Pleasant Valley Lima Bean Growers and Warehouse Ass'n v. Cal-Farm Ins. Co.

• Decision Date: 08 June 1956
• Docket Number: CAL-FARM
• Citation: 142 Cal.App.2d 126,298 P.2d 109
• Court: California Court of Appeals Court of Appeals
• Parties: PLEASANT VALLEY LIMA BEAN GROWERS AND WAREHOUSE ASSOCIATION, a corporation, Plaintiff, Cross-Defendants, and Respondent, v.INSURANCE COMPANY, a corporation, Defendant, Cross-Complainant and Appellant, Civ. 21258.

Page 109

298 P.2d 109

142 Cal.App.2d 126

PLEASANT VALLEY LIMA BEAN GROWERS AND WAREHOUSE ASSOCIATION, a corporation, Plaintiff, Cross-Defendants, and Respondent, v. CAL-FARM INSURANCE COMPANY, a corporation, Defendant, Cross-Complainant and Appellant,

Civ. 21258.

District Court of Appeal, Second District, Division 3, California.

June 8, 1956.

Rehearing Denied July 3, 1956.

Hearing Denied Aug. 1, 1956.

Moss, Lyon & Dunn, Los Angeles, for appellant.

Hunter & Liljestrom, Los Angeles, for respondent.

SHINN, Presiding Justice.

This is an appeal by defendant Cal-Farm from a declaratory judgment determining its obligations under an automobile liability insurance policy issued by it to one Brucker. The judgment requires defendant to defend, on behalf of plaintiff and Croker, an employe of plaintiff, an action for personal injuries brought against plaintiff and Croker by one Nungaray, an employe of Brucker; it further requires defendant to pay, within the limits of its policy, any final judgment in favor of Nungaray which might result from such action; and it further holds that defendant's obligations under its policy are primary to the obligations of United States Fidelity & Guaranty Company, which issued a comprehensive-general automobile liability insurance policy to plaintiff.

The rather involved factual situation presented here arose in the following manner. On March 12, 1953, plaintiff purchased from United States Fidelity & Guaranty Company (hereinafter referred to as United) a liability insurance policy whose pertinent provisions will be set forth. The policy provided for limits of liability for bodily injury of $100,000 for each person and $300,000 for each accident. It required United '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 and caused by accident.' It obligated United to defend any suit against plaintiff alleging such injury, sickness or disease, etc., and provided that: 'If the Insured has other insurance against a loss covered by this policy the Company shall not be liable under this policy for a greater proporation of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance available to the Insured, either as an Insured under a policy applicable with respect to such automobile or otherwise.'

On April 10, 1953, defendant issued an automobile liability insurance policy to Brucker. This policy likewise provided for limits of liability for bodily injury of $100,000 for each person and $300,000 for each accident. It required defendant 'to pay on behelf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for 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.' (The use of the automobile according to the policy 'includes loading and unloading thereof.') Defendant agreed to defend any suit against Brucket alleging such injury, sickness or disease, etc., and contained an 'omnibus clause' extending insurance protection as follows: 'With respect to the insurance afforded for liability, the unqualified word insured includes the named insured and also includes any person while using the 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.' The policy contained an 'order insurance' clause similar to the clause quoted above from plaintiff's policy, provided, however, that the policy would be excess insurance as to other insurance covering substitute automobiles, newly acquired automobiles and privately owned automobiles. In addition, defendant's policy specifically excluded coverage for 'bodily injury to, sickness, disease or death of any employee of the insured, while engaged in the employment, other than domestic of the insured, or in domestic employment if benefits therefor are either payable or required to be provided under any workmen's compensation law; nor to any obligation for which the insured or any company, as his insurer, may be held liable under any workmen's compensation law * * *.'

On November 9, 1953, both policies were in full force and effect. On that date, one Nungaray, an employe of Brucker, was driving a 2 1/2 ton G.M.C. truck owned by Brucker and scheduled in Brucker's policy with defendant. Nungaray drove the truck, which was loaded with lima beans, to plaintiff's warehouse in Oxnard in order to unload load the beans in plaintiff's warehouse pits. The United Policy covered plaintiff's warehouse operations.

What happened at plaintiff's warehouse that day was stipulated to at the trial of this action. Nungaray drove the truck to the rear of the warehouse and backed it onto a platform so that the front of the truck could be elevated enough to allow the beans to slide out from the rear of the truck into a bin. Nungaray was directed to the platform by one Croker, plaintiff's employe. Before this, Croker had placed two wooden blocks in front of two stationary blocks attached to the platform, so that the truck's rear wheels would rest against the wooden blocks and allow the front of the truck to be elevated in such a manner that the overhanging rear end of the truck would be directly over the warehouse pit and allow the beans to flow into the pit. The wooden blocks were used to prevent the rear end of the truck from extending beyond the bean pit. After Nungaray had backed the truck onto the platform, the truck was in such a position that its rear dual wheels rested against the two wooden blocks. Nungaray turned off the motor and descended from the truck. Croker then operated separate machinery located inside the door of the warehouse and raised the front end of the platform about thirty degrees, which permitted the beans to slide into the pit. As a few beans remained in the bottom of the bed of the truck, Nungaray obtained a broom from the warehouse, and stationed himself at the rear of the truck, and with one leg over a pipe railing at the edge of the bean pit, reached into the bed of the truck to sweep out the remaining beans. While he was in this position, the truck moved backwards, and the rear dual wheels of the truck moved up over the wooden blocks placed by Croker, over the concrete platform, and pinned Nungaray between the rear of the truck and a concrete wall, causing severe injuries.

Within one year of the accident, Nungaray filed an action for damages in the Ventura County Superior Court, naming as defendants, Pleasant Valley (plaintiff herein) and its employe Croker. In his complaint Nungaray alleged that 'the defendants' (Pleasant Valley and Croker) were negligent in the following particulars, to wit: In constructing and placing the wooden blocks, in failing to remove the wooden blocks prior to the unloading operation, and in failing to warn Nungaray that the wooden blocks were likely to cause the truck to back up when in an elevated position. The prayer was for over $78,000.

Upon service of the Nungaray complaint, United took over the defense of that action on behalf of Pleasant Valley and Croker, the defense of Croker being a courtesy defense only, he not being an insured under the United policy. Counsel for United tendered their defense of the Nungaray action to defendant herein, but Cal-Farm refused to defend, denying any coverage under its policy with Brucker to either party. Thereupon Pleasant Valley brought this declaratory relief action to determine its rights under defendant's policy with Brucker; defendant cross-complained, seeking a determination of the rights of all parties concerned arising from both the Brucker policy and Pleasant Valley's United policy. Croker was permitted to file a complaint in intervention, seeking a determination that he is an insured under the terms of the Brucker policy. Trial was had on a stipulation of facts, and resulted in the judgment set forth above.

Two questions are presented on this appeal. Does the coverage of the policy of automobile liability insurance issued by defendant to Brucker extend to plaintiff and Croker, i. e., are they, or is either of them, an insured under the terms of that policy? If this be so, are defendant's obligations under that policy primary to the obligations of United under its policy of liability insurance issued to plaintiff? We have concluded that both of these questions were correctly decided by the trial court.

The 'omnibus clause' in Brucker's policy with defendant extended protection to 'any person while using the automobile and any person or organization legally responsible for the use thereof,' provided that such use was by Brucker himself or with Brucker's permission. The policy defined 'use' of Brucker's truck to include loading and unloading. It is a reasonable inference that Croker had Brucker's consent to carry out the operations incidental to unloading the lima beans from the truck, and it is obvious that the unloading operation constituted a use of the truck within the policy provision. Pleasant Valley, Croker's employer, is liable under the doctrine of respondent superior for...