Cenno v. West Virginia Paper & Pulp Co.

• Decision Date: 20 February 1970
• Citation: 109 N.J.Super. 41,262 A.2d 223
• Parties: Leo CENNO, Plaintiff, v. WEST VIRGINIA PAPER & PULP CO. et al., Defendants. WEST VIRGINIA PAPER & PULP CO., and Acme Steel Company, Third-Party Plaintiffs-Respondents, v. AMERICAN POLICYHOLDER'S INSURANCE COMPANY, American Mutual Liability Insurance Company, Third-Party Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 41

109 N.J.Super. 41

262 A.2d 223

Leo CENNO, Plaintiff, v. WEST VIRGINIA PAPER & PULP CO. et al., Defendants.

WEST VIRGINIA PAPER & PULP CO., and Acme Steel Company, Third-Party Plaintiffs-Respondents, v. AMERICAN POLICYHOLDER'S INSURANCE COMPANY, American Mutual

Liability Insurance Company, Third-Party

Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 2, 1970.

Decided Feb. 20, 1970.

Arthur J. Callaghan, Newark, for American Mut. Liability Ins. Co. (Brause, Callaghan & Coyle, Newark, attorneys).

Herbert Ziff, Jersey City, for Acme Steel Co. (Ziff & Yacavino, Jersey City, attorneys).

Maurice B. McLaughlin, Jersey City, for West Virginia Paper & Pulp Co. (Galvin, French & McLaughlin, Jersey City, attorneys).

Before Judges SULLIVAN, CARTON and HALPERN.

The opinion of the court was delivered by

SULLIVAN, P.J.A.D.

This appeal is from a judgment of the trial court holding that plaintiff's accident, for which defendant West Virginia Paper and Pulp Company was ultimately held liable, came within the loading and unloading provisions of a comprehensive automobile liability policy issued by appellant American Mutual Liability Insurance Company. For reasons hereinafter detailed we reverse.

Plaintiff Leo Cenno was employed as a truck driver by Ahrens Motor Trucking. Ahrens was insured in its trucking operation by American Mutual under the aforesaid policy, which contained the following provisions relevant to the legal issue herein involved.

I. COVERAGE A--Bodily Injury Liability to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * caused by accident and arising out of the ownership, maintenance or use of any automobiles.

III. DEFINITION OF INSURED

The unqualified word 'insured' includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, * * *.

IV. PURPOSES OF USE DEFINED

(c) Use of an automobile includes the loading and unloading thereof.

On the day in question plaintiff, driving an Ahrens' truck, picked up a truckload of 500--750-pound bales of cardboard boxes at the West Virginia Paper and Pulp Company plant in Hoboken, New Jersey. He was to deliver the load to Allied Paper in Brooklyn, New York. The cardboard had been baled by West Virginia at its Hoboken plant using metal bands and clips manufactured by defendant Acme Steel Company.

Plaintiff arrived at the Allied Paper plant in Brooklyn and, in connection with the unloading, attempted to move one of the bales to the rear of the truck. An Allied Paper employee was standing by with a fork lift to take the bale. While plaintiff was pulling on a band securing the bale, the band came apart causing plaintiff to lose his balance and fall out of the truck to the ground.

Plaintiff brought suit against Acme Steel charging that the bands and clips used on the bale had been defectively manufactured. He also sued West Virginia charging that the bale had been negligently and improperly banded. Acme Steel and West Virginia called upon American Mutual to defend them as additional insureds under the comprehensive liability policy covering the truck. American Mutual refused to do so and third-party complaints were filed by Acme and West Virginia against American Mutual charging that the accident happened during the unloading, came under the loading and unloading clause of the truck liability policy, and that they were additional insureds covered by said policy. The third-party suits were severed and plaintiff's accident suit tried separately.

The issue of liability in the accident suit was submitted to a jury, which returned a verdict in favor of plaintiff and against West Virginia for $12,000. The jury found no cause for action on plaintiff's claim against Acme Steel.

Thereafter, the trial judge ruled that the accident happened during the unloading of the truck and that Acme and West Virginia were additional insureds under American Mutual's liability policy. He therefore entered a judgment on the third-party complaints in favor of West Virginia and against American Mutual for $12,000, plus costs of $1585 representing its expenses in defending plaintiff's suit. He entered a judgment in favor of Acme against American Mutual for $1635 representing its costs incurred in defending plaintiff's suit. The appeal by American Mutual involves only the rulings in the third-party suits.

We conclude that the decision of the trial court, holding that Acme Steel and West Virginia were additional insureds under the comprehensive automobile liability policy for the negligent acts charged to them, was erroneous. Plaintiff's suit against Acme Steel was bottomed on the contention that the steel bands and clips used on the bale had been defectively manufactured. (The Acme Steel plant is located at Rockford, Illinois.) Plaintiff's complaint against West Virginia charged that it had negligently banded the bale. (The baling was done by West Virginia at its Hoboken, New Jersey, plant.) The jury, by its verdict, found that the accident had been caused by West Virginia in negligently banding the cardboard. However, the acts charged to defendants antedated delivery of the goods to Ahrens Motor Trucking, were unrelated to the loading or unloading of the truck, and were not covered by the comprehensive liability policy. The policy does not embrace all accidents happening during...