Cinq-Mars v. Travelers Ins. Co.

• Decision Date: 07 April 1966
• Docket Number: No. 10744,CINQ-MARS,10744
• Parties: Gerard L.v. The TRAVELERS INSURANCE COMPANY. Ex.
• Court: Rhode Island Supreme Court

Page 467

218 A.2d 467

100 R.I. 603

Gerard L. CINQ-MARS v. The TRAVELERS INSURANCE COMPANY.

Ex. No. 10744.

Supreme Court of Rhode Island.

April 7, 1966.

Gunning & LaFazia, Raymond A. LaFazia, Bruce M. Selya, Providence, for plaintiff

Boss, Conlan, Keenan & Rice, John T. Keenan, Providence, for defendant.

JOSLIN, Justice.

This is an action of case in which the plaintiff seeks recovery as an additional insured under the omnibus clause of a comprehensive automobile liability insurance policy issued by the defendant to Perry's Express Company, Inc. The case was tried to a justice of the superior court sitting with a jury and at the conclusion of the testimony both parties expressly waived the benefit of a jury determination and the jury was discharged. Thereafter, the trial justice entered a decision for the defendant The occurrence constituting the basis for the controversy took place on October 2, 1959. On that date plaintiff was engaged on behalf of his employer, Perry's Express Company, Inc., in transporting and delivering three lace looms, each of which weighed approximately from twelve to fifteen tons, to New England Lace Company in the city of Pawtucket. To complete delivery of the looms it was necessary to raise them from the flatbed trailer upon which they were transported to an opening in the wall of the consignee's mill located about eight feet above the trailer, and for that purpose a crane owned and operated by James F. Kelley was employed by Perry's. As Kelley was hoisting one of the looms and after it had reached the opening in the wall and was partially inside the mill, the cable snapped, the loom fell and plaintiff was injured. To recover damages for those injuries plaintiff brought suit against Kelley.

and the case as briefed and argued raises only the plaintiff's exception to that decision.

That case, the suit of plaintiff against Kelley, was tried to a justice of the superior court sitting without a jury. He found that Kelley was negligent in using a cable of insufficient strength to carry the weight of the loom and decided for plaintiff in the amount of $17,500 and on review we sustained. See Cinq-Mars v. Kelley, 95 R.I. 515, 188 A.2d 379. Thereafter, when Kelley did not fully satisfy the judgment against him, plaintiff brought this separate suit against defendant as Perry's insurer for the unpaid balance. The plaintiff's theory is that Kelley was covered as an additional insured under Perry's policy and that G.L.1956, § 27-7-2, permits him as a judgment creditor to proceed directly against the tort-feasor's insurer for the unsatisfied portion of the judgment.

POLICY COVERAGE

At the outset we are concerned with whether the policy in which Perry's was the named insured obligates defendant, the insurer, to pay plaintiff for the injuries he sustained as a result of Kelley's negligence in using an insufficient or defective cable in the hoisting operation. In that policy defendant agrees to pay on behalf of Perry's all sums which it as the 'insured' shall 'become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.' In the omnibus provision, so called, the unqualified word 'insured' is defined as including 'the named insured and * * * any person while using an owned automobile * * * provided the actual use of the automobile is by the named insured or with his permission * * *.' A further stipulation provides that 'Use of an automobile includes the loading and unloading thereof.'

An omnibus provision like that in this policy is usually found, and in some states is required to be included, in automobile liability insurance policies. In a general way it extends the policy coverage to persons in addition to the named insured who use the insured's vehicle with permission, and if the policy also contains a 'loading and unloading' stipulation, the phrase 'Use of an automobile' in the omnibus provision is extended to include operations or acts in which the movement of the vehicle itself plays no part, and to provide cover during a period when goods are being moved on to or off of a stationary vehicle. American Motorists Ins. Co. v. Nashua Lumber Co., 103 N.H. 147, 167 A.2d 681; Pacific Automobile Ins. Co. v. Commercial Casualty Ins. Co., 108 Utah 500, 161 P.2d 423, 160 A.L.R. 1251.

Policies containing similar provisions have been a frequent subject of litigation, 95 A.L.R.2d 1122, 160 A.L.R. 1259, and the coverage furnished by a trucker's insurer whose policy so stipulates extends to liability for accidents caused by a third party's negligence provided they occurred When unloading ends and delivery commences is an issue on which there is a division among the authorities. Some courts follow the so-called 'coming to rest' doctrine and deny coverage for accidents occurring after the material has been removed from the vehicle and has started on its way to be delivered by an independent means. The critical time under this view is when the material is no longer being removed from the vehicle. St. Paul Mercury Indemnity Co. v. Standard Accident Ins. Co., 216 Minn. 103, 11 N.W.2d 794; Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629.

during the loading or unloading process and were causally connected with it. Maryland Casualty Co. v. New Jersey Mfrs. (Casualty) Ins. Co., 48 N.J.Super. 314, 137 A.2d 577, aff'd 28 N.J. 17, 145 A.2d 15; Pacific Automobile Ins. Co. v. Commercial Casualty Ins. Co., supra. The necessary causal relationship exists if the accident occurs as the third party is loading or unloading and delivering with the insured's permission and at his direction, Bituminous Casualty Corp. v. American Fidelity & Casualty Co., 22 Ill.App.2d 26, 159 N.E.2d 7; American Automobile Ins. Co. v. American Fidelity & Casualty Co., 106 Cal.App.2d 630, 235 P.2d 645; Wagman v. American Fidelity & Casualty Co., 304 N.Y. 490, 109 N.E.2d 592; and since it is undisputed in the present case that Kelley was acting at Perry's direction when the loom fell, the decisive question is whether the accident occurred during the unloading process.

In most jurisdictions, however, that doctrine is rejected and the 'complete operation' view prevails. It is broader in scope that the 'coming to rest' theory and includes as a part of the unloading process not only the immediate removal of the goods from the vehicle, but also the entire operation of moving the goods between the vehicle and the place to which they are being delivered, and under it unloading comes to an end only when the continuing operation which commenced with the taking of the article from the truck has been completed by its delivery to the customer. Bobier v. National Casualty Co., 143 Ohio St. 215, 54 N.E.2d 798; Wagman v. American Fidelity & Casualty Co., supra; Risjord, Loading & Unloading, 13 Vand.L.Rev. 903.

In our judgment the majority view is the sounder. To hold that unloading includes only the mere act of removing and does not include the continuous and uninterrupted operation of carrying the goods from the vehicle to the point where delivery is to be made would in our view unduly limit the extent of the policy beyond what is reasonable. Our neighboring state of Massachusetts went further in August A. Busch & Co. of Mass., Inc. v. Liberty Mutual Ins. Co., 339 Mass. 239, 158 N.E.2d 351, and found that the insurer who drafted the loading and unloading provision must have been aware that the strong weight of authority follows the 'complete operation' doctrine and therefore contemplated and intended that the language selected would probably be so construed.

The use in the unloading process of such devices as a crane or a hoist or a winch will not break the chain of continuous operation, and coverage under an unloading stipulation in such instances will not turn on whether additional or other equipment was used but on whether the unloading process was going on at the very time the accident occurred. Employers Mutual Liability Ins. Co. of Wisconsin, v. Pacific Indemnity Co., 167 Cal.App.2d 369, 334 P.2d 658; 7 Appleman, Insurance Law & Practice, § 4322, p. 158.

Illustrative of this principle is Bituminous Casualty Corp. v. American Fidelity & Casualty Co., supra, where a trucker's insurance carrier was held liable to a third person for injuries caused when a diesel engine, as it was being raised from the insured's truck for delivery to the customer's premises, fell because of the negligent operation The defendant seeks to distinguish the Bituminous Casualty Corp. case and those like it from the present case by arguing that in the former the negligence was in the operation of the mechanism used to unload whereas here the effective cause of the accident was a defect in the equipment used in the unloading process. It cites Travelers Ins. Co. v. Employers Casualty Co., Tex.Civ.App., 370 S.W.2d 105, as authority for the rule that there should be no coverage under an unloading provision where the predominating cause of the accident is a defect in the unloading equipment rather than negligence in its operation. In that case three persons were killed when a crane carrying a bucket filled with concrete from a ready-mixed concrete truck to a construction form into which the material was to be poured buckled and fell because of a defect in the equipment. It is true that the court there as one of four alternative grounds for denying liability said that an equipment defect does not constitute unloading. Whatever precedential value ...