Travelers Insurance v. American Hardware Mutual Insurance

209 N.E.2d 344, 349 Mass. 768

Opinion

Decree affirmed. This is a bill for declaratory relief brought by The Travelers Insurance Company, a comprehensive general liability insurer of Nickerson Lumber Company, in which Travelers seeks a determination that American Hardware Mutual Insurance Company, motor vehicle liability insurer for Flax Pond Supply Company, is liable for injuries sustained by Flax Pond’s employee as a result of the negligence of Nickerson’s employee. American Hardware’s policy provides that use of the motor vehicle “includes the loading and unloading thereof.” When the injury occurred Nicker-son’s employee was operating a forklift and was removing some matter from a pile in order to make possible the loading of sheetroek which lay underneath. Sheetroek from another location of Nickerson’s premises had already been loaded and Flax Pond’s truck was standing eight to ten feet from the forklift. The judge ruled properly that the “loading and unloading” clause was inapplicable. The acts of the forklift operator were merely preparatory to loading the truck and did not constitute a use thereof. See Travelers Ins. Co. v. Safeguard Ins. Co. 346 Mass. 622, 624.