Hartford Fire Insur v. T A Loving Co Inc

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HARTFORD FIRE INSURANCE COMPANY,
Plaintiff-Appellee,

v.

T. A. LOVING COMPANY,
INCORPORATED,
Defendant & Third Party No. 95-2800
Plaintiff-Appellant,

v.

ECF, INCORPORATED, d/b/a
Underwood-Dawson,
Third Party Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
W. Earl Britt, District Judge.
(CA-94-47-3-BR)

Argued: June 7, 1996

Decided: July 2, 1996

Before WILKINS, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David McKinley Barnes, POYNER & SPRUILL, L.L.P.,
Raleigh, North Carolina, for Appellant. Peter M. Foley, RAGSDALE,
LIGGETT & FOLEY, P.L.C., Raleigh, North Carolina, for Appellee
Hartford; Michael Terry Medford, MANNING, FULTON & SKIN-
NER, P.A., Raleigh, North Carolina, for Appellee ECF. ON BRIEF:
Eric P. Stevens, POYNER & SPRUILL, L.L.P., Raleigh, North Caro-
lina, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

T. A. Loving Company, Incorporated (TALCO) appeals from the
grant of summary judgment in favor of Hartford Fire Insurance Com-
pany (Hartford) and ECF, Incorporated (ECF). TALCO principally
asserts that because the term "waterborne," contained in an exclusion-
ary provision of an insurance contract between TALCO and Hartford,
is ambiguous, Hartford is responsible for damage to a crane leased by
TALCO. We affirm.

I.

The material facts are undisputed. TALCO operated a leased crane
atop a barge on the Currituck Sound in North Carolina. Long pilings
driven into the bottom of the sound, and attached to the barge via
metal bands, kept the barge from drifting with the current, but permit-
ted it to rise and fall with the tide. High winds caused the boom of
the crane to collapse, resulting in considerable damage, and TALCO
applied to Hartford, which insures TALCO's equipment, for reim-
bursement.

Hartford filed this action seeking a declaration that it was not liable
for the damage to the crane due to a provision in the insurance policy
excluding coverage for "[p]roperty while waterborne or airborne,
except while in transit in the custody of a carrier for hire." J.A. 19.

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TALCO counterclaimed against Hartford and filed a third-party com-
plaint against ECF, TALCO's agent, alleging that ECF was negligent
in failing to procure coverage for the crane.

The district court granted summary judgment in favor of Hartford
and ECF. Applying North Carolina contract law, the court concluded
that the term "waterborne" as used in the insurance contract was not
ambiguous, that "waterborne" meant "floated or floating upon the
water," and that the crane was "waterborne." J.A. 172. The district
court also ruled that ECF had not breached any duty owed to TALCO
because ECF simply had added the crane to TALCO's existing policy
as TALCO had requested and because TALCO never requested addi-
tional information from ECF regarding "waterborne" coverage for the
crane.

II.

We have considered the briefs and arguments of the parties and
affirm the judgment of the district court. Hartford Fire Ins. Co. v.
T. A. Loving Co., No. 94-47 (E.D.N.C. Aug. 30, 1995). TALCO con-
cedes, as it must, that the crane was "floating on water" and that the
term "waterborne" means "floating on water," regardless of whether
it also means "floated" or "being conveyed by water." The exclusion-
ary provision of the contract thus applies and summary judgment was
proper.

AFFIRMED

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