Indiana Lumbermens Mutual Insurance Company. v. Statemen Ins. Co., 1169A223
| Decision Date | 27 October 1971 |
| Docket Number | No. 1169A223,No. 2,1169A223,2 |
| Court | Indiana Appellate Court |
| Parties | INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant, v. STATESMAN INSURANCE COMPANY, Appellee |
Opinion Superseded 291 N.E.2d 897.
Samuel E. Fuller, Indianapolis, for appellant; Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, of counsel.
Arthur J. Sullivan, David F. McNamar, Indianapolis, C. Thomas Cone, Greenfield, for appellee; Steers, Klee, Jay & Sullivan Indianapolis, Williams & Cone, Greenfield, of counsel.
STATEMENT OF THE CASE.
Jack B. Walker was an employee of Imperial Water Conditioning Company (hereafter 'Imperial'). In the course of his employment he drove a truck, leased by his employer from a truck rental firm, to the home of Mr. and Mrs. Soots (hereafter 'Homeowners'), where he was in the process of delivering a water softener tank when he fell and injured himself. He was at the time carrying the tank onto the approach to the steps leading to the basement at the rear of the dwelling house. He was paid workmen's compensation benefits by his employer's workmen's compensation insurance carrier and it is undisputed that his injury arose out of and in the course of his employment. He also brought suit against Homeowners alleging, inter alia, that he was employed by Imperial to deliver a soft water tank to Homeowners' residence at Homeowners' request, and that he 'proceeded to deliver said tank at the rear of * * * said home and when he stepped upon the approach to the outside basement stairs, it suddenly gave way, causing * * * (him) to fall, injuring him.' Further, that the injuries were proximately caused by Homeowners' negligence in (a) failing to 'secure the supports under the approach'; (b) maintaining an inadequately supported approach; (c) failure to inspect the approach; and failure to warn him 'that said approach was not adequately supported and that the supports were loose and about to give way.'
Howeowners notified their own residence liability insurance carrier, Indiana Lumbermens Mutual Insurance Company (hereafter 'Lumbermens'), which employed attorneys to represent Homeowners. In a compromise settlement the injured truck driver was paid a sum of money by Lumbermens and he and his employer's workmen's compensation insurance carrier released Homeowners. In the meantime Lumbermens had discovered that Imperial carried an automobile liability policy with Statesman Insurance Company (hereafter 'Statesman') covering use of the delivery truck in which the injured driver brought the tank to Homeowners' dwelling house.
Lumbermens, through the attorneys it employed to defend Homeowners, made a demand on Statesman to assume defense of the truck driver's suit against Homeowners on the theory that the 'loading and unloading clause' of the truck liability policy afforded coverage to Homeowners. 1 Statesman did not accede to that demand and Lumbermens brought this action against Statesman to recover the sums which Lumbermens had expended in defense and settlement of the truck driver's lawsuit.
Lumbermens' theory of liability, simply stated, is that Homeowners (Mr. and Mrs. Soots) were 'using' the truck at the time of the truck driver's injury in that they were 'cooperating' in its unloading. Their 'cooperation' consisted in furnishing their premises for the unloading process. That 'using' (so goes Lumbermens' theory) made them additional insureds by virtue of the omnibus clause of Statesman's policy. 2
When the case was at issue on plaintiff's amended complaint, defendant's amended answer in three paragraphs and plaintiff's reply, defendant moved for summary judgment on the ground that the pleadings and admissions disclose that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. The court sustained that motion and entered judgment for defendant.
The trial court not only found that there was no genuine issue of material fact and that defendant Statesman was entitled to judgment as a matter of law but, in an apparent attempt to comply with the requirement that he 'state with particularity his reasons for granting a summary judgment,' 3 made special findings of fact and conclusions of law in an entry which follows the form ordinarily used in 'actions tried upon the facts without a jury.' 4 That form is appropriate only when there has actually been a trial of questions of fact. The recital that 'the Court * * * finds the following facts' carries with it what has been called 'an unwarranted implication that a fact question was presented.' 5 Those so-called findings of fact which merely recite the uncontroverted facts alleged in the pleadings or admitted in the 'admissions' appear to be proper and, together with the conclusions of law which follow, serve to explain the court's action. Those 'findings' which are conclusions, inferences, or ultimate facts drawn from the allegations of the pleadings and the admissions do not become facts by reason of having been so 'found' by the court (as would be the case had they been inferred from evidence at a trial), but they may be clues to the reasoning which disposed the court to grant summary judgment. 6
The court's findings and conclusions thus understood disclose three reasons for his conclusion that defendant Statesman was entitled to judgment as a matter of law. Those reasons, not in the order stated in the entry nor in the words of the entry, 7 are:
1. At the time of the accident, the truck was not being used in any manner.
2. The accident arose out of Homeowners' negligence in the maintenance of their premises and not out of any use of the truck.
3. The Statesman policy excludes the truck driver's claim against Homeowners because the truck driver is an employee of Imperial (the named insured).
USE OF THE TRUCK.
If the trial court is correct in concluding that the truck insured by Statesman was 'not being used in any manner' at the time of the injury, then obviously Homeowners could not have been using it and could, therefore, claim no coverage under the omnibus clause as persons using the vehicle with the permission of the named insured. 8
Lumbermens contends that the truck was being used in that it was being unloaded 9; that under the 'complete operation' doctrine the unloading of the truck would not have been completed until the tank was installed in Homeowners' basement. While there is a dearth of factual support for it in the record, the parties seem to be in agreement in their briefs, that at the time he fell, the truck driver was carrying a water softener tank from the Imperial truck to Homeowners' basement where he was to install it. For the purpose of this opinion we will assume those facts to have been tacitly stipulated. And on those facts, under the 'complete operation' rule as we understand it, the truck was still being unloaded, and thus was still in use at the time of the accident. Therefore, we assume that the trial court rejected the 'complete operation' rule.
No reported case in Indiana has involved the question of whether we should adopt the 'coming to rest' rule, the 'continuous passage' rule, or the 'complete operation' rule. 10 Statesman has expressed no disagreement with Lumbermens' assertion that the complete operation doctrine is the rule of a majority of the states which have considered the question. New York's court of last resort, the Court of Appeals, adopted the doctrine in 1952. Judge Fuld, in Wagman v. American Fidelity & Casualty Co., Inc. (1952), 304 N.Y. 490, 494, 109 N.E.2d 592, 594, said:
'The interpretation of clauses such as those in Gilbert's policy, defining 'use' of the insured automobile as including 'loading and unloading', has occasioned doctrinal division among the authorities. The narrower construction, adopted in some states, insists upon a close connection between the vehicle and the acts for which coverage is claimed. 'Loading' is interpreted by the courts of those jurisdictions as including only the immediate act of placing the goods upon the vehicle,--excluding the preliminary acts of bringing the goods to the vehicle; and 'unloading' is taken to embrace only the operation of removing the goods from the vehicle to a place of rest. See, e. g., St. Paul Mercury Ind. Co. v. Standard Accident Ins. Co., 216 Minn. 103, 11 N.W.2d 794; Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629. The broader construction, adopted in a majority of the jurisdictions which have passed upon the question, is that 'loading and unloading' embrace, 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. See, e.g., State ex rel. Butte Brewing Co. v. District Ct., 110 Mont. 250, 100 P.2d 932; Bobier v. National Cas. Co., 143 Ohio St. 215, 54 N.E.2d 798; Conrad v. Duffin, 158 Pa.Super. 305, 44 A.2d 770; Pacific Automobile Ins. Co. v. Commercial Cas. Ins. Co., 108 Utah 500, 161 P.2d 423, 160 A.L.R. 1251; London Guar. & Accident Co. v. C. B. White & Bros., 188 Va. 195, 49 S.E.2d 254. The latter view impresses us as sounder, as more fully carrying out the aim of the policy--to cover the entire operation of making commercial pickups and deliveries in the business of the insured carrier--and, indeed, the courts in this state have already signified their approval of it. * * * (citing opinions of lower New York courts.)
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