 1 of the declarations of this policy;
"`named insured's products' means goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but `named insured's products' shall not include a vending machine or any property other than such container rented to or located for use of others but not sold;
"`occurrence' means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;
"* * *
"`products hazard' includes bodily injury and property damage arising out of the named insured's products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others.
"* * *
"This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the following:
"COMPLETED OPERATIONS & PRODUCTS LIABILITY INSURANCE
"ADDITIONAL INSURED VENDOR'S BROAD FORM MODIFIED:
"IT IS AGREED THAT THE `PERSONS INSURED' PROVISION IS AMENDED TO INCLUDE ANY PERSON OR ORGANIZATION DESIGNATED BELOW (HEREIN REFERRED TO AS VENDORS) AS AN INSURED BUT ONLY WITH RESPECT TO THE DISTRIBUTION OR SALE IN THE REGULAR COURSE OF THE VENDOR'S BUSINESS OF THE NAMED INSURED'S PRODUCTS DESIGNATED BELOW SUBJECT TO THE FOLLOWING ADDITIONAL PROVISIONS:
"1. THE INSURANCE WITH RESPECT TO THE VENDOR DOES NOT APPLY TO
"(A) ANY EXPRESSLY [sic] OR IMPLIED WARRANTY UNLESS SUCH WARRANTY IS AUTHORIZED BY THE NAMED INSURED;
"(B) BODILY INJURY OR PROPERTY DAMAGE ARISING OUT OF
"* * *
"3. DEMONSTRATION, INSTALLATION, SERVICING OR REPAIR OPERATIONS EXCEPT SUCH OPERATIONS PERFORMED AT THE VENDOR'S PREMISES IN CONNECTION WITH THE SALE OF THE PRODUCT...."

Industrial Chemical was one of those designated as a vendor within the meaning of the Additional Insured Vendor's Broad Form Modified provision; as such, it sought coverage under that provision.

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Bluebook (online)
475 So. 2d 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-chemical-v-hartford-acc-indem-ala-1985.