Home Indem. Co. v. Harleysville Mut. Ins. Co.

• Decision Date: 07 April 1969
• Docket Number: No. 18899,18899
• Citation: 252 S.C. 452,166 S.E.2d 819
• Parties: HOME INDEMNITY COMPANY, Appellant, v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Respondent.
• Court: South Carolina Supreme Court

Page 819

166 S.E.2d 819

252 S.C. 452

HOME INDEMNITY COMPANY, Appellant, v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Respondent.

No. 18899.

Supreme Court of South Carolina.

April 7, 1969.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

MOSS, Chief Justice.

This action is one under the 'Uniform Declaratory Judgments Act', Section 10--2001 Et seq., 1962 Code of Laws. It is brought by Home Indemnity Company, the appellant herein, against Harleysville Mutual Insurance Company, the respondent herein, seeking a declaratory judgment to determine which of the insurers provided coverage for an injury resulting from an accident that occurred on September 28, 1964.

The appellant was the insurer of Marshall Farms Cooperative under a Comprehensive Liability General-Automobile policy, and the respondent insured Marshall Enterprises under a similar policy. Attached to the latter policy was an endorsement which excludes under certain circumstances losses which arise out of the loading or unloading of a motor vehicle.

Marshall Enterprises was engaged in the trucking business whose function was to receive live chickens from various points in South Carolina and other surrounding states and to transport such to Marshall Farms at their place of business in Greenville, South Carolina, where they were processed for market. On September 28, 1964, Marshall Enterprises brought to the premises of Marshall Farms a truck load of chickens, the said truck being operated by a regular driver of Marshall Enterprises. He parked the truck on the premises of Marshall Farms in an area designated for such and according to the requirements left the keys of the truck in the ignition switch. The truck driver then left the premises and had nothing further to do with the truck. This being in accord with custom. Thereafter, a regular employee of Marshall Farms did move the truck to a weighing station owned by it where the truck loaded with live chickens would be weighed and then the truck would be driven to the area where they were to be physically removed from the truck, and after the chickens had been so removed, the truck then empty, would be taken back to the weighing station a second time and, thereafter, back to its parking place. The two weighings were necessary in order to determine how many pounds of chickens had been delivered.

On September 28, 1964, while both of the aforesaid policies were in force and effect, one Leroy Garrett was injured as a result of being struck by a truck owned by Marshall Enterprises and which was being operated by an employee of Marshall Farms. Garrett instituted suit against Marshall Farms and Marshall Enterprises, seeking damages for the personal injuries sustained, based upon the alleged negligence in the operation of the aforesaid truck under the circumstances heretofore outlined. Thereafter, there was an agreed settlement reached by which Garrett was paid the sum of 13,500.00, with each insurer advancing one-half thereof, or $6,750.00, with the understanding that each reserved all rights against the other as to who provided coverage for the damages. The appellant also incurred expenses and attorney fees in the defense of the action in the sum of $628.66. Home Indemnity instituted this action against Harleysville to recover the amount contributed by it towards the settlement plus the expenses and attorney fees, contending that the respondent provided full coverage under its policy. The respondent counterclaimed, contending Inter alia, that it provided no coverage whatever and sought a recovery against the appellant in the amount of $6,750.00, being the amount it advanced towards the settlement.

This case came on for trial before The Honorable James H. Price, Jr., Judge of the Greenville County Court, and by agreement, was tried without a jury, based upon written stipulations and exhibits. The lower court concluded that Harleysville afforded no coverage to Marshall Farms and, accordingly, rendered judgment on its counterclaim against Home in the amount of $6,750.00. Home Indemnity Company has appealed from the aforesaid order and asserts that its policy does not provide coverage to Marshall Farms.

Harleysville's policy contained the following provisions:

'1. 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 and caused by accident.

'The unqualified word 'insured' includes the named insured and also includes * * * (2) under coverages A and B, 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, * * *.

'Use of an automobile includes the loading and unloading thereof.'

There are two theories in regard to liability under the 'loading and unloading' clause of a liability policy. One is called the 'coming to rest' doctrine. Under this doctrine 'unloading' is given a narrow construction and is held to extend only to the actual lifting of the article from the motor vehicle to a place of rest outside the vehicle, and the connection of the vehicle with the process of unloading has ceased.

Under the 'complete operation' doctrine, the 'loading and unloading' clause covers the entire process involved in the movement of goods from the moment when they are given into the insured's possession until they are turned over at the place of destination to the party to whom delivery is to be made, and for all practical purposes, any distinction between 'loading' and 'delivery' is not considered. 95 A.L.R.2d 1129.

The effect of a 'loading and unloading' provision is simply to expand the term 'use of the vehicle' so that coverage will extend from the commencement of loading until the completion of unloading. Truck Ins. Exchange v. Webb, 256 Cal.App.2d 140, 63 Cal.Rptr. 791. In interpreting policy coverage all injuries arising out of unloading process in accordance with complete operation doctrine tests to determine if unloading has commenced are whether acts in progress at time of accident were necessary and integral to movement of goods from vehicle, whether they would have occurred but for need to move goods, and whether they were closely related in time and space to actual movement of goods from vehicle, McCloskey & Co. v. Allstate Ins. Companies, 123 U.S.App.D.C. 177, 358 F.2d 544. Where an employee of a building contractor was directing a concrete truck owned by a third party to a place on the construction premises where it was to unload the concrete, and an employee of a second contractor working on the premises was injured when a wheel of the truck became engaged in some ropes connected to a scaffold on which he was working, it was held in Pellicano v. Royal Indem. Co., 35 Misc.2d 259, 229 N.Y.S.2d 654, that the employee's injuries came within the coverage of an insurance policy on the truck which contained a 'loading or unloading' clause. Even though the insured vehicle had not commenced to discharge its load on...