General Acc. F. & L. Assur. Corp. v. Liberty Mut. Ins. Co.

260 So. 2d 249
CourtDistrict Court of Appeal of Florida
DecidedMarch 29, 1972
Docket71-444
StatusPublished
Cited by40 cases

This text of 260 So. 2d 249 (General Acc. F. & L. Assur. Corp. v. Liberty Mut. Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
General Acc. F. & L. Assur. Corp. v. Liberty Mut. Ins. Co., 260 So. 2d 249 (Fla. Ct. App. 1972).

Opinion

260 So.2d 249 (1972)

GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, Limited, a Foreign Corporation, et al., Appellants,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Etc., et al., Appellees.

No. 71-444.

District Court of Appeal of Florida, Fourth District.

March 29, 1972.

*250 Dieter K. Gunther, of Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for appellants.

John W. Thornton, of Stephens, Magill & Thornton, Miami, for appellee.

JOHNSON, CLARENCE T., Jr., Associate Judge.

This is an appeal from a summary judgment in a declaratory action seeking construction favorable to appellants of coverage afforded by operation of the "loading and unloading" clause of a motor vehicle liability policy. The case arose in the following manner:

(1) The Heinickes decided to construct an addition to their building. Without hiring a general contractor, they contracted directly with others to perform certain aspects of the job. Arnold Anderson, a building contractor, was hired to construct the shell. Rinker Materials Corporation was to furnish ready mixed concrete. On the date of the accident which precipitated this litigation, a Rinker truck delivered concrete to the job site and emptied part of its load into a large bucket of a crane owned by Heinicke and operated by an employee of Heinicke. In attempting to transport the bucket to the top of the building so the concrete therein could be poured in a tie-beam, the crane knocked McCarty, an employee of Anderson, off a wall and injured him.

(2) McCarty and his subrogated workman's compensation carrier successfully sued the Heinickes for McCarty's injuries. That judgment was affirmed on appeal to this court. Heinicke v. McCarty, Fla.App. 1968, 213 So.2d 475.

(3) General Accident Fire and Life Assurance Corporation (hereinafter called GAC), the liability carrier on the Heinicke crane, brought this declaratory action, seeking to impose the burden of the McCarty judgment on Liberty Mutual Insurance Company (hereinafter called Liberty), liability carrier on the Rinker truck. The theory of the GAC action is that Heinicke, as crane owner, became an omnibus insured under the Liberty policy via the operation of the "loading and unloading" clause of that policy, since at the time of McCarty's injury the concrete had not reached its ultimate place of use, i.e., the tie-beam into which it was to be poured.

The facts not being in dispute, the court below disposed of this action by summary judgment in favor of Liberty, thereby holding that McCarty's injury did not, within the purview of the Liberty policy, arise out of the unloading of the Rinker truck.

We affirm.

The Liberty policy we are concerned with here provided:

"Coverage A
BODILY INJURY LIABILITY To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including *251 death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile."
* * * * * *
"DEFINITION OF INSURED With respect to the insured for bodily injury liability and for property damage liability the unqualified word `insured' includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission... ."
* * * * * *
"POLICY PERIOD, TERRITORY, PURPOSES OF USE ...
(c) Use of an automobile includes the loading and unloading thereof."

The "loading and unloading" provision is designed to extend the coverage afforded by a policy by expanding the definition of "use" of the insured vehicle. It has been the source of considerable litigation. See, e.g., 160 A.L.R. 1259; 95 A.L.R.2d 1122; Risjord, Loading and Unloading, 13 Vanderbilt Law Rev. 903; Sutter, Loading and Unloading, 31 Insurance Counsel Journal 112; Brown and Risjord, Loading and Unloading: The Conflict Between Fortuitous Adversaries, 29 Insurance Counsel Journal 197.

In construing coverage afforded through the operation of the "loading and unloading" clause, courts have generally placed their decisions within one of two doctrines: The "coming to rest" doctrine or the "complete operation" doctrine:

(a) "Coming to Rest" Under this doctrine, "unloading" comprises the actual removing or lifting of the article from the motor vehicle up to the moment when the goods which are taken off the vehicle actually come to rest. This is the minority, and apparently passing, view.

(b) "Complete Operation" Although there is no uniformity of definition of this doctrine, the "loading and unloading" clause is generally held to cover the entire process involved in the movement of the goods from the moment when they are given into the insured's possession until they are turned over at the place of destination to the party to whom delivery is to be made. This is the majority view.

Both doctrines require that a causal relationship exist between an accident or injury and the loading and unloading (use) of a vehicle in order for the accident or injury to come within the meaning of the "loading and unloading" clause, and where such causal relationship is absent, coverage is usually denied. 95 A.L.R.2d 1125.

While these doctrinal definitions seem simple enough on their face, the decisions in those jurisdictions applying the "complete operation" doctrine are marked by divergence. Several jurisdictions have broadened the doctrine by extending the unloading limit to the ultimate destination or ultimate place of use of the material without regard to the fact that the deliverer had finished his handling of it and had turned it over to the consignee at the job site prior to the injury. See e.g. Lamberti v. Anaco Equipment Corp., 16 A.D.2d 121, 226 N.Y.S.2d 70 (1962); Travelers Insurance Co. v. W.F. Saunders & Sons, Inc., 18 A.D.2d 126, 238 N.Y.S.2d 495 (1963); Travelers Insurance Co. v. Employers Casualty Co., Tex. 1964, 380 S.W.2d 610; St. Paul Mercury Insurance Company v. Huitt, 6 Cir.1964, 336 F.2d 37. It is within this extension that GAC would have us place Florida.

It should be noted at the outset that we are not faced here with an accident occurring while materials being removed from a vehicle are in continuous movement without having come to rest outside the vehicle. In that situation coverage would apply regardless of which doctrine is adopted, provided the requisite causal relationship existed *252 between the accident and the use of the vehicle.

It is equally clear that the coverage sought here by GAC would not be available if the "coming to rest" doctrine were applied, since the concrete from the truck had admittedly come to rest in the crane bucket sitting on the ground outside the truck, prior to the injury.

At least one court, on facts similar to these, has declined to attach a doctrinal label, since it found unloading was completed under either doctrine when the concrete was deposited in a crane bucket provided by the consignee at the job site. See United States Fidelity & Guaranty Co. v. Backus, 1966, 243 Md.

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Bluebook (online)
260 So. 2d 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/general-acc-f-l-assur-corp-v-liberty-mut-ins-co-fladistctapp-1972.