St. Paul Mercury Insurance Company v. Huitt

Decision Date20 August 1964
Docket NumberNo. 15320,15321.,15320
Citation336 F.2d 37
PartiesST. PAUL MERCURY INSURANCE COMPANY, Plaintiff, Appellee and Cross-Appellant, v. Dewey HUITT, individually and doing business as Dewey Huitt & Son, Russell Ontis, Ruth V. Withers, Guardian of James A. Withers, Mentally Ill, Defendants, and Auto Owners Insurance Company, Defendant and Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

COPYRIGHT MATERIAL OMITTED

Leland D. Phelps, Grand Rapids, Mich., (Shivel, Phelps, Linsey & Strain, Grand Rapids, Mich., on the brief), for Auto Owners Ins. Co.

James E. Gould, Grand Rapids, Mich., (Mitts, Smith & Haughey, Grand Rapids, Mich., on the brief), for St. Paul Mercury Ins. Co.

Rex Orton, Allegan, Mich., Ryan, Sullivan & Hamilton, Battle Creek, Mich., for defendants.

Before McALLISTER, Circuit Judge, and BOYD and WILSON, District Judges.

FRANK W. WILSON, District Judge.

This appeal presents issues involving the interpretation and construction of casualty insurance policies. The principal issue involved is the interpretation of the often litigated "loading and unloading" clause in an automobile insurance policy. Between the lack of clarity in the wording of the loading and unloading coverage, the lack of uniformity in the decisions of the courts, and the lack of clairvoyance upon the part of both the insurance policy draftsmen and the courts in foreseeing the myriads of factual variations that can arise, the problems here to be dealt with appear to present an inexhaustible source of litigation.1

This lawsuit was instituted as an action for declaratory judgment. The issues were decided by the trial court upon the motion for summary judgment of the original plaintiff, a general liability insuror, and the response thereto by one of the defendants, an automobile liability insuror. Each carrier has appealed from the portion of the decision of the trial court adverse to its contentions. The following statement of facts appears undisputed in the record.

Upon August 4, 1958, a ready-mix concrete truck owned by Benjamin G. Waanders & Son and driven by Carl Thomas, an employee, delivered a load of concrete for use in pouring the foundation of a building under construction in Allegan, Michigan. A bucket operated by a crane was used to move the concrete from the ready-mix concrete truck and pour it into the foundation. This crane was owned by Dewey Huitt, an individual doing business as Dewey Huitt & Son, a subcontractor on the job, and was operated by Russell Ontis, an employee of Huitt. During the course of unloading the truck and pouring the concrete in this manner, the boom upon the crane fell and one James A. Withers, an employee of the general contractor upon the job, was struck and injured. At the time of the accident the crane had moved a bucket of concrete from the truck to a point some distance from the truck where it was to be poured into the foundation. Neither Waanders' truck nor Waanders' employee was involved in the accident in the sense of having proximately caused or contributed to the accident.

At the time of the accident, Huitt was insured by St. Paul Mercury Insurance Company under a multiple coverage policy commonly known as a general liability policy and having maximum limits of $25,000 for each person injured. The Waanders truck was insured by Auto Owners Insurance Company under an automobile liability policy having maximum limits of $100,000 for each person injured. The relevant portions of the respective policies are admitted in the record.

A suit for $200,000 damages for personal injuries was instituted in the state court upon behalf of James A. Withers by Ruth V. Withers, acting as his guardian. The suit was against Huitt, the owner of the crane, Ontis, the crane operator, and the Clark Equipment Company, the manufacturer of the crane. Upon the institution of this lawsuit, Huitt and Ontis each called upon Auto Owners Insurance Company to extend to them coverage under the Waanders automobile liability policy and to undertake their defense, contending that they were each an insured under the loading and unloading provisions of the policy. Auto Owners declined to do so.

Following this, St. Paul, as the general liability carrier upon Huitt, instituted this suit under 28 U.S.C. § 2201, alleging diversity, joining Huitt, Ontis, Mrs. Withers, guardian of James A. Withers, and Auto Owners as defendants, and seeking a declaratory judgment of the rights and liabilities of the respective parties under the above stated insurance policies. After answer was filed on behalf of each defendant, St. Paul moved for a summary judgment upon the basis of the pleadings, the admissions and the affidavits of record. By way of response, Auto Owners filed counter-affidavits disputing the plaintiff's affidavits only with reference to the inferences and conclusions to be drawn from the facts as stated above. No further response to the motion for summary judgment was filed by any other defendant.

Upon this state of the record the trial court entered an opinion, stating that it was sustaining in part and denying in part the motion for summary judgment and holding that Auto Owners had primary coverage upon Huitt and Ontis by reason of the loading and unloading provision of its policy, that St. Paul had excess coverage upon both Huitt and Ontis by reason of its policy, but declining to rule as to which carrier had the duty to defend.2

Auto Owners has filed an appeal from the action of the trial court in decreeing that Huitt and Ontis were insureds under its policy. It is the contention of Auto Owners that the operation of the Huitt crane could not be considered an insured use under the loading and unloading provision of Auto Owners' policy upon the Waanders truck and that, in any event, this issue cannot be decided upon a motion for summary judgment as issues of fact exist as to whether the truck was unloading and as to whether any causal connection exists between the injury and the unloading of the truck. St. Paul has filed a cross-appeal from the action of the trial court in decreeing that Ontis was an insured under its policy and as such would be entitled to excess coverage along with Huitt. St. Paul also complains of the action of the trial court in declining to determine which insurance carrier must provide the defense for Huitt and Ontis.

With respect to the contention of Auto Owners that unresolved issues of fact exist in the case, this Court is of the opinion that this contention is without merit. The facts with reference to the existence and terms of the insurance policies involved, the operations conducted, the equipment and parties involved in the unloading of the concrete truck and in the movement of the concrete, the manner and means by which injuries were inflicted, and the state of the operations at which they were inflicted, as well as the existence of the lawsuit upon behalf of the injured claimant are all undisputed. The alleged issues of fact asserted by Auto Owners as to (a) whether the truck was in the process of unloading, (b) whether the unloading was completed before the infliction of injuries, and (c) whether any causal connection existed between the unloading and the injuries are in reality conclusions of law that must be drawn from the undisputed facts. The issues presented upon the motion for summary judgment were solely matters of the interpretation of the subject insurance policies in light of the undisputed facts. As stated in Couch On Insurance, 2d, Sec. 15.3:

"As a general rule, the construction and effect of a written contract of insurance is a matter of law to be determined by the court and not by the jury where there is no occasion to resort to extrinsic evidence for the purpose of resolving ambiguities. The construction of a particular word in a policy is for the court where its meaning is not dependent upon disputed facts. If the facts are admitted, it is the province of the court to determine whether they come within clear and unambiguous terms of the policy."

The Auto Owners policy contains the usual insuring clauses for an automobile liability insurance policy. With reference to whether Huitt and Ontis are insured under the terms of this policy, the pertinent language, reduced to its essence, is as follows:

"To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury * * * arising out of the ownership, maintenance or use of the automobile.
* * * * * *
"The unqualified word `assured\' * * * includes not only the named assured but also any person while using the automobile and any person or organization legally responsible for the use thereof provided the actual use of the automobile is with the permission of the named assured. * * *
* * * * * *
"* * * Use of the automobile for the purposes stated includes the loading and unloading thereof."

In determining whether Huitt and Ontis fall within the definition of "the assured," it is apparent that a determination must be made as to whether their actions were within the ambit of the use of the insured vehicle with the express or implied permission of the named assured in the unloading thereof. If their actions were encompassed within the meaning of the term "unloading" and their participation was with the express or implied permission of the named insured, i. e., Waanders, then they would acquire the rights of an assured under the policy.

In determining the meaning and scope of the words "loading and unloading," the courts have not spoken with one voice. See annotations 160 A.L.R. 1259 and 95 A.L.R.2d 1114. Two principal rules of interpretation have developed in the cases, one being called the "coming to rest" rule and the other being called the "complete operation" rule. See Risjord, "Loading and Unloading," 13 Vanderbilt L.Rev. 903. The "coming to rest" rule essentially interprets loading as beginning only...

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