Aetna Ins. Co. of Hartford v. Kent
| Decision Date | 09 October 1975 |
| Docket Number | No. 43715,43715 |
| Citation | 540 P.2d 1383,85 Wn.2d 942 |
| Parties | AETNA INSURANCE COMPANY OF HARTFORD, a corporation, Petitioner, v. Ray J. KENT et al., Respondents. |
| Court | Washington Supreme Court |
Aiken, St. Louis & Siljeg, Gerald L. Bopp, Seattle, for petitioner.
Howard P. Pruzan, John A. Hackett, Seattle, Dennis J. Jordan, Everett, for respondents.
Aetna Insurance Company seeks review of a decision of the Court of Appeals affirming a judgment of the trial court construing a loading and unloading clause in a contract's insurance policy, the clause being contained in the section of the policy dealing with exclusions from liability. We reverse.
The stipulated facts show the following: Intervenor Tracy Smith was riding as a passenger in the front seat of a Volvo sports coupe owned and operated by Mark P. Poll. They were proceeding behind a dump truck owned by respondent Jack Kent, Doing business as Jack Kent Dump Truck Service, when suddenly a rock fell from the bed of the dump truck, bounced on the pavement, and crashed through the Volvo's windshield, striking Smith in the face, causing serious injuries.
The truck involved in the described injury was part of an operation involving the transportation of rock, gravel and dirt from a Washington State-owned gravel pit to a bridge construction site. The state had entered into a general contract with Utilities Construction Corporation and Utilities Construction had subcontracted with respondent Kent to transport the materials from the gravel pit to the construction site. In performing this subcontract, Kent furnished a 1966 Euclid loader and its operator and a number of dump trucks and drivers. The loader, by use of a mechanical shovel, scooped up material at the gravel pit site and deposited it in the dump trucks. When the trucks were loaded, they were driven to the construction site.
Intervenor Smith commenced an action against respondent Kent and intervenors Utilities Construction Corporation and the State of Washington based primarily upon the allegedly negligent loading of rock onto the dump truck.
At the time of the accident, respondent Kent was insured by appellant Aetna Insurance Company on two insurance policies; namely, an automobile liability policy and a contractor's policy. The automobile liability policy included coverage for bodily injury to each covered person of $25,000 for an annual premium of.$1,294. The coverage is described as follows:
1. COVERAGE C--BODILY INJURY LIABILITY
* * *
* * * The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage C. Bodily injury . . .
* * *
* * *
to which this insurance applies, caused by an occurrence and arising out of the Ownership, maintenance or use, including loading and unloading, of any automobile, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury . . .
(Italics ours.)
The contractor's policy includes bodily injury coverage to each covered person of $250,000 for a premium of $41. The coverage is described as follows:
1. COVERAGE A--BODILY INJURY LIABILITY
* * *
* * *
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury . . .
* * *
* * *
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury . . .
* * *
* * *
This insuring clause is qualified by the exclusionary section of the contract which provides in pertinent part as follows:
This insurance does not apply:
* * *
* * *
(b) to bodily injury or property damage arising out of the Ownership, maintenance, operation, use, loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to the named insured . . .
(Italics ours.)
Aetna commenced the instant action seeking a declaratory judgment clarifying its obligations to Kent under the contractor's policy. Aetna admits coverage on the automobile liability policy but denies coverage under the contractor's policy, claiming that to construe that policy as imposing coverage would constitute duplicate coverage never intended either by Aetna or by the insured, Kent. Kent and the intervenors, Smith, Utilities Construction Corporation, and the State of Washington, contend Kent is covered both by the automobile liability policy under the loading and unloading clause and under the contractor's policy. The trial court and the Court of Appeals, Division I, agreed with the position taken by the insured and the intervenors and, accordingly, held the contractor's policy covered the injuries sustained by intervenor Smith.
Intervenor Smith bases her claim of liability
both upon negligence in the use and operation of the said truck and upon negligence in the use and operation of the said loader in connection with the loading of materials at the gravel pit site and the transporting of materials from the gravel pit site to the bridge construction site.
Aetna contends these grounds of liability are excluded from coverage by the above quoted language of the contractor's policy. The Court of Appeals in holding the contractor's policy applied explained that a loading and unloading clause contained in an insurance policy providing coverage should be liberally construed to expand the coverage on the theory that such a clause is ambiguous. Bobier v. National Cas. Co., 143 Ohio St. 215, 54 N.E.2d 798 (1944). However, if the loading and unloading clause is contained in an exclusionary clause, strict construction is necessary to favor the insured in providing coverage which would otherwise exist but for the exclusionary clause.
The Court of Appeals discussed the meaning of the phrase 'loading and unloading,' calling attention to the 'coming to rest' and the 'complete operation' doctrines. Under the 'coming to rest' doctrine, loading is interpreted as beginning only after the object to be transported has come in the immediate vicinity of the insured vehicle and unloading is interpreted as ceasing when the object transported first comes to immediate rest upon removal from the vehicle. Under the 'complete operation' doctrine, loading and unloading are interpreted as involving the entire process involved in the movement of the articles from the place...
To continue reading
Request your trial
-
Gull Indus., Inc. v. Granite State Ins. Co.
...general liability insurance), aff'd, 126 Wn.2d 50, 882 P.2d 703, 891 P.2d 718 (1994).¶59 Relying on Aetna Insurance Co. of Hartford v. Kent, 85 Wash.2d 942, 540 P.2d 1383 (1975), Gull contends its primary CGL and Auto Liability policies are mutually exclusive. The Aetna case concerned two p......
-
Queen City Farms, Inc. v. Central Nat. Ins. Co. of Omaha
...from coverage. See Aetna Ins. Co. of Hartford v. Kent, 12 Wash.App. 442, 447, 530 P.2d 672, reversed on other grounds, 85 Wash.2d 942, 540 P.2d 1383 (1975). QCF points out that while the language "unexpectedly and unintentionally" appears in the "occurrence" definitions of these policies, t......
-
Queen City Farms, Inc. v. Central Nat. Ins. Co. of Omaha
...should make no difference, QCF argues (citing Aetna Ins. Co. v. Kent, 12 Wash.App. 442, 530 P.2d 672, rev'd on other grounds, 85 Wash.2d 942, 540 P.2d 1383 (1975)). QCF argues that it made a prima facie case for coverage by proving that the property damage resulted from the continuous leaka......
-
Denny's Restaurants, Inc. v. Security Union Title Ins. Co.
...intent. Disparity in premium costs may provide evidence of the parties' intended scope of coverage. See Aetna Ins. Co. of Hartford v. Kent, 85 Wash.2d 942, 947, 540 P.2d 1383 (1975). If the contract remains ambiguous after examining extrinsic evidence, the contract will be construed in favo......