General Pump Service, Inc. v. Ohio Cas. Ins. Co.

• Citation: 47 Cal.Rptr. 533,238 Cal.App.2d 81
• Court: California Court of Appeals
• Decision Date: 09 November 1965
• Parties: GENERAL PUMP SERVICE, INC., a corporation, Plaintiff, v. The OHIO CASUALTY INSURANCE COMPANY, a corporation, Defendant and Appellant, The Travelers Insurance Company, a corporation, Defendant and Respondent. Civ. 28943.

Page 533

47 Cal.Rptr. 533

238 Cal.App.2d 81

GENERAL PUMP SERVICE, INC., a corporation, Plaintiff, v. The OHIO CASUALTY INSURANCE COMPANY, a corporation, Defendant and Appellant The Travelers Insurance Company, a corporation, Defendant and Respondent.

Civ. 28943.

District Court of Appeal, Second District, Division 1, California.

Nov. 9, 1965.

Parker, Stanbury, McGee, Peckham & Garrett, Raymond G. Stanbury and J. H. Peckham, Los Angeles, for defendant and appellant The Phio Cas. Ins. Co. appellant The Ohio Cas. Ins. Co. Long Beach, for defendant and respondent The Travelers Ins. Co.

No appearance for plaintiff.

WOOD, Presiding Justice.

This is a declaratory relief action to determine the respective obligations of defendant The Travelers Insurance Company and defendant The Ohio Casualty Insurance Company with reference to defending a suit by one Rosas against the plaintiff. (Rosas, an employee of the Texaco, Inc. [oil company], while operating a truck which was owned by his employer and was insured by defendant Travelers, received serious personal injuries when he was struck by a hoist frame which was mounted upon a truck that was owned by plaintiff [General Pump] and was insured by defendant Ohio Casualty.) The court entered a judgment declaring that defendant Travelers is not obligated to defend the Rosas suit or to in any wise afford coverage to plaintiff in connection therewith, and that the sole coverage afforded to plaintiff is by the policy of insurance issued by defendant Ohio Casualty. Defendant Ohio Casualty appeals from the judgment.

Appellant contends that General Pump is an additional insured within the coverage of the policy of insurance issued by Travelers because at the time Rosas was injured General Pump was 'using' the Texaco truck in the sense that General Pump was unloading it and directing its operation.

The matter was submitted on the pleadings, a stipulation of facts, and exhibits which included forms of the insurance policies issued by defendants. From the stipulation, exhibits, admissions in the pleadings, and the findings, the pertinent facts may be summarized as hereinbelow set forth.

Prior to March 6, 1961, Texaco had contracted with plaintiff to pull the pump and casing from a water well (on Texaco property), to clean the well, and to reinstall the casing and pump. The pump motor was removed and sent to a shop for repairs. After plaintiff had cleaned the well, it notified Texaco that it was ready to reinstall the pump motor, and Texaco sent its employee, Rosas, in a Texaco truck to the repair shop to pick up the pump motor. When the Texaco truck arrived at the well site with the motor, plaintiff's employees were there with a truck and hoist. The hoist was an 'A-frame' with a hoist hook, and the frame was mounted on plaintiff's truck. Plaintiff's employees centered the A-frame over the well and secured it by attaching a chain from the frame to a nearby telephone pole. Said employees then directed Rosas to back the Texaco truck to the well so that the pump motor could be hoisted from the truck. The hoist hook from the A-frame was engaged in the pump motor on the Texaco truck and the motor was hoisted from the bed of the Texaco truck. Plaintiff's employees the directed Rosas to drive the Texaco truck forward. Rosas drove forward and stopped. As he did so, the chain which was attached to the telephone pole snapped, and the A-frame fell. One of the legs of the frame fell into the cab of the Texaco truck and injured Rosas.

At the time of the accident the Texaco truck was covered by a policy of liability insurance in the amount of $1,000,000 issued by defendant Travelers, and the plaintiff's (General Pump's) truck (including the hoist) was covered by a policy of liability insurance in the amount of $50,000 issued by defendant Ohio Casualty.

The Insuring Agreements in the Travelers policy are set forth in five paragraphs designated by Roman numerals. Paragraph I provides as follows: '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 * * * sustained by any person. * * *' Paragraph II provides for defense of any suit against the insured alleging such bodily injury. Paragraph III provides as follows: 'Definition of Insured. The unqualified word 'insured' includes the named insured [Texaco] and also includes * * * (2) under Coverages A and B, ¹ any person while using an owned automobile or a hired automobile and any person * * * legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission * * *.'

Under the heading, 'Exclusions,' the policy sets forth 11 paragraphs of itemized exclusions, none of which refers to the loading or unloading of an automobile. Under the heading, 'Definitions,' the policy defines various terms used elsewhere in the policy, but does not define 'use' or 'using.'

After Rosas had commenced an action against General Pump (the herein plaintiff) for damages for personal injuries, Travelers undertook the defense of that action, including the filing of an answer, the making of various motions, and other procedural steps. Subsequently, Travelers informed General Pump (the defendant in the Rosas action, and the plaintiff in the present action) that Travelers intended to abandon the defense of the Rosas action. Thereupon, General Pump filed the present action for declaratory relief--as to Travelers Insurance and Ohio Insurance.

Defendant Travelers filed an answer which in effect admits that its policy extends coverage to General Pump but alleges that the Ohio Casualty policy extends primary coverage and the Travelers policy is excess only. ² The prayer is that the court declare the Travelers policy coverage to be excess only. After the matter was submitted, the court, in its memorandum of opinion, granted leave to defendant Travelers to amend its answer to conform to proof. (The amendment was to the effect that the Travelers policy did not extend any coverage to General Pump.)

The memorandum of opinion also states that 'The unusual fact here is that the Travelers policy is not a standard automobile policy, even though it does cover certain liability arising from automobile use. No specific motor vehicle operations are listed as covered, and the usual clause by which loading and unloading are included as being within the term 'use' is absent. On the other hand, the operations of loading and unloading vehicles are not specifically excluded by language to that effect.

'The sole question then remains: Can plaintiff have the benefit of Texaco's insurance as a user of the Texaco truck it was unloading? I have concluded it may not, following the general rule, repeatedly approved in California, that the clause defining 'use' as including the loading and unloading of the insured vehicle is one of expansion of the term 'use' beyond its usual connotation, from which it logically follows that the omission of this phrase must have been intended as a purposeful limitation. [Citations.]'

Appellant contends that General Pump is an additional insured within the coverage of the policy of insurance issued by Travelers because at the time Rosas was injured General Pump was 'using' the Texaco truck in the sense that General Pump was unloading it and directing its operation.

The clause of the Travelers policy which defines additional insureds is contained in Insuring Agreement III. As above shown, that clause provides that the word insured includes the named insured and also includes, under Coverages A and B any person while using an owned automobile. Coverage A, which is part of Insuring Agreement I, makes no reference to the use or using of an automobile. It provides that Travelers shall pay all sums to which the insured shall become legally obligated to pay as damages because of bodily injury.

In Continental Cas. Co. v. Zurich Ins. Co., 57 Cal.2d 27, 17 Cal.Rptr. 12, 366 P.2d 455, similar policy provisions were before the court. In that case, Simpson hired Hiatt to log and haul timber. With Simpson's knowledge, Hiatt hired additional...