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Weiss v. Bituminous Casualty Corp.

JUNE 5, 1973.

PETER WEISS ET AL., PLAINTIFFS-APPELLEES,

v.

BITUMINOUS CASUALTY CORPORATION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 13, 1973.

This is an appeal by defendant insurance company from a declaratory judgment finding that under the terms of its policy it is obligated to defend plaintiffs in a suit for personal injuries brought against them by Norman Zblewski.

In 1969, plaintiffs Weiss and Lenobel were partners doing business as Shamrock Scrap Iron & Metals Company, collecting and selling various scrap metals. The complaint alleges that some time prior to March 7, 1969, plaintiffs placed a load of magnesium onto a semi-trailer; however, the magnesium was not in waterproof containers and was not sealed. A contract was entered into with a common carrier, C.W. Transport, Inc., to ship the material to Ohio, and on March 7, 1969, the trailer was picked up by Zblewski, an employee of the carrier. En route to Ohio, the metal exploded, causing injury to Zblewski. He filed suit against Weiss and Lenobel, alleging that the metals were negligently loaded. Defendant refused to defend, and this action was filed. The trial court granted plaintiffs' motion for summary judgment.

The policy purchased by plaintiffs provided in pertinent part:

"MANUFACTURERS' AND CONTRACTORS' LIABILITY INSURANCE COVERAGE FOR PREMISES AND FOR THE NAMED INSURED'S OPERATIONS IN PROGRESS.

I. Coverage A — Bodily Injury Liability. Coverage B — Property Damage Liability.

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

A. bodily injury or

B. property damage

to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damage on account of such bodily injury or property damage."

The insurance policy in question specifically excludes coverage under the "manufacturers' and contractors' hazard" for injuries arising out of the "completed operations hazard." The latter was defined as follows in the policy:

"`completed operations hazard' include bodily injury and property damage arising out of operations * * * but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. `Operations' include materials, parts or equipment furnished in ...


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