Peerless Insurance v. Clough

Lampron, J.,

dissenting: I agree with the majority opinion that in construing this insurance policy this court should consider it as a whole in the light of all the circumstances and interpret it as a reasonable person in the position of the insured should understand it. Lalos v. Tickler, 103 N. H. 292, 295. Our rule differs in this respect from that prevailing in Iowa and in most, if not all, the jurisdictions relied on in Nielson v. Travelers Indemnity Co., 174 F. Supp. 648 (N. D. Iowa 1959) affirmed in Travelers Indemnity Co. v. Nielson, 277 F. 2d 455 (8th Cir. 1960) by which the majority supports its reversal of the decree of noncoverage made by the Trial Court. Under their rule the insurance contract must be liberally construed in favor of the insured wherever possible and strictly construed against the insurer. Hercules Co. v. Royal Indemnity Company, 171 F. Supp. 746 (S. D. N. Y. 1959); Ocean Accident & Guarantee Corp. v. Aconomy Erectors, 224 F. 2d 242, 247 (7th Cir. 1955).

It must be admitted that this policy could have been couched in different language and framed in a manner which might have expressed more clearly its agreements, conditions and exclusions. However this deficiency is not to be turned into a license to ignore the language of the contract as written and to discount the meaning which a reading of the whole policy reveals. Smedley Co. v. Employers Mut. Liability Ins. Co., 143 Conn. 510.

The policy found applicable by the majority opinion was a manufacturers’ and contractors’ schedule general liability policy issued by the company to Clough for the period from May 10, 1958 to May 10, 1959. Although it could have been written to cover four divisions of hazards, by its terms “the insurance afforded is only with respect to such . . . coverages and divisions ... as are indicated by specific premium . . . charges.” The declaration attached to it showed that Clough paid premiums for coverage against the hazards under division 1 only.

By its terms this policy insured Clough against liability for bodily injury and for property damage caused by accident and arising out of the ownership, maintenance or use of the premises and all operations. It specifically provided however that this policy does not apply under division 1 (purchased by Clough) to the products-completed operations hazard which would be covered under division 4 (not purchased by Clough). Among the hazards thus excluded is “operations, if the accident occurs *85after such operations have been completed or abandoned.” Division 4 - products - completed operations (2).

It seems that a more than casual reading of this policy by an ordinarily intelligent insured would give him to understand that there was a difference between operations and completed operations and that the coverage which he purchased covered accidents occurring while all his operations were being performed but excluded liability for accidents which took place as a result of a completed operation. Employers Insurance Company of Alabama v. Rives, 87 So. 2d 646 (Ala. App.); Clauss v. American Automobile and Insurance Company, 175 F. Supp. 641, 644 (E. D. Penn. 1959); Zingale v. American Surety Company, 105 Ohio App. 16; Butler v. United States Fidelity & Guaranty Co., 277 S. W. 2d 348 (Tenn. 1955); Baker v. Maryland Casualty Co., 73 R. I. 411. To decide otherwise results in holding the insurer liable indefinitely for accidents arising from defective workmanship, a coverage which is afforded by division 4 of the policy, not purchased by Clough, and excluded from the coverage under division 1, the only coverage for which Clough paid a premium.

This conclusion is strengthened by an examination of the facts in this case, Clough contracted with the Clems to furnish the labor and material necessary to build them a cottage on their land. He started in November, 1955, completed the fireplace in June 1956 and all of his work in the spring of 1957. The cottage was damaged by fire on September 13, 1958, after the Clems had occupied it for over a year. Under a similar contract Clough started to build a cottage for the Jacobs on their land in May, 1957. The fireplaces were completed in September, 1957 and all of his work was finished in November, 1957. The fire damage occurred one year later, November 16, 1958. In each instance all of Clough’s operations were completed months before the policy period began on May 10, 1958.

To hold that there is coverage for these fire losses under this policy is pushing to the point of unreasonableness our test that a policy is to be interpreted to mean what a reasonable person in the position of the insured would have understood it to mean. Hoyt v. Insurance Co., 92 N. H. 242, 243. No reasonable man in the position of the insured could expect that a policy covering all his operations from May 10, 1958 to May 10, 1959, would cover his liability for negligent operations which took place prior thereto in June, 1956 and September, 1957, *86and had been completed at that time long before the policy became effective. Butler v. United States Fidelity & Guaranty Co., supra. See American Motorists Ins. Co. v. Nashua Lumber Co., 103 N. H. 147, 151.

I would hold as the Trial Court did that there is no coverage and overrule defendants’ exceptions.

Kenison, C.J., concurs in this opinion.