Travelers Ins. Co. v. Buckeye Union Cas. Co.

• Decision Date: 16 September 1960
• Citation: 112 Ohio App. 386,173 N.E.2d 173
• Parties: , 85 Ohio Law Abs. 134, 16 O.O.2d 317 TRAVELERS INSURANCE CO., Plaintiff-Appellant, v. BUCKEYE UNION CASUALTY COMPANY and John Keiser, Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 386

112 Ohio App. 386

173 N.E.2d 173, 85 Ohio Law Abs. 134, 16 O.O.2d 317

TRAVELERS INSURANCE CO., Plaintiff-Appellant, v. BUCKEYE UNION CASUALTY COMPANY and John Keiser, Defendants-Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 16, 1960.

Wright, Harlor, Morris, Arnold & Glander, Columbus, H. Bartley Arnold, Columbus, of counsel, for plaintiff-appellant.

Power, Griffith & Jones, Columbus, Sidney D. Griffith and William H. Schneider, Columbus, of counsel, for Buckeye Union Casualty Company, defendant-appellee.

Graham, Graham, Gottlieb & Johnston, Zanesville, Harold E. Gottlieb, Zanesville, of counsel, for John Keiser, defendant-appellee.

BRYANT, Presiding Judge.

This is an appeal of a declaratory judgment action to determine the respective liabilities of two casualty insurance companies and involves the interpretation of the 'loading and unloading' clause in an automobile liability insurance policy. Perhaps the principal question is whether, in the case of a tank truck which had been driven onto the loading platform of a bulk station, under the agreed facts, loading had begun. The suit for a declaratory judgment was begun in the court below by The Travelers Insurance Company, a plaintiff-appellant, herein called Travelers. Defendants-appellees are The Buckeye Union Casualty Company, herein called Buckeye, and John Keiser. The facts are not in dispute and at the close of the opening statement by Travelers, certain agreed exhibits were admitted and a motion for judgment on the pleadings was made, which the trial court sustained. Several errors are assigned but all of them relate to the propriety of this decision.

R. T. McCracken was the owner of a tank truck, the operation of which was insured in an automobile liability insurance policy issued by Buckeye. Keiser was a truck driver employed by McCracken. Buckeye's insurance policy covered the use of the automobile for business, pleasure and commercial uses, and such uses by express terms of the policy include the loading and unloading thereof.

The Gulf Refining Company, herein called Gulf, operated a bulk station in Zanesville from which diesel fuel was sold. Gulf was the insured in a policy of premises liability insurance issued by Travelers. This policy insured Gulf against liability for damages resulting from bodily injury, sickness or disease including death caused by accident. It covered the use of owned, hired and non-owned automobiles and such use was defined as including loading and unloading.

However, Travelers' policy also provided that if Gulf had other insurance against a loss covered by Travelers' policy, the liability should be borne proportionately, and further that the insurance under Travelers' policy in case of loss from use of a non-owned automobile shall be excess insurance over any other valid and collectible insurance available to Gulf.

On April 6, 1954 Keiser drove McCracken's tank truck to the Gulf bulk station to purchase a tank load of diesel fuel for McCracken. Keiser drove the truck onto the loading platform, stopped the truck, got out of the cab and climbed up onto the bed of the truck. He removed the cover from the opening in the tank. The station was equipped with movable overhead pipes for the filling of tank trucks and an employee of Gulf moved a pipe toward the truck in order to fill it. As the pipe got near the truck, a quantity of diesel fuel rushed out onto Keiser causing him to lose his balance. He fell from the truck to the ground sustaining personal injuries.

Thereafter, Keiser filed suit against Gulf in the federal court claiming that his injuries were a result of the negligence of the Gulf employee and praying for $100,000 damages. It was the claim of Travelers, after Keiser's suit was filed, that Buckeye's policy covered Gulf because McCracken's truck was being loaded at the time of the accident, but that Buckeye refused to act. This was on the claim that Buckeye's insurance policy covered anyone else who was using the truck with McCracken's consent, that McCracken had consented to such use and hence that Gulf was protected under the policy issued by Buckeye.

Travelers also claimed that as a result, Buckeye was primarily liable up to the limits of its policy for any judgment or settlement as a result of the federal court suit, that Buckeye was under a duty to defend Gulf and that although demand had been made on Buckeye, it refused to admit liability.

Pertinent portions of the insurance policy issued by Travelers to Gulf are as follows:

'The Travelers Insurance Company * * * agree with the insured, named in the declarations made a part hereof, * * * subject to the limits of liability, exclusions, conditions and other terms of this policy, provided The Travelers Insurance Company shall be the insurer with respect to Coverage A and no other * * *:

'Insuring Agreements

'1. Coverage A--Bodily Injury Liability.

'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.

* * *

* * *

'Conditions

'The conditions, except conditions 7, 9, 10 and 11, apply to all coverages. * * *

* * *

* * *

'3. Definitions. * * *

'(b) Automobile. Except where stated to the contrary, the word 'automobile' means a land motor vehicle or trailer as follows:

'(1) Owned Automobile--an automobile owned by the named insured;

'(2) Hired Automobile--an automobile used under contract in behalf of, or loaned to, the named insured provided such automobile is not owned by or registered in the name of (a) the named insured or (b) an executive officer thereof or (c) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile;

'(3) Non-Owned Automobile--any other automobile.

* * *

* * *

'(e) Purposes of Use. * * * Use of an automobile includes the loading and unloading thereof.

* * *

* * * '12. Other Insurance. 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 proportion 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. * * *'

Pertinent portions of the insurance policy issued by Buckeye to McCracken are as follows:

'Declarations

* * *

* * *

'Item 5. The purposes for which the automobile is to be used are business, pleasure and commercial. * * *

'(c) Use of the automobile for the purposes stated includes the loading and unloading thereof.

* * *

* * *

'The Buckeye Union Casualty Company * * * agrees with the Insured, named in the Declarations made a part hereof, * * * subject to the limits of liability, exclusions, conditions and other terms of this policy:

'Insuring Agreements

'I. Coverage A--Bodily Injury Liability--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, caused by accident and arising out of the ownership, maintenance or use of the automobile.

* * *

* * *

'II. Defense, Settlement, Supplementary Payments. As respects the insurance afforded by the other terms of this policy under Coverages A and B the company shall: (a) defend 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 may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; * * * (c) pay all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest accruing 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; * * * The amounts incurred under this insuring agreement, except settlements of claims and suits, are payable by the company in addition to the applicable limit of liability of this policy.

'III. Definition of 'Insured'. With respect to the insurance for bodily injury liability and for...