Streeter v. Henry Heide Inc.

• Decision Date: 26 October 1979
• Citation: 407 A.2d 1265,171 N.J.Super. 58
• Parties: Donald STREETER and Anne Streeter, his wife, Plaintiffs, v. HENRY HEIDE INCORPORATED, a New York Corporation, and John Doe, Defendants. HENRY HEIDE INCORPORATED, Defendant and Third-Party Plaintiff-Appellant, v. BURGMEYER BROTHERS INC. and Transport Insurance Co., Third-Party Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 58

171 N.J.Super. 58

407 A.2d 1265

Donald STREETER and Anne Streeter, his wife, Plaintiffs, v.HENRY HEIDE INCORPORATED, a New York Corporation, and John

Doe, Defendants.

HENRY HEIDE INCORPORATED, Defendant and Third-PartyPlaintiff-Appellant, v.BURGMEYER BROTHERS INC. and Transport Insurance Co.,

Third-Party Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 16, 1979.

Decided Oct. 26, 1979.

John Zen Jackson, Newark, for defendant and third-partyplaintiff-appellant(John J. Scanlon, New Providence, attorney and on the brief).

William T. Connell, Montclair, for third-party defendants-respondents(Dwyer, Connell & Lisbona, Montclair, attorneys; Albert C. Lisbona, Montclair, on the brief).

Before Judges FRITZ, KOLE and LANE.

PER CURIAM.

PlaintiffDonald Streeter sought to recover damages against Henry Heide Incorporated for personal injuries sustained when he was injured while a truck driver for Burgmeyer Brothers, Inc., as he was preparing a loading platform to load a shipment at Henry Heide Incorporated's premises.The complaint alleges that a spring-loaded docking plate malfunctioned and struck plaintiff.It charges Henry Heide Incorporated with breach of warranty that the machine was fit for the use and purpose intended and with negligence.When a truck is backed to the Heide loading platform, a spring loaded docking plate is supposed to fall into place joining the truck and the dock.At the time of plaintiff's accident the docking plate stuck.As was the custom, plaintiff attempted to trip the plate and in doing so received his injuries.

Heide filed a third-party complaint against the owner of the truck and its truck owners' liability insurance carrier, claiming to be an additional insured under the policy because the accident occurred when Heide was using the truck for loading.

The Law Division granted the motion of Burgmeyer Brothers, Inc. and Transport Insurance Co. for summary judgment.The issue before the court on the motion was whether there was coverage for Heide under the loading and unloading provision of the policy.Heide should have cross-moved for summary judgment.It did not do so.We will assume that it did.No application was made for leave to appeal from this interlocutory order.R. 2:2-3andR. 2:5-6.In view of the fact that the future defense of Heide will depend upon the action which we take, we grant leave to appeal Nunc pro tunc.We reverse.

The Transport Insurance Co. policy contained the same provisions as the policy in F & M Schaefer Brewing Co. v. Forbes Food Div., 151 N.J.Super. 353, 356, 376 A.2d 1282(Law Div.1977).In Bellafronte v. General Motors Corporation, 151 N.J.Super. 377, 381-383, 376 A.2d 1294(App.Div.1977), certif. den.75 N.J. 533(1977), it was held that in view of N.J.S.A. 39:6-46(a), to be an additional insured under the loading and unloading provision of that policy one did not have to be a lessee or borrower of the vehicle.

In construing the loading and unloading provision New Jersey applies the "complete operation" doctrine.The proper approach is to...