United Rental Equipment Co., Inc. v. Aetna Life & Cas. Ins. Co.

• Decision Date: 20 July 1977
• Citation: 74 N.J. 92,376 A.2d 1183
• Parties: UNITED RENTAL EQUIPMENT CO., INC., a New Jersey Corporation, Plaintiff-Appellant, v. AETNA LIFE AND CASUALTY INS. CO., an Insurance Corporation Authorized toTransact Business in New Jersey, Defendant-Respondent, and Fulcrum Corporation, a New Jersey Corporation, Defendant. UNITED RENTAL EQUIPMENT CO., INC., a New Jersey Corporation, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INS. CO., an Insurance Corporation Authorized toTransact Business in the State of New Jersey, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 92

74 N.J. 92

376 A.2d 1183

UNITED RENTAL EQUIPMENT CO., INC., a New Jersey Corporation Plaintiff-Appellant, v. AETNA LIFE AND CASUALTY INS. CO., an Insurance Corporation Authorized toTransact Business in New Jersey Defendant-Respondent, and Fulcrum Corporation, a New Jersey Corporation, Defendant UNITED RENTAL EQUIPMENT CO., INC., a New Jersey Corporation Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INS. CO., an Insurance Corporation Authorized toTransact Business in the State of New Jersey, Defendant-Respondent.

Supreme Court of New Jersey.

Argued March 22, 1976.

Decided July 20, 1977.

William S. Singer, Highland Park, for plaintiff-appellant (Sanford E. Chernin, Somerset, attorney).

Edward R. Schwartz, Newark, for respondent Aetna Life & Cas. Ins. Co. (Schwartz & Andolino, Newark, attorneys; Frank R. Cinquina, Newark, on the brief).

Stanley P. Fishman, West Orange, for respondent St. Paul Fire & Marine Ins. Co.

PER CURIAM.

These cases resulted in the same judge rendering summary judgments for defendants. The judgment in favor of defendant Aetna Life and Casualty Insurance Company (Aetna) was affirmed in an unreported opinion by the Appellate Division and we granted certification, 68 N.J. 169, 343 A.2d 456 (1975). We certified on our own motion the case in which St. Paul Fire and Marine Insurance Company is the defendant while the matter was pending unheard in the Appellate Division, 69 N.J. 399, 354 A.2d 326 (1976). The cases are virtual twins, the essential issue being whether under the circumstance summary judgements were properly entered on the basis of substantially identical exclusionary clauses in the respective policies of insurance issued by defendants. We affirm in both cases.

I

In May 1968 plaintiff United Rental Equipment Co., Inc. (United Rental) leased an industrial crane to defendant Fulcrum Company (Fulcrum). In order to protect its interest United Rental had secured a policy of insurance from respondent Aetna which generally covered any damage or loss to its machines. Fulcrum also secured a policy on the machine from respondent St. Paul, but that policy provided that United Rental was the designated payee for any losses covered by the policy. Although there were minor differences in the language of the two policies, both excluded from coverage under the contract those losses occasioned by the lifting of any load which exceeded the registered lifting or supporting capacity of any machine otherwise within the scope of coverage. ¹

Neither policy specifically defines the term "registered capacity." However, we assume, consistent with the trial judge's finding and in the absence of any proof or substantial argument to the contrary, that the phrase refers to the manufacturer's suggested capability as indicated on a chart posted in the cab of the crane to guide the operator.

Fulcrum used the rented crane to pour cement on the dome of a storage tank which it was building on Staten Island. On June 5, 1968, while being utilized in this manner, the crane's boom suddenly buckled and collapsed. In addition to the damage to the tank and serious injury to several workmen at the site, there was irreparable damage to the crane's boom and jib assembly.

Following the accident United Rental sought recovery from Aetna for the damage to the crane. Aetna resisted the claim, contending that the accident resulted from an overloading of the crane's capacity, thus falling within the coverage exclusion described above. United Rental's suit followed, with Aetna accompanying its answer with an affidavit of its engineering expert, one George W. Mackay. This affidavit contained Mackay's opinion of the reasons for the crane's failure and was based on a number of factors including personal observations and inspections of the accident site and the depositions of a number of parties in various personal injury actions, commenced in New York, resulting from the same accident. ²

One deposition relied on by Mackay was that of Fred Speranza, operator of the crane at the time of its collapse, who was fully aware of the machine's capabilities and limitations. After describing some of the preliminary operations of the crane by which he undertook to deliver concrete to the tank's dome, Speranza gave this account of the accident:

Well, after I swung the machine around, the boom was in position. I was waiting for the signal to boom down. All of a sudden the boom went on me, collapsed. It's as simple as that. That's all I can tell you.

Several days after the accident Speranza learned that at the time of the occurrence and contrary to normal practice, the crane's bucket was filled to capacity. He further testified that he was present when the bucket was weighed after it was recovered from the dome and he recalled the bucket's weight to be approximately 7800 pounds.

In addition to the Speranza deposition Mackay resorted to several other elements to formulate the opinion contained in his affidavit. He also utilized the previous testimony of Joseph Medler, a deputy chief engineer with the New York Department of Port and Terminals, who had been assigned by his department to investigate the damage done to the tank. In the course of this investigation he participated in the weigh-in of the bucket after it had been recovered. He testified that the bucket's weight was in the neighborhood of 7600 pounds. Mackay also had an affidavit of Edward P. O'Neill, a New York City detective, who investigated the accident on behalf of the New York City District Attorney's office. This document included numerous measurements which were of assistance in making critical calculations. Finally, Mackay had the benefit of the chart setting forth the maximum lifting capacities of the crane, indicating a maximum capacity of 3400 pounds for the equipment rigged as it was when the accident occurred.

On the basis of these materials Mackay gave this as his opinion:

Assuming all of the aforesaid facts (as revealed by his inspection, the depositions, the affidavit and the capacity chart) to be true, it must be concluded that at the time of the accident, the crane was overloaded by more than 100 per cent and it is my opinion that the overload of the crane caused it to collapse and result in damage to the crane alleged by plaintiff United Rental Equipment Company, Inc.

In addition to the Mackay affidavit the trial court in the Aetna case was also referred to the answers made by plaintiff to certain interrogatories propounded by defendant Aetna. Two are relevant to this case:

4. Describe in detail the cause and origin of the loss referred to in the Complaint, setting forth the date and time as well as the place where the accident occurred.

ANSWER: At the time of the operation and accident to the crane, the operator was apparently over-reaching causing the machine to buckle and strike the top of the building upon which they were working. As a result of the impact, the damages were caused to the machine. The accident occurred on June 5th, 1968 at about 2:45 P.M. at or near Bloomfield Road and Merrill Avenue, Staten Island, New York.

6. Describe in detail what the crane was lifting at the time of the accident and the weight thereof, indicating the position of the boom at the time of the occurrence.

ANSWER: At the time of the accident the plaintiff has been advised that the crane was lifting a concrete bucket, the exact weight of which is not known. However, from the information received, it was determined that the amount of the load in the bucket in conjunction with the angle of the boom at the time, exceeded the chart limits.

Aetna argued in the trial court that the affidavit of Mackay and these answers to interrogatories indisputably established that the cause of the crane's collapse was an overloading and therefore the loss sustained by United Rental was outside of the scope of coverage. United Rental presented no documents to support any other theory as to the cause of the accident.

One week after the trial court granted Aetna's motion for summary judgment the plaintiff instituted an action against St. Paul to recover damages to the crane. St. Paul answered and, having disclaimed coverage on the basis of an exclusionary clause virtually identical to that contained in the Aetna policy, moved for summary judgment. Prior to the hearing on this motion, the Appellate Division affirmed the earlier disposition in the Aetna case.

At the hearing St. Paul argued that inasmuch as the issues in its case and the Aetna case were identical and it was relying on precisely the same factual basis, namely, the Mackay affidavit, summary judgment was equally appropriate in the St. Paul case. United Rental argued in turn that summary judgment was not proper because discovery had not yet been completed and it requested leave to take Mackay's deposition.

The trial judge (who, as we have pointed out, was the same judge who also had determined the Aetna matter) after hearing argument concluded that nothing had been presented to him to distinguish the St. Paul case from the Aetna case. He therefore ordered summary judgment entered in favor of St. Paul and denied plaintiff's application for depositions. After ordering direct certification we set this matter down for argument with the Aetna case.

II

Mindful of the desirability of affording every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case, Robbins v. Jersey City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957), we examine the propriety of the grant of summary judgment in the Aetna action. In doing so we likewise keep in focus...