From Casetext: Smarter Legal Research

Haerens v. Commercial Cas. Ins. Co.

Superior Court of California, Appellate Division, Los Angeles
Jan 26, 1955
130 Cal.App.2d Supp. 892 (Cal. Super. 1955)

Summary

finding window scratches single occurrence because caused by the same sanding process by the same person

Summary of this case from St. Paul Fire & Marine Ins. Co. v. Ins. Co. of Pa.

Opinion


130 Cal.App.2d Supp. 892 279 P.2d 211 WALTER HAERENS, Appellant, v. COMMERCIAL CASUALTY INSURANCE COMPANY, Respondent. Civ. A. No. 8532. Superior Court of California, Appellate Division, Los Angeles. Jan. 26, 1955

        COUNSEL

        Edmund R. Mietus for Appellant. Staples & Meifert for Respondent

         OPINION

         BISHOP, J.

         By their pleadings the parties have limited the issues with the result that the trial court was, and we are, confronted by the two questions that have been debated by counsel on this appeal. The answers we feel constrained to give to these questions require us to reverse the judgment that denied plaintiff any recovery.

         Plaintiff, in the discharge of a subcontract to do the painting on a house with many windows, set one of his employees to sandpapering the metal strips that separated the panes of glass. The employee carelessly scratched a number of the window panes, and after the defendant had disclaimed responsibility for the resulting damage, the contractor had the window panes replaced, at an expense of $425, and withheld that sum when he settled with the plaintiff.

         The plaintiff's demand upon the defendant was based on a policy of insurance that the defendant had issued. The only reason advanced by the defendant for its refusal to admit the validity of plaintiff's demand was that each pane damaged gave rise to a separate claim and no one pane was worth more than $50. It rested this reason upon the provision of the policy that "it is therefore understood and agreed that each claim covered by the policy whether or not more than one claim arising out of the one and same accident, shall be adjusted separately and any claim when determined which is not greater than Fifty and no/100 dollars ($50.00) shall be paid by the assured ..."

         Before considering the question suggested in the facts related, we note that the defendant, when it came to answer the complaint, offered a new reason for its position that it was not liable for the property damage caused by plaintiff's employee. It referred to subdivision (h) of the "Exclusions" of the policy, which provides that "This policy does not apply ... to injury to ... property ... in the care, custody or control of the Insured." In our opinion, the window panes were never in the care, custody or control of the plaintiff, within the purview of subdivision (h).

         Reverting to the $50 deductible provision, we find the word "claim" as there used neither certain in itself nor made certain by any provision of the policy. It is not unreasonable to say that the claim made upon the plaintiff by the contractor, to whom he was responsible, was for $425, the cost of replacing all the panes ruined by plaintiff's employee. Undoubtedly the defendant was responsible for the drafting of the policy that it issued. The ambiguity arising from the use of the word "claim" must therefore be construed against it. (Coit v. Jefferson Standard Life Ins. Co. (1946), 28 Cal.2d 1, 3-4 [165, 168 A.L.R. 673].) Had the defendant desired to shift to the assured the liability for each $50 item that goes to make up a claim, it should have chosen terms that made that meaning clear.

         The judgment is reversed.

         Shaw, P. J., concurred.


Summaries of

Haerens v. Commercial Cas. Ins. Co.

Superior Court of California, Appellate Division, Los Angeles
Jan 26, 1955
130 Cal.App.2d Supp. 892 (Cal. Super. 1955)

finding window scratches single occurrence because caused by the same sanding process by the same person

Summary of this case from St. Paul Fire & Marine Ins. Co. v. Ins. Co. of Pa.

In Haerens v. Commercial Casualty Insurance Co., 130 Cal.App.2d Supp. 892, 279 P.2d 211 (1955), the insured contracted to paint a house.

Summary of this case from Unigard Ins. Co. v. United States Fidelity

In Haerens v. Commercial Cas. Ins. Co., 130 Cal.App.2d Supp. 892 [279 P.2d 211], an employee of plaintiff, a painting subcontractor, had, while sandpapering certain metal strips on window panes, carelessly scratched a number of the panes.

Summary of this case from Beaumont-Gribin-Von Dyl Management Co. v. California Union Insurance

In Haerens an employee of a painting contractor negligently damaged a number of window panes in a building while sanding the metal strips separating the panes of glass.

Summary of this case from Wilkinson v. Providence Washington Ins. Co.
Case details for

Haerens v. Commercial Cas. Ins. Co.

Case Details

Full title:Haerens v. Commercial Cas. Ins. Co.

Court:Superior Court of California, Appellate Division, Los Angeles

Date published: Jan 26, 1955

Citations

130 Cal.App.2d Supp. 892 (Cal. Super. 1955)
279 P.2d 211

Citing Cases

Wilkinson v. Providence Washington Ins. Co.

If it is considered that there is uncertainty as to the manner in which the parties intended such language to…

Weissblum v. Glens Falls Ins. Co.

In the more recent case of Johnson Corp v. Indemnity Ins. Co. of North America ( 7 N.Y.2d 222) it was held…