Cosmopolitan Mut. Ins. Co. v. Baltimore & Ohio R.R. Co.

• Decision Date: 14 May 1963
• Citation: 240 N.Y.S.2d 88,18 A.D.2d 460
• Parties: COSMOPOLITAN MUTUAL INSURANCE COMPANY and Harry Rosenbaum, Plaintiffs-Appellants, v. BALTIMORE & OHIO RAILROAD CO., and Maryland Casualty Company, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 88

240 N.Y.S.2d 88

18 A.D.2d 460

COSMOPOLITAN MUTUAL INSURANCE COMPANY and Harry Rosenbaum, Plaintiffs-Appellants, v. BALTIMORE & OHIO RAILROAD CO., and Maryland Casualty

Company, Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

May 14, 1963.

Lester Samuels, New York City, of counsel (Emanuel Morgenbesser, New York City, attorney; Weisman, Celler, Allan, Spett & Sheinberg, New York City, of counsel), for appellants.

Donald J. Sheehan, New York City, of counsel (Millard N. Bush, New York City, attorney), for respondents.

Before McNALLY, J. P., and STEVENS, EAGER, STEUER and BERGAN, JJ.

EAGER, Justice.

The plaintiffs appeal from a declaratory judgment which determined and adjudicated that a liability policy of the plaintiff Cosmopolitan Mutual Insurance Company provided coverage for the defendant Baltimore & Ohio Railroad Co., as an additional insured, for liability for injuries sustained in an accident involving the plaintiff Rosenbaum.

The facts concerning the accident were agreed upon. It appears that Rosenbaum had driven the insured truck, owned by him, to a B & O Railroad Co. freight receiving station located in Manhattan on the North River for the purpose of making delivery there of certain cartons of goods. In this connection, Rosenbaum was to take the merchandise from the truck and deliver it to the receiving office at the station pier. Following his arrival at the station, Rosenbaum took a carton from the truck's tail gate and placed it on the adjacent raised platform at the pier. Then he stepped on this platform, picked up the carton and, with it in his arms, stepped down to the pier floor where he was caused to fall due to the fact that the flooring at that point was broken. The accident is alleged to have been occasioned because of the negligence of B & O in the maintenance of the said flooring.

The policy of Cosmopolitan, in effect at the time of the accident, was an automobile liability insurance policy issued by it to the plaintiff Rosenbaum as the named insured, and insured him against liability for 'damages because of bodily injuries * * * arising out of the ownership, maintenance or use of' his said truck.

The general provisions thereof for insurance against liability for accidents arising 'out of the ownership, maintenance or use' of the truck are to be construed to afford coverage for liability for accidents occurring by reason of the use of such vehicle during the loading and unloading of goods therefrom. (See D'Aquilla Bros. Contracting Co. v. Hartford Acc. & Ind. Co., 22 Misc.2d 733, 735, 193 N.Y.S.2d 502, 505, mod. 15 A.D.2d 509, 222 N.Y.S.2d 409; Roche v. United States Fidelity & Guaranty Co., 247 App.Div. 335, 287 N.Y.S. 38, affd. 273 N.Y. 473, 6 N.E.2d 410. Cf. Aranzullo v. Collins Packing Company, 18 App.Div.2d 1068, 239 N.Y.S.2d 398.) Moreover, the further provisions in the policy that 'the unqualified word 'Insured' includes the named Insured * * * and also includes any person while using the automobile' with permission of the insured have the effect of broadening the coverage to include as an additional insured any person 'using' the vehicle during loading and unloading. (See Wagman v. American Fidelity & Cas. Co., 304 N.Y. 490, 494, 109 N.E.2d 592, 594; Brustein v. New Amsterdam Casualty Co., 255 N.Y. 137, 174 N.E. 304; D'Aquilla Bros. Contracting Co. v. Hartford Acc. & Ind. Co., supra; Greaves v. Public Service Mut. Ins. Co., 4 A.D.2d 609, 168 N.Y.S.2d 107, affd. 5 N.Y.2d 120, 126, 181 N.Y.S.2d 489, 493, 155 N.E.2d 390, 392; Standard Sur. & Cas. Co. of New York v. Maryland Cas. Co., 199 Misc. 658, 100 N.Y.S.2d 79, affd. 281 App.Div. 446, 119 N.Y.S.2d 795.) $The question here is whether or not Cosmopolitan's policy, issued upon Rosenbaum's truck, covers the B & O as an additional insured against liability for Rosenbaum's injuries occurring from his fall during the unloading of the vehicle.

Liability insurance coverage for use of a vehicle during loading and unloading embraces 'not only the immediate transference of the goods to or from the vehicle, but the 'complete operation' of transporting the goods between the vehicle and the place from or to which they are being delivered.' (Wagman v. American Fidelity & Cas. Co., supra, 304 N.Y. p. 494, 109 N.E.2d p. 594.) Therefore, it is settled that where an accident results from an act inherent in or directly related to the process of the moving of the goods from the vehicle to the place to which they are to be delivered, then there is coverage. (See Wagman v. American Fidelity & Cas. Co., supra; Lamberti v. Anaco Equipment Corp., 16 A.D.2d 121, 226 N.Y.S.2d 70; Travelers Insurance Co. v. W. F. Saunders & Sons, 18 A.D.2d 126, 238 N.Y.S.2d 495.) These decisions do not, however, go so far as to hold that coverage is extended to all accidents occurring during the period of unloading, irrespective of cause.

The issue presented in the Lamberti case, supra, was whether or not the unloading process had been completed, namely, whether or not the 'complete operation' in the delivery of the cement from the insured's truck had been accomplished at the time of the accident. On the facts there, the unloading was still in process at the time of the accident and the accident having resulted from an act related to the unloading, this court held that there was coverage. Here, however, the injury occurred from a condition wholly unrelated to the unloading process as such.

Certainly, the vehicle insurance coverage here was not written to embrace all accidents occurring during the period of loading or unloading, regardless of causation. So, it is held in many decisions that this type of coverage does not apply where there is no causal relationship between the accident and the movement of the goods to or from the vehicle. (See 7 Appleman on Insurance, § 4322; Employers Mut. Liability Ins. Co. of Wisconsin v. Aetna Cas. & Sur. Co., 7 A.D.2d 853, 181 N.Y.S.2d 813, leave to appeal denied 6...