(concurring in part and dissenting in part).
I concur in the affirmance of Case No. 73-2043 but for a different reason.
The reinsurance contract provides coverage for claims arising from “riots or civil disorders” and contains the following statutory definition of these terms:
“ ‘riots or civil disorders’ means:
a. any tumultuous disturbances of the public peace by three or more persons mutually assisting one another in the execution of a common purpose by the unlawful use of force and violence resulting in property damage of any kind;
b. two or more unlawful and terror-istic acts or occurrences which, under similar circumstances, take place within reasonable proximity as to time and place, at least two of which acts or occurrences each result in property damage of any kind in excess of $1,000 or;
c. any other unlawful and terroristic act or occurrence, resulting in property damage of any kind, which may reasonably be determined by the REINSURER, on the basis of evidence submitted by the COMPANY, to have been, under the circumstances, a form of civil disorder.”
The opinion of the court focuses only on definition “a”, although the district court held, alternatively, that there was coverage here under both “a” and “b”.
I agree with the majority opinion that a motivation test should not be read into paragraph “a” and that the sole question is “whether the events giving rise to the property damage fall within the contract definition.” I submit, however, that the events resulting in the destruction of property do not satisfy the element of paragraph “a” requiring a “tumultuous disturbance of the public peace.” Nevertheless, I concur in the result of the *647opinion because I believe that the district court was correct in its alternative holding that the paragraph “b” definition was satisfied.
In considering whether paragraph “a” was satisfied, the district court found as follows:
At approximately 10:00 P.M., on the night of August 24, 1968, an armed gang of three or four men descended upon the watchman, assaulting him and forcibly removing from his person the guns which he had used to protect the mines and equipment. He was thrown to the ground, kicked about the head and told that he might be killed. The gang forcibly broke into a trailer containing high explosives, and for more than four hours, with the watchman bound and blindfolded, they planted the explosives beneath every piece of valuable equipment on the site. As they went about their task, the gang continued to threaten the watchman, and at one point some of them suggested that he be tied to the equipment and destroyed along with it. The destruction was accomplished by a prolonged series of explosions. The first of the blasts terrorized not only the watchman, but the members of the gang as well. A separate fuse was lit beneath each piece, and for a sustained period, the mountain was shaken by a sequence of blasts. Persons living in the vicinity, including those on the other side of the mountain, as much as five miles away, were awakened and frightened by the tumult. The explosions were so violent that their houses were shaken. It appeared to some that “the mountain was a ball of fire” and to others that “the sky was lit up”.
I do not believe that the violent explosions themselves constituted the required “tumult,” any more than it could be contended that secretly infiltrating saboteurs who might blow up a mine stealthily would be engaging in a riot. For example, in Providence Washington Insurance Co. v. Lynn, 492 F.2d 979 (1st Cir. 1974), the court held that a fire set in “quiet and stealthy manner” was not a riot under the reinsurance contract definition. That court properly stated the general rule that “a stealthy act of destruction is not transformed into an act of riot because upon later discovery of damage there is a public disturbance.” 492 F.2d at 982-983, citing 11 G. Couch, Cyclopedia of Insurance Law § 47.472 at 255. Accordingly, the sole relevant factor here in determining whether there occurred a “tumultuous disturbance of the public peace” is the assault and battery of a sole night watchman. I do not read the opinion to suggest anything to the contrary.
Yet, the opinion finds in the acts of violence committed against this watchman sufficient tumult to conclude that the element of “tumultuous disturbance of the public peace”, the definition in paragraph “a”, is satisfied. I am not convinced by the authorities cited in the opinion or by the ordinary meaning of the statutory language that this is so. I would hold that the circumstances giving rise to property damage here did not include a tumultuous disturbance of the public peace and that therefore the coverage under paragraph “a” is not available to Bituminous.
However, I concur in the result reached by the majority opinion because I believe the district court should be affirmed in its alternative holding, not discussed in the opinion, that the events here satisfied the paragraph “b” definition of “riots and civil disorders.” The district court held:
The Court also concludes that the destruction here amounted to civil disorder within the meaning of the second policy definition quoted in paragraph 2 above. It was one of two or more unlawful and terroristic acts or occurrences, taking place within reasonable proximity as to time and place, at least two of which resulted in property damage in excess of $1,000.00. The destruction was part *648of a pattern of nighttime bombings which persisted unabated in the immediate area for a period of almost a year. When the gang first seized the watchman here, they announced to him that they were “union men”. U. R. Arnold had long been in dispute with the United Mine Workers, resulting from his unwillingness to accept that union as the representatives of his employees. On at least two earlier occasions he had instituted litigation as a result of violence directed, against him. See, e. g., White Oak Coal Co. v. United Mine Workers, 318 F.2d 591 (6th Cir. 1963).
The court’s findings in this respect are not “clearly erroneous.” Fed.R. Civ.P. 52(a), and, in my view, satisfy the definition in paragraph “b”. The First Circuit, in Providence, supra, suggested that paragraph “c” requires that “if an act of destruction is not public in the sense that it is openly done [as in a riot], it must be public in the sense of its purpose.” 492 F.2d at 985. For the very same reasons stated in the opinion’s rejection of a motivation test in applying paragraph “a”, I have serious doubts that paragraph “b” or “c” should be interpreted to require terroristic acts with a “public purpose.” And, in any event, assuming arguendo that this requirement should be placed by gloss on the . statute’s plain language, then I would have no difficulty concluding that a labor dispute may have a “public purpose” in any sense required under paragraphs “a” and “b”.
I would remand case No. 73-2044 for more specific findings on the issue whether the claim was liquidated. I agree that the formula for ascertaining the amount in dispute was agreed upon, but it is not at all clear from the record that the amount of the loss was free from dispute. The Government contends that the amount in dispute was not finally determined until April 6, 1973, four years after the first denial of the claim. I believe we should not assume that the Secretary knew that his stated position was erroneous.