NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3802-21
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY,
Plaintiff-Respondent/ Cross-Appellant,
v.
ATLANTIC STATES INSURANCE COMPANY and DONEGAL MUTUAL INSURANCE COMPANY,
Defendants-Appellants/ Cross-Respondents. ______________________________
Argued February 6, 2024 – Decided March 22, 2024
Before Judges Whipple, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2071-19.
Ross G. Currie argued the cause for appellants/cross- respondents (Ward Law, LLC, attorneys; Ross G. Currie, of counsel and on the briefs; Geoffrey Paul Huling, on the briefs).
Kevin E. Wolff argued the cause for respondent/cross- appellant (Kinney Lisovicz Reilly & Wolff PC, attorneys; Kevin E. Wolff, of counsel and on the briefs; Julia Talarick and Timothy P. Smith, on the briefs).
PER CURIAM
In these cross-appeals, we address the scope of New Jersey's "loading or
unloading" doctrine with respect to the use of an insured vehicle, for the
purpose of determining coverage for purported additional insureds under a
liability insurance policy. We vacate and remand the July 15, 2022 judgment.
Appellants are Atlantic States Insurance Company (Atlantic States) and
Donegal Mutual Insurance Company (Donegal), and respondent is
Pennsylvania National Mutual Casualty Insurance Company (Penn National).
This action arose when Penn National settled a personal injury action on behalf
of its insureds, Altino Construction LLC (Altino) and Chemtura Corp.
(Chemtura), in Nicholson v. Ceniviva Paving, Inc., et al., Case ID 170300703,
Court of Common Pleas, Philadelphia County, Pennsylvania. The injured
plaintiff, Steven Nicholson, had also filed a prior lawsuit, Nicholson v.
Ceniviva Paving, Inc. et al., Case ID 160204983 (the Initial Lawsuit), which
had not named Altino and Chemtura as defendants. In his second lawsuit,
A-3802-21 2 Nicholson included all parties who had been named in the first—including
Ceniviva—and added Altino and Chemtura as defendants. The lawsuits were
later consolidated under Case ID 170300703.
Nicholson's lawsuits arose from injuries he suffered while working for
Atlantic States's insured, George Ceniviva d/b/a Precision Paving & Concrete
(Ceniviva). Chemtura had engaged Altino for paving work at its facility in
Fords, New Jersey, and Altino subcontracted that work to Ceniviva. Nicholson
was injured at Chemtura when he was loading a paver up a ramp and onto a
flatbed trailer after Ceniviva's paving work was completed; both the paver and
the trailer were owned by Ceniviva. While Nicholson was loading the paver
onto the trailer, the paver lurched forward, causing Nicholson to fall
backwards from the operator's station; the paver then rolled over Nicholson's
leg, causing severe personal injury.
Before the accident, Atlantic States issued a commercial automobile
insurance policy (the Auto Policy) and a commercial package (general
liability) insurance policy (the Package Policy) to Ceniviva. Donegal issued a
commercial umbrella liability insurance policy (the Umbrella Policy) to
Ceniviva (together, the Ceniviva Policies).
A-3802-21 3 Penn National issued a commercial umbrella policy, commercial general
liability policy, and business automobile policy to Altino and—for the
purposes of Nicholson's action—accepted Chemtura as an additional insured
under the commercial general liability policy and the commercial umbrella
policy.
On June 2, 2016, Ceniviva notified Atlantic States of the Initial Lawsuit.
On July 1, 2016, Atlantic States denied coverage to Ceniviva under the
Package Policy and the Umbrella Policy. Ceniviva did not contest the denial
of coverage, and those denials are not the subject of this appeal.
On June 2, 2017, the Court of Common Pleas consolidated Nicholson's
two lawsuits, anticipating the case would be trial ready by June 2018. It
ultimately scheduled the trial to begin on October 5, 2018.
In February 2018, Altino and Chemtura filed motions for summary
judgment, which were denied. Less than two weeks before trial, on September
25, 2018, Penn National gave notice to Atlantic States and Donegal, seeking
coverage of Altino and Chemtura as additional insureds under the Package and
Umbrella Policies. Before Penn National's September 2018 notice, none of the
underlying defendant parties—Ceniviva, Altino, or Chemtura—had given
notice to Atlantic States or Donegal of the later Nicholson action. Neither
A-3802-21 4 Altino nor Chemtura made claims for coverage as putative additional insureds
under the Ceniviva Policies.
By correspondence dated October 1, 2018, Penn National advised
Atlantic States settlement discussions were underway and reiterated its demand
for coverage on behalf of Altino and Chemtura under the Ceniviva Package
Policy. On October 9, 2018, Penn National advised it had settled on behalf of
Altino and Chemtura for $4 million and demanded reimbursement of $1
million under the Ceniviva Package Policy. Atlantic States issued a denial of
coverage to Altino and Chemtura and denied Penn National's demand for
indemnification of $1 million of the settlement under all the Ceniviva Policies
issued by Atlantic States and Donegal.
Penn National sued for coverage. The parties stipulated—as an
insurance coverage matter where no facts were in dispute and the issues to be
resolved involved solely questions of law—the case would be decided on
renewed cross-motions for summary judgment with joint exhibits and a joint
statement of undisputed material facts. The court entered an order to that
effect on March 22, 2022, and the parties submitted their cross-motions for
final disposition on June 8 and 9, 2022. Oral arguments were heard, and the
trial judge issued an oral decision and a corresponding order June 30, 2022,
A-3802-21 5 finding generally in Penn National's favor, but denying its application for
attorneys' fees and costs. The trial judge entered final judgment on July 15,
2022, setting out the amounts Atlantic States and Donegal owed to Penn
National.
These appeals 1 and cross-appeals followed.
1 Atlantic States's notice of appeal does not include the June 30, 2022 order granting Penn National's summary judgment and denying Atlantic States's summary judgment. The issues from that order Atlantic States raised were not addressed in the July 15, 2022 final judgment from which they do appeal. Generally, "earlier orders . . . not included in [appellants'] notice of appeal . . . are not within the scope of [the] appeal." 30 River Ct. E. Urb. Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006). "The appellant should explicitly designate all judgments, orders[,] and issues on appeal in order to assure preservation of their rights on appeal." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 n.1 (App. Div. 2002) (citing R. 2:5-1(f)).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3802-21
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY,
Plaintiff-Respondent/ Cross-Appellant,
v.
ATLANTIC STATES INSURANCE COMPANY and DONEGAL MUTUAL INSURANCE COMPANY,
Defendants-Appellants/ Cross-Respondents. ______________________________
Argued February 6, 2024 – Decided March 22, 2024
Before Judges Whipple, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2071-19.
Ross G. Currie argued the cause for appellants/cross- respondents (Ward Law, LLC, attorneys; Ross G. Currie, of counsel and on the briefs; Geoffrey Paul Huling, on the briefs).
Kevin E. Wolff argued the cause for respondent/cross- appellant (Kinney Lisovicz Reilly & Wolff PC, attorneys; Kevin E. Wolff, of counsel and on the briefs; Julia Talarick and Timothy P. Smith, on the briefs).
PER CURIAM
In these cross-appeals, we address the scope of New Jersey's "loading or
unloading" doctrine with respect to the use of an insured vehicle, for the
purpose of determining coverage for purported additional insureds under a
liability insurance policy. We vacate and remand the July 15, 2022 judgment.
Appellants are Atlantic States Insurance Company (Atlantic States) and
Donegal Mutual Insurance Company (Donegal), and respondent is
Pennsylvania National Mutual Casualty Insurance Company (Penn National).
This action arose when Penn National settled a personal injury action on behalf
of its insureds, Altino Construction LLC (Altino) and Chemtura Corp.
(Chemtura), in Nicholson v. Ceniviva Paving, Inc., et al., Case ID 170300703,
Court of Common Pleas, Philadelphia County, Pennsylvania. The injured
plaintiff, Steven Nicholson, had also filed a prior lawsuit, Nicholson v.
Ceniviva Paving, Inc. et al., Case ID 160204983 (the Initial Lawsuit), which
had not named Altino and Chemtura as defendants. In his second lawsuit,
A-3802-21 2 Nicholson included all parties who had been named in the first—including
Ceniviva—and added Altino and Chemtura as defendants. The lawsuits were
later consolidated under Case ID 170300703.
Nicholson's lawsuits arose from injuries he suffered while working for
Atlantic States's insured, George Ceniviva d/b/a Precision Paving & Concrete
(Ceniviva). Chemtura had engaged Altino for paving work at its facility in
Fords, New Jersey, and Altino subcontracted that work to Ceniviva. Nicholson
was injured at Chemtura when he was loading a paver up a ramp and onto a
flatbed trailer after Ceniviva's paving work was completed; both the paver and
the trailer were owned by Ceniviva. While Nicholson was loading the paver
onto the trailer, the paver lurched forward, causing Nicholson to fall
backwards from the operator's station; the paver then rolled over Nicholson's
leg, causing severe personal injury.
Before the accident, Atlantic States issued a commercial automobile
insurance policy (the Auto Policy) and a commercial package (general
liability) insurance policy (the Package Policy) to Ceniviva. Donegal issued a
commercial umbrella liability insurance policy (the Umbrella Policy) to
Ceniviva (together, the Ceniviva Policies).
A-3802-21 3 Penn National issued a commercial umbrella policy, commercial general
liability policy, and business automobile policy to Altino and—for the
purposes of Nicholson's action—accepted Chemtura as an additional insured
under the commercial general liability policy and the commercial umbrella
policy.
On June 2, 2016, Ceniviva notified Atlantic States of the Initial Lawsuit.
On July 1, 2016, Atlantic States denied coverage to Ceniviva under the
Package Policy and the Umbrella Policy. Ceniviva did not contest the denial
of coverage, and those denials are not the subject of this appeal.
On June 2, 2017, the Court of Common Pleas consolidated Nicholson's
two lawsuits, anticipating the case would be trial ready by June 2018. It
ultimately scheduled the trial to begin on October 5, 2018.
In February 2018, Altino and Chemtura filed motions for summary
judgment, which were denied. Less than two weeks before trial, on September
25, 2018, Penn National gave notice to Atlantic States and Donegal, seeking
coverage of Altino and Chemtura as additional insureds under the Package and
Umbrella Policies. Before Penn National's September 2018 notice, none of the
underlying defendant parties—Ceniviva, Altino, or Chemtura—had given
notice to Atlantic States or Donegal of the later Nicholson action. Neither
A-3802-21 4 Altino nor Chemtura made claims for coverage as putative additional insureds
under the Ceniviva Policies.
By correspondence dated October 1, 2018, Penn National advised
Atlantic States settlement discussions were underway and reiterated its demand
for coverage on behalf of Altino and Chemtura under the Ceniviva Package
Policy. On October 9, 2018, Penn National advised it had settled on behalf of
Altino and Chemtura for $4 million and demanded reimbursement of $1
million under the Ceniviva Package Policy. Atlantic States issued a denial of
coverage to Altino and Chemtura and denied Penn National's demand for
indemnification of $1 million of the settlement under all the Ceniviva Policies
issued by Atlantic States and Donegal.
Penn National sued for coverage. The parties stipulated—as an
insurance coverage matter where no facts were in dispute and the issues to be
resolved involved solely questions of law—the case would be decided on
renewed cross-motions for summary judgment with joint exhibits and a joint
statement of undisputed material facts. The court entered an order to that
effect on March 22, 2022, and the parties submitted their cross-motions for
final disposition on June 8 and 9, 2022. Oral arguments were heard, and the
trial judge issued an oral decision and a corresponding order June 30, 2022,
A-3802-21 5 finding generally in Penn National's favor, but denying its application for
attorneys' fees and costs. The trial judge entered final judgment on July 15,
2022, setting out the amounts Atlantic States and Donegal owed to Penn
National.
These appeals 1 and cross-appeals followed.
1 Atlantic States's notice of appeal does not include the June 30, 2022 order granting Penn National's summary judgment and denying Atlantic States's summary judgment. The issues from that order Atlantic States raised were not addressed in the July 15, 2022 final judgment from which they do appeal. Generally, "earlier orders . . . not included in [appellants'] notice of appeal . . . are not within the scope of [the] appeal." 30 River Ct. E. Urb. Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006). "The appellant should explicitly designate all judgments, orders[,] and issues on appeal in order to assure preservation of their rights on appeal." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 n.1 (App. Div. 2002) (citing R. 2:5-1(f)). "One of the obvious purposes of the notice of appeal is to put the court and opposing parties on reasonable notice of the issues and lower court or agency rulings on appeal." Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1 on R. 2:5-1, at 495 (2024). We may, however, choose to "indulge[]" parties that neglect to identify challenged orders in a notice of appeal, when they have provided sufficient information in the record to permit review. See Kornbleuth v. Westover, 241 N.J. 289, 297-99 (2020) ("Although plaintiffs' notice of appeal identified only the order denying their motion for reconsideration, the Appellate Division generously 'address[ed] the two issues for which plaintiffs have provided t he complete transcripts' . . . . We[, the New Jersey Supreme Court,] do the same."). Here, Atlantic States fully briefed the issues, provided copious evidence in the record, and included the transcript of the hearing at which the issues raised on appeal were addressed by the trial court. Penn National was clearly "on reasonable notice of the issues and . . . rulings on appeal," see Pressler & Verniero, cmt. 5.1 on R. 2:5-1, as they answered appellants' substantive A-3802-21 6 We review a motion for summary judgment de novo, applying the same
legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Summary judgment must be granted if "there is no genuine issue as to any
material fact . . . [and] the moving party is entitled to a judgment or order as a
matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,
224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). "When no issue of fact
exists, and only a question of law remains, [we] afford[] no special deference
to the legal determinations of the trial court." Ibid. (citing Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The trial judge's decision to grant or deny the award of attorneys' fees
and costs is generally reviewed under an abuse of discretion standard, but
when that decision is based on a mistaken interpretation of law, it is reviewed
de novo. Myron Corp. v. Atl. Mut. Ins. Corp., 407 N.J. Super. 302, 309 (App.
Div. 2009).
On appeal, Atlantic States argues Altino and Chemtura were not users of
the insured vehicle in a way that would make them additional insureds under
the Ceniviva Policies, because neither Altino nor Chemtura was engaged in _________________________ arguments and listed the relevant order granting them summary judgment in their own notice of cross-appeal. We, therefore, have sufficient information available in the record here to indulge the parties and address the merits of appellants' arguments. A-3802-21 7 loading the paver onto the Ceniviva vehicle at the time of Nicholson's injury.
Atlantic States asserts the trial court erred by holding Chemtura and Altino
were users of the trailer based on Nicholson's allegation that they failed to
provide proper training on the safe use and loading of the paver. Atlantic
States argues there is nothing in the record to suggest Chemtura and Altino
were involved in any way with the loading of the paver onto the trailer. We
agree.
The New Jersey Legislature mandated that all automobile owners shall
maintain "automobile liability insurance coverage," "insuring against loss . . .
arising out of the ownership, maintenance, operation[,] or use of an
automobile." N.J.S.A. 39:6A-3 (emphasis added). It is well settled that, under
this omnibus liability coverage mandate, the "use of an automobile" includes
the acts of loading and unloading that automobile. See, e.g., Kennedy v.
Jefferson Smurfit Co. & Container Corp. of Am., 147 N.J. 394, 398 (1997).
New Jersey courts have also "long recognized 'that the obligation to provide
coverage in a loading and unloading accident arises from statute and therefore
cannot be limited by contract.'" Potenzone v. Annin Flag Co., 191 N.J. 147,
152-53 (2007) (quoting Ryder/P.I.E. Nationwide, Inc. v. Harbor Bay Corp.,
A-3802-21 8 119 N.J. 402, 407 (1990), which cites generally Bellafronte v. Gen. Motors
Corp., 151 N.J. Super. 377 (App. Div. 1977)).
In analyzing whether a party is additionally insured under the loading
and unloading doctrine, New Jersey courts look to the "complete operation" of
loading and unloading, where "all that is required to establish coverage is that
the act or omission which resulted in the injury was necessary to carry out the
loading or unloading." Kennedy, 147 N.J. at 399 (quoting Drew Chem. Corp.
v. Am. Fore Loyalty Grp., 90 N.J. Super. 582, 589 (App. Div. 1966)). In such
an analysis, "the critical issue is whether" defendants' alleged acts or omissions
were "an integral part of the loading activity, and thus covered under the 'use'
provision." Id. at 401. Indeed,
[t]he pertinent inquiry is whether the acts of negligence charged to defendants were a part of the overall loading or unloading operation so that, in the commission of the negligent acts charged, defendants can be said to have been using the vehicle and thereby became additional insureds under the policy. In other words, did the negligent act which caused the injury or is alleged to have caused it constitute a part of the loading and unloading process?
[Id. at 400 (emphasis added) (quoting Cenno v. W. Va. Paper & Pulp Co., 109 N.J. Super. 41, 45 (App. Div. 1970)).]
A-3802-21 9 In Cenno, we determined the company responsible for fastening metal
bands around a bale of cardboard before it was picked up for shipping was n ot
an additional insured under the comprehensive automobile liability policy on
the truck used for shipping, even though the metal bands broke and injured the
driver as he unloaded the bale from his truck. 109 N.J. Super. at 43 -45. The
defendant company negligently banded the bale, but—even though the
accident and injury occurred during the act of unloading the truck—the
negligent act could not "reasonably be said to be causally connected with the
loading or unloading in any way." Id. at 45-47. We concluded,
unless the alleged negligent act which is alleged to have caused the accident was an integral part of the overall loading or unloading operation, so that the mishap is causally connected with such loading and unloading and did not merely occur during it, the person charged with the negligent act is not considered to have been using the vehicle so as to be covered by the vehicle's liability policy for such act as an additional [insured].
[Id. at 47.]
Clarifying the reasoning behind Cenno in light of its own decision in
Kennedy, the Supreme Court emphasized it was "unclear whether the
cardboard was baled with metal bands solely to facilitate its shipment or
whether that was a requirement of [the defendant company's] customer." 147
A-3802-21 10 N.J. at 405. The Court asserted "[i]f there had been a factual basis for
concluding that the baling was done solely to enable shipment of the goods,
the Cenno court would have found [the defendant company] to be an additional
insured." Ibid. (emphasis added). Thus, in dicta, the Kennedy Court described
what may be the determinative factor in this case: if the alleged act or failure
to act was "done solely to enable the shipment of the goods," the third party
would be an additional insured under the "loading or unloading" doctrine. See
ibid.
In contrast, the premises-liability line of cases denies indemnification of
would-be additional insureds "for accidents occurring during loading and
unloading activities because the accident arose not from the loading or
unloading activities, but from the negligent acts of the owner of the premises
where the accident occurred, prior to the loading or unloading of the vehicle."
Id. at 401-02. For example, in Greentree Assocs. v. U.S. Fid. & Guar. Co.,
after a bulldozer slid down a slope of loose soil and pinned a worker to a truck
while he was engaged in unloading the truck, we found that the owner of the
slope's "alleged failure to properly maintain, control, and supervise the
construction site or to provide a safe workplace did not constitute any part of
the loading and unloading process." 256 N.J. Super. 382, 386 (App. Div.
A-3802-21 11 1992). In Craggan v. IKEA USA, the defendant was not indemnified by the
plaintiff's auto insurer when the plaintiff was injured during the loading
process by tripping on a tangle of string present in the loading area controlled
by the defendant. 332 N.J. Super. 53, 68-69 (App. Div. 2000). There, we
found "the loading/unloading process is not implicated at all with regard to
plaintiff's accident and injuries because the hazardous condition created by the
string was not 'within reason a condition necessary to the act of loading[,] nor
had it any reasonable connection to that work.'" Id. at 69 (quoting Wakefern
Food Corp. v. Gen. Accident Grp., 188 N.J. Super. 77, 84 (App. Div. 1983)).
Thus, courts rely on the facts of the underlying incident—here stipulated
in the joint statement of material facts—in determining coverage for various
"loading or unloading" activities. By contrast, the injured plaintiff's
allegations in the underlying liability litigation should only be used to frame
the allegedly negligent act or omission that will be used in the loading and
unloading analysis. Here, the only significance Nicholson's allegations hold is
in articulating the specific "alleged negligent act which is alleged to have
caused the accident." See Cenno, 109 N.J. Super. at 45. Once the alleged
negligent act is identified, the court should then use the facts of the underlying
A-3802-21 12 incident to determine whether the alleged act or omission is "an integral part of
the overall loading or unloading operation." See ibid.
Here, the trial judge relied partially on Nicholson's allegations and
partially on deposition testimony to impute a duty to Chemtura and Altino to
ensure "that there was adequate training for Nicholson [in] using the paver."
The trial judge also found Chemtura and Altino had failed to ensure proper
training and failed to provide oversight. The judge then used the breach of that
duty to distinguish the present case from "the line of cases where coverage was
denied due to a result of a negligent upkeep or for defects on the premises."
The judge also emphasized the paver "was an essential function to the project
that Chemtura had contracted to Altino, which was in turn contracted to
Ceniviva."
This is not an appropriate loading and unloading analysis, however.
First and foremost, though much emphasis is placed on the use of the paver, it
is the trailer that is the insured vehicle in this instance. The analysis should
look at "whether the acts of negligence charged to defendants were a part of
the overall loading or unloading operation [of the trailer] so that, in the
commission of the negligent acts charged, defendants can be said to have been
using the [insured] vehicle." Kennedy, 147 N.J. at 400. We distinguish
A-3802-21 13 between negligent acts that are "causally connected with such loading and
unloading" and those leading to accidents that "merely occur during" loading
or unloading of the insured vehicle. Cenno, 109 N.J. Super. at 47.
Thus, although the proper training of the paver operator certainly affects
the safety with which the loading process can be undertaken, it is not
"necessary to the act of loading" the trailer and instead creates a general
"hazardous condition" in the workplace. Chemtura's and Altino's purported
failures to ensure proper training and provide oversight cannot reasonably be
said to be causally connected to the use of the trailer. The argument is tenuous
even to tie these supposed duties to the use of the paver, but the covered auto
here is the trailer onto which the paver was being loaded. 2
2 In Kennedy, the Supreme Court suggested in dicta a third party would be an additional insured under the "loading or unloading doctrine" if the alleged act or failure to act was "done solely to enable the shipment of the goods." 147 N.J. at 405. We do not adopt that stance here.
Instead, if Chemtura and Altino have failed to ensure proper training and to safely oversee the onsite work, this failure is more analogous to the failure to maintain safe workplace seen in the "premises liability" line of "loading or unloading" cases. See Kennedy, 147 N.J. at 401-02 ("The premises-liability cases deny coverage . . . for accidents occurring during loading and unloading activities because the accident arose not from the loading or unloading activities, but from the negligent acts of the owner of the premises where the accident occurred, prior to the loading or unloading."). A-3802-21 14 Having reached this conclusion, we do not reach the parties' remaining
arguments.
Vacated and remanded for the entry of judgment in favor of appellants.
We do not retain jurisdiction.
A-3802-21 15