The Catts Company, an Oklahoma Corporation v. Gulf Insurance Company, a Foreign Insurance Corporation

723 F.2d 1494, 1983 U.S. App. LEXIS 14048
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 30, 1983
Docket81-1711
StatusPublished
Cited by19 cases

This text of 723 F.2d 1494 (The Catts Company, an Oklahoma Corporation v. Gulf Insurance Company, a Foreign Insurance Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Catts Company, an Oklahoma Corporation v. Gulf Insurance Company, a Foreign Insurance Corporation, 723 F.2d 1494, 1983 U.S. App. LEXIS 14048 (10th Cir. 1983).

Opinions

BARRETT, Circuit Judge.

The Catts Company (Catts), a Tulsa, Oklahoma, corporation engaged in the business of manufacturing and installing (or providing for installation) fabricated steel, appeals from a judgment upon directed verdict following a jury trial conducted by a [1496]*1496Special Master. The District Court, upon review, upheld the findings and conclusions of the Special Master and entered judgment in favor of Gulf Insurance Company (Gulf). Catts sued on the claim that it had sustained a loss of certain fabricated steel which was, at the time of the loss, insured by Gulf under an Installation Floater Policy. Gulf defended successfully on its denial that the loss was insured under the policy.

On or about November 1, 1971, Gulf, at the request of the Guy Landes Insurance Agency (Landes) which had insured Catts for some, years, issued to Catts a Standard Installation Floater Policy for a term from November 1, 1971, through November 1, 1974. It was one of a “package” of policies issued to Catts through the Landes Agency. The general purpose of the Installation Floater Policy was to insure fabricated steel in the Catts yard prior to delivery to a construction site or after delivery but before installation by Catts or a third party. Before referring specifically to the terms of the Floater Policy here involved, we believe that certain facts evidenced by the trial record, disputed or undisputed, should be noted in order to place the legal issue in proper focus.

Normally, Catts received a contract to fabricate and install steel in buildings in accord with plans, specifications and architectural drawings. On occasions, such as in this case, Catts prepared the fabricated steel and delivered it to the job site for installation by a third party, here the Larry Morris Company (Morris Company). Following final delivery in May, 1973, Catts billed Morris Company by invoices. The steel was apparently stolen or otherwise removed from the job site. The steel was never paid for by Morris Company. The property wherein the steel was to be installed was foreclosed upon, a receiver was appointed, and Catts thereafter filed a mechanics lien and materialman’s lien against the real property. Henry Perry Catts, Jr., president of Catts, testified that he attempted to locate the steel without success. He wished to recover it for its value to his corporation. Thereafter, Catts made claim upon Gulf under the Floater Policy for the value of the steel delivered at the job site to the Morris Company. Gulf refuséd to tender payment on the claim.

The Installation Floater Policy with which we are here concerned, provides, in material part:

“1. PROPERTY INSURED:
(a) Materials, fixtures supplies and equipment, being property of the Assured for which they may be liable, intended for installation in connection with the repair, completion, erection or improvement of property (except as hereinafter provided) in the conduct of the Assured’s business as
Iron, Steel, aluminum, brass or bronze erection and fabrication.
“2. THIS POLICY ATTACHES:
From the time such property becomes at the risk of the Assured and covers continuously thereafter during transit, while awaiting installation, during installation and until the interest of the Assured ceases, or until expiration of this policy, whichever may first occur.
“3. PROPERTY NOT INSURED:
(b) Accounts, bills, deeds, currency, money, notes, or securities;
sfc # Sk sfc # 4!
“4. THIS POLICY INSURES: Except as provided elsewhere in this policy
Against All Risks of Direct Physical Loss of or Damage to the property covered from any external cause.
“5. THIS POLICY DOES NOT INSURE AGAINST:
(a) Loss or damage caused by.or resulting from wear or tear, gradual deterioration, mechanical breakdown, nor loss of market or delay or other consequential loss;
(d) Loss or damage caused by or resulting from infidelity or dishonesty, either or both, by the Assured or by any person or persons in the regular employment or service of the Assured, whether during the regular hours of employment or not:
[1497]*1497(e) Any unexplained loss, mysterious disappearance, or loss or shortage disclosed on taking inventory:
“6. VALUATION: This Company shall not be liable beyond the actual cash value of the property insured at the time any loss or damage occurs, plus labor and other charges and/or expenses accrued, but not exceeding the amount which it would cost to repair or replace the same with material of like kind and quality.
“8. DEDUCTIBLE: It is understood and agreed that each claim for loss or damage to property insured hereunder shall be adjusted separately, and from the amount of each adjusted claim the sum of $100.00 shall be deducted. * * *
“9. REPORTING REQUIREMENTS:
(a) The assured agrees to keep an accurate record of all installations covered hereunder showing the accumulated values of each installation site, including labor, transportation and other accrued charges thereon covered hereunder.
(b) The Assured further agrees to report to this Company on or before the 15th day of each month the total of all such values at risk hereunder including insured values in transit, as of the last day of the preceding month;
(c) The Assured further agrees to pay premium on said reported values at the rate of .08 per $100.00;
(3) In the event of loss or damage to property insured hereunder, this Company shall be liable for no greater proportion of such loss or damage than the total values last reported by the Assured prior to the loss or damage bears to the actual total values at risk hereunder as of the date for which such report was made;”

Henry Perry Catts, Jr., testified that: the steel sold to Morris Company was sold for installation by that company and “It was sold FOB Truck job site” or sold at “Point of delivery.” [R., Vol. II, p. 56]; his company had no responsibility and/or liability for the steel delivered to the job site with the exception of its obligation to repair or replace any improperly fabricated material. [R., Vol. II, p. 60]; after delivery of the steel to the job site as requested by the Morris Company, Catts Company had completed its contract [R., Vol. II, p. 62]. On cross-examination, the following questions were answered by Catts relative to the subject policy:

Q. So there won’t be any misunderstanding, sir, are you aware of the distinction between a monthly reporting form policy and a standard term or fixed term policy.
A. Yes, I am.
Q. And in business a monthly reporting form policy is a standard or, it is not unusual in a business; is that correct, sir?
A. That is correct.
Q.

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Bluebook (online)
723 F.2d 1494, 1983 U.S. App. LEXIS 14048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-catts-company-an-oklahoma-corporation-v-gulf-insurance-company-a-ca10-1983.