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F & M Schaefer Brewing Co. v. Forbes Food Division

Decided: January 21, 1977.

F & M SCHAEFER BREWING COMPANY AND THE INTERBOROUGH MUTUAL INDEMNITY INSURANCE COMPANY OF MINEOLA, NEW YORK, PLAINTIFFS,
v.
FORBES FOOD DIVISION, CHEMICAL LEAMAN TANK LINES, INC., AND CHEMICAL LEAMAN TANK LINES, INC., AND AETNA LIFE AND CASUALTY COMPANY, DEFENDANTS



Monaghan, J.d.c., Temporarily Assigned.

Monaghan

[151 NJSuper Page 354] The litigation in this indemnification action revolves around the question as to whether there is insurance coverage under a "loading and unloading" clause in an automobile liability policy. The case was submitted upon a written stipulation of facts and read into the record at a hearing before the court. In

addition, exhibits were introduced into evidence and briefs submitted.

On December 13, 1972 William Thomas, employed as a tank truck driver by Chemical Leaman Tank Lines, Inc. (Leaman), drove to the premises of the F. & M. Schaefer Brewing Company (Schaefer) for the purpose of making a pick-up of yeast slurry, a by-product of the brewing industry. The trip was made pursuant to a contract between Leaman and the Campbell Soup Co., who was the purchaser of the yeast slurry from Schaefer. Thomas drove to the slurry loading area on the Schaefer premises and parked his truck near a piping outlet which was used in making transfers of the slurry from the Schaefer plant to tank trucks. In order to permit the easy alignment of the end of the discharge pipe with the opening in the top of the tank trucks, the pipe outlet was connected to a swivel and spring-tension apparatus. This permitted the piping to be moved horizontally or lifted vertically by the use of an attached rope. The procedure followed, when the piping was in its set position, was for the driver of the tank truck to then go to a buzzer, located on the building wall, and signal the Schaefer employees inside the plant that everything was ready for the opening of the valves to permit the yeast slurry to be transferred by gravity flow to the truck.

On this day Thomas, after parking his truck, climbed the ladder of the truck and stood on the catwalk. He opened the manhole on the top of the truck and was then thrown the rope by a Schaefer employee. In maneuvering the pipe so that it would fit over the manhole, Thomas had to pull on the rope. In doing so the rope broke, causing him to lose his balance and fall to the ground, sustaining severe injuries.

Following the accident Thomas sued Schaefer for damages for personal injuries. Although that action was ultimately settled, Schaefer, for the purposes of this proceeding, has admitted that the rope was defective as the result of it being exposed to a caustic soda cleaning solution that had been used to clean the piping hose.

Subsequent to the institution of the Thomas suit Schaefer notified Leaman and its insurer that the Thomas accident was covered under the loading/unloading clause of Leaman's motor vehicle policy. Leaman's insurer, Aetna Casualty and Surety Company (Aetna), rejected Schaefer's contention and refused to undertake the defense of the action against Schaefer. Thereafter Schaefer and its underwriter, Interboro Mutual Indemnity Insurance Company (Interboro), brought this indemnification action, seeking coverage under the policy.

The relevant portions of the Aetna policy read as follows:

I. BODILY INJURY LIABILITY COVERAGE PROPERTY DAMAGE LIABILITY COVERAGE

The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of

bodily injury or

property damage

to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile * * *

II. PERSONS INSURED

Each of the following is an insured under this insurance to the ...


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