Smith v. National Union Insurance

Opinion

HERNDON, J. This is an appeal by defendant National Union Insurance Company from a judgment in favor of plaintiffs Smith and the cross-defendant Insurance Company of North America in an action for declaratory relief. The basic question presented for the trial court’s decision was whether or not plaintiffs Smith, the consignees of a shipment of liquor which was being unloaded from a truck upon premises maintained by them, were additional insureds under the trucker’s policy (issued by appellant as insurer) with respect to an injury sustained by the trucker’s employee as the result of the negligent maintenance of plaintiffs’ premises.

The trial court sustained the contention advanced by plaintiffs and by Insurance Company of North America, their insurer, that plaintiffs were “users” of the truck during the course of its unloading and therefore were additional insureds under the policy issued by appellant to the owner of the truck and hence that the injuries sustained by the truck driver during the [528]unloading of the insured vehicle were covered by appellant’s policy. We have concluded that this determination was erroneous and that the judgment must be reversed.

The determinative issues of law in this case are precisely the same as those recently decided by the Supreme Court of California in International Business Machines Corp. v. Truck Ins. Exch., 2 Cal.3d 1026 [89 Cal.Rptr. 615, 474 P.2d 431], wherein it was held (1) that the mere maintenance of premises used for loading or unloading is not in itself a sufficient basis upon which to find the shipper a user of a truck being unloaded; and hence that the shipper is not an additional insured under the trucker’s policy with respect to an injury sustained by the trucker’s employee as the result of the negligent maintenance of the shipper’s premises; (2) that the use of a motor truck includes its loading and unloading, and consequently there is no discernible difference in scope between insurance policies that expressly include loading and unloading and those that refer to the use of a vehicle which includes the complete operation of pick up and delivery; and (3) that the obligation for the proper maintenance of premises used for purposes of loading and unloading rests with the owner of such premises.

We deem it unnecessary to lengthen this opinion with a detailed repetition of the facts as recited in the IBM decision. It suffices for present purposes to state our conclusion that in all substantial respects the operative facts in the IBM case are practically identical to the undisputed facts of the case at bench as reflected in the agreed statement upon which the cause was submitted. We shall recite the facts substantially as they are set forth in the agreed statement.