Shippers Development Co. v. General Ins. Co. of America

• Decision Date: 08 July 1969
• Citation: 274 Cal.App.2d 661,79 Cal.Rptr. 388
• Court: California Court of Appeals Court of Appeals
• Parties: SHIPPERS DEVELOPMENT CO., a corporation, Plaintiff and Appellant, v. GENERAL INSURANCE CO. OF AMERICA, a corporation, Defendant and Respondent. Civ. 25664.

Page 388

79 Cal.Rptr. 388

274 Cal.App.2d 661

SHIPPERS DEVELOPMENT CO., a corporation, Plaintiff and Appellant, v. GENERAL INSURANCE CO. OF AMERICA, a corporation, Defendant and Respondent.

Civ. 25664.

Court of Appeal, First District, Division 1, California.

July 8, 1969.

Hearing Denied Sept. 4, 1969.

Hoge, Fenton, Jones & Appeal, by W. R. Rosecrans, Monterey, for appellant.

Richard E. Holbrook, Salinas, for respondent.

SIMS, Associate Justice.

Plaintiff supplier appeals from a judgment in a declaratory relief action denying it protection and indemnity under a trucker's comprehensive liability policy for an injury incurred by one of the trucker's employees on the supplier's dock. The supplier contends that it must be indemnified as a permissive user since the injury was incurred during a 'loading or unloading' operation, and that the employee exclusion in the policy does not apply to a claim of an employee of the named insured against a permissive user as an additional insured.

The trial court disposed of the case on the first issue and gave judgment for the defendant General Insurance Co. of America, ¹ after finding that its named insured's employee had not yet begun any loading operations at the time he was injured. Examination of the stipulated facts in the light of applicable provisions of law leads to the conclusion that the court erroneously resolved that issue, and that the second issue should be determined adversely to the insurer. The judgment must be reversed.

The parties stipulated to the facts, including excerpts from the deposition given by the claimant in his action for personal injuries, and a copy of the policy of insurance issued by the defendant to his employer, the trucker. They further agreed that if the plaintiff recovered it should recover $3,000. On appeal there is no dispute as to the facts, with the sole exception noted below.

Loading and Unloading

Plaintiff supplier alleged that the named insured's employee's complaint for damages claimed 'damages for personal injuries allegedly sustained when unloading a truck owned by' the named insured. This allegation was admitted by the insurer's failure to include any denial of that allegation in its answer. (Code Civ.Proc. § 462; Guardianship of Guidry (1961) 196 Cal.App.2d 426, 430, 16 Cal.Rptr. 579.) At the trial the insurer pointed out that the issue was not what the claimant alleged, but whether he was in fact engaged in loading or unloading. On appeal it asserts that the complaint did not so allege, and that it merely contains the allegations of an ordinary slip and fall case. In any event, the allegations of the complaint made by a claimant are not conclusive in determining the obligation of an insurer to defend and indemnify anyone otherwise entitled to protection under the terms of the policy. (Columbia Southern Chemical Corp. v. Manufacturers & Wholesalers Indem. Exch. (1961) 190 Cal.App.2d 194, 200--202 and 203--204, 11 Cal.Rptr. 762 (disapproved on issues unrelated to this case in Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27, 38, 17 Cal.Rptr. 12, 366 P.2d 455).)

The policy provides in part, as follows: 'I. BODILY INJURY AND PROPERTY DAMAGE LIABILITY: To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed by law (1) upon him or (2) upon another but assumed by the insured under a contract; (a) for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained or alleged to have been sustained by any person or persons caused by an occurrence; (b) for damages because of injury to or destruction of property, including the loss of use thereof, arising out of the ownership, maintenance of use of automobiles, including the loading and unloading thereof; * * *

'III. DEFENSE SETTLEMENT, SUPPLEMENTARY PAYMENTS: As respects the insurance afforded by the other terms of this policy under Insuring Agreement 1. (a) to defend in his name and behalf any suit against the insured alleging such injury, sickness disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company; (b) to pay all * * * expenses incurred by the company, all interest on the entire judgment which accrues after entry of judgment until the company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the company's liability thereon, and any expense incurred by the insured, in the event of bodily injury, or sickness, for such immediate medical and surgical relief to others as shall be imperative at the time of the occurrence of the injury except medical and surgical relief made necessary by war; * * *

'IV. DEFINITION OF 'INSURED': The unqualified word 'insured' wherever used includes not only the named insured but also * * * (3) any person while using an automobile owned or hired by the named insured or spouse and any person or organization legally responsible for the use thereof provided the actual use is with the permission of the named insured or spouse. (There follow exceptions not relevant to this case).'

'CONDITIONS * * * 3. Definitions * * * (4) Occurrence. The word 'occurrence' wherever used in the policy shall mean a happening or a continuous or repeated exposure to the same general conditions, which, unexpected by the insured, causes injury during the policy period.'

At the time of his injury the claimant, Ireland, was an employee of the named insured, a produce dealer. He came to the premises of the plaintiff supplier for the purpose of icing the produce in his employer's truck and trailer. The ice was to be sprayed on the produce from a hose with the help of the supplier's employees, but the accident occurred before the claimant had notified the supplier's employees of his needs, and before any ice was squirted in either the truck or the trailer. On arrival at the supplier's dock the claimant got out of the truck, and as was his practice, opened the door of the truck. He then went along the dock toward the back end of the truck so he could go over and open the trailer door. This door had to be opened before the trailer was pulled up after icing the truck, and it was the practice to open both doors before putting ice in either one. The claimant fell off the north end of the dock before he could descend to the ground and open the trailer door.

The insurer does not contend that the policy does not cover a party using the insured vehicle in the course of loading or unloading in a proper case. The policy only refers to 'loading and unloading' with respect to insurance for damages because of injury to or destruction of property. It does, however, generally refer to 'any person while using an automobile * * * with the permission of the named insured.' 'In other jurisdictions there is a split of authority upon the question of whether an insurance policy which provides coverage to persons 'using' an automobile but does not expressly include 'loading and unloading' includes liability for injuries caused in the loading and unloading process. (See 12 Couch on Insurance 2d, § 45:64, p. 153, et seq.) However, in California it has been uniformly held that in the loading Or unloading of a truck the negligent party is 'using' the truck even though the policy does not expressly include 'loading or unloading' and is an additional insured under the policy. (General Pump Service, Inc. v. Travelers Ins. Co. (1965) 238 Cal.App.2d 81, 87, 47 Cal.Rptr. 533; Industrial Indemnity Co. v. General Ins. Co. (1962) 210 Cal.App.2d 352, 357, 26 Cal.Rptr. 568; Campidonica v. Transport Indemnity Co., supra, 217 Cal.App.2d 403, 31 Cal.Rptr. 735; Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27, 33, 17 Cal.Rptr. 12, 366 P.2d 455.)' (United States Steel Corp. v. Transport Indem. Co. (1966) 241 Cal.App.2d 461, 465, 50 Cal.Rptr. 576, 579. See also, Home Indem. Co. v. Transport Indem. Co. (1968) 263 Cal.App.2d 100, 103, fn. 2, 69 Cal.Rptr. 504; Truck Ins. Exch. v. Webb (1967) 256 Cal.App.2d 140, 144, 63 Cal.Rptr. 791; and Annotation (1963) 89 A.L.R.2d 150, 171--172.)

The insurer asserts, as found by the lower court, 'The workman had not yet begun any loading operations at the time he was injured. * * *' At the time judgment was entered in this case (March 5, 1968), there were no precedents in this state relating to the question of when the process of loading or unloading commenced. The existing decisions involved the issue of whether or not the unloading had been accomplished at the time of the accident. (See for example, Entz v. Fidelity & Cas. Co. (1966) 64 Cal.2d 379, 383, 50 Cal.Rptr. 190, 412 P.2d 382; San Fernando Valley Crane Service, Inc. v. Travelers Ins. Co. (1964) 229 Cal.App.2d 229, 236, 40 Cal.Rptr. 165; and cf. Columbia Southern Chemical Corp. v. Manufacturers & Wholesalers Indem. Exch., supra, 190 Cal.App.2d 194, 204, 11 Cal.Rptr. 762.)

Thereafter, it was determined in Home Indem. Co. v. Transport Indem. Co., supra, that where one act of unloading a mixer truck had occurred and a new one had not commenced, the insurance afforded a permissive user, a crane operator, during the loading and unloading of the truck would not cover the crane operator for injuries suffered by an employee of the general contractor while the crane was being moved from one station to another in order to complete the unloading. (263 Cal.App.2d at pp. 103--106, 69 Cal.Rptr. 504.) In that case the truck had been backed away from the prior unloading position and was waiting on an access road while the crane operator and the employee of the general contractor moved the crane and the buckets, which were the receptacles furnished by the consignee for the receipt...