This is an appeal from the judgment of the District Court for the Eastern District of Pennsylvania in favor of Coal Operators Casualty Company ("insurer"), based on the District Court's determination that it was not liable under a property damage policy by reason of an exclusion clause therein.
The facts may be summarized as follows:
The plaintiff, International Derrick & Equipment Company ("International Derrick"), an Ohio corporation, contracted to procure and install a metal tower and antenna mast at Station WTOA for the Mercer Broadcasting Company of Trenton, New Jersey. International Derrick erected the 265-foot supporting tower and contracted with the defendant, Henry R. Buxbaum, of Philadelphia, Pennsylvania, to raise the mast. Buxbaum furnished his own equipment, including the gin pole which he mounted on top of the tower to support the mast during the lift.
The mast had been partially raised when the gin pole suddenly bent and caused the mast to fall to the ground damaging the mast beyond repair. International Derrick, under its contract to complete the operation for the owners of the broadcasting station, purchased a new mast at a net loss to it of $4,365.48. It sought to recover that sum from Buxbaum in a suit in the United States District Court for the Eastern District of Pennsylvania. Judgment was first entered for Buxbaum
The fact that the District Court in Fact-Finding No. 18 found that Buxbaum had "possessory control" and not "proprietary control" of the antenna mast when it fell and was damaged is the nub of the controversy between the parties on this appeal. That is so because following the District Court's entry of judgment against Buxbaum, International Derrick instituted attachment sur judgment against the insurer garnishee by reason of the fact that it had issued to Buxbaum a property damage liability policy in connection with "Iron or Steel Erection", and the policy contained a clause (Exclusion G) which excluded liability with respect to "property in the care, custody or control of the insured."
International Derrick here contends that the word "control" in the policy exclusion clause contemplates "proprietary control" rather than "possessory handling" so that the exclusion clause does not apply. Insurer urges Buxbaum's "exclusive control" is within the meaning of the word "control" as used in the exclusion clause and that it consequently applies.
The distinction suggested by International Derrick is not persuasive, and a finding of lack of control in this case would be "contrary to the fact, contrary to the ordinary definition of control quoted by appellee
That the mast was in Buxbaum's care, custody or control for the purposes of its erection is established by the District Court's factual finding and for purposes of the policy exclusion it should be no less true that the mast was in Buxbaum's "care, custody or control."
The scope of the "care, custody or control" exclusion and the coverage afforded by policies of insurance containing such an exclusion are clarified in the decided cases. Where the property damaged is merly incidental to the property upon which the work is being performed by the insured, the exclusion is not applicable. Cohen v. Keystone Mutual Casualty Co., 1943, 151 Pa.Super. 211, 30 A.2d 203; Rex Roofing Co. v. Lumber Mut. Cas. Ins. Co. of New York, 1952, 280 App.Div. 665, 116 N.Y.S.2d 876, appeal denied, 1953, 281 App.Div. 744, 118 N.Y.S.2d 732, 305 N.Y. 932, 112 N.E.2d 288; Maryland Casualty Co. v. Hopper, Tex.Civ.App., 1950, 237 S.W.2d 411; A. T. Morris & Co. v. Lumber Mut. Casualty Ins. Co. of New York, 1937, 163 Misc. 715, 298 N.Y.S. 227. However, where the property damaged is under the supervision of the insured and is a necessary element of the work involved, the property is in the "care, custody, or control" of the insured. Hardware Mut. Cas. Co. v. Mason-Moore-Tracy, Inc., 2 Cir., 1952, 194 F.2d 173; L. L. Jarrell Construction Co. v. Columbia Casualty Co., D.C.S.D. Ala.1955, 130 F.Supp. 436; Root Motor Co. v. Massachusetts Bonding & Ins. Co., 1932, 187 Minn. 559, 246 N.W. 118; Maryland Casualty Co. v. Holmsgaard, 1956, 10 Ill.App.2d 1, 133 N.E.2d 910; John G. Speirs & Co. v. Underwriters at Lloyd's London, 1948, 84 Cal.App.2d 603, 191 P.2d 124.
That the principles expressed above would be applied in the Pennsylvania courts is indicated by Speier v. Ayling, 1946, 158 Pa.Super. 404, 45 A.2d 385. There Ayling was driving Speier's automobile with Speier sitting by his side when there was an accident causing damage to the vehicle. The insurance carrier had issued a policy of insurance to Ayling containing an exclusion for damage to property "in charge of" Ayling. In holding that the claim for damage to Speier's automobile was excluded from coverage under Ayling's policy, the Court said, 158 Pa.Super. at page 407, 45 A.2d at page 387, "[b]eing in sole control by permission of the owner, the latter's automobile (property) was `in charge of' Ayling, the insured." Buxbaum's supervision of and authority over the mast with respect to its erection in the presence of the broadcasting company's representatives is analogous to Ayling's charge of the car in the presence of Speier, its owner.
In Pennsylvania "* * * it is settled that where the language of the policy is clear and unambiguous it cannot be construed to mean otherwise than what it says. It must be given the plain and ordinary meaning of the terms used * * * The parties have the right to make their own contract, and it is not the function of this Court to re-write it, or to give it a construction in conflict with the accepted and plain meaning of the language used. * * *" Topkis v. Rosenzweig, 1939, 333 Pa. 529, 531, 532, 5 A.2d 100, 101.
That being so it is clear that in view of the fact that the antenna mast was in the "care, custody or control" of Buxbaum at the time of the accident the District Court correctly held the exclusion clause was operative.
For the reasons stated the judgment of the District Court will be affirmed.