Maine Drilling & Blasting, Inc. v. Insurance Co. of North America

      UNITED STATES COURT OF APPEALS
          FOR THE FIRST CIRCUIT
                               

No. 93-2230

    MAINE DRILLING AND BLASTING, INC.,

          Plaintiff, Appellant,

                    v.

INSURANCE COMPANY OF NORTH AMERICA, ET AL.,

          Defendants, Appellees.

                               

APPEAL FROM THE UNITED STATES DISTRICT COURT

        FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]
                                                               

                               

                  Before

          Breyer,* Chief Judge,
                                                    
      Coffin, Senior Circuit Judge,
                                                        
      and Torruella, Circuit Judge.
                                                        

                               

Stephen  B. Wade, with whom Skelton, Taintor & Abbott was on
                                                                    
brief for appellant.
James  D. Poliquin, with whom Norman, Hanson & Detroy was on
                                                                    
brief for appellee Insurance Company of North America.

                               

             October 18, 1995
                               

        
                              

*   Former Chief Judge Stephen Breyer heard oral argument in this
matter but did not participate in the drafting or the issuance of
the panel's opinion.  The remaining two panelists therefore issue
this opinion pursuant to 28 U.S.C.   46(d).


TORRUELLA,  Chief Judge.   Maine  Drilling &  Blasting,
                    TORRUELLA,  Chief Judge.
                                           

Inc. ("MD&B"), brought  suit in the United  States District Court

of Maine,  alleging that the  Insurance Company of  North America

("INA")  was required to defend  and indemnify MD&B  in an action

brought  against  MD&B arising  from  property  damage caused  by

MD&B's  blasting work on a construction site.  The district court

found that the  insurance policy at  issue excluded coverage  for

the damages caused by MD&B, and granted summary judgment in favor

of INA.  MD&B appealed, and  on August 29, 1994, we certified the

following  dispositive  question  of  Maine law  to  the  Supreme

Judicial Court of Maine.

Does     the    Explosives     Limitation
Endorsement  attached   to  the  standard
Comprehensive  General  Liability policy,
when considered in  conjunction with  the
business risk exclusions, j(5)  and j(6),
and  any  relevant  history  and  general
understanding of  the insurance industry,
create  such an ambiguity  that it should
be interpreted against the insurer, i.e.,
that  it  should  be  read  as  providing
business risk coverage for  MD&B's claims
against INA?

Maine Drilling  and  Blasting, Inc.  v.  Insurance Co.  of  North
                                                                           

America, 34 F.2d 1 (1st Cir. 1994).
                 

In  an opinion  dated September  29, 1995,  the Supreme

Judicial  Court of Maine  answered the certified  question in the

negative.

The  policy in  this case, read  with its
endorsements,       is       unambiguous.
Subsections  (j)(5)  and (j)(6)  serve to
limit  the  coverage  to   that  property
damage occurring to  property other  than
that on  which the insured  is to perform
its  work.    The   endorsement  confirms

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coverage   for   'occurrence   of   harm'
blasting   risk,   albeit  at   a  higher
deductible.  The endorsement by its plain
language does not  extend coverage  where
coverage did not  exist, but provides for
a deductible where  coverage does  exist.
The  exclusions contained  in subsections
(j)(5) and  (j)(6) are unaffected  by the
plain   language    of   the   Explosives
Limitation Endorsement.

We  answer the certified  question in the
negative.

The Supreme Judicial Court's conclusion that the policy

is unambiguous is  dispositive of  the only issue  in this  case.

Because  the policy  is unambiguous, the  exclusions apply.   The

decision of the district court granting summary judgment in favor

of INA is therefore affirmed.
                              affirmed

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