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Beryllium Corp. v. American Mutual Liability Insurance Co.

decided.: June 1, 1955.

THE BERYLLIUM CORPORATION
v.
AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, APPELLANT.



Author: Mclaughlin

Bofore GOODRICH and McLAUGHLIN, Circuit Judges, and LORD, District Judge.

McLAUGHLIN, Circuit Judge.

An assured under a compensive general liability policy sued its insurer on the policy in the district court and obtained judgment in its favor. The insurance company appeals. Pennsylvania law governs this diversity action.

The policy in suit is a "Comprehensive General Liability Policy." Its pertinent clause is designated "Coverage A - Bodily Injury Liability". It reads:

"To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law, or assumed by him under contract as defined herein, for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons and caused by accident."

Plaintiff appellee is a producer of the mineral beryllium.*fn1 It is agreed that the wife of one of its employees and the daughter of another died of beryllium poisoning contracted through handling the employees' work clothes during periods of five and eight years respectively. Suits were brought against The Beryllium Corporation on behalf of the decedents. The insurance company disclaimed.The corporation settled the claims directly and sued in the present action for the amount of the settlements and counsel fees.

Appellant argues that though the deaths were accidental i.e. unintentional they were not the result of an accidental cause. It is contended that in each instance there must be a single unexpected distinctive event for the particular death in order to come within the policy. Effort is made to classify the poisonings as within the so-called occupational disease group and thus controlled by Pennsylvania decisions interpreting the language of the compensation act of that state. Billo v. Allegheny Steel Co., 1937, 328 Pa. 97, 195 A. 110; see McCauley v. Imperial Woolen Co., 1918, 261 Pa. 312, 328, 104 A. 617.

There is no mystery about the facts. The minute particles of beryllium which had adhered to the clothing of the employees concerned became detached and entered the lungs of decedents setting up conditions which resulted fatally to them. It is accepted by appellant that the Beryllium Corporation negligently failed to warn its employees of the danger and to provide proper safeguards against it; further that the two employees were ignorant of the existing menace of beryllium poisoning. Appellant says that it is not known whether decedents possessed that knowledge. As to this, the basic cases were not tried but settled out of court so there is no affirmative evidence that decedents did not know the lethal nature of beryllium.However, with the employees themselves admittedly not having that knowledge there is a legitimate inference that the wife of the one and the daughter of the other who lost their lives from its fatal effects were also unaware of that fact.In addition there normally is a reasonable inference against death being selfinflicted. Walters v. Western & Southern Life Ins. Co., 1935, 318 Pa. 382, 178 A. 499. To assume that they for years deliberately and understandingly handled the agent which eventually killed them would be contrary to that inference and unwarranted in the absence of proof to support it.

The lodging of the metal particles in the lungs of the women were distinctive events whether noted at the time or not. There is no suggestion that the women had intended harming themselves. There is the above stated inference that while they meant to launder the clothes they were not endeavoring to poison themselves in the rpocess. They cannot be reasonably said to have been voluntarily dealing with a poison about which they knew nothing. In all probability they noticed dirt and dust on the clothes. They might have considered this in part at least to be beryllium but the important circumstance is that there is no evidence they realized they were using a deadly poison and, as has been stated, the logical inferences are against that theory. It follows that the absorption of the toxic particles into their lungs must be held to have been unforeseen by the decedents and its end result, their deaths, not to have been the natural or probable consequence of the performance of the routine household tasks involved. Urian v. Equitable Life Assurance Society, 1933, 310 Pa. 342, 165 A. 388; McCarron v. John Hancock Mut. Life Ins. Co., 1944, 156 Pa.Super. 287, 40 A.2d 118; Bloom v. Brotherhood Accident Co., 1925, 85 Pa.Super. 398.

As far as the employer corporation is concerned the accidental cause theory must again be sustained. There was undoubtedly an element of carelessness present but we do not have the slightest hint of wilfulness in that connection. See Springfield Tp. v. Indemnity Insurance Co., 1949, 361 Pa. 461, 463, 64 A.2d 761; Kraftsow v. Brown, 1953, 172 Pa.Super. 581, 585-586, 94 A.2d 183. It is clear that the corporation had not designedly exposed the employees' families to the poison and indeed had no thought that they were.From the standpoint of the company the carrying of the beryllium away from the plant and into the employees' homes with the consequent danger and resulting deaths would seem to have been a completely unexpected tragic occurrence.

This brings us to the main point in this appeal. While these deaths clearly resulted from accidental causes it was not just one but a series of causes which produced them. Appellant contends that this defeats the claims. Its theory as we have mentioned is that the policy contemplated that the accidental means must be an isolated occurrence.

The policy may have so contemplated but if that were its purpose it is not easy to explain why it did not say so. If restriction to covering accidents resulting from a single accidental cause was part, and an important part, of the protection furnished; entered into the premium income, cost, etc., it seems curious that it was not plainly stated so that the insurance purchaser would know the limitations of his policy and at least have the opportunity of safeguarding himself with more complete insurance.

By the contract in suit the company agrees to pay the arising damages from death "caused by accident". If this clause was confined to one accident, if the word "an" had been inserted so that the language read "caused by an accident", there would be some justification for the argument now made. With full knowledge, we must assume, of a basic principle of insurance law that ambiguity in the company drawn policy will be resolved against the insurer,*fn2 the drafter of the agreement inserts this at least ambiguous phrase and it is now used in an effort to defeat these serious claims. We are unable to accept such contention. As we read the clause it does not bar the accidental deaths before us caused as they were "by accident".

We are sustained in this view by the excellent opinion of the Supreme Court of Illinois in Canadian Radium & Uranium Corp. v. Indemnity Ins. Co., 1952, 411 Ill. 325, 104 N.E.2d 250, 254. The facts there were much like ours except in that case the injured person was an employee. The policy was the same sort of "'Comprehensive General Liability Policy'" and contained the language "'caused by accident'". The poison was radium and, as here, it was repeated absorption that injured the claimant. On the same sort of an action as before us where the employer having paid the damages sued its insurance company the court ...


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