"where the plaintiff has contracted to protect the defendant from a loss by procuring insurance, the plaintiff (or his subrogee) may not recover for that loss from the defendant even if the loss is caused by the defendant’s negligence.”
How later courts described this case
- "where the plaintiff has contracted to protect the defendant from a loss by procuring insurance, the plaintiff (or his subrogee) may not recover for that loss from the defendant even if the loss is caused by the defendant’s negligence.”
- In interpreting contracts, courts should enforce the intention of the parties
Written by the judges who cited it.
The opinion
HARRISON, R.J.,
dissenting.
I would reverse and remand for trial on the merits. This case involves gross negligence and unworkmanlike performance by a heating contractor. The Walkers allege that their dwelling was destroyed by fire because Vanderpool installed in the building a heating unit, connected the unit to a “non-existent” chimney, and then activated the oil furnace.
The agreement referred to is in fact a “proposal” by Vanderpool to the Walkers to sell and install the heating unit. The proposal was prepared by Vanderpool, and at the bottom of the printed form, in very small type, is found the language: “Owner to carry fire, tornado and other necessary insurance,” and “All work to be completed in a workmanlike manner according to standard practices. . . .” There is a handwritten insertion in the body of the proposal whereby Vanderpool agrees that “All work to be installed in a workmanlike manner to the satisfaction of homeowner.”
It is not reasonable to believe that the Walkers would have selected a contractor, one who twice agreed in writing to perform in a workmanlike manner and to follow standard practices, and at the same time agree that they (the Walkers) would purchase insurance to protect and save harmless that contractor, and his liability insurance carrier, from the contractor’s own negligent, improper, and unworkmanlike performance.
The decision of the majority relieves the contractor of his warranty and obligation to well and truly perform his agreement with the Walkers and exonerates both the contractor and his liability carrier from any liability under the agreement. At the same time, *273 and without supporting evidence, “other necessary insurance” is construed to include liability insurance, and the Walkers are held to strict performance.
I find the words “other necessary insurance” to be vague, uncertain, and indefinite, and Vanderpool’s proposal to be ambiguous. The true agreement reached by the parties as to the type, kind, and amount of insurance they contemplated was to be carried by the owner and by the contractor, respectively, can be determined only from evidence of the facts and circumstances surrounding the proposal by Vanderpool and its acceptance by the Walkers. It would indeed be surprising if it developed that the Walkers agreed to purchase insurance to insulate Vanderpool from his negligence in performing the contract, as the majority has held.