*1 Arterburn, C.J., DeBruler, Prentice. concur. Note. —
Indiana Lumbermens Mutual v. Insurance Co. February 1, 1973.] 273S15. Filed Fuller, Stewart, Irwin, Samuel A. Gilliom, Fuller Meyer, Indianapolis, appellant. for Sullivan, F. McNamar, Arthur F. Klee, David Steers, Sulli- LeMay, Indianapolis, van & appellee. J. This case is before this Court on a Petition
Hunter, to Transfer from the Court. It is an action between Indiana Lumbermens (Lumber- Mutual Insurance Company mens) and Statesman Company (Statesman) petitioner, arising subrogation out of a claim from settle- ment Lumbermens of a claim.
The facts are as follows: Walker, employee Imperial Water Condition- Jack delivering home of ing Company softener water transporting While softener Mr. and Mrs. Soots. down home, collapsed stairs of Soots the stairs the basement *2 seriously injured. proximate was The sole and and Walker negligent the the cause of accident was the maintenance of stairway. any never contention that Walker was negligent the the in water softener. sued, insured the Soots. After Walker Lum- injuries paid settled with Walker for his
bermens and him $17,000.00. present Lumbermens then the instituted which policy had a on premises. the truck drove which Walker to the “loading theory unloading” the the clause and liability policy so-called “omnibus” clause of the truck afforded Soots, all, the homeowners. First of the provides that “use” of vehicle “loading the includes the unloading thereof.” Lumbermens contends that the home- by owners users of truck cooperating were virtue of their the the process. with driver in Lumber- then mens contends that the Soots would become insureds under the omnibus clause1 liability policy of Statesman’s truck theory by which insures all users. cooperating The is that unloading process became “users” homeowners therefore insureds. Judgment Summary filed a Motion for in Judge George granted
Hancock Circuit Court. B. Davis findings. appeal, On motion and entered of Indiana reversed. See 274 N.
sought Supreme granted to the Court of Indiana and we unqualified 1. “III. Definition of Insured: The ‘insured’ word in- (2) coverages cludes the named insured and also ... A includes C, any person using an owned automobile or .a hired automobile any person organization legally responsible thereof, and provided with his for the use by actual use of the automobile named insured permission, any executive officer of the named insured respect use of a with the named insured.” non-owned automobile in the business stated, transfer. reasons hereinafter For the trial granting should have been affirmed. The not As accident arise out the use truck. did pointed out, proximate court cause of the negligent maintenance of the staircase. quoting case in another here *3 every the insurer for by anyone sort of accident whom to delivery agreement is made. We are in with the trial court predominating that the “efficient and cause” of the accident must arise out of use of the vehicle in un- order for an named insured to be covered. authority
One field stated: has “Before there is extending under a loading unloading, there must be some connection between the unless the court can injury, use insured vehicle and of unloading loading determine or of the vehicle injury, an producing cause efficient of right indemnity there In is no of accident. words, other company of an insurance under policy depends relationship on the of a existence causal loading unloading injury, between if injury proximately the ance insur- unloading, due to company liable, is accident had no con- if loading unloading liability.’’ nection with the there is no (our emphasis) Blashfield, Practice, 8 Automobile & Law (1966). §317.10
35 agree this issue but cases on both sides of we are Jersey it court when states: the New result favored most courts is . the sounder
“. . loading liability insurance automobile damages cover sustained as a result clause should negligent loading premises of the where the out. insured carried The risk or should automotive measures unloading the limited be subsequent including preliminary vehicle, time related to or unload- proximate in its (1968), ing.” Mutual Insurance Co. v. Richards Atlantic 185, 468, 180, 2d Super, A. N. J. quite is Jersey similar to the case at bar as The New Corp. v. Brown Assurance Fire Accident General Life reached App. 2d 181 N. 2d 191 which (1962), 35 Ill. result. a similar predominating cause efficient
Since the truck, recovery be no use of the there can from the arise did not Statesman clause and omnibus clause the user based on must fail. policy. action therefore reversing erroneous in judgment. granting summary action truck, “use” of the not arise out the accident did Since discussed, manner in which there is no hereinbefore as under the Statesman can maintain holding need not reach the other policy. this we In view of imply intend in no raised. We issues rejection points other or a either an affirmance raised decision or in Statesman’s opinion. Upon matters form no these we Transfer. Petition to grant Transfer of *4 and the Court decision is reversed Company. The granting summary judgment rein- judgment trial court stated. granted. concur; DeBruler, C.J., Prentice,
Arterburn, statement. J., dissents with
Dissenting Statement vote reverse the DeBruler, J. I granted by forth trial court for the reasons set case, being Indiana Lumbermens Mutual Co. v. (1971), 274 E. 2d 419. N. Note. — Union,
Indiana Civil Liberties Inc. v. Indiana War Memorials Commission. February Rehearing May 2, 1973.] 470S89. Filed denied notes we are not dealing proximate language. cause but with contract However, dealing we are in fact in instance with the parties party claiming contract. The two to be paid penny’s insured in this case premium never to the insurer. are therefore not situation we must where language construe contract certain can seek general out intent of the contract from a stance. neutral We are that what was intended the words contract, “arising ownership, out of the use” applied synony- of the truck as to unnamed insureds is being mous to caused (including use of the truck unloading). Otherwise insurance company becomes