Bituminous Casualty Corp. v. Hartford Accident & Indem. Co.

• Decision Date: 09 April 1964
• Docket Number: No. 14390.,14390.
• Citation: 330 F.2d 96
• Parties: BITUMINOUS CASUALTY CORPORATION, an Illinois Corporation, Plaintiff-Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Foreign Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

330 F.2d 96 (1964)

BITUMINOUS CASUALTY CORPORATION, an Illinois Corporation, Plaintiff-Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Foreign Corporation, Defendant-Appellee.

No. 14390.

United States Court of Appeals Seventh Circuit.

April 9, 1964.

Thomas B. Kennedy, Jr., and McConnell, Kennedy, McConnell & Morris, Peoria, Ill., for appellant.

John E. Cassidy, Jr., and Cassidy & Cassidy, Peoria, Ill., for appellee.

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

DUFFY, Circuit Judge.

In this suit, Bituminous Casualty Corporation (Bituminous) seeks a judgment that Hartford Accident and Indemnity Company (Hartford) is liable on its policy of insurance which it issued to Harold Bohm for sums which Bituminous paid out in settlement of a lawsuit brought by one Roger Long against plaintiff's insured, William H. Edwards.

Plaintiff Bituminous was liability insurer for premises used in part by William H. Edwards for the storage and sale of chemical commercial fertilizers. One of the buildings was used to store such fertilizer, and located in the floor of that building was an auger-type loading mechanism.

Defendant Hartford was an insurer of Harold Bohm, insuring Bohm against liability for damages arising out of the operation and use of a truck owned by Bohm. Under the policy, the term "insured" included any person while using the motor vehicle. Also, the policy provided that the use of the motor vehicle included the loading and unloading thereof.

On January 3, 1958, the Bohm truck was on the Edwards premises to be loaded with fertilizer. The auger device was activated so as to force fertilizer from the building where it was stored and, by means of an additional device, into the Bohm truck.

Roger Long was a "visitor" upon the Edwards premises. For some reason, Long went inside of the fertilizer shed, apparently fell, and caught his leg in the moving auger. He was seriously injured losing a part of one leg by amputation. Long filed suit against Edwards which Hartford, on demand, refused to defend.

Bituminous claims that Edwards was an additional insured of Hartford; that plaintiff settled the lawsuit against Edwards, and that plaintiff is entitled to recover from Hartford the sum of $10,600, being the aggregate of the settlement payment to Long, plus $1,000 expended as costs and attorney fees in the suit of Long v. Edwards.

Just what is included within an automobile insurance policy phrase "loading and unloading" of a motor vehicle, under Illinois law, has been a troublesome question. Among the cases where this point has been considered by this Court are — Liberty Mutual Ins. Co. v. Hartford Accident & Ind. Co., 7 Cir., 251 F. 2d 761; George H. Wolff Sons, Inc. v. Aetna Casualty & Surety Co., 286 F.2d 862; Pavlik v. St. Paul Mercury Insurance Company, 7 Cir., 291 F.2d 124; Hartford Accident & Ind. Co. v. Fireman's Fund Ind. Co., 7 Cir., 298 F.2d 423; and Clark v. Travelers Indemnity Co., 7 Cir., 313 F.2d 160.

We think our decision in Clark v. Travelers Indemnity Co., supra, is controlling. True, Hartford attempts to distinguish Clark principally on the ground that in the case at bar, Bohm's truck was not merely present, but was, in fact, in the process of being loaded. However, we think Clark cannot be thus distinguished.

The courts of the various states have given differing interpretations of the "loading and unloading" clause in automobile insurance policies. However, it should be kept in mind that the clause is a part of the insurance policy provision "arising out of the * * * use of the automobile."

An attempt was made to state a rule that would be of general application in the annotation at 160 A.L.R. 1259, 1272, where it stated: "According to all the cases discussing this question, the general rule seems to be that an accident is covered by the `loading and unloading' clause only if the loading or unloading was the efficient and predominating cause of the...