Goldmann and Foley. Goldmann, S.j.a.d.
Plaintiff appeals from a Law Division judgment in favor of defendant Fidelity and Casualty Co. (Fidelity) following the filing of an opinion in which the trial judge held that plaintiff did not come within the coverage of Fidelity's automobile liability policy insuring Nappi Trucking Corporation (Nappi).
The facts are not in dispute. On August 21, 1961, Byford, an employee of Nappi, drove its tank truck to the premises of plaintiff Drew Chemical Corporation (Drew) for the purpose of delivering a fatty acid liquid. The liquid was to be transferred to a storage tank on plaintiff's premises. When Byford arrived at the premises he was met by Evans, an employee of Drew. Evans took an 18-foot hose (owned by Nappi and part of the truck's equipment) which had a coupling at either end, and attached one end to a valve on the truck and the other end to a valve on an iron pipeline which ran into plaintiff's vats. Drew's pumps supplied the mechanical force necessary to transfer the acid from the truck to the vats. Evans started the pump but there was no flow of acid. Believing that the Drew pipeline was clogged, Evans requested Byford to uncouple the hose at the truck so that he could clear the line. Byford did so and placed his end of the hose into a nearby ditch. Evans first attempted to unclog the line by running air pressure through it. When this proved unsuccessful, he ran steam under pressure through the line. The hose suddenly whipped about, striking Byford and injuring him. The movement of the free end of the hose was undoubtedly caused by the steam pressure dislodging the impediment in the Drew line.
Byford recovered workmen's compensation from his employer, Nappi. He also instituted a personal injury action against Evans and his employer Drew, alleging that Evans' negligence had caused his injuries. In that suit Drew's general liability insurer requested Fidelity, as Nappi's automobile liability carrier, to defend and pay any judgment rendered in Byford's favor. It refused to do so. In the present action plaintiff Drew sought a declaratory judgment that it was an additional insured under the Fidelity policy. Further, it demanded that Fidelity indemnify it for the $4,000 which Byford recovered in his action against Drew, as well as for $110 in assessed costs and $300 in counsel fees incurred in defending the negligence suit.
The policy issued by defendant Fidelity to Nappi provided, under section I of the "Insuring Agreements,"
"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 and caused by accident."
And section III under that heading defined "Insured" as follows:
"The unqualified word 'insured' includes * * * (2) under coverages A and B, any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission * * *."
Paragraph 3(f) of the heading "Conditions" defined the word "use":
"Use of an automobile includes the loading and unloading thereof."
Plaintiff contended in the Law Division (as it does here) that the accident to Byford occurred during the unloading of the Nappi truck, and therefore it was an additional insured because of ...