Travelers Insurance v. W. F. Saunders & Sons, Inc.

18 A.D.2d 126, 238 N.Y.S.2d 495, 1963 N.Y. App. Div. LEXIS 4163

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 1963
• Status: Published

Opinions

Coon, J.

Plaintiffs brought this action for a declaratory judgment declaring that plaintiffs Carpenter Hauling and Rigging Co., Inc., and Philip Scott, were additional ‘ ‘ insureds ’ ’ under a comprehensive liability insurance policy issued by Globe Indemnity Company, defendant, to the defendant W. F. Saunders & Sons, Inc. The case was submitted to a Trial and Special Term of Supreme Court, upon a stipulated statement of facts. Judgment was rendered in favor of the plaintiffs, and the defendants Saunders and Globe appeal therefrom. The question to be determined is the proper interpretation and application of the now familiar “ loading and unloading ” provisions of such an insurance policy.

Saunders contracted with the general contractor on a building construction job to supply ready-mix concrete to the job. Carpenter subcontracted to provide a crane and permanently attached bucket to convey the concrete from Saunders’ truck to the point where it was to be used in the construction. An employee of Saunders was standing on a catwalk of the truck regulating and directing the flow of concrete into the crane bucket. Upon signal this employee stopped the flow of concrete and the bucket was supposed to be raised by the crane to the second floor, emptied and returned to the truck for more concrete. In this process the crane overturned and Halstrom, an employee of another subcontractor, was injured and brought an action against Carpenter and Scott, the latter the operator of the crane. More detailed facts are contained in the stipulation.

The trial court, relying largely upon the case of Wagman v. American Fid. & Cas. Co. (304 N. Y. 490), we think correctly decided that this accident happened in the process of unloading, which was not completed until the concrete was delivered to the place where it was to be used. The Wagman ease involved loading a truck, but it involved the intervention of someone not employed by the named insured and did not involve negligence on the part of the named insured. There is no difference in the legal principles applicable to loading or unloading. Here Saunders’ truck was obliged to remain at the place of unloading until it was completely empty as the result of several trips of the crane bucket. By its very nature it is wholly impractical (,o dump wet concrete on the ground for later removal. The process by which it was being’ delivered was part and parcel of unloading, and the unloading was not completed until delivery was effected and it was not completed at the time of the accident.

Appellants concede in their brief that the ‘ ‘ complete operations ” theory has been adopted in the State of New York and that the “ at rest ” theory has been rejected, yet they seem to argue the application of the "at rest" theory on this appeal.

Since the trial and decision in this case the Appellate Division, First Department, has handed down a decision in Lamberti v. Anaco Equip. Corp. (16 A D 2d 121), where the facts are most strikingly similar and in fact almost identical with those in the case at bar. Although in the Lamberti case the decision was by a divided court and appellants get some comfort from the dissenting opinion, the decision of the court is contrary to their contention on this appeal.

The judgment should be affirmed, with costs to respondent.