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Weiss v. Bituminous Casualty Corp.

OPINION FILED NOVEMBER 18, 1974.

PETER WEISS ET AL., APPELLANTS,

v.

BITUMINOUS CASUALTY CORPORATION, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Peter Weiss and Raymond Lenobel, a partnership d/b/a Shamrock Scrap Iron & Metal Company, filed an action for a declaratory judgment in the circuit court of Cook County against defendant, Bituminous Casualty Corporation, to determine the latter's obligation under the terms of a liability insurance policy to defend a personal injury action brought against plaintiffs by Norman Zblewski. A summary judgment was entered for plaintiffs, and the appellate court reversed, holding that the circuit court erred in finding that the terms of the insurance policy required defendant to undertake plaintiffs' defense in the Zblewski action. (Weiss v. Bituminous Casualty Corp., 14 Ill. App.3d 637.) We granted leave to appeal. The issue presented concerns the correctness of the appellate court's interpretation of the terms of the insurance policy.

Insofar as this appeal is concerned, the facts are undisputed. Some time prior to March 7, 1969, a trailer owned and operated by C.W. Transport, Inc., a common carrier, was left at plaintiffs' place of business. Plaintiffs loaded the trailer with scrap magnesium in bulk in the form of borings, clippings and shavings. The load of magnesium was consigned for delivery to Ohio. The trailer was picked up by a driver from C.W. Transport and delivered to its local terminal. On March 7, 1969, Norman Zblewski, an employee of the carrier, picked up the trailer from the terminal and while on a Chicago expressway, enroute to Ohio, the magnesium exploded and burned, seriously injuring him.

Zblewski's complaint alleged in pertinent part:

"That prior to and at the time of the occurrence complained of * * * Weiss and * * * Lenobel * * * were guilty of one or more of the following negligent acts or omissions:

(a) Loaded the trailer truck in such a manner that injury to plaintiff proximately resulted;

(b) Loaded magnesium shavings, clippings, and borings in the trailer in bulk;

(c) Loaded magnesium shavings, clippings, and borings in the trailer in a manner other than in sealed containers;

(d) Failed to provide for water tight or moisture proof loading of the magnesium borings, clippings, and shavings;

(e) Failed to warn plaintiff of the manner in which the magnesium borings, clippings, and shavings were loaded.

That as a proximate result of one or more of the aforesaid negligent acts or omissions of * * * Weiss and * * * Lenobel * * * Normal Zblewski became and was bodily injured * * *."

Zblewski's complaint did not allege whether the contract for shipment with the carrier was made by plaintiffs or by the buyer in Ohio. It also did not allege whether the contract for the sale of the magnesium called for delivery at the buyer's place of business or at the plaintiffs' place of business.

Plaintiffs were insured under defendant's "Manufacturers' and Contractors' Liability Insurance Policy." The pertinent provisions of that policy stated:

"DECLARATIONS.

Item 3. The insurance afforded is only with respect to such of the following coverage parts as are indicated herein by specific premium charge or charges * * *. [There then follows a table listing various coverage parts with space opposite each coverage part for the insertion of a premium amount. The only coverage part having a ...


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