L. & W. Demolition Co. v. Rockwood Insurance

75 Pa. D. & C.2d 688, 1976 Pa. Dist. & Cnty. Dec. LEXIS 253
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedNovember 4, 1976
Docketno. 684
StatusPublished
Cited by1 cases

This text of 75 Pa. D. & C.2d 688 (L. & W. Demolition Co. v. Rockwood Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
L. & W. Demolition Co. v. Rockwood Insurance, 75 Pa. D. & C.2d 688, 1976 Pa. Dist. & Cnty. Dec. LEXIS 253 (Pa. Super. Ct. 1976).

Opinion

DOWLING, J.,

The present case requires that we, once again, embark upon a semantical journey down the labyrinthine ways of insurance policy language.

Plaintiff, while demolishing a fire ruined building, damaged an adjoining premises when a portion of the wall of the burned building fell in the wrong direction (outward rather than inward). L. & W. was sued, found liable, and required to pay verdict, interest and attorney’s fees totaling $30,673.

The demolition company carried liability insurance with defendant insurance company who, however, denied coverage for the occurrence in question and refused to defend the action; where[690]*690upon, it was sued for breach of contract with the jury finding in favor of plaintiff in the amount of its previous loss, i.e., $30,673.

Defendant’s numerous assignments of error (34) in support of its motion for judgment n.o.v. and for a new trial were distilled in his brief to 12 questions which we further compress into several basic issues.

The insurance policy in question provided general liability coverage, both for property damage and bodily injury claims. The coverage was furnished for the operations of L. & W. Demolition Company described as “wrecking buildings or structures.” The contractor was required to notify the company prior to undertaking each particular job and the company had to accept coverage for the specific project. It notified the insurance company of the job in question and received a snecial endorsement covering this operation.

Rockwood undertook in its insuring agreement to furnish liability insurance for bodily injury and property damage claims as follows:

“The company will pay on behalf of the insured any 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, and the company shall have the right and duty to defend any suit 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, and make such investigation and settlement of any claim or suit as it deems [691]*691expedient, but the company shall not be obligated to pay any claim or judgment or defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

Rockwood invokes the language of the exclusions from coverage whch provides as follows:

“Exclusions — This insurance does not apply . . . (o)[sic] to property damage included within . . . (2) the collapse hazard in connection with operations identified in this policy by a classification code number which includes the symbol ‘c’.”

The policy defines “collapse hazard” as follows:

“ ‘collapse hazard’ included ‘structural property damage’ as defined herein and property damage to any other property at any time resulting therefrom. ‘Structural property damage’ means the collapse of or structural injury to any building or structure due to (1) grading of land, excavating, borrowing, filling, back-filling, tunnelling, pile driving, cofferdam work or caisson work or (2) moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof. The collapse hazard does not include property damage (1) arising out of operations performed for the named insured by independent contractors, or (2) included within the completed operations hazard or the underground property damage hazard, or (3) for which liability is assumed by the insured under an incidental contract.”

The underlying point at issue in this suit is the interpretation to be given to the insurance policy involved and more particularly to the collapse exclusion. It is plaintiff’s position that the language is ambiguous and that it was for the [692]*692jury to construe whether or not coverage was afforded or excluded. Defendant’s view is that the terms involved are by themselves clear and unambiguous, that the issue should not have been presented to the jury or, in the alternative, that the jury erred in finding that coverage was afforded.

In analyzing the contractual terms, there are certain basic legal principles which must accompany us. While plaintiff always has the initial burden of proof, this was not really involved in the instant case because there is no dispute that the policy was in full force and effect. The insurance company’s defense is based on an exclusion in the policy and, therefore, it has the burden of proving its position by a preponderance of the evidence “[a] defense based on an exception or exclusion in a policy is an affirmative one, and the burden is cast upon the defendant to establish it.” Armon v. Aetna Casualty & Surety Company, 369 Pa. 465, 469, 87 A. 2d 302 (1952). There is also the well-established rule that if an insurance policy is reasonably susceptible of two interpretations, it is to be construed in favor of the insured in order not to defeat without plain necessity the claim to indemnity which it was the insured’s object to obtain: Frick v. United Firemen’s Ins. Co., 218 Pa. 409, 67 Atl. 743 (1907). In addition, any ambiguity in the insurance contract must be resolved in favor of the insured, since it was the insurer who wrote the policy: Sykes v. Nationwide Mut. Ins. Co., 413 Pa. 640, 198 A. 2d 844 (1964).

Does the wording of the exclusion present a clear and unambiguous statement of noncover[693]*693age. We think not. The insuring agreements of the policy give the insured property damage liability coverage for activities arising out of, or relating to, his business, i.e., demolition or wrecking, and he paid a substantial premium for this protection, over $2,700 in 1972 alone. The collapse exclusion if read literally could be taken to eliminate any property damage coverage whatsoever from or due to “demolition of any building or structure for rebuilding of any structural support therefrom ...” Under any interpretation, it is certainly a major diminution of property damage coverage, otherwise furnished in the insuring agreement. The term “structural property damage” is defined as meaning “the collapse of . . . any building . . . due to . . . demolition.” Whatever is structural property damage is excluded as within the collapse hazard, as well as damage to any other property resulting therefrom. It is clear from an examination of the declarations portion of the policy that defendant insured the business risks incident to the business of plaintiff demolition company and described those risks as “wrecking buildings.” It is just as clear that the business of wrecking buildings is accompanied by bringing about their controlled collapse.

Yet it seems apparent from the premium charged that the property damage liability coverage created a substantial risk, notwithstanding the collapse exclusion. Of particular interest is the fact that the exclusion could have been eliminated for an additional premium of only $15. This seems to elicit the inference that the carrier attached little risk to the additional exposure arising from collapsed coverage.

[694]

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75 Pa. D. & C.2d 688, 1976 Pa. Dist. & Cnty. Dec. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-w-demolition-co-v-rockwood-insurance-pactcompldauphi-1976.