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03/25/76 ORNAMENTAL IRON & STAIR COMPANY v. GENERAL

March 25, 1976

ORNAMENTAL IRON & STAIR COMPANY
v.
GENERAL ACCIDENT & LIFE ASSURANCE CORPORATION, LTD.



Appeal from Wayne, John M. Wise, J.

Leave to appeal denied, 397 Mich 837.

M. F. Cavanagh, P. J., and R. B. Burns and F. C. Ziem,* JJ.

SYLLABUS BY THE COURT

1. Insurance -- Liability Insurance -- Exclusions -- Ambiguous Terms -- Construction of Ambiguities.

An insurer has a duty to express clearly the limitations of its obligation, and any ambiguities in an insurance policy must be construed against the insurer.

2. Insurance -- Liability Insurance -- Exclusions -- Products Hazard Exclusion -- Operations Exclusion -- Products Manufactured -- Construction Contractors.

A "products hazard" exclusion and a "completed operations" exclusion in an insurance contract do not exclude coverage for an insured who is allegedly responsible for the negligent construction of a safety fence designed to protect against the electrical hazard that killed a painter, where the contractor handles no products but is engaged solely as a construction contractor, where the policy was issued to fully protect the contractor against liability for acts of negligence committed by him during the performance of a contract, where the claim against the contractor arose out of alleged acts of negligence committed during construction and not from the completed product, and where the policy was in full force and effect when the allegedly negligent acts occurred.

The opinion of the court was delivered by: Burns

Complaint by Ornamental Iron & Stair Company against General Accident & Life Assurance Corporation, Ltd., seeking declaratory relief to determine if an insurance policy required the defendant to defend the plaintiff against a third party action and to pay any judgment resulting therefrom. Summary judgment for plaintiff. Defendant appeals.

Defendant appeals from a summary judgment in favor of plaintiff requiring the defendant to defend the plaintiff against, and to pay any judgment resulting from, a third-party action brought ancillary to Wilhelm v The Detroit Edison Co, 56 Mich App 116; 224 NW2d 289 (1974).

Wilhelm was a painter who was electrocuted by a high-tension wire while working on the roof of the S.S. Kresge Company building located within the Pontiac Mall shopping center. Wilhelm's administratrix brought a wrongful death action against Detroit Edison, Pontiac Mall, and Kresge. The Mall filed a third-party complaint for indemnification and/or contribution against the various contractors (including the plaintiff) allegedly responsible for the negligent construction of a safety fence designed to protect against the electrical hazard that killed the painter.

The plaintiff was dismissed from the wrongful death action before trial on a motion for summary judgment. Subsequently, the case was tried by a jury and a verdict in favor of Wilhelm was rendered against Edison and the Mall. The Court of Appeals affirmed the verdict but reversed the summary judgment on behalf of the plaintiff and the other third-party defendants. Plaintiff then began this suit for declaratory relief to determine if the "Combined Comprehensive Liability Policy" in force at the time of the allegedly negligent installation of the fence required the defendant to defend, and, possibly, to pay any judgment rendered against the plaintiff.

The trial court found that the insurance policy in question was ambiguous, and that the ambiguity must be resolved in ...


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