St. Paul Fire & Marine Ins. Co. v. Hartford Acc. & Indem. Co.

• Decision Date: 15 September 1966
• Citation: 53 Cal.Rptr. 650,244 Cal.App.2d 826
• Court: California Court of Appeals Court of Appeals
• Parties: ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Plaintiffs and Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants and Respondents. Civ. 11076.

Page 650

53 Cal.Rptr. 650

244 Cal.App.2d 826

ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Plaintiffs and Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants and Respondents.

Civ. 11076.

District Court of Appeal, Third District,

California.

Sept. 15, 1966.

Rehearing Denied Oct. 14, 1966.

Hearing Denied Nov. 9, 1966.

Fitzwilliam, Memering, Stumbos & DeMers, Sacramento, for appellants.

Johnson, Davies & Greve, Sacramento, for respondent, Hartford Accident & Indemnity Co.

McGregor, Bullen, Saldine & Erich, Sacramento, for respondent, Fidelity & Cas. Co. of New York.

FRIEDMAN, Acting Presiding Justice.

In this declaratory relief action plaintiff St. Paul Fire & Marine Insurance Company is a truck liability insurer which seeks to impose coverage on two other truck insurance carriers under the 'loading and unloading' clauses of the others' policies. The suit was submitted for decision on an agreed statement of facts supplemented by additional evidence. There is no factual dispute.

The array of parties to the accident, policyholding employers and insurance carriers is an follows:

A. Teichert & Son, Inc., a general contractor

The Fidelity and Casualty Company of New York, its insurer

Herbert D. Shaffer, injured driver of sand truck

Hess-Mace Trucking Co., his employer Hartford Accident and Indemnity Company, its insurer

Doyle Walker, driver of water truck Marion's Trucking Co., his employer St. Paul Fire & Marine Insurance Company, its insurer.

A. Teichert & Son, Inc., was building a highway overpass, one end of which would extend crosswise from the crest of an earthern ramp structure paralleling the highway. The structure had a flat crest and an approach ramp at each end. A sand subbase had to be laid on the ramps. Teichert entered into a subcontract with Hess-Mace Trucking Co. calling for trucks and drivers to haul sand and dump it on the ramps. Herbert D. Shaffer was a semitruck driver hauling a sand trailer for Hess-Mace. Teichert also had contracted with Marion's Trucking Co. to supply water trucks and drivers. After sand was dumped on the ramps, it was leveled by one of Teichert's graders. One of the Marion water trucks would then spray water on the sand to compact it. Doyle Walker, an employee of Marion, was driving one of Marion's water trucks at the time of the accident. Both the sand truck and the water truck were used on the job with Teichert's permission.

On the day of the accident Teichert was in the process of placing sand on the far ramp. The near ramp already had a layer of sand. When the sand trucks arrived they would drive up the near ramp, go across the crest and dump the sand on the far ramp. Most of the sand trucks would mire in the sand on their way up the near ramp and would be towed to the crest of the ramp by Teichert's grader. Then they were driven across the crest to dump their loads. Most of the time the grader was at the far ramp spreading sand. When an arriving sand truck mired on the near ramp, the grader would come across the crest accompanied by a Teichert foreman, who would supervise the towing operation. Shaffer arrived with a loaded sand truck and started up the near ramp. About halfway up his truck became mired. At that point the truck was about 300 feet from the unloading area. The grader was not at the scene. One of Marion's water trucks, driven by Doyle Walker, was at the top of the ramp facing the sand truck. Shaffer signaled for a tow. Walker drove the water truck part way down the ramp and stopped when its front was approximately two feet from the front of the sand truck. The drivers planned that the two trucks would be chained together, following which Walker would put the water truck into reverse and attempt to tow the sand truck up the ramp. Shaffer attached a chain between the two trucks. He then mounted his truck and attempted to drive forward while Walker attempted to tow in reverse gear. The sand truck remained mired. As a preclude to disconnecting the chain between the two trucks, Walker moved the water truck forward to slacken the chain. Shaffer went between the two trucks and disconnected the chain from the sand truck. Walker put his truck into reverse in order to back away. When he took his foot off the brake of the water truck in order to accelerate, the water truck rolled forward, catching Shaffer between the bumpers and causing injuries.

Shaffer brought suit against Teichert and Marion's Trucking Company. Marion's Trucking requested that Fidelity (Teichert's insurer) and Hartford (insurer of Hess-Mace) undertake its defense in the lawsuit, but these firms refused. St. Paul then undertook the defense of its own insured, Marion's Trucking. Part way through the trial, St. Paul settled with Shaffer for $25,000. Shaffer's action then continued against Teichert (who was defended by Fidelity), which won a defense verdict. This declaratory relief action was then brought to trial.

The insuring agreements of the Hartford and Fidelity policies had substantially the same language, in which the insurer undertook: 'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and Arising out of the ownership, maintenance or Use of any automobile.' (Emphasis added.)

Both policies contained the usual omnibus clause, which defined 'insured' to include: '* * * any person while using an owned automobile or a hired 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 * * *.' Both policies defined 'hired automobile' to include an automobile used under contract on behalf of the policyholder. Both policies defined the term 'use' to include 'loading and unloading.'

St. Paul contended in the trial court, as it does on appeal, that Doyle Walker and Marion's Trucking were helping to unload the sand truck; that Shaffer's injury arose out of this unloading; thus that Walker and Marion's Trucking Company became additional insureds under the Hartford policy covering the sand truck; also, that Marion's Trucking became an additional insured, as owner of a hired vehicle, under the omnibus clause of the policy which Fidelity had issued to Teichert. The trial court granted defendants' motion for judgment pursuant to Code of Civil Procedure section 631.8. ¹ It found that Walker and Marion's Trucking were not 'using' the sand truck; thus that neither of the defendant companies' policies covered Walker and Marion's Trucking Company.

The defendant companies seek to confine appellate review to an inquiry into substantiality of the evidence to support the finding of nonuse. They rely on Greening v. General Air-Conditioning Corp., 233 Cal.App.2d 545, 43 Cal.Rptr. 662, holding that trial court findings incidental to a judgment granted under section 631.8 are entitled to the same respect on appeal as any other findings. The argument misses the mark. The appeal involves issues of law, that is, questions of interpretation of automobile liability policies as applied to undisputed facts. (Estate of Helfman, 193 Cal.App.2d 652, 654, 14 Cal.Rptr. 482; see 12 Couch on Insurance 2d, § 45:330, p. 340.) A comparable case is Colby v. Liberty Mutual Ins. Co., 220 Cal.App.2d 38, 33 Cal.Rptr. 538, in which the appellate court went so far as to direct amendment of purported findings of fact which did nothing more than define the scope of coverage under the loading and unloading clauses of a liability policy.

It is not necessary to hinge the decision on the 'loading and unloading' clause. Hartford's policy covered accidents 'arising out of the * * * use' of the sand truck. Hartford points to no special policy restriction confining this phrase. When employed in a public liability policy without restriction, words such as 'use' or 'using' have comprehensive scope. (Liberty Mutual Ins. Co. v. Steenberg-Constr. Co., 8 Cir., 225 F.2d 294, 297; American Auto. Ins. Co. v. Transport Indem. Co., 200 Cal.App.2d 543, 549, 19 Cal.Rptr. 558; Columbia Southern Chemical Co. v. Manufacturers & Wholesalers Indem. Exch., 190 Cal.App.2d 194, 202, 11 Cal.Rptr. 762; see Note 89 A.L.R.2d 150, 163--164.) They do not demand that the injury be proximately caused, in the strict legal sense, by the insured vehicle; they way apply though it is at rest. (Columbia Southern Chemical Corp. v. Manufacturers & Wholesalers Indem. Exch., supra, 190 Cal.App.2d 194, 11 Cal.Rptr. 762.) California decisions to date have involved truck insurance 'use' clauses only as expanded by the loading and unloading concept. (See Entz v. Fidelity & Casualty Co. of New York, 64 A.C. 393, 50 Cal.Rptr. 190, 412 P.2d 382.) Court decisions on loading and unloading have developed several verbal aids or standards, some of which seem equally appropriate in fixing the scope of 'use.' A frequently cited decision points to the mission or function of the insured's employees as a controlling element, stating also that truck 'use' includes all activities involved in transporting and hauling which are necessary and proper in making delivery of the cargo. (American Auto. Ins. Co. v. American Fid. & Cas. Co., 106 Cal.App.2d 630, 636, 235 P.2d 645, quoting from Pacific Auto. Ins. Co. v. Commercial Cas. Ins. Co., 108 Utah 500 (161 P.2d 423, 160 A.L.R. 1251.).) One authority expresses the same idea in somewhat different form, stating that 'use' is not confined to motion on the highway but extends to any activity involved in utilization of the covered vehicle in the manner intended or contemplated by the insured. (12 Couch on Insurance 2d, § 45:325, p. 337.)

The United States Court of Appeals, Fourth Circuit, and an Ohio Court of Appeals have held that the use clause of a liability policy covering a stalled vehicle extended to the owner or operator of a vehicle engaged in towing it. (American Fire & Cas....