Standard Acc. Ins. Co. of Detroit, Mich. v. Hartford Acc. & Indem. Co.

• Decision Date: 24 July 1962
• Citation: 206 Cal.App.2d 17,23 Cal.Rptr. 424
• Parties: STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT, MICHIGAN, Plaintiff and Respondent, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and Appellant. Civ. 25902.
• Court: California Court of Appeals Court of Appeals

Page 424

23 Cal.Rptr. 424

206 Cal.App.2d 17

STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT, MICHIGAN, Plaintiff and Respondent, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant and Appellant.

Civ. 25902.

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

July 24, 1962.

Hearing Denied Sept. 26, 1962.

Olson & Nickoloff and Joe D. Olson, Los Angeles, for appellant.

Gilbert, Thompson & Kelly and Jean Wunderlich, Los Angeles, for respondent.

WOOD, Presiding Justice.

Appeal by defendant Hartford Accident and Indemnity Company from a judgment in a declaratory relief action determining the liability of each party, under liability insurance polices, for damages for personal injuries sustained by Edward Norris, who was the plaintiff in another action. Prior to the commencement of this present action, the plaintiff Standard Accident Insurance Company herein had paid $9,000 to Mr. Norris, the plaintiff in the other action. That action was against Standard's insured and Hartford's insured for damages for the injuries sustained by Mr. Norris. Standard made that payment or settlement pursuant to an agreement between the two insurance compaines (parties herein) that the settlement would not be considered to be voluntary, and that the liability of each party herein would be determined in a declaratory relief action. The judgment in the present action provided that Standard should recover $6,000 from Hartford; that the accident and injuries were covered by the policy issued by Standard and by the policy issued by Hartford; and that Standard and Hartford are obligated to bear pro rata, in accordance with the single limits of each policy, the amount of the $9,000 settlement, that is, Standard is obligated to bear $3,000 and Hartford to bear $6,000.

Appellant (Hartford) contends that Standard is solely liable, under the policy issued by Standard, for the damages sustained in the accident, and that there is no liability under the policy issued by Hartford for the damages.

On February 24, 1955, Edward Norris was an employee of Harry N. Welliver, who owned a furniture store. Welliver also owned a Chevrolet sedan automobile and a low-bed trailer which was attached to the automobile. On said day, Norris in the course of his employment drove the automobile, which was towing the trailer, to the warehouse of Graybar Electric Company for the purpose of obtaining a stove and hauling it away on the trailer. He parked the automobile and trailer outside the loading dock at the warehouse, and selected a stove. Rolland Igou, an employee of Graybar, loaded the stove onto a heister fork lift which was owned by Graybar, and then he propelled the lift to the side of the trailer. When the stove was above the bed of the trailer, Igou stopped the operation of the lift and requested Norris to read the serial number on the stove. Norris climbed onto the bed of the trailer and crouched to read the number. While Norris was in the crouched position on the trailer, Igou lost control of the lift, and it and the stove moved forward, struck Norris, and injured him.

At the time of the accident, Welliver was insured under a policy issued by Standard against liability for bodily injuries caused by accident and arising out of the ownership, maintenance, or use of the Chevrolet automobile. The amount of the liability of Standard was limited to $100,000 for injuries to any one person in any one accident. The policy provided, among other things, that: 'The word 'insured' includes the named insured Welliver and also any person while using the automobile, and any person or organization legally responsible for the use thereof, provided the use of the automobile is by the named insured or with his permission (Paragraph III); the use of the automobile includes the loading and unloading thereof (Paragraph VII, subdivision (c)); the word 'automobile' includes a trailer, if designed for use with a private automobile (Paragraph IV, subdivision (a), (2)); if the insured has other insurance against a loss covered by the policy Standard shall not be liable under the policy for a greater portion of such loss than the applicable limit of liability stated in the policy declaration bears to the total applicable limit of all valid and collectible insurance against such loss (Paragraph 12).

At the time of the accident, Graybar was insured under a policy issued by Hartford against liability for bodily injury sustained by any person and caused by accident. The amount of the liability of Hartford was limited to $200,000 for injuries to any one person in any one accident. The policy provided, among other things, that: The word 'insured' includes the named insured (Graybar) and also any partner, executive officer, director or stockholder thereof while acting within the scope of his duties as such (Paragraph III); the policy did not apply, 'except with respect to operations performed by independent contractors, to watercraft while away from premises owned, rented or controlled by the Named Insured [Graybar], automobiles while away from such premises or the ways immediately adjoining, or aircraft, or the loading or unloading thereof' (Exclusions', subdivision (b)); if the insured has...