Komorowski v. Kozicki

• Decision Date: 02 December 1969
• Docket Number: Nos. 126,127,s. 126
• Parties: Michael J. KOMOROWSKI, Plaintiff, v. Ralph KOZICKI et al., Defendants and Third-Party Plaintiffs, Respondents, WICKES LUMBER CO. et al., Third-Party Defendants-Respondents, Hartford Accident & Indemnity Co., Third-Party Defendant-Appellant. Mark J. NEERDAELS, a minor, by his gdn. ad litem, Ralph F. Stovic, et al., Plaintiffs-Respondents, v. Ralph KOZICKI et al., Defendants-Respondents, Hartford Accident & Indemnity Co., a foreign corp., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 329

172 N.W.2d 329

45 Wis.2d 95

Michael J. KOMOROWSKI, Plaintiff, v. Ralph KOZICKI et al., Defendants and Third-Party Plaintiffs,

Respondents,

WICKES LUMBER CO. et al., Third-Party Defendants-Respondents,

Hartford Accident & Indemnity Co., Third-Party Defendant-Appellant.

Mark J. NEERDAELS, a minor, by his gdn. ad litem, Ralph F.

Stovic, et al., Plaintiffs-Respondents, v. Ralph KOZICKI et al., Defendants-Respondents,

Hartford Accident & Indemnity Co., a foreign corp.,

Defendant-Appellant.

Nos. 126, 127.

Supreme Court of Wisconsin.

Dec. 2, 1969.

These actions to recover damages for personal injuries arose out of an accident in which the plaintiffs, Michael J. Komorowski and Mark J. Neerdaels, a minor, were injured when a pile of lumber toppled. The cases involve the interpretation of a clause in an automobile liability insurance policy which extends the use clause to include 'loading and unloading.'

On October 4, 1961, the Hartford Accident and Indemnity Company (hereinafter the appellant) issued an automobile policy to Lyle A. Schwahn, d/b/a Schwahn Lumber Transfer. This policy provided in pertinent parts as follows:

'I. 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, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.

'* * *

'Purposes of Use Defined: (a) * * * (b) * * * (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.

'* * *

'This policy does not apply:

'(a) * * *

'(b) under coverages A and C, to liability assumed by the insured under any contract or agreement.'

On May 16, 1962, a 'Contract Carrier Agreement' was entered into between Schwahn, as carrier, and the Wickes Lumber Company, as shipper. Under the terms of this agreement Schwahn was to transport lumber and other building supplies to those purchasing such items from Wickes. In addition, the agreement provided that:

'10. LIABILITY: Carrier assumes all risk of accident to Carrier, and agents or employees of Carrier, and property of Carrier, and property of others, and discharges the Shipper from every claim, liability or demand of any kind and character for and on account of any such injury or damage of any kind or character sustained by any such parties or persons, and in the event that Shipper is sued or made a defendant to any suit in any action arising out of negligence or accident of Carrier, or agent or employee of Carrier, either jointly or severally, Carrier hereby agrees to defend and reimburse and keep absolutely safe and harmless Shipper in any such action or actions, and reimburse Shipper for any sum or sums of money it may be required to pay on account of any such suit or actions against either of the parties hereto, or both of them, and others.'

On June 28, 1962, pursuant to this agreement, Schwahn sent its truck, driven by its employee Donald Kittell and insured by the appellant, to the Wickes Lumber Company. There Kittell and a Wickes employee loaded the truck with lumber and fastened it by the use of three chains.

Donald Kittell then proceeded to a construction site in Green Bay, Wisconsin, where the Kozicki Bros. Construction Company (hereinafter the respondent) was constructing a new house. Upon arriving at the construction site, Kittell unloaded the lumber by raising a rack on the truck bed and merely allowing it to slide to the ground. He then removed the chains, thereby leaving the lumber stacked and ready for use. Upon being paid for the delivery, he left the construction site to continue his other work.

Shortly after the Schwahn truck left the site, Mark Neerdaels and Michael Komorowski were assisting Ralph and Edward Kozicki in covering the lumber with a tarpaulin. While so doing, the lumber toppled, thereby injuring both Neerdaels and Komorowski.

Neerdaels and his parents commenced an action against the Wickes Lumber Company, Lyle A. Schwahn, the appellant, and the respondent, who then cross-complained against the other defendants. Komorowski also commenced his action against the respondent, who in turn again cross-complained against Wickes, Schwahn, Kittell, and the appellant.

After the commencement of these actions, the appellant, being a party defendant, moved for a separate trial to determine the extent of the coverage afforded its insured. Upon a hearing the trial court entered an order holding as a matter of law that the injuries of Komorowski and Neerdaels resulted from the unloading of Schwahn's truck, thereby determining that if upon trial Schwahn was proven causally negligent, the appellant would be liable for such injuries. Despite the appellant's request, the trial court's order declined to determine the significance of the indemnity agreement between Schwahn and the Wickes Lumber Company. The Hartford Accident and Indemnity Company appeals from this order. Only the respondent Kozicki Brothers Construction Company has submitted a brief in response to that of the appellant: the other defendants are content to rely upon the arguments therein set forth.

In its brief the appellant devotes considerable argument to support the proposition that under its policy, issued to Schwahn, it cannot be held liable to the Wickes Lumber Company because such policy specifically excluded liability which Schwahn assumed under the Contract Carrier agreement. Since Wickes has not commenced an action against the appellant and since the trial court declined to rule on this question, the significance of the agreement is not properly before this court.

Welsh, Trowbridge, Bills, Planert & Gould, Green Bay, for appellant.

Denissen, Kranzush, Stodola & Mahoney, Green Bay, for defendants-respondents Kozicki.

HANLEY, Justice.

The sole issue raised upon this appeal is whether the acts of the appellant's insured, which allegedly caused the injuries complained of, constituted acts of 'loading or unloading' and were within the coverage of the policy.

It is of paramount importance in these cases to note that the causal negligence of the appellant's insured (i.e., the negligence of Donald Kittell) has not as yet been determined and that in determining the appellant's liability for the negligence of its insured two distinct questions are involved: (1) Did the acts complained of cause the injuries; and (2) were such acts part of the 'loading or unloading' of the insured vehicle?

It is the appellant's contention on this appeal that it is not liable for the injuries sustained by Komorowski and Neerdaels because their injuries did not result from the loading or unloading of the insured's vehicle. This contention is predicated upon the fact that the actual unloading had been completed, the driver had been paid, and the vehicle had departed before sustainment of the injuries.

It is the respondent's position, however, that a negligent act can cause injury even a substantial period after the actor has completed the act and left the scene of its occurrence.

It is apparent from these arguments that while the appellant is directing his attention to the question of coverage, the respondent appears to argue in terms of injury causation. This confusion, however, is understandable in that, as stated in the annotation at Annot. (1964), 95 A.L.R.2d 1122 the decisions of most jurisdictions have failed to treat these questions separately.

Only the question of coverage is before this court. In reference to this question, two doctrines of interpretation have developed in determining whether a given act is part of the 'loading or unloading' of a vehicle.

Relying upon the 'coming to rest' doctrine, which it implies has been adopted in this jurisdiction, the appellant contends that there was no coverage in the instant case and thus there can be no recovery. The respondent, however, contends that Wisconsin is no longer firmly committed to this doctrine and either has adopted, or should adopt, the 'complete operation' doctrine.

As stated in 13 Vanderbilt L.Rev. (1960), 903, 904:

'The 'coming to rest' doctrine contemplates that loading does not commence until the items of cargo have left their place of rest (or in some cases the last place where they could be at rest) away from the automobile and are being physically carried or lifted onto the vehicle, and that unloading ceases when the items of cargo have reached a place of rest (or in some cases the first place where they could come to rest) away from the vehicle and are no longer being physically carried or lifted off of the vehicle. * * *

'The 'complete operation' doctrine contemplates that the loading commences when the items of cargo leave their original location on the way toward the vehicle (notwithstanding later temporary ...