NOTE – This is from our older court case archives. It may involve situations that are inapplicable to newer coverage forms. Please be aware of this possibility when reading and using this case.

Physical Control of Property By Painting Contractors Negated Coverage

General Liability

Care, custody and control exclusion

A painting contractor paid a substantial sum of money for the replacement of more than two hundred sprinkler heads in ceilings of a building belonging to an electric company. Having contracted to paint the ceilings, the contractor had wrapped the sprinkler heads with aluminum foil to prevent damage to them during the painting process. They were damaged by paint, however, to such a degree that it was necessary to replace them.

The insured initiated a lawsuit against the insurer after the latter denied liability, when presented with claim for reimbursement, on the basis of the standard policy exclusion of loss to “property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.” The trial court concluded that the exclusion was not applicable and rendered judgment in favor of the insured. The insurer appealed.

The appeal court reasoned that the contractor exercised physical control over the sprinkler heads when he covered them, a procedure that he followed as part of his job. It pointed out that, when a room paint job is ordinarily done, certain portions are to be painted and other parts are not to be painted. Both categories are reasonably in the care and custody of the painter as far as the painting contract is concerned. Accordingly, he protects exposed areas and items that are not to be painted.

The appeal court disagreed with the conclusions of the trial court. It concluded that the contractor did exercise physical control of the sprinkler heads when he covered them to prevent the kind of damage that actually did occur. It found that the “care, custody or control” exclusion was applicable. The judgment of the trial court was reversed. The contractor was not entitled to recovery under his policy.

Herbison, D.B.A. J.B. Herbison Painting Contractor, Appellee V. Employers Insurance Company Of Alabama, Incorporated, Appellant, Tennessee Court of Appeals, Western Section at Jackson. Filed September 26, 1979. CCH 1980 Fire and Casualty Cases 705.

The basis for the decision in the case described above was applied by the same court to a comparable situation giving rise to this case. Here, another contractor was involved with the painting of ceilings and also wrapped sprinkler heads to protect them. As the insurer and circumstances were the same and the legal issue was the same, the cases were consolidated for consideration by the court, and the court concluded that the result must be the same in this case. Trial court judgment against the insurer was reversed and the case dismissed.

SUTTON, Appellee v. Employers Insurance Company Of Alabama, Incorporated, Appellant. Tennessee Court of Appeals, Western Section at Jackson. Filed September 26, 1979. CCH 1980 Fire and Casualty Cases 706.