For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None.
[74 NJ Page 94] These cases resulted in the same judge rendering summary judgments for defendants. The judgment in favor of defendant Aetna Life and Casualty Insurance Company (Aetna) was affirmed in an unreported opinion by the Appellate Division and we granted certification, 68 N.J. 169 (1975). We certified on our own motion the case in which St. Paul Fire and Marine Insurance Company is the defendant while the matter was pending unheard in the Appellate Division, 69 N.J. 399 (1976). The cases are virtual twins, the essential issue being whether under the circumstance summary judgments were properly entered on the basis of substantially identical exclusionary clauses in the respective policies of insurance issued by defendants. We affirm in both cases.
In May 1968 plaintiff United Rental Equipment Co., Inc. (United Rental) leased an industrial crane to defendant Fulcrum Company (Fulcrum). In order to protect its interest United Rental had secured a policy of insurance from respondent Aetna which generally covered any damage or loss to its machines. Fulcrum also secured a policy on the machine from respondent St. Paul, but that policy provided that United Rental was the designated payee for any losses covered by the policy. Although there were minor differences in the language of the two policies, both excluded from coverage under the contract those losses occasioned by the lifting of any load which exceeded the registered lifting or supporting capacity of any machine otherwise within the scope of coverage.*fn1
Neither policy specifically defines the term "registered capacity." However, we assume, consistent with the trial judge's finding and in the absence of any proof or substantial argument to the contrary, that the phrase refers to the manufacturer's suggested capability as indicated on a chart posted in the cab of the crane to guide the operator.
Fulcrum used the rented crane to pour cement on the dome of a storage tank which it was building on Staten Island. On June 5, 1968, while being utilized in this manner, the crane's boom suddenly buckled and collapsed. In
addition to the damage to the tank and serious injury to several workmen at the site, there was irreparable damage to the crane's boom and jib assembly.
Following the accident United Rental sought recovery from Aetna for the damage to the crane. Aetna resisted the claim, contending that the accident resulted from an overloading of the crane's capacity, thus falling within the coverage exclusion described above. United Rental's suit followed, with Aetna accompanying its answer with an affidavit of its engineering expert, one George W. Mackay. This affidavit contained Mackay's opinion of the reasons for the crane's failure and was based on a number of factors including personal observations and inspections of the accident site and the depositions of a number of parties in various personal injury actions, commenced in New York, resulting from the same accident.*fn2
One deposition relied on by Mackay was that of Fred Speranza, operator of the crane at the time of its collapse, who was fully aware of the machine's capabilities and limitations. After describing some of the preliminary operations of the crane by which he undertook to deliver concrete to the tank's dome, Speranza gave this account of the accident:
Well, after I swung the machine around, the boom was in position. I was waiting for the signal to boom down. All of a sudden the boom went on me, collapsed. It's as simple as that. That's all I can tell you.
Several days after the accident Speranza learned that at the time of the occurrence and contrary to normal practice, the crane's bucket was filled to capacity. He further testified that he was present when the bucket was weighed
after it was recovered from the dome and he recalled the bucket's weight to be approximately 7800 pounds.
In addition to the Speranza deposition Mackay resorted to several other elements to formulate the opinion contained in his affidavit. He also utilized the previous testimony of Joseph Medler, a deputy chief engineer with the New York Department of Port and Terminals, who had been assigned by his department to investigate the damage done to the tank. In the course of this investigation he participated in the weigh-in of the bucket after it had been recovered. He testified that the bucket's weight was in the neighborhood of 7600 pounds. Mackay also had an affidavit of Edward P. O'Neill, a New York City detective, who investigated the accident on behalf of the New York City District Attorney's office. This document included measurements which were of assistance in making critical calculations. Finally, Mackay had the benefit of the chart setting forth the maximum lifting capacities of the crane, indicating a maximum capacity of 3400 pounds for the equipment rigged as it was when the accident occurred.
On the basis of these materials MacKay gave this as his opinion:
Assuming all of the aforesaid facts [as revealed by his inspection, the depositions, the affidavit and the capacity chart] to be true, it must be concluded that at the time of the accident, the crane was overloaded by more than 100 per cent and it is my opinion that the overload of the crane caused it to collapse and ...