Fritz, Ard and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
[151 NJSuper Page 379] The question raised by this controversy is whether, in the context of the Motor Vehicle Security-Responsibility Law, N.J.S.A. 39:6-23 et seq. , the
term "use" as applied to a motor vehicle includes the loading and unloading of cargo carried by it.
The factual background giving rise to this legal question is simple and undisputed. Morrison Steel Company (Morrison) is a distributor of steel which it customarily delivers to its customers by truck. Plaintiff Alexander Bellafronte was a truck driver employed by Morrison. On the day of the accident which is the subject of the litigation Bellafronte made his first delivery of the morning to defendant General Motors Corporation (GMC). Upon his arrival GMC's employees began unloading their shipment, Bellafronte pointing out to the GMC crane operator which of the steel he was to unload. During the course of the unloading the crane's magnet attracted a steel beam still on the truck, which moved laterally, striking Bellafronte's leg. Bellafronte brought this personal injury action against GMC. GMC sought defense by Morrison's automobile liability carrier, New Jersey Manufacturers Insurance Company (NJM), which rejected the risk on the ground that it was not covered by its automobile policy. GMC accordingly impleaded it as a third-party defendant. Both moved for summary judgment on the coverage question. NJM's motion was granted and the third-party complaint dismissed. GMC then settled Bellafronte's claim and appealed from the dismissal of its claim against NJM.
The parties do not dispute the fact that the NJM policy covering Morrison's motor vehicles was issued pursuant to the Motor Vehicle Security Responsibility Law and that consequently the coverage thereby provided could not in any material way be more limited or restricted than the broad form omnibus coverage mandated by N.J.S.A. 39:6-46(a). Selected Risks Ins. Co. v. Zullo , 48 N.J. 362, 373 (1966). N.J.S.A. 39:6-46(a) specifically requires that the policy
Designate, by explicit description or appropriate reference, all motor vehicles with respect to which coverage is intended to be granted thereby, and insure the insured named therein and any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured , against loss from
the liability imposed upon the insured or other person by law, for injury to or the death of a person, other than a person who is covered, as respects the injury or death, by any workmen's compensation law, or damage to property, except property of others in charge of the insured or the insured's employees, growing out of the maintenance, use or operation of the motor vehicle in the United States of America; * * * [Emphasis supplied]
The policy itself, however, excludes as an "other insured" a person loading or unloading the insured vehicle unless he is a lessee or borrower of the vehicle or an employee of the named insured or of a lessee or borrower. The specific policy provision reads as follows:
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damages arising out of the loading or unloading therof, such person shall be an insured only if he is: (1) a lessee or borrower of the automobile, or (2) an employee of the named insured or of such lessee or borrower;
Since it is unlikely that GMC's crane operator could be deemed to have been either a borrower or lessee of Morrison's truck or the employee of a borrower, lessee or a named insured, the question is whether he was, nevertheless, in the circumstances, a user thereof within the intendment of N.J.S.A. 39:6-46(a). If he was, the attempted exclusion from coverage is ineffective.
While the precise question has not yet been dealt with in this jurisdiction, in those jurisdictions in which the question has been raised in similar circumstances the term and the concept of "use" have been construed as including loading and unloading. See, e.g., International Business Machines v. Truck Ins. Exch. , 2 Cal. 3d 1026, 89 Cal. Rptr. 615, 474 P. 2d 431 (Sup. Ct. 1970); Donohue Constr. Co. v. Transport Indemnity Co. , 7 Cal. App. 3d 291, 86 Cal. Rptr. 632 ...