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Caisson Corp. v. Home Indemnity Corp.

OPINION FILED DECEMBER 29, 1986.

CAISSON CORPORATION, PLAINTIFF-APPELLANT,

v.

THE HOME INDEMNITY CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.

JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

The primary issue raised by this appeal is whether the trial court properly found that exclusionary clauses contained in an insurance policy issued by defendant, Home Indemnity Corporation, rendered defendant not liable for damage to a concrete pumping truck which plaintiff used to pour bridge caissons. For the following reasons, we affirm.

A brief summary of the facts is as follows. On November 17, 1981, plaintiff, Caisson Corporation, an Illinois corporation engaged in the business of constructing concrete foundations, was involved in a bridge construction project in Phoenix, Arizona. Plaintiff had contracted to pour the caissons for the bridge. Pursuant to this undertaking, plaintiff dug the holes where the caissons were to be placed and had concrete delivered to the site. In order to transfer the concrete to the holes, the project specifications called for the use of a concrete pumping truck, which plaintiff obtained from Cross Concrete Pumping Equipment Company at a rate of $95 per hour. This rate included the services of a Cross employee to operate the pump.

The concrete was brought to the construction site in liquid form and was transferred to the Cross truck. A hose leading from the truck was attached to a tremie pipe which served as a nozzle for the hose. A crane operated by plaintiff's employees would lower the pipe into the hole when the pumping action commenced. Plaintiff supervised the operations of the concrete pumping truck as well as those of the crane. On the date in question, the boom of the crane collapsed and damaged the Cross truck. Cross and its subrogee, among other parties, subsequently brought suit against plaintiff for the damage sustained.

At the time of the incident, plaintiff was insured under a first-party liability policy issued by the Home Insurance Company, an affiliate of defendant with whom plaintiff ultimately settled for damage to the crane and equipment other than the truck, and a third-party liability policy issued by defendant which is the subject of the present dispute. While defendant accepted the defense of plaintiff in the actions cited above, it did so subject to a reservation of rights based on the following exclusions contained in the third-party policy:

"This insurance does not apply:

(k) to property damage to

(1) property owned or occupied by or rented to the insured,

(2) property used by the insured, or

(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control * * *."

As a result of defendant's disclaimer of coverage for the pumping truck, plaintiff filed a declaratory action to determine its rights under the policy. After both parties filed cross-motions for summary judgment, the trial court granted defendant's motion, reasoning that such coverage was excluded since the truck was in the control of or rented to plaintiff. It is from this ruling that plaintiff appeals, contending that neither of the exclusions relied on by the trial court apply.

• 1 We initially note that summary judgment is properly granted if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c); Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457.) We believe that the trial court correctly found that defendant was not liable under the third-party policy as a matter of law.

• 2 With respect to whether property is in the "care, custody or control" of an insured so as to preclude liability under such exclusion clauses, the Illinois cases employ a two-part test. If the property damaged is within the possessory control of the insured at the time of the loss and is a necessary element of the work performed, the property is considered to be in the care, custody, or control of the insured. (Insurance Co. of North America v. Adkisson (1984), 121 Ill. App.3d 224, 459 N.E.2d 310; Country Mutual Insurance Co. v. Waldman Mercantile Co. (1981), 103 Ill. App.3d 39, 430 N.E.2d 606.) While the control exercised by the insured must be exclusive, it need not be continuous, and if the insured has possessory control at the time the property is damaged, the exclusionary clause will apply. (Country Mutual Insurance Co. v. Waldman Mercantile Co. (1981), 103 Ill. App.3d 39, 430 N.E.2d 606.) Moreover, intimate handling of the property is not a prerequisite to establishing possessory control. Stewart Warner Corp. v. Burns International Security Services, Inc. (7th Cir. 1975), 527 F.2d 1025.

Since plaintiff here concedes that the concrete pumping truck was a necessary element of the work performed, the only issue is whether plaintiff had sufficient possessory control of it. The record discloses, and plaintiff admits in its brief, that plaintiff strictly supervised the entire project. Plaintiff determined which days the pumping truck would be used, how long the job would last each day, and when the operators should arrive and depart. At the work site, plaintiff told the truck's operators which hole to pour, where to park the truck, and how the truck should be positioned in relation to the crane. Plaintiff was also responsible for providing a level spot on which the truck could be parked, the concrete to fill the truck, a tremie pipe to off-load the truck, and adequate lighting at the site. With the exception of an emergency, plaintiff ...


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