Travelers Insurance v. Norwich Union Fire Insurance Society

DRAPER, P. J.

This case turns on construction of a policy of automobile liability insurance issued by defendant Norwich. The question is whether the policy requires Norwich to defend an action brought by its named insured against one asserted to be an additional insured by reason of his permitted use of the insured automobile.

Defendant’s policy was issued to Marcelin Chlemens. By it, Norwich 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 ... sustained by any person ... arising out of the ownership, maintenance or use of the owned automobile,” and also to “defend any suit alleging such bodily injury.” The “insured” to whom this obligation runs is defined to include the named insured (Chlemens) and “any other person using such automobile,

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provided the actual use thereof is with the permission of the named insured.” It is specifically provided that “ ‘use’ of an automobile includes the loading and unloading thereof. ’ ’

Chlemens filed a personal injury action against Bast Bay Brass Foundry Co. and one of its employees. He alleged that: He bought a quantity of bronze paperweights from that firm; its employee, despite contrary instructions, loaded them into Chlemens ’ ear in cartons which were too large to be lifted by one man; when Chlemens attempted to lift the ear-tons from his ear, he suffered sprain of his back and shoulders, for which he prayed damages.

Norwich refused to defend the action. Plaintiff Travelers had issued to Foundry a comprehensive liability policy which was in effect at date of Chlemens ’ alleged injury. As to any automobile not owned by Foundry, however, this policy extended only excess coverage. Travelers employed counsel to defend Foundry and brought this action seeking a declaration of the rights and duties of the two insurers.

The trial court found that Chlemens ’ complaint was based upon loading of his vehicle by Foundry, but concluded that Norwich had no duty to indemnify or defend. Travelers appeals from the judgment.

The question has not been determined in California. One ease