American Motorists Ins. Co. v. Nashua Lumber Co.

• Decision Date: 31 January 1961
• Parties: AMERICAN MOTORISTS INSURANCE COMPANY v. NASHUA LUMBER COMPANY, Inc. BOSTON INSURANCE COMPANY v. NASHUA LUMBER COMPANY, Inc.
• Court: New Hampshire Supreme Court

Page 681

167 A.2d 681

103 N.H. 147

AMERICAN MOTORISTS INSURANCE COMPANY v. NASHUA LUMBER COMPANY, Inc.

BOSTON INSURANCE COMPANY v. NASHUA LUMBER COMPANY, Inc.

Supreme Court of New Hampshire.

Argued Nov. 2, 1960.

Decided Jan. 20, 1961.

As Modified Jan. 31, 1961.

McLaughlin & Berrigan, Nashua, for plaintiff Boston Ins. Co.

Harkaway & Ryan, Nashua, for defendant Nashua Lumber Co., Inc.

Earley & Flynn and Margaret Q. Flynn, Nashua, for defendant Lillian LaFrance.

WHEELER, Justice.

Presented for the first time in this jurisdiction is the problem of the interpretation of the 'loading and unloading' clause in the policy issued by the plaintiff Boston Insurance Company.

The authorities concede that this clause expands the meaning of the 'use' of the motor vehicle and enlarges the coverage beyond that of the standard liability policy which provides for recovery for injuries 'arising out of the ownership, maintenance and use of the automobile.' Pacific Automobile Ins. Co. v. Commercial Casualty Ins. Co., 108 Utah 500, 511, 161 P.2d 423, 427, 160 A.L.R. 1251. The authorities are, however, divided as to the extent of the coverage afforded by the words 'loading and unloading' which has resulted in the establishment of two doctrines appropriately called 'coming to rest' and 'complete operations.'

Under the first doctrine a more narrow view is adopted and the scope of coverage afforded by the addition of the words 'loading and unloading' is least broadened. These authorities hold that when an article is removed from a motor vehicle and has actually come to rest, the process of unloading is complete and no coverage against liability for subsequent acts is provided by the policy. 160 A.L.R. 1259, 1264; Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629; 7 Appleman, Insurance, §§ 4322 and 4322 (supp).

The jurisdictions which have adopted the 'complete operations doctrine' give a broader construction to the clause 'loading and unloading' than it has under the 'coming to rest doctrine.' See Annotation 160 A.L.R. 1259, 1267. The rationale of these decisions is that by such a clause a continuous operation is contemplated which includes a proper commercial delivery of the product. 'If the driver, in carrying forward this mission, was negligent in leaving it where it could, and did, cause injury, that negligent act was a part of the operation of unloading the truck and had a direct causal relation with the truck and unloading operation. Such an interpretation of the contract requires no strained construction and does no violence to the fair meaning of the terms used.' Raffel v. Travelers Indemnity Co., 141 Conn. 389, 396, 106 A.2d 716, 719. See also, Wagman v. American Fid. & Cas. Co., 304 N.Y. 490, 109 N.E.2d 592; Red Ball Motor Freight, Inc. v. Employers Mutual Liability Ins. Co., 5 Cir., 1950, 189 F.2d 374, 377; Schmidt v. Utilities Ins. Co., 353 Mo. 213, 218, 182 S.W.2d 181, 154 A.L.R. 1088; State ex rel. Butte Brewing Co. v. Dist. Court, 110 Mont. 250, 256, 100 P.2d 932. The Massachusetts Court has adopted the 'complete operations doctrine.' See August A. Busch & Co. of Mass. v. Liberty Mut. Ins. Co., 339 Mass. 239, 158 N.E.2d 351. We think the better view to be that which holds that the words 'loading and unloading' in the policy are intended to extend rather than to limit the use covered so as to include a continuous operation which includes a proper commercial delivery of the product. It follows that a necessary and integral part of such use and operation was the unloading of the truck at the point of delivery which was required to be done in a reasonably safe manner. If it was seasonably notified, the Boston Insurance Company is therefore obligated to defend the action brought by Mrs. LaFrance...