*1 Dist., 29, 1972.] Second Div. Two. June No. 37973. [Civ. COMPANY, v. Plaintiff and INSURANCE Respondent,
HARBOR COMPANY, LINES INSURANCE EMPLOYERS’ SURPLUS Defendant and Appellant.
Counsel Hunter, Jr., Rutland & Packard and Harold J. for Defendant Appel- lant. Bautzer,
Wyman, Rothman & Kuchel and Charles L. for Fonarow Plaintiff and Respondent.
Opinion HERNDON, J.As indicated its complaint, plaintiff (Harbor) Harbor Insurance this action for Company bringing declarator)' insurance com- that two*other declaring relief to obtain a judgment Lines Insurance Company the defendants Employers’ Surplus panies, (Pacific) carry should Indemnity Company Pacific (Employers) and that one injuries action burden defending pending personal of a recovery in the event or both of them should indemnity provide case. in that other plaintiff pending one Lewis action was filed injury The previously pending personal insured, the Con- Miller. He had named as defendants Harbor’s Weeshoff Grossenbach. LeRoy and its (Weeshoff) employee, struction Company he had suffered allegedly Miller which sought recovery damages Grossen- result of the Weeshoff’s negligence employee, proximate bach, the accident hereinafter described. *4 of Rock Products the insurer Owl Company
Defendant is Employers of the accident. of Owl at the time (Owl). Miller was an Lewis employee' another is the under the of Defendant Pacific insurer provisions that had undertaken as the insured. Harbor naming alleged Weeshoff carriers had refused to assume of after the defendant defense Weeshoff it. trial, of court below entered in favor júdgment plain-
After a nonjury that declared tiff Harbor and defendant against judgment Employers. No coverage. of the defendant Pacific did not appeal the policy provide attacking that appeals was taken from portion judgment. Employers its in- a truck and owned by the conclusion of the trial court that trailer Owl, insured, Weeshoff, of sured, at the time Was used Harbor’s by the accident. erroneously that the under review
We have concluded judgment Weeshoff, Harbor, the allegedly transfers the insurer of liability from Owl, entity, insurer of an innocent negligent entity, Employers, of the law as enunciated recent decisions of the California violation and unload loading Court with the “use” dealing concept International Busi of decisions vehicles. These include ing freight-carrying Exch., Corp. ness v. Truck Ins. 1026 Machines 2 Cal.3d Cal.Rptr. [89 Co., 431]; 6 Cal.3d Argonaut Transport Ins. Co. v. Indem. 474 P.2d Casualty 673]; Fidelity & P.2d v. 496 492 Cal.Rptr. [99 Entz 382], bemay 412 P.2d Cal.2d 379 which Cal.Rptr. [50 Camay Drilling Co. Travelers Indem. added the decision of this court in v. Co., 12 Cal.App.3d 710].
Statement the Facts of occurred facts are as follows: “The accident in The stipulated Road, Santa 28, 1968, site at 1300 Shoemaker at a construction August on a trailer owned the accident tractor At the time of Fe California. Springs, both hereafter or Owl Rock Products Company, Owl Constructors Miller Owl, Lewis had been driven to the referred to premises simply site D-8 to another job for the picking up transporting purpose Miller, driver, who at all times herein Owl Lewis tractor. The Caterpillar using Owl and concerned was his acting within employment Owl, Con- notified Weeshoff trailer with employees permission the Cater- for the up struction of his arrival picking Company that in the so yard tractor. Miller the Owl trailer pillar parked facilitate the could loaded. In order to tractor Caterpillar feet which was several tractor onto the bed of the trailer the Caterpillar into near the above of dirt was fashioned a ramp the ground, large pile could be driven rear of the trailer tractor up so the Caterpillar dirt and onto the trailer. ramp Grossenbach, em- who was at all times herein concerned an
“LeRoy within the of his Weeshoff Construction acting ployee Company, scope tractor and used same fashion operated Caterpillar employment, the dirt for the was completed, When ramp loading operation. ramp tractor had overheated engine Grossenbach noticed Caterpillar Therefore, somewhat and that dirt thereon. to driving there prior *5 trailer, tractor tractor onto the Owl he the Caterpillar stopped Caterpillar at a hose feet and outlet several from the dirt the Owl trailer. away ramp the still and John With motor Grossenbach another running, employee, to water and clean the of the Akridge, engine tractor. proceeded Caterpillar the the and entire of the sub- “During building operation ramp the Lewis observed the and gave of Miller washing engine, activity sequent he and whatever assistance could. Grossenbach Akridge When completed the and the one of them of tractor watering cleaning engine, Caterpillar loaded, said that the tractor was and Grossenbach to be Caterpillar ready the toward into driver’s seat and tractor got began moving Caterpillar trailer, to load same on the trailer. intending Miller, meantime, Lewis had overheard the statement “In the who loaded, toward tractor was now to started going walking Caterpillar the Owl trailer. thereafter the tractor came into Immediately Caterpillar Miller, contact with Lewis in his body injury. of resulting “Miller instituted an action in this court for injuries thereafter personal against both Weeshoff Construction and its employee LeRoy Company Grossenbach, case No. NEC 8031. accident, of the defendant Lines Insur-
“At time Employers’ Surplus Owl as covering anee had effect its No. E policy Company Owl tractor trailer named insured. The extended to the coverage the accident. construction site which Miller had driven to the prior insurance the time of the accident were two Also effect at policies were Pacific issued to Construction These policies Weeshoff Company. No. A and Harbor Insurance Indemnity plaintiff Company’s policy a Lewis Miller is in as defendant No. 104652. joined Company’s policy in this since he is an interested in the action party interrelationship the three for the accident in extended insurers coverages by question. “The tractor owned Weeshoff Construction Caterpillar Company was never was not licensed of Motor Vehicles and Department agreed driven on the Weeshoff Construction highway. Company public a to Owl Constructors for the sum pay transporting purpose site in to another site.” tractor from job job Caterpillar of Miller facts are depositions foregoing stipulated amplified Grossenbach, and which were offered of Weeshoff’s Akridge employees, and received evidence as exhibits 6 and The testimony 7. plaintiff’s fact that used these witnesses confirmed Grossenbach stipulated, be used tractor to construct dirt in loading ramp Caterpillar tractor onto Owl’s truck trailer. Weeshoff’s Wees- Caterpillar Akridge hoff’s on the site and Grossenbach worked under his job superintendent direction.
As the work of constructing Akridge dirt was being completed, ramp that the engine Grossenbach noticed tractor was overheating. the. condition, For the cause this ascertaining the directed Akridge Grossenbach to drive the tractor to a in an yard place adjacent approxi 125 feet distant from the dirt where there was an available mately ramp water outlet hose. *6 described the of this movement of the tractor and the
Akridge “Q. nature the remedial work as follows: How had the Cat been long 25, minutes, there while did that work? A. you parked Approximately a few minutes less. maybe longer, maybe 20 minutes or Approximately Q. 30 minutes. Did besides in you out anybody participate cleaning Q. Yes, of that Cat radiator that time? A. sir. A. during LeRoy Who? Q. Grossenbach. did the two of do What besides the hose you squirting Well, radiator, into if A. we cleaned dirt out of the anything? Q. and underneath the radiator. did belly How do that? A. pan you By the hose down in the dirt washing there down putting through Q. and out under the bottom of the Cat. else? A. I think pan Anything fact, did, we see if it checked the radiator to was low. In we and filled had caused it because something for leaks in checking the radiator then Q. before a little while It had boiled over just to hot at the time. get No, boiled over. It it, just A. it hadn’t decided to had it not? you inspect hot so we was pulled shot—the getting hot. The got gauge temperature cause of it.” what was the it back to check to see into yard on working and Grossenbach were Miller testified that while Akridge could, if I he there by, help the tractor was “just standing about ready He said that when he saw Grossenbach observing.” his trailer. It was his intention the tractor he started to walk back to move the line of travel of first his order to it out of get to move trailer in he then of a collision. He said tractor and thus to avoid the danger of the tractor. intended to move the trailer into position trailer, Thereafter, said, to direct him in he he intended “to on get my However, the tractor on.” Miller was struck down by driving tractor had or a distance of “fifteen eight only after taken “seven or only he steps” or feet” in the direction of his trailer. twenty all Akridge
Grossenbach’s was consistent with that of sub- testimony Weeshoff, he stantial to the matter of his As respects. employment “Q. testified with follows: Your classification Weeshoff occupation as Q. not a Cat is that correct? A. That is correct. You were operator; Q. mechanic? A. duties were with that Right. Whatever you performing Cat was the course of just way during temporary operation repairs, whatever; or is that A. Correct.” right? Coverage
The Insurance Harbor’s Weeshoff is in conventional form. Under Cover- policy insuring A it the usual insurance in the age use motor provides against liability vehicles; general under B it the additional and more Coverage provides insurance form of “To on behalf of the assured all promise: pay which the sums assured shall obligated damages become legally pay disease, because of sickness or death at time bodily injury, including any therefrom, of whether such resulting by any sustained irrespective person, are law or assumed under contract.” damages imposed Owl also is conventional form Employers’ policy insuring providing arising the use insurance motor vehicles as against liability from *7 law. This contains a clause the from required exempting policy insurer the if accident occurred in the course of or liability the loading unloading of an automobile on or the or em- owned controlled premises person of the whom the made. against claim was ployer person 566 controlled this case occurred on the accident in premises
Since it from Weeshoff, clause has argued quoted exempts appellant been because the clause relied has upon this contention We liability. reject Ins. Globe Falls Co. v. (Glens held be and void contrary public policy Co., 28]); 643, and be Indem. 646-647 276 Cal.App.2d [81 case, assume the correctness cause, we may at least for the this 11580.1, (b) the that subdivision contention section respondent’s 1970, Code, and such 23, authorizing effective as November Insurance City A. Sch. (L. an should not be retroactive given exemption, application. Co., 662].) Landier Inv. 755 Cal.Rptr. Dist. v. 177 [2 Cal.App.2d to-coverage insurance limited Pacific’s insuring Weeshoff policy provided to this Neither appeal the use of automobiles. party from liability arising tractor was not that the caterpillar trial court’s challenged finding has the on the that was no liability part and the conclusion an automobile ..there Pacific. Law Applicable Exch., supra, v. Truck Corp. Business Ins. International Machines
In results 1026, 1032, that Court injustice Cal.3d Supreme explained “use” to an innocent transporter of the concept from an over-extension follows: “Almost all of cases where is the party the shipper culpable involved issue of ‘use’ of the vehicle by shipper disputes presenting case, a holding as does this and between two insurance companies, in a transfer a ‘user’ of the vehicle results generally constitutes shipper negligent from the insurer for the of all of the ultimate liability or part for the Such a secures ruling to the insurer of innocent entity entity. an to the hazards low relative insurance rate an disproportionately shipper from and tend to discourage shipper of his business may ultimately Moreover, the injured due care in maintenance of exerting premises. trucker, acting in these cases almost an always employee is person com thus entitled to workmen’s the course of within his employment, his tort action against negligent for his as well as to injuries pensation discovered, a third injury we have the combination So far as shipper. in only has occurred and a financially irresponsible shipper possibly party Transport (1962) Indem. Co. case, Auto. Ins. Co. v. one American reported 200 Cal.App.2d Cal.Rptr. 558].” Casualty at Fidelity supra, v. & Cal.2d page
In Entz that, for coverage during it is stated “Where provides vehicle, given must ‘unloading’ of a the terms ‘loading’ or unloading 385-386, And at their meaning.” ordinary pages plain
567 causal conhection to the declared as follows with required Court respect the course of vehicle in to constitute “use” of the insured essential be, sense, legal in the “Although need not the vehicle cargo: or unloading must rise to the claim injury, giving the events cause proximate a to, (Italics, added.) of, and related its use. arise out be [Citations.]” IBM 6 of the in footnote from is with foregoing quoted approval Entz decision, 1031. 2 Cal.3d at page Webb, 140, Cal. 145-146 Ins. Exch. v. 256
In Truck
[63
Cal.App.2d
the word ‘use’ must
791],
“Although
follows:
the law is stated as
Rptr.
connotation,
be a causal connection
an all-inclusive
must
there
given
The automobile is so much
part
between the use
the injury.
of an auto
life that there are few activities in which
‘use
American
Clearly
does
in the chain of events.
mobile’
not
somewhere
play part
do not
a general
to an automobile Lability
contemplate
parties
policy
Co.,
263,
(See Gray v.
Ins.
insurance contract.
Zurich
65 Cal.2d
liability
168].)
419 P.2d
[54
causal connection
“The test for
the existence
determining
requisite
in
has been
It has been stated
varying language.
resulting
expressed
must be a ‘natural and reasonable incident or
injury
consequence
declarations,
use of the
for the
shown
though
purposes
[automobile]
not foreseen or
. . .’ and that
cannot be said
arise
injury
expected.
out of the use of
automobile ‘if was
caused
inde
an
it
some
directly
act,
from,
or
cause
disassociated
pendent
intervening
wholly
independent
(Schmidt
of and remote
use
v. Utilities Ins.
from the
[automobile].’
Co.,
181, 184,
The California rule is consistent with the test Professor suggested by case, in in a Prosser in existence of cause fact determining negligence is, whether the was a “material element and a agency ed.) (Prosser (3d substantial factor” in about the on Torts. bringing injury. 244.) § p. had occasion IBM considerations enunciated in
We apply Camay Drilling supra, Co. v. Travelers Indem. 12 Cal.App.3d den.). In to that Court decision concluded: (hg. we referring a sensible “That enunciates limitation upon decision proper appli- of the ‘use’ of insurance cation extent determining coverage concept reasoning exposes for the use of motor vehicles. Its the unreal- permissive unjust extending concept point to the where istic this of further effects entity operates liability negligent to the insurer transfer from *9 the motor vehicle was in cases in which entity—especially the innocent added.) only (Italics inactive or incidental peripheral, factor.” considera- Camay at other policy Our in reasoning developed page silentio, been, factors in the inter- have sub relevant always tions which “No third of automobile : of the “use” policies party pretation coverage between injured user was involved and the of highway relationship the California Com- and his under the terms of Workmen’s party employer issue. such law or otherwise is not an In circumstance require pensation insurance carrier to finance its employee’s the non-negligent policyholder’s carrier would sole benefit of claim for the damage negligent appellant’s in Conti- enunciated none of the beneficent dictates of serve public Co., 801, 423, 434 P.2d nental v. Phoenix Constr. 46 Cal.2d Cas. Co. [296 Co., Employees’ Ins. 914], Wildman v. Government 57 A.L.R.2d and in 48 Cal.2d P.2d 39-40 359].” Argonaut Transport supra, Ins. v. Indem. 6 Cal.3d
In Co. moving to' Court that work recognized preparatory of work the owner not case has held that by “No “loading.” preparatory onto the loaded, to the arrival of the truck to be moved or property prior and, under or loading of the moving process; constitutes premises, part Machines, be International Business it would improper the rationale of work by of ‘user’ to include such extend the preparatory concept owner of the to moved or loaded.” property at the Time the Accident Appellant’s Being Trailer Was Not Used Tractor Which Occurred in the Course a Movement of Weeshoff’s the Tractor. Purpose Wholly Loading to the Unrelated IBM, all the recent decisions in others of The decisions Entz the issue of “use” in the unloading freight-carrying involving conclusion that unless claim reach the common sense motor vehicles “related to” some sense “arises out of” or is realistic or unload use of the insured vehicle connection with the actual loading liable. the insurer of the vehicle is not ing cargo, out, IBM As the so clearly forcefully landmark decision in points the use dictate of and reason forbids the over-extension of every equity to transfer the insurer for the to the liability negligent entity “from concept insurer of an innocent entity.” the case at bench Miller was run over tractor while by
In Weeshoff’s a move- the course of during Weeshoff’s being operated employee for its sole of the cause of ment which had ascertainment of that condition. and the correction engine of the tractor overheating fact is established testimony and controlling This indisputable consistent of Weeshoff’s testimony employees, Miller and the clear and *10 Akridge Grossenbach. it clear reasonable of the same witnesses makes beyond testimony not even the accident trailer had that at the time of
dispute appellant’s the commencement backed the dirt in a been permit up ramp position was his intention to of of testified that it loading the the tractor. Miller move his truck and then to board trailer position and trailer into participate loading process. in
But Miller the tractor before he had taken more was struck down six the direction his truck. The evidence indicates than or seven steps that Miller was struck at 100 feet the tractor point approximately distant from dirt which Grossenbach had constructed for use in ramp loading tractor.
The uncontradicted that Miller evidence leaves no basis for assertion any directed, controlled or tractor movement during participated taken for the indicated unrelated to the digression wholly had loading But even if he in some manner in a process. participated movement of the tractor no of the it constituting part process, would not have involved use of the truck and trailer. any
Moreover, as the out Court IBM at pointed page the determinative is “not whether the accident occurred question during but, rather, the [loading], whether the arose out of the use injury of the Where, here, vehicle.” there is as no substantial as to the dispute operative facts, is one of law.
The truck and trailer insured by in this case could hardly appellant regarded even “a inactive or incidental factor” in the accident peripheral, which to Miller’s It was gave rise claim. had standing not even parked moved into been for the active loading. The in this accident position agents driver, were Weeshoff’s tractor and its Weeshoff’s employee. case, Harbor, Weeshoff,
In the circumstances of this insurer Grossenbach’s its contractual when it only employer, fulfilling duty undertook the defense of its insured in the case of Miller v. Weeshoff Construction Co. Miller therein would Obviously, recovery by require trier facts in case that findings Grossenbach’s negligence was the cause accident and that not proximate Miller was chargeable liable, with contributory negligence. If Harbor’s insured was then would that the seem dictates of and common sense would plainest equity require then, liable, not If Weeshoff indemnity. Harbor to provide course, would have nothing indemnify. Harbor of Harbor is the fact significant
Most relevant here legally all against insurance contract which insures Weeshoff general liability ais bodily injury,” whereas. “damages because Employers’ policy claims for the use of from liability arising Owl limited to coverage is insuring and its contractual Thus, of Harbor’s policy the coverage an automobile. clear and. Miller’s claim are to defend insured against unquestion- duty its 274-275 (Gray v. Zurich Insurance Cal.2d able. 168].) P.2d *11 in its sugges confusion and concurring dissenting betrays
The opinion to make of findings in this case was called that the trial court upon tions of negli was. guilty or not determining fact whether Weeshoff’s employee or not Miller caused Miller’s and whether injuries which gence proximately issues tendered Those issues were of contributory negligence. was guilty not the instant case. and for trial in Miller v. Weeshoff at trial court in the case to’ the The ultimate issue of presented fact Entz, IBM and this: bench, in the words of substantially simply stated of” they claim arise out and were rise to Miller’s Did “the events giving evi- trailer? The uncontradicted “use” truck and “related to” the of Owl’s a answer record is such as to negative dence in the instant require reported to this question. determinative court below was whether issue of law to the
The presented the accident within “used” at the of or not vehicle was time Owl’s and the other and limited in IBM appli- of “use” as defined concept record, a answer negative Again cable decisions. on California present is unavoidable.
The is reversed. judgment J., concurred.
Compton,
ROTH, P. J. I concurand dissent. within court findings
I would the trial to make reverse permit proper findings concede that no all issues. The majority its own discretion on or contributory negligence have been made on the subject negligence when direct it to find they negligence and the trial court’s function usurp Further, of Harbor’s insured. assume majority on part was, then the law of a If on accident was no loading operation. part v. Indem. (Glens Falls Ins. Co. Globe at bench concededly applicable 28]), the of whether 646-647 Cal.App.2d decisive of case. would be it was loading operation part findings the facts parties adopted That stipulated decision is demonstrated court an basis for the trial form inadequate with augments which the record the majority opinion depositions in terms Miller, Grossenbach, and the latter’s Viewed Abridge. supervisor not the constituted of all the whether or movement evidence, caterpillar’s Miller directed or not either whether loading procedure part and whether the movements Weeshoff’s caterpillar, or participated have or whether negligent, or not been may may proximately employees or been should contributorily negligent, Miller not have may may appear are court should have but did not make. There findings which the trial which did the facts the trial court resolve and conflicts in not important no fixes with negligence there is which finding specificity. fact is built load the
The that a ramp completed apparently The facts do not nor show stipulated tractor. do depositions specifically Miller of Harbor building whether participated ramp. depositions *12 However, that did the the indicate work to they ramp. employees prepare he facts state that Miller “. . . whatever assistance stipulated gave . . .’’in when could and and that building ramp washing engine loaded, he had “. . . . . that overheard . was . . . to be caterpillar [Tjhereafter he started toward the Owl . . . the tractor trailer. walking Miller, came into contact with the of . . . .” . . body Miller stated in that to his get his he walked back trailer “To deposition trailer, on my to direct in the tractor on.” him driving Apparently, had tractor to make a turn before it could the final distance to go complete trailer, and thereof on the Miller intended the tractor loading guide to its on the trailer. stated that he and Grossenbach resting place Abridge off, been had the tractor when he and finished the washing having job, got . . told he “. to load the Cat down and to turn the and went LeRoy got (Italics added.) off.” At he water another was asked whether Abridge point, had testified had “. . . ordered to move that Cat at the that he LeRoy he did . and go time so . . and was “I told him to ahead answer Akridge’s Cat, added.) load the (Italics ordinary also testified to the yes.” Abridge it was in as to role that stating, “ordinarily Miller’s loading operation truck. driver who directs the onto the It would seem truck” tractor alone, clear if not and Grossen- from Miller’s fairly Akridge’s deposition bach’s, that the over Miller was tractor ran while it backed onto be a fair Miller was it inference that loading may ramp, proceeding in the truck direct the it order to loading Abridge, might process. noted, also that the accident was due to- parenthetically opined Miller’s negligence. concede in effect that the doctrine of Glens Falls Co. v. majority Ins. Co., 646-647,
Globe Indem. supra, does Cal.App.2d apply bench, the facts at 11580.1, that the (b) amendment of section subdivision Code, 23, 1970, of the Insurance effective as of November has no retro active (L. City A. Dist. v. Landier Sch. Inv. application. 177 Cal.App .2d 662].) If the court finds as a fact that Miller participating and if Glens Falls as the ma loading operations applies, concede, Miller, then jority it would make no difference whether insured by insured, Owl, Harbor, or whether Weeshoff’s negligent employees, Falls, were Under Glens Owl negligent. insurer would its Employer’s be responsible. evidence, this it
Reviewing is clear trial court had before it evidence upon which to frame relative to-the entire ample specific findings therein, as to loading Miller’s involvement whether was a process: load not, ing if whose process was the negligence cause of the proximate injuries to Miller. The noted on the of the confusion nature by majority is, words, required findings Milton’s “confusion worse confounded”*: I findings, should have been relative to the entire repeat, entered process, and in the detail A suggested. of this con thorough disposition be, not, demands no-less. It troversy should not and it is incumbent upon this court to sift determine material in through order to whether evidentiary occurred in injury or and what independently loading process, innocent had been supposedly activity The trial party’s process. court failed to find on the critical issues out above. This court pointed should not make them.
I therefore concur reversal but I would return the case to the trial court with directions to make as indicated in the specific findings required and enter foregoing judgment accordingly.
A for a was denied rehearing petition July respondent’s petition Court was denied hearing August 1972. Mosk, J., J., Sullivan, were of the should opinion petition granted. Lost, II,
* Paradise Book Line 995.