Lamberti v. Anaco Equipment Corp.

16 A.D.2d 121, 226 N.Y.S.2d 70, 1962 N.Y. App. Div. LEXIS 10837

Opinions

Rabin, J.

Once again, as in the case of Wagman v. American Fid. & Cas. Co. (304 N. Y. 490), we are called upon to decide whether an automobile liability policy issued to an owner of a truck affords coverage in connection with an accident which it is here claimed occurred during the unloading of that truck.

The facts are as follows: The accident, in which the plaintiff’s intestate (Alfonso Yalentini) was injured, occurred November 15, 1956 at the site of a housing project then under construction.

Footnotes

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* Yalentini, at the time of the accident, was the driver of a transit-mix concrete truck owned by the Colonial Sand and Stone Company (not a party to this action), the named insured in the policy in question. As its name implies, the truck was engaged in delivering concrete mixed on the truck ready for delivery, for use in connection with the housing project. At the job site the prepared concrete was poured from the truck into the bucket of a crane operated by an employee of the Knickerbocker Construction Corporation-—-the concrete subcontractor (the third-party plaintiff-appellant on this appeal). The bucket was then hoisted directly from the truck to that portion of the building where the cement was to be used. The empty bucket was then lowered and returned to the transit-mix truck for refilling and the same process repeated.

Prior to the accident the bucket had made two uneventful trips from the truck to one of the upper floors of the building under construction. Each time the bucket returned to the concrete truck it was refilled by Yalentini. The hoisting signals, however, were given to the crane operator by a Knickerbocker employee. This employee also told Yalentini when to start and when to stop pouring the concrete from the truck into the bucket. While the third bucketful of concrete was being hoisted to either the 19th or the 22d floor it tipped over and some of the concrete struck and injured Valentini, who was standing on the catwalk of his truck awaiting the return of the bucket for another load.

This suit was subsequently instituted by Valentini, against Knickerbocker as well as against the owner of the crane and the general contractor.* Knickerbocker impleaded Travelers, the insurance carrier covering the truck, alleging that the plaintiff was injured during the unloading of Colonial’s truck and, therefore the accident came within the coverage of the ‘1 loading and unloading ” clause of its liability insurance policy. Under such clause Knickerbocker would be covered although not a named insured if indeed the accident occurred in the course of the unloading of the truck.

Knickerbocker alleged in its third-party complaint that Travelers denied coverage and refused to defend and it asked judgment over in the event the plaintiff should recover judgment against it. Travelers joined issue disclaiming liability under its policy. It waived the condition of its policy which provided that until the amount of plaintiff’s recovery shall have been determined there could be no recovery against the company.

After trial, without a jury, the court granted judgment to the plaintiff, against Knickerbocker, in the sum of $7,500. It also found that Travelers ’ automobile policy did not cover Knickerbocker’s liability to the plaintiff because it held that the accident did not come within the ‘‘ loading and unloading ’ ’ provision of the policy. Accordingly, Knickerbocker’s third-party complaint was dismissed and it is from that dismissal that it appeals.

The issue can be stated very simply. Did the accident occur in the course of the “ unloading ” of the truck! If it did then Knickerbocker was an insured under the liability policy which was issued by Travelers and its claim over should not have been dismissed. If, however, the accident did not occur in the process of “ unloading ” within the meaning of the policy, then the judgment of the court should be upheld.

We conclude that the injuries of Valentini were sustained in the course of the 11 unloading ’ ’ of the truck as such term is construed by the Court of Appeals in the case of Wagman v. American Fid. & Cas. Co. (304 N. Y. 490, supra). In that case the court referred to the “ doctrinal division among the authorities ” (p: 494) with respect to the interpretation of the words “ loading and unloading ”. It rejected the narrow inter pretation whereby the word ‘ ‘ ‘ unloading ’ is taken to embrace only the operation of removing the goods from the vehicle to a place of rest ” (p. 494).

The Court of Appeals found (p. 494) that “ [t]he broader construction, adopted in a majority of the jurisdictions which have passed upon the question, is that 1 loading and unloading ’ embrace, not only the immediate transference of the goods to or from the vehicle, but the ‘ complete operation ’ of transporting the goods between the vehicle and the place from or to which they are being delivered ”. It said (p. 494) that “ [t]he latter view impresses us as sounder ”.

The respondent contends that the place of delivery was the bucket of the crane and, therefore, the unloading operation was completed when the concrete had been placed in the bucket. We cannot agree. The bucket cannot be considered “ the place * * * to which” the concrete was being delivered. It was merely the necessary conduit by which the concrete was conveyed to its place of delivery. The trip in the bucket to such place of delivery was merely an incident in the unloading operation. Indeed, because of the manner of the operation, the truck could not have been unloaded other than by the repeated trips of the bucket from the truck to the place of use of the concrete. The employment of the crane and the bucket was just as essential a part of the complete operation of unloading as was the discharge of the concrete from the truck into the bucket. As was said in the Wagman case (p. 495): “ [b] oth operations together constituted the act of ‘ [un] loading ’ the vehicle”. The means by which the material is removed from a truck is of no particular consequence, whether the removal be effected by a rack, by hand or by a crane (see Employers Mut. Liab. Ins. Co. of Wis. v. Pacific Ind. Co., 167 Cal. App. 2d 369; Bituminous Cas. Corp. v. American Fid. & Cas. Co., 22 Ill. App. 2d 26). The sole test is whether the means used was in the process of unloading. In this case the bucket was merely an instrument to effect the unloading.

It cannot be said that the use of the crane and bucket was related to the construction operation solely. It does not follow, merely because the operation of the crane and bucket was related to the construction function, that it could not also be a part of the unloading function. There can be a dual relationship, and with respect to the use of the crane and bucket such relationship should be found here.

It is not unfair to the insurance carrier to hold that the delivery function was not complete until the concrete reached its ultimate destination. Particularly so in the case of mixed concrete where there could be no intermediate place of sojourn. By the very nature of that material it is essential that it be taken directly from the delivery truck to the place at which it becomes a permanent portion of the construction. Concrete, unlike lumber or other building materials, cannot be stored at the job site for later incorporation into the structure. It must be deposited immediately at its permanent resting place. It is for that very reason that a transit-mix truck is used in this type of operation. If it were the intention of the insurer to confine its liability to a more circumscribed aspect of the loading process, language appropriate to such end could have been employed. The failure to adopt such delimiting language, particularly after the Court of Appeals decision in the Wagman case and in view of the function of the vehicle insured, is indicative of the knowledge if not the intention, of the insurer that it was covering in its policy to Colonial the “ complete operation ” incidental to loading and unloading.

The answer to the contention that there is no coverage because the crane was not operated by an employee of the truck owner — the named insured—but rather by an employee of the consignee, Knickerbocker, was given by the Court of Appeals in the Wag-man case when it said as follows at page 495: “ Nor may the insurer avoid liability under its policy because plaintiff was an employee of Bond rather than of Gilbert, in the light of the policy’s omnibus provision defining the term 1 insured ’ as embracing any person using the vehicle with the permission of the named insured. The effect of that provision was to extend the coverage of the policy beyond the activities of the named insured and its employees. ’ ’

Accordingly, we find that this accident occurred during the process of “unloading” the transit-mix truck and in consequence the operator of Knickerbocker was an “ insured ” under the policy.

Having concluded that Travelers is liable under its policy we must next determine the monetary extent of such liability. The verdict rendered on the prime complaint was in plaintiff’s favor against Knickerbocker in the amount of $7,500. It is argued by Knickerbocker that it should be granted judgment over in a like sum. On the other hand Travelers, pointing to additional coverage in other policies, contends that if liability is imposed upon it it must be limited to its prorata share of the total coverage available in accordance with the “ other insurance ” clauses of the policies. If we were to apply these provisions the total liability of Travelers would be approximately $150.

Knickerbocker states that it could readily obtain a judgment against its employee for negligently operating the crane and inasmuch as he is covered by Travelers solely (assuming, of course, that the accident occurred during the unloading process), Travelers would ultimately be obliged to pay it in full. In consequence it seeks the full recovery in this action for the alleged purpose of avoiding circuity of suits.

However, in seeking such relief here it is asking for relief that it may never be entitled to obtain. In order to obtain a judgment against the employee it would be obliged to show that its employee was guilty of negligence while it was held derivatively liable solely because of the negligence of this employee. That question was not tried in this case. The employee was not made a party. If Knickerbocker wanted to impose full liability on Travelers it should have vouched in the employee so that that issue could have been determined.

Accordingly, the judgment, insofar as appealed from, should be reversed on the law and on the facts and judgment directed in favor of the third-party-plaintiff Knickerbocker on its third-party complaint against the third-party defendant Travelers in the amount of $150, with costs to the appellant.

The plaintiff’s intestate brought suit for personal injuries but died during the pendency of the action and the suit was continued by his administrator after his death.

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At the trial the plaintiff discontinued as against the owner of the crane and the general contractor, leaving Knickerbocker, the appellant, as the sole defendant.