Home Indem. Co. v. Transport Indem. Co.

• Decision Date: 13 June 1968
• Citation: 69 Cal.Rptr. 504,263 Cal.App.2d 100
• Parties: HOME INDEMNITY COMPANY and Wilkins Draying Company, Plaintiffs, Respondents and Appellants, v. TRANSPORT INDEMNITY COMPANY, Lathrop Construction Company and the Travelers Insurance Company, Defendants, Respondents and Appellants. Civ. 11559.
• Court: California Court of Appeals Court of Appeals

Page 504

69 Cal.Rptr. 504

263 Cal.App.2d 100

HOME INDEMNITY COMPANY and Wilkins Draying Company, Plaintiffs, Respondents and Appellants, v. TRANSPORT INDEMNITY COMPANY, Lathrop Construction Company and the Travelers Insurance Company, Defendants, Respondents and Appellants.

Civ. 11559.

Court of Appeal, Third District, California.

June 13, 1968.

Fitzwilliam, Memering Stumbos & DeMers, Sacramento and Ernest M. Thayer, San Francisco, for plaintiffs, respondents and appellants.

Rust & Hoffman, by Richard F. Mills, Sacramento, for Transport Indem. Co.

Ohman & Wilson, Sacramento, for Little.

Rodegerdts, Means & Northup, by Frederick R. Estey, Woodland, for Travelers Ins. Co. and Lathrop Const. Co.

BRAY, Associate Justice Assigned.

All parties ¹ appeal from a judgment in favor of plaintiffs Home Indemnity Company and Wilkins Draying Company against Transport Indemnity Company, Lathrop Construction Company and The Travelers Insurance Company in a declaratory relief action determining respective rights and liabilities under certain insurance policies.

Questions Presented:

A. Transport Indemnity Appeal: Was the Pacific Cement and Aggregates, Inc., truck in the process of being unloaded?

B. The Travelers Insurance Company Appeal: Was the use of Wilkins' crane covered by the Travelers policy issued to Lathrop?

RECORD:

This declaratory relief action arises from the following situation: Lathrop Construction Company (hereafter Lathrop), insured by The Travelers Insurance Company (hereafter Travelers), was a general contractor engaged in constructing certain buildings at the Davis campus of the University of California. Lathrop purchased concrete from Pacific Cement Aggregates, Inc. (hereafter Pacific) which was insured by Transport Indemnity Company (hereafter Transport). Lathrop was engaged in pouring the concrete walls of the second story of a classroom building. Because of the height at which the concrete was poured, it was necessary to use buckets hoisted by a self-propelled crane which Lathrop had rented from Wilkins Draying Company (hereafter Wilkins) insured by Home Indemnity (hereafter Home). The pouring process was accomplished by having Pacific pour the concrete from its truck down a chute into a bucket which was then attached to the crane and hoisted to the place of pouring. The trucks were self-unloading, the only apparatus used in the unloading was the truck's own equipment.

Pouring of the wall on one side of the building had been completed, and it became necessary to move the crane from one side of the building to the other in order to pour the opposite wall. Maurice Little, a Lathrop employee, was the bucket man. It was his job to attach the buckets to the crane for hoisting and signal the crane operator to hoist the bucket after it was filled. After the crane had been moved to the new position, the boom was extended over the building for the purpose of bringing the empty buckets to the same side of the building as that on which the concrete was to be poured.

Although there is some dispute concerning the position of Pacific's truck at the time of the accident, it is uncontroverted that Little was not close to the truck when injured, that no buckets had been placed beneath the truck, and that the truck in no way contributed to the injury. Little was directing the crane as it moved around the building to that the boom would not hit the trees. After the crane was backed into position, Little waited for the crane's hook so that he could attach it to the empty buckets. As the crane operator was lowering the cable weight, 'headache ball,' and hook, they fell and crushed Little's hand.

Little filed a personal injury action against Wilkins and Home undertook its defense. Ultimately a settlement was reached, Home paying Little $31,500.

Thereafter Wilkins and Home brought this declaratory relief action against Transport, alleging that Transport's policy with Pacific obligated Transport to reimburse Home for a portion of the settlement paid Little, and asking for a declaration that Transport's policy limits should not be treated as excess insurance but prorated along with the limits of Travelers' policy so Transport would bear almost the entire burden of the settlement.

The trial court held that Wilkins' crane was using Pacific's truck at the time of the accident and that Transport therefore was obligated to contribute to the settlement. The court then prorated the burden of the settlement on the basis of the relation of the limits of coverage of each insurance policy to the total coverage of all the policies, with the result that Transport is required to pay five-sixths of the settlement and Home one-sixth.

A. Transport Appeal

Was the crane in the process of loading and unloading Pacific's truck?

Transport, Pacific's insurer, contends that as a matter of law Pacific was not covered by its policy because its truck was not in the process of loading or unloading. ² The trial court found that Wilkins' crane was in the process of unloading Pacific's truck and hence Pacific's carrier, Transport, was liable to indemnify Wilkins' carrier, Home. At the time of the accident Pacific's truck was not being actually loaded or unloaded. Its exact position is in question, but it in nowise contributed to the accident.

Plaintiffs rely upon Maryland Casualty Co. v. Tighe (9 Cir., 1940) 115 F.2d 297. There a truck driver who had delivered vegetables to an inn was returning to his truck parked at the curb for more vegetables to deliver to the inn, ran from the inn toward the truck while looking backward over his shoulder, and in so doing collided with and injured a pedestrian. The court held that the driver was covered by an insurance policy which provided, 'Use of the automobile * * * includes the loading and unloading' of the truck, as the driver was engaged in unloading the truck. The facts of Tighe seem a long way from those in the case at bench.

Transport relies upon Entz v. Fidelity & Casualty Co. (1966) 64 Cal.2d 379, 50 Cal.Rptr. 190, 412 P.2d 382, and San Fernando Valley Crane Service, Inc. v. Travelers Ins. Co. (1964) 229 Cal.App.2d 229, 40 Cal.Rptr. 165. In Entz, Capitol Iron Works was erecting an iron fence. It had contracted with one Martin to pour cement for five post holes. Martin's employee, Pruitt, was shoveling cement into the post holes. Martin had arranged with A. Teichert & Son to bring cement in the latter's truck to the job site. Teichert's driver had dumped cement at the post holes site and Pruitt was shoveling it into the holes. After the cement was dumped out of the truck the driver exercised no control over it or the shoveling operation. An angle iron fell from the top of the iron fence injuring Pruitt. The court held that Federal was not liable under its policy insuring Teichert for injuries due to the use of this truck while loading and unloading for the reason that the truck's unloading had been fully completed, saying (at p. 385, 50 Cal.Rptr. at p. 195, 412 P.2d at p. 387): 'It is contended that since some of the cement to be poured for the post holes was still in the truck, the accident occurred during the unloading of the truck, and defendant's policy therefore provides coverage. The question, however, is not whether the accident occurred during the unloading, but, rather, whether the injury arose out of the use of the vehicle.

'Although the vehicle need not be, in the legal sense, a proximate cause of the injury, the events giving rise to the claim must arise out of, and be related to, its use. (Citations.)

'There is evidence from which the trial court could have found that the shoveling of cement into the post holes jarred the fence, causing the iron to fall. Such a finding would show a causal relationship between the accident and the cement which had already been removed from the truck. However, as pointed out above, the unloading operation had been completed with respect to that portion of the cement before the accident occurred; and no basis has been suggested for finding a causal relationship between the accident and the cement still in the truck. Accordingly, it cannot be said that the injury arose out of the use of the vehicle.' (Emphasis added.)

In Entz, at p. 385, 50 Cal.Rptr. at p. 194, 412 P.2d at p. 386, the court sets forth the facts and ruling in San Fernando Valley Crane Service, Inc. v. Travelers Ins. Co., 229 Cal.App.2d 229, 40 Cal.Rptr. 165, as follows:

'The San Fernando Valley Crane Service case likewise involved the delivery of cement. There cement was emptied by a 'mixer truck' by means of a self-unloading device into a receptacle furnished by, or on behalf of, the purchaser and thereafter conveyed by a crane to an elevated location at a building site, where the concrete was to be used. After delivery of the concrete into the bucket receptacle, the deliveror exercised no control over the cement, the bucket receptacle, or the crane.

'In holding that the unloading operation had been completed and that there was therefore no coverage under the truck policy for an accident which occurred while the cement was being transported by the crane, the court said: 'In determining the scope of the coverage afforded, consideration must be given to the intention of the parties to the contract of insurance. It is not reasonable to conclude that such parties intended an extension of coverage to an accident occurring after concrete has been placed in a receptacle furnished by or on behalf of the purchaser and while it is being mechanically conveyed to a location some distance above the ground. * * *

"* * * the more cogent reasoning leads to the conclusion that when Consolidated (the truck owner), as it had contracted to do, brought the concrete to the job site and deposited it in the receptacle provided by or on behalf of the purchaser, the truck was then unloaded insofar as the concrete so deposited was concerned. At that time that concrete had been placed in the hands...