Opinion
No. 5104.
Argued May 7, 1963.
Decided July 30, 1963.
1. Where a building had been transported from its original site to its destination and fire damage occurred after it had been lowered onto, and all its weight was upon, the new foundation, and all actual movement of the building was completed, it was held that the damage to the building by fire did not occur "while in transit" within the meaning of a transportation trip insurance policy.
2. In such case, the fact that the policyholder had a building-moving contract with the State, to which the policy ran as trustee, identifying the route to be traveled did not incorporate such contract into the transportation trip policy and hence the contract requirement that certain additional work be done upon the building did not affect the insurer's liability.
3. Under a transportation trip policy covering damage to property while in transit, property is considered in transit when it is moving from one location to another but this does not include temporary stops, incidental delays or some deviation from the planned route of travel.
This is an agreed case. Powell v. T. A. C. Taxi Co., 104 N.H. 428, 429. Counsel have filed an agreed statement of facts which the Court (Leahy, C.J.) upon request transferred without ruling. The question to be decided is the liability, if any, of the defendant under a "transportation trip policy" which it issued to the plaintiff.
The plaintiff for many years had been engaged in the business of moving buildings for the State necessitated by the relocation of highways. The plaintiff was awarded a contract to move three buildings from one location to another. Two of the three houses were moved without incident but the third house, after having been placed on its foundation at the site to which it was to be moved, was damaged by fire. The plaintiff made an adjustment of the damage with the owner of the building and now seeks to recover from the defendant. The defendant denies liability under the policy on the grounds that the house was not in transit at the time of the accident. An endorsement on the transportation trip policy reads as follows: "This policy covers direct property damage to three houses, (equal value) including materials while in transit as a result of loss from Fire, Theft, Upset, Hail, Tornado and Hurricane. Loss, if any, under this policy payable to New Hampshire State Highway Commission, as trustees for whom it may concern. All other terms and conditions of this policy remain unchanged."
The following excerpt appears in the agreed statement of facts: "In due course Mr. Lariviere moved two of the three buildings without incident. The third building, the Hall-Jones House, was jacked up, placed upon carrying timbers and transported across a field, not on any state highway, on rollers to a position directly over its new foundation which was 50% to 60% completed. With the house lowered in position to within two or three inches over its new foundation, the foundation wall was then raised to the base of the house in the areas between the timbers, thus creating piers of foundation which were allowed to dry sufficiently to support the weight of the house. The house was then lowered onto the foundation, the carrying timbers were then pulled out from under the house and the holes left by their removal filled in, thus completing the foundation walls except for a concrete pier between the garage door and doorway. All actual movement of the house itself ceased at that point, but it is Lariviere's contention, because the furnace and porch steps had not yet been moved and reinstalled and the whole job was not in condition to be turned back to the owners, that the house was still in transit.
"A day or two after the removal of the timbers, a pair of gasoline-fired salamanders, so-called, were placed in the cellar and lighted up to heat the cellar and take the frost out of the ground, preparatory to pouring the cellar floor . . . .
"Early on the morning of February 6, 1956, while Mr. Lariviere was refueling said salamanders, a spark ignited the gasoline and started the fire which caused the damages to the Hall-Jones house. Said damages are agreed to be in the sum of Eight Thousand ($8,000.00) dollars."
Nelson, Winer Lynch (Mr. George F. Nelson orally), for the plaintiff.
Devine, Millimet, McDonough, Stahl Branch (Mr. Bartram C. Branch orally), for the defendant.
In recent years marine insurance has moved inland to give us what is known as inland marine insurance. 11 Couch on Insurance 2d 1963) s. 42.149; Aherne, Some Generalities on Marine and Inland Marine Covers, 30 Ins. Counsel J. 72, 82 (1963). Transportation insurance is one form of inland marine insurance. 11 Couch on Insurance 2d 1963) ss. 42.155 and 42.156; Rodda, Inland Marine and Transportation Insurance (2d ed. 1958) pp. 130-132; 1 Richards on Insurance (5th ed.) s. 19 (1962 supp.). The "transportation trip policy" with its endorsement covered damage to the house by fire "while in transit." It is clear from the agreed statement of facts that the house was damaged by fire. The crucial question is whether the damage to the house occurred "while in transit" within the meaning of the insurance policy. Annot. 80 A.L.R. 2d 445.
Property is considered in transit when it is moving from one location to another. This does not exclude temporary stops, incidental delays, or some deviation from the planned route of travel. 5 Appleman, Insurance Law and Practice, s. 3183 (1963 supp.). However when the property to be transported has reached its destination it is generally no longer considered in transit. Koshland v. Columbia Ins. Co., 237 Mass. 467; Exchange Lemon Products Co. v. Home Insurance Co., 235 F.2d 558 (9th Cir. 1956); Williams v. Mannheim Ins. Co., 237 Mass. 477; Dealers Dairy Products Co. v. Royal Ins. Co., 170 Ohio St. 337.
In the present case the fire damage occurred after the house had been lowered onto, and all its weight was upon, the foundation at its final destination. The carrying timbers had been removed and the holes left by their removal filled in, "thus completing the foundation wails except for a concrete pier between the garage door and the doorway." No further movement of the house was required or anticipated and all actual movement of the house itself was completed. It would require a considerable stretch of the English language either for a layman or lawyer to hold that this house was in transit at the time the fire occurred. Neas v. Home Fire Marine Ins. Co., 135 F. Supp. 205 (N. D. Texas 1955). While there is a paucity of authorities on this question the result that we reach that the defendant is not liable under its policy to the plaintiff is supported by such analogous cases as exist. Gallagher, Inland Marine Transportation Policy: "Transportation" and "In Transit" Construed, 27 Ins. Counsel J. 467, 469 (1960); Annot. 80 A.L.R. 2d 445.
The plaintiff's contention that his contract with the State became part and parcel of the insurance policy coverage cannot be accepted. The policy described the route to be followed "from present location to new location, as per diagram on file with N.H. Hgwy. Comm. identified with contract of moving let to Mr. Lariviere." This did not incorporate the plaintiff's contract with the State into the insurance contract. It was merely a means of identifying the route to be traveled on the diagram in the contract. Therefore the fact that there was additional work to be done on the house did not affect the defendant's liability. The policy that was procured was a transportation trip policy and liability ceased when the transportation had ended.
We find no basis on which to impose liability on the defendant to the plaintiff in any other clause or part of the insurance policy and its endorsement. 5 Appleman, Insurance Law and Practice, s. 3183, note 54.5 (1963 supplement). Wolf, In Transit — A Definition, 29 Brooklyn L. Rev. 218 (1963).
Judgment for the defendant.
All concurred.