Summary
In Komorowski v. Kozicki (1969), 45 Wis.2d 95, 105, 106, 172 N.W.2d 329, coverage was extended to the "... `actual acts' of loading (placing lumber onto the truck) and unloading (placing lumber onto the ground)
Summary of this case from Continental National Ins. Co. v. Carriers Ins. Co.Opinion
Nos. 126, 127.
Argued October 28, 1969. —
Decided December 2, 1969.
APPEAL from orders of the circuit court for Brown county: JAMES A. MARTINEAU, Circuit Judge of the Twentieth circuit, Presiding. Affirmed.
For the appellant there were briefs by Welsh, Trowbridge, Bills, Planert Gould, and oral argument by Vance M. Waggoner, all of Green Bay.
For the respondents Ralph Kozicki, Edward Kozicki, and Roman Kozicki, d/b/a Kozicki Brothers Construction Company, there was a brief by Denissen, Kranzush, Stodola Mahoney of Green Bay, and oral argument by Shannon D. Mahoney.
These actions to recover damages for personal injuries arose out of an accident in which the plaintiffs, Michael J. Komorowski and Mark J. Neerdaels, a minor, were injured when a pile of lumber toppled. The cases involve the interpretation of a clause in an automobile liability insurance policy which extends the use clause to include "loading and unloading."
On October 4, 1961, the Hartford Accident Indemnity Company (hereinafter the appellant) issued an automobile policy to Lyle A. Schwahn, d/b/a Schwahn Lumber Transfer. This policy provided in pertinent parts as follows:
"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.
". . .
"Purposes of Use Defined: (a) . . . (b) . . . (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.
". . .
"This policy does not apply:
"(a) . . .
"(b) under coverages A and C, to liability assumed by the insured under any contract or agreement."
On May 16, 1962, a "Contract Carrier Agreement" was entered into between Schwahn, as carrier, and the Wickes Lumber Company, as shipper. Under the terms of this agreement Schwahn was to transport lumber and other building supplies to those purchasing such items from Wickes. In addition, the agreement provided that:
"10. Liability: Carrier assumes all risk of accident to Carrier, and agents or employees of Carrier, and property of Carrier, and property of others, and discharges the Shipper from every claim, liability or demand of any kind and character for and on account of any such injury or damage of any kind or character sustained by any such parties or persons, and in the event that Shipper is sued or made a defendant to any suit in any action arising out of negligence or accident of Carrier, or agent or employee of Carrier, either jointly or severally, Carrier hereby agrees to defend and reimburse and keep absolutely safe and harmless Shipper in any such action or actions, and reimburse Shipper for any sum or sums of money it may be required to pay on account of any such suit or actions against either of the parties hereto, or both of them, and others."
On June 28, 1962, pursuant to this agreement, Schwahn sent its truck, driven by its employee Donald Kittell and insured by the appellant, to the Wickes Lumber Company. There Kittell and a Wickes employee loaded the truck with lumber and fastened it by the use of three chains.
Donald Kittell then proceeded to a construction site in Green Bay, Wisconsin, where the Kozicki Brothers Construction Company (hereinafter the respondent) was constructing a new house. Upon arriving at the construction site, Kittell unloaded the lumber by raising a rack on the truck bed and merely allowing it to slide to the ground. He then removed the chains, thereby leaving the lumber stacked and ready for use. Upon being paid for the delivery, he left the construction site to continue his other work.
Shortly after the Schwahn truck left the site, Mark Neerdaels and Michael Komorowski were assisting Ralph and Edward Kozicki in covering the lumber with a tarpaulin. While so doing, the lumber toppled, thereby injuring both Neerdaels and Komorowski.
Neerdaels and his parents commenced an action against the Wickes Lumber Company, Lyle A. Schwahn, the appellant, and the respondent, who then cross-complained against the other defendants. Komorowski also commenced his action against the respondent, who in turn again cross-complained against Wickes, Schwahn, Kittell, and the appellant.
After the commencement of these actions, the appellant, being a party defendant, moved for a separate trial to determine the extent of the coverage afforded its insured. Upon a hearing the trial court entered an order holding as a matter of law that the injuries of Komorowski and Neerdaels resulted from the unloading of Schwahn's truck, thereby determining that if upon trial Schwahn was proven causally negligent, the appellant would be liable for such injuries. Despite the appellant's request, the trial court's order declined to determine the significance of the indemnity agreement between Schwahn and the Wickes Lumber Company. The Hartford Accident Indemnity Company appeals from this order. Only the respondent Kozicki Brothers Construction Company has submitted a brief in response to that of the appellant; the other defendants are content to rely upon the arguments therein set forth.
In its brief the appellant devotes considerable argument to support the proposition that under its policy, issued to Schwahn, it cannot be held liable to the Wickes Lumber Company because such policy specifically excluded liability which Schwahn assumed under the Contract Carrier agreement. Since Wickes has not commenced an action against the appellant and since the trial court declined to rule on this question, the significance of the agreement is not properly before this court.
The sole issue raised upon this appeal is whether the acts of the appellant's insured, which allegedly caused the injuries complained of, constituted acts of "loading or unloading" and were within the coverage of the policy.
It is of paramount importance in these cases to note that the causal negligence of the appellant's insured ( i.e., the negligence of Donald Kittell) has not as yet been determined and that in determining the appellant's liability for the negligence of its insured two distinct questions are involved: (1) Did the acts complained of cause the injuries; and (2) were such acts part of the "loading or unloading" of the insured vehicle?
It is the appellant's contention on this appeal that it is not liable for the injuries sustained by Komorowski and Neerdaels because their injuries did not result from the loading or unloading of the insured's vehicle. This contention is predicated upon the fact that the actual unloading had been completed, the driver had been paid, and the vehicle had departed before sustainment of the injuries.
It is the respondent's position, however, that a negligent act can cause injury even a substantial period after the actor has completed the act and left the scene of its occurrence.
It is apparent from these arguments that while the appellant is directing its attention to the question of coverage, the respondent appears to argue in terms of injury causation. This confusion, however, is understandable in that, as stated in the annotation at Annot. (1964), 95 A.L.R. 2d 1122 the decisions of most jurisdictions have failed to treat these questions separately.
Only the question of coverage is before this court. In reference to this question, two doctrines of interpretation have developed in determining whether a given act is part of the "loading or unloading" of a vehicle.
Relying upon the "coming to rest" doctrine, which it implies has been adopted in this jurisdiction, the appellant contends that there was no coverage in the instant case and thus there can be no recovery. The respondent, however, contends that Wisconsin is no longer firmly committed to this doctrine and either has adopted, or should adopt, the "complete operation" doctrine.
As stated in 13 Vanderbilt L. Rev. (1960), 903, 904:
"The `coming to rest' doctrine contemplates that loading does not commence until the items of cargo have left their place of rest (or in some cases the last place where they could be at rest) away from the automobile and are being physically carried or lifted onto the vehicle, and that unloading ceases when the items of cargo have reached a place of rest (or in some cases the first place where they could come to rest) away from the vehicle and are no longer being physically carried or lifted off of the vehicle. . . .
"The `complete operation' doctrine contemplates that the loading commences when the items of cargo leave their original location on the way toward the vehicle (notwithstanding later temporary `comings to rest' on the way) and that unloading does not cease until the items of cargo have reached the final point of delivery toward which the transportation of the cargo by automobile was a part. . . ."
It is apparent that the "complete operation" doctrine is an expansion of the "coming to rest" doctrine and includes a greater range of acts within the term "loading and unloading." As stated in Annot. (1964), 95 A.L.R. 2d 1122, 1129:
"Under the `coming to rest' doctrine, unloading within the meaning of the unloading clause comprises only the actual removing or lifting of the article from the motor vehicle up to the moment when the goods which are taken off the motor vehicle actually come to rest and every connection of the motor vehicle with the process of unloading ceases. Under the so-called `complete operation' doctrine, however, the `loading and unloading' clause covers the entire process involved in the movement of goods from the moment when they are given into the insured's possession until they are turned over at the place of destination to the party to whom delivery is to be made, and for all practical purposes, any distinction between `unloading' and `delivery,' and between `loading' and `preparatory actions,' is not considered."
In reference to unloading, the "complete operation" doctrine, unlike the "coming to rest" doctrine, would apply where an item had already been removed from the vehicle and was being further transported to its final resting place. An illustrative example of such a situation is Turtletaub v. Hardware Mut. Casualty Co. (1948), 26 N. J. Misc. 316, 62 A.2d 830, wherein the court allowed recovery for injuries sustained when a hand truck, which was transporting cases of soda from the delivery truck to the purchaser's storage area, struck and injured an individual. Thus the act of transporting the soda by hand truck was in effect held to be an act of unloading.
Again, in reference to unloading, a classic example of what has since come to be known as the "coming to rest" doctrine is Stammer v. Kitzmiller (1937), 226 Wis. 348, 276 N.W. 629. There a deliveryman had removed his merchandise from the truck, opened a hatch in the sidewalk, and carried the merchandise into the purchaser's storage area. While still in the customer's tavern, a pedestrian fell through the open hatch and was injured. This court held that the act of opening the hatchway was not within the process of unloading the truck and relieved the automobile insurer from liability under its "loading and unloading" clause. In its apparent adoption of the "coming to rest" doctrine, this court stated:
". . . When the goods have been taken off the automobile and have actually come to rest; when the automobile itself is no longer connected with the process of unloading; and when the material which has been unloaded from the automobile has plainly started on its course to be delivered by other power and forces independent of the automobile and the actual method of unloading, the automobile then may be said to be no longer in use. . . ." Stammer v. Kitzmiller, supra, at pages 352, 353.
Despite this language, however, the respondent maintains that Wisconsin is no longer firmly committed to the "coming to rest" doctrine and places reliance upon the subsequent cases of Hardware Mut. Casualty Co. v. Saint Paul-Mercury Indemnity Co. (1953), 264 Wis. 230, 58 N.W.2d 646; Ermis v. Federal Windows Mfg. Co. (1959), 7 Wis.2d 549, 97 N.W.2d 485; and Peterson v. Sinclair Refining Co. (1963), 20 Wis.2d 576, 123 N.W.2d 479.
In Zimmer v. Daun (1968), 40 Wis.2d 627, 162 N.W.2d 626, this court was called upon to review the denial of a motion for summary judgment which had been predicated upon the interpretation of a "loading and unloading" clause. Recognizing the importance of the question therein involved, Mr. Chief Justice E. HAROLD HALLOWS stated, at page 631, that the "question of `loading and unloading' coverage ought not be decided upon the affidavits presented."
In the instant case, however, the pertinent facts have been stipulated and since the Wisconsin position on this matter is not as clear as it might be, a review of these cases is in order.
In Hardware Mutual, supra, a deliveryman double-parked his truck and opened a hatchway in the sidewalk preparatory to taking beer kegs from the truck and into the customer's basement. After opening the hatchway and before removing the beer kegs, the driver moved his truck to allow another vehicle to pass. While so doing, a pedestrian fell through the hatchway and was injured. The court held that the act of opening the hatchway was a necessary part of the unloading process. By so holding, we think the court overruled sub silentio the Stammer Case. Clearly, if the act of opening the hatchway in Hardware Mutual was a necessary part of the unloading, it also was in the Stammer Case.
Additional support for the contention that Stammer is no longer viable in this jurisdiction is found in the Ermis Case. There the plaintiff, an employee of a salvage company, had gone to a manufacturing company to procure a load of scrap metal. The plaintiff was allegedly injured when an overhead crane, operated by an employee of the manufacturing company, dropped upon his hand. After an action was commenced against it by the plaintiff, the manufacturing company impleaded the automobile insurer of the plaintiff's employer, alleging that the plaintiff's injuries had resulted from the "loading or unloading" of a motor vehicle owned by the plaintiff's employer. In reversing a judgment which had dismissed the cross complaint against the automobile insurer, this court stated:
"The words `including the loading or unloading thereof' are an extension of the use clause and cover operations or acts in which the movement of the truck itself does not play a part. . . ." Ermis v. Federal Windows Mfg. Co., supra, at page 553.
The appellant contends that this court did not adopt the "coming to rest" rule in the Stammer Case by name and has never adopted either rule by name in any case. This contention appears to be correct; however, the court, in Stammer, adopted a more narrow construction of the policy clause, while in Hardware Mutual it adopted the broader construction of the policy clause.
It is to be noted that in the policy of insurance involved in the instant case the appellant agreed to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury caused by accident "arising out of the ownership, maintenance or use of the automobile," including the "loading and unloading."
The effect of this language is to extend the coverage to include acts of "loading and unloading" incidental to the use of the vehicle.
The instant policy does not require that the injury occur during or in the course of the "loading and unloading." The appellant insurance company did not so limit its liability. The words "arising out of" are broad, general and comprehensive, effecting broad coverage.
If the draftsman of the appellant's policy intended to limit coverage to accidents which occur in the course of "loading and unloading," he could have specifically provided so.
To remove any uncertainty surrounding the position of this court, we now specifically adopt the broader construction of the policy which other jurisdictions refer to as the "complete operation" rule and as indicated in Annot. (1964), 95 A.L.R. 2d 1122, has become the majority view in this country. For purposes of this appeal, however, an examination of the alternative doctrine reveals that it is immaterial which of the doctrines is adopted.
The respondent in each of his cross complaints against the appellant has alleged that the (employee of the) appellant's insured was (1) negligent as to the loading of the vehicle in that he loaded the lighter boards first, thereby causing the heavier boards to be at the top of the pile; and (2) negligent as to the unloading of the vehicle in that by merely sliding the chained lumber off of the truck he failed to unload the heavier lumber first, thereby allowing it to remain at the top of the pile.
Since the "actual acts" of loading (placing lumber onto the truck) and unloading (placing lumber onto the ground) were performed in an allegedly negligent manner, coverage is afforded in the instant case without resort to the more inclusive "complete operation" doctrine.
We hold that the automobile policy insured Schwahn Lumber Transfer against liability for the claim made on behalf of plaintiffs.
It must be understood, of course, that insured's liability to pay for plaintiffs' injuries is not being determined in the instant suit and that appellant will be liable to pay for plaintiffs' injuries only if the evidence presented on trial shows that the negligent acts occurred as alleged and proximately caused plaintiffs' injuries.
By the Court. — Orders affirmed.