South Carolina Insurance v. Southeastern Painting Co.

335 S.E.2d 66, 77 N.C. App. 391, 1985 N.C. App. LEXIS 4091

• Court: Court of Appeals of North Carolina
• Decided: October 15, 1985
• Docket: No. 8510SC111
• Status: Published

Opinion

EAGLES, Judge.

Appellant excepts to the signing of the judgment including the findings of fact and conclusions of law. This broadside exception does not present for review the sufficiency of the evidence to support any particular finding of fact. An exception to the judgment raises only two questions of law: (1) whether the facts found support the conclusions of law and the judgment, and (2) whether error of law appears on the face of the record. City of Kings Mountain v. Cline, 281 N.C. 269, 188 S.E. 2d 284 (1972); In re Appeal of Broadcasting Corp., 273 N.C. 571, 160 S.E. 2d 728 (1968). Accordingly, the question presented in the brief — whether the trial court erred in its finding of fact that Southeastern had “care, custody or control” of the damaged barracks windows within the exclusions from coverage in the insurance policy with South Carolina — is not presented for decision.

Nevertheless we have carefully examined the record. We conclude that substantial, competent evidence supports every finding of fact, that the findings of fact support each conclusion of law and the judgment and that no error of law appears on the face of the record. More specifically, there is substantial, competent evidence to support the finding that Southeastern had “care, custody or control” of the barracks windows within the meaning of South Carolina’s exclusionary clause.

The policy of insurance issued by South Carolina to Southeastern excluded coverage for property damage to: “property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.” Article 1 of the subcontract between Angelo and Southeastern provided that the primary contract between the United States government and Angelo formed a part of the subcontract. Therefore, the technical provisions of the primary contract bear on the subcontractor’s (Southeastern) responsibilities. The primary contract between Angelo and the United States government provided that:

T2-05. Cleaning, Preparation, and Retreatment of Surfaces:

c. Exterior Concrete and Masonry Surfaces. All exterior concrete and masonry surfaces shall be sandblasted to remove all paint and leave a slightly pitted surface to obtain good adhesion for the paint. . . . Temporary protective hardboard or other approved material shall be used on window openings and any other areas where damage due to sandblasting may occur.

It is clear from the language of the primary contract and subcontract that Southeastern as subcontractor had a contractual duty to protect the windows during sandblasting. The contracts’ provisions demonstrate that the barracks windows were left in Southeastern’s care or custody in the performance of the subcontract. Under the provision of South Carolina’s exclusions either care, custody or control, or the exercise of physical control exclude coverage under the policy.

For the reasons herein stated the judgment of the trial court is affirmed.

Affirmed.

Judges Johnson and Parker concur.