BLACHOWSKI v. Royal Indemnity Company
| Decision Date | 16 April 1975 |
| Docket Number | Civ. A. No. 72-C-101. |
| Citation | 390 F. Supp. 1158 |
| Parties | Walter BLACHOWSKI, Plaintiff, v. ROYAL INDEMNITY COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Howard A. Davis and James J. Murphy, Milwaukee, Wis., for plaintiff.
Richard S. Gibbs, Milwaukee, Wis., for defendant.
DECISION AND ORDER
This is a diversity action involving the scope of insurance coverage under a loading and unloading clause in an automobile liability policy. The parties have stipulated to the facts and, after a hearing on March 24, 1975, agreed that the action could be decided on cross motions for summary judgment. For the reasons hereinafter stated, summary judgment for the plaintiff must be granted.
On August 30, 1965, Lloyd Construction Company, Inc. ("L.C.C.") was engaged in the construction of the Juneau Village Project apartments in Milwaukee, Wisconsin. Pursuant to a contract, State Sand and Gravel Company ("State") was delivering ready-mix concrete to the construction site. The work had progressed to the extent that the concrete truck could not pour the concrete directly into the wooden forms but rather poured the concrete into a bucket which was then hoisted up by means of a crane and swung to the section of the job where the bucket could then be emptied into the forms. The operator of the crane could not see the spot at which the concrete was dropped into the forms and was, accordingly, directed by a signalman. At the point where the concrete was emptied from the bucket, a group of concrete "puddlers," among them one George Kropelin, would push the concrete into the forms. Other workmen were working in the area, and it was the regular and ordinary custom of the trade for those working with the concrete to warn the other workmen of the approach of the bucket. The signalman did not have this responsibility but instead watched the bucket itself and gave hand signals to the crane operator.
Plaintiff Walter Blachowski was working as a carpenter near where the concrete was being poured into forms. He was holding onto a two-by-four when the concrete bucket came down on his right hand and crushed it. Although George Kropelin and other puddlers had given Blachowski a warning of the concrete bucket's approach several times earlier in the day, neither Kropelin nor anyone else warned Blachowski of the bucket's approach just before it crushed his hand. Kropelin admittedly did see the bucket coming.
The crane and bucket were owned by L.C.C., and the crane operator, signalman, puddlers, and carpenters were all L.C.C. employees.
At the time of the injury, State was the named insured under a comprehensive automobile liability policy issued by defendant Royal Indemnity Company ("Royal"). The policy promised:
"Insured" was defined to include not only the named insured, State, but also "* * * any person while using an owned automobile * * * provided the actual use of the automobile is by the named insured or with his permission * * *."
The policy also had an endorsement which read as follows:
Plaintiff Blachowski commenced an action against State and George Kropelin in the Circuit Court of Milwaukee County for the injury to his hand. Before trial, plaintiff moved for a voluntary nonsuit as to State, and the court dismissed State without prejudice. The trial commenced with George Kropelin as the only defendant. Kropelin was not represented by an attorney. The attorney for Royal had been asked by the state court judge whether he wished to appear in Kropelin's defense, and he had advised the court that his client did not wish him to do so. This was done in spite of the fact that plaintiff's theory in the state court action, reiterated in his trial brief, was that Kropelin was an additional insured under the above-quoted provisions of the insurance policy and that Royal would, therefore, be obligated to pay any amount for which Kropelin was found to be liable.
At the close of the state court trial, the case was submitted to the jury solely on the premise that Kropelin had negligently failed to warn of the approach of the concrete bucket. The jury returned a verdict finding Kropelin 95% causally negligent, plaintiff Blachowski 5% contributorily negligent, and the total damages to be $131,500. Judgment was entered on July 16, 1971, for $125.566.95.
Thereafter plaintiff commenced this action, claiming that since Kropelin was an additional insured under the insurance policy, Royal was liable to pay the amount of the judgment rendered against Kropelin in the state court action, together with interest. Defendant's answer denied coverage and raised a number of affirmative defenses. Defendant has, however, now conceded that the only issue is whether coverage under the policy extended to Kropelin's activities. To decide this, two issues must be resolved: First, did the injury to plaintiff arise out of the unloading of the State concrete truck, and, secondly, was Kropelin an additional insured under the policy?
The question of whether an injury arose out of the loading or unloading of an automobile has been the subject of much litigation. See Annots., 160 A.L.R. 1259; 95 A.L.R.2d 1122. In interpreting loading and unloading clauses, courts have developed two doctrines, the older and narrower "coming to rest" doctrine, and the broader "complete operation" doctrine. The doctrines are described as follows:
95 A.L.R.2d at 1125.
In this action, the court is bound by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to apply Wisconsin law. Although in Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629 (1937), the "coming to rest" doctrine was apparently applied, some thirty-two years later in Komorowski v. Kozicki, 45 Wis.2d 95, 172 N.W.2d 329 (1969), the Wisconsin Supreme Court expressly adopted the "complete operation" doctrine.
While neither the parties' nor the court's research has discovered a case involving the precise facts which are the basis for this action, a number of courts have ruled on the question of coverage under a loading and unloading clause where accidents occur during the process of delivering ready-mix concrete by use of a truck, bucket, and crane to the place where the concrete will be poured into prepared forms. Even applying the "complete operation" doctrine, however, the courts are divided over when the process of unloading has been completed.
Several cases have held that unloading is not completed until the concrete, after being poured into the bucket, is transported by the crane to its ultimate destination —the forms. St. Paul Mercury Ins. Co. v. Huitt, 336 F.2d 37 (6th Cir. 1964); Travelers Ins. Co. v. W. F. Saunders & Sons, Inc., 18 A.D.2d 126, 238 N.Y.S.2d 495, affirmed, 13 N.Y.2d 1019, 245 N.Y.S.2d 597, 195 N.E.2d 308 (1963); Lamberti v. Anaco Equipment Corp., 16 A.D.2d 121, 226 N.Y.S.2d 70 (1962); Commercial Standard Ins. Co. v. American General Ins. Co., 455 S.W.2d 714 (Tex.1970); Travelers Ins. Co. v. Employers Casualty Co., 380 S.W.2d 610 (Tex.1964). See also, Wagman v. American Fidelity & Casualty Co., 304 N.Y. 490, 109 N.E.2d 592 (1952). These cases reason that because it is impractical to leave ready-mixed concrete sitting for any length of time, the bucket and crane are merely a conduit for the concrete and the trip to the forms an incident in the unloading operation. Travelers Ins. Co. v. W. F. Saunders & Sons, Inc., supra; Lamberti v. Anaco Equipment Corp., supra. "Delivery" is thus not concerned with legal transfer of title, possession, or risk of loss, but instead refers to the physical placing of the articles being delivered. Travelers Ins. Co. v. Employers Casualty Co., supra.
In another group of cases, several courts have held that unloading is completed when the concrete has been poured from the truck into the bucket. Liberty Mutual Ins. Co. v. Johnson, Drake & Piper, Inc., 390 F.2d 410 (8th Cir. 1968); ...
To continue reading
Request your trial