Summary
adopting the opinion of the trial court
Summary of this case from Selected Risks Ins. Co. v. BrunoOpinion
December 13, 1965.
March 24, 1966.
Insurance — Duty of insurer to defend actions against insured — Personal liability and property damage coverages — Products hazard operations exclusion — Negligent representation.
In an action by A, the insured, under a policy of insurance, seeking recovery against defendant, the insurer, of counsel fees and costs incurred in the defense of two personal injury actions which the insurer had refused to defend, in which it appeared that the policy provided coverage against bodily injury liability and property damage liability, and also provided that with respect to such insurance as was afforded by the policy the company would defend any suit against the insured even if such suit were groundless; that the policy carried an endorsement which excluded "Products Hazard", including in the definition of this term "operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured"; that in the personal injury action, in which A had been one of the defendants, the two plaintiffs, who had been injured when a crane cable broke, had averred that A, the distributor and agent of the manufacturer of the crane, had been negligent in recommending for use in the operation of the crane the cable that broke, as it had been unsafe and improper for use with the crane; and that the court below, holding that (a) an operation consisting of a negligent representation made for the purpose of or reasonably calculated to induce action is not completed until the person to whom the representation is made acts and relies upon that representation, and (b) even if a representation is to be considered complete as of the time it is made, the evidence in the personal injury action could very possibly have been that the representations of A had, in fact, not been completed, but that there were to be further instructions and recommendations (included in the broad term representations) on the use of the crane and cable so that (c) the negligent representations of A were not within the exclusion of the products hazard operations clause, (d) the nature of the claims against A were such as came, or might potentially come, within the coverage of the policy, and (e) it therefore was the duty of the insurer to defend the actions against A, found for plaintiff and against defendant and entered judgment on the findings; it was Held that the judgment of the court below should be affirmed.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
Appeal, No. 313, Oct. T., 1965, from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1963, No. 5024, in case of Eastcoast Equipment Company v. Maryland Casualty Company. Order affirmed.
Same case in court below: 38 Pa. D. C. 2d 449.
Assumpsit. Before SLOANE, P.J., without a jury.
Findings entered for plaintiff; exceptions to findings dismissed and judgment entered for plaintiff. Defendant appealed.
Lynn L. Detweiler, with him Swartz, Campbell Detweiler, for appellant.
Harry Norman Ball, with him H. Donald Busch, for appellee.
Argued December 13, 1965.
The order of the Court of Common Pleas of Philadelphia County is affirmed on the opinion of President Judge JOSEPH SLOANE for the court below, reported at 38 Pa. D. C. 2d 449.