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NO. COA10-1395 NORTH CAROLINA COURT OF APPEALS Filed: 16 August 2011 ALLIANCE MUTUAL INSURANCE COMPANY, Plaintiff, v. GLEN DOVE, d/b/a DOVE'S WELDING, Defendant. Scotland County No. 09 CVS 156

Appeal by plaintiff from order entered 14 June 2010 by Judge W. Erwin Spainhour in Scotland County Superior Court.

Heard in the Court of Appeals 13 April 2011. Pinto Coates Kyre & Brown, PLLC, by David L. Brown and Brady A. Yntema, for plaintiff-appellant. Anderson, Johnson, Lawrence, Butler & Robert A. Hasty, Jr. and J. Stewart defendant-appellee. STEELMAN, Judge. The exclusion clause in the commercial liability insurance policy must be narrowly construed to limit its application to the "specific or part of any property of that in must your be restored, We Bock, L.L.P., by Butler, III, for

repaired,

replaced

because

faults

work."

affirm the summary judgment ruling of the trial court. I. Factual and Procedural Background

-2Murphy-Brown owns and operates a feed mill in Laurinburg. Murphy-Brown contracted with Glen Dove d/b/a Dove's Welding & Fabrication ("defendant") to repair a broken elevator belt in a grain elevator. Grain was delivered by rail to the feed mill

where it was ground into a powder that was lifted by the grain elevator to the top of silos for discharge and storage. broken elevator the belt grain was located pit in to an the elevator top of duct the The which silos.

connected

powder

Defendant cut holes in the metal elevator duct in order to reach in and pull out the broken belt and splice it back together. After completing the work, defendant repaired the hole in the elevator duct by welding the metal back in place. On 30

December 2005, just after defendant had welded the metal back onto the elevator duct, the grain dust ignited, causing an

explosion in the elevator.

On 24 July 2008, Murphy-Brown filed

a complaint against defendant for negligence, seeking to recover monetary damages for the cost to repair and replace the rail receiving bucket elevator, the cost to repair and replace the rail receiving leg, the cost of having to bring grain in by truck rather and than by rail as a result of the damaged rail and

elevator,

damages

incurred

for

business

interruption

lost revenue.

-3Alliance Mutual Insurance Company ("plaintiff") had issued a Commercial Liability Policy to defendant that was in effect at the time of the explosion. Murphy-Brown plaintiff complaint to Defendant forwarded a copy of the plaintiff. of the On 5 September and 2008,

acknowledged

receipt

complaint,

advised

defendant that it would provide defendant with a defense to the lawsuit under reservation a of rights. against On 27 February 2009, a

plaintiff

filed

complaint

defendant

seeking

declaratory judgment that its commercial liability policy did not provide liability coverage for the claims asserted in the Murphy-Brown lawsuit and that plaintiff had no duty to defend defendant in the Murphy-Brown lawsuit or indemnify defendant for any claims raised in the Murphy-Brown lawsuit. Both judgment. granting plaintiff and defendant made motions for summary

On 14 June 2010, the trial court entered an order summary judgment for plaintiff in part and for

defendant in part, but disposing of the entire case.

The trial

court held that the commercial liability policy did not cover damages for the cost to repair and replace the rail receiving bucket elevator, but that the policy did provide coverage for the cost to repair and replace the rail receiving leg, the cost of bringing grain in by truck, as a result of the damaged rail

-4elevator, and damages incurred due to business interruption and lost revenue. Plaintiff appeals. Defendant did not appeal the portion of

the trial court's ruling excluding coverage for the cost to repair and replace the bucket elevator. II. Commercial Liability Policy

In its only argument, plaintiff contends the trial court erred in granting summary judgment in favor of defendant, and in failing to grant summary judgment for plaintiff on all issues. We disagree. A. Standard of Review

The "liability of an insurance company under its policy . . . [is] a proper subject for a declaratory judgment." Nationwide Mut. Ins. Co. v. Aetna Casualty and Surety Co., 1 N.C. App. 9, 12, 159 S.E.2d 268, 271 (1968). Summary judgment shall be granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat.

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