On appeal from Superior Court, Law Division, Union County.
Wakefern Foods (Wakefern), doing business as Shop Rite of Elizabeth, appeals from an order denying it insurance coverage under an automobile liability policy issued by third-party defendant Integrity Insurance Company (Integrity) to Hughes Refrigerated Express (Hughes) and covering a truck making a delivery to Wakefern's premises. We affirm.
Plaintiff Joan Neuman, an employee of Hughes, sued Wakefern and "ABC Corporation," the fictitious name of the manufacturer of an electric hand truck, for personal injuries she received when struck by that hand truck, which was being operated on Wakefern's premises by her co-employee husband, Henry Neuman. Her complaint alleged that Wakefern was negligent with respect to "ownership, operation, maintenance, and control" of the hand truck and with respect to the premises involved. The complaint also alleged that the hand truck was defective, and that Wakefern failed to make it safe for its intended use.
Wakefern, insured by its own liability carrier, California Union Insurance Company (California Union), contends in its third-party action that Integrity is responsible for primary coverage of plaintiff's injuries under the loading and unloading provisions of its policy covering the vehicle.*fn1 Wakefern also contends that the coverage provided by Integrity is primary coverage, while California Union provides only excess coverage.
The trial judge essentially decided the matter on the moving papers as a question of law. On a motion to reconsider his ruling he noted that there was no materially different factual version of the events as related in depositions by Joan and Henry Neuman, and that the only point of difference was a suggestion in Henry's deposition that the accident occurred prior to his beginning to unload the truck when he was straightening up the loading dock area because there were pallets in the way. The judge concluded that the result would have been the same whether the injury occurred because of the condition of the loading platform or because of the condition of the hand truck. Henry described the accident as occurring while he was operating what is referred to as an "electric hand truck" or jack which has a fork lift capability. He said he was driving the jack toward the pallets and brought the control handle forward in an upright position to stop the hand truck. Joan and Henry both indicated that the machine did not stop when the handle was pushed to the stop position.
The trial judge held that Wakefern was not covered under Integrity's policy because the alleged negligence relating to the condition of the hand truck was analogous to negligent maintenance of the loading platform. He relied on Wakefern Food Corp. v. Gen'l Acc. Group, 188 N.J. Super. 77 (App.Div.1983) and Atlantic Mut. Ins. Co. v. Richards, 100 N.J. Super. 180 (Ch.Div.1968), aff'd o.b. 105 N.J. Super. 48 (App.Div.1969).
At oral argument before us appellant's counsel essentially conceded that the cause of plaintiff's injury was some defect regarding the hand truck. Nothing in the record indicates to the contrary. Wakefern argues that because the injury occurred while Henry was using an electric jack provided by Wakefern in order to unload the truck, that the loading and unloading coverage of the policy applied. Wakefern relies on Streeter v. Henry Heide Inc., 171 N.J. Super. 58 (App.Div.1979), and certain federal court decisions. In Streeter we held that use of a negligently installed spring-loaded docking plate was covered by the loading and unloading provisions of the vehicle's insurance policy. Streeter is distinguishable, however, because the use of that plate was essential to the loading process. Moreover, the current state of our law regarding the responsibility of the owner of the premises is as more recently stated in Wakefern Food Corp. v. Gen'l Acc. Group, supra. The cases from other jurisdictions*fn2 upon which Wakefern relies are neither persuasive nor representative of our current law.
The record here indicates that the accident and plaintiff's injuries resulted from a conceded defect in the electric hand truck, perhaps due to improper design or improper maintenance. That defect was not directly dependent on the loading or unloading of the Hughes truck. What occurred is more analogous to the independent negligence of the owner of the premises regarding maintenance of the loading platform. We thus conclude that the accident here fell within the coverage of California Union's policy. Wakefern Food Corp. v. Gen'l Acc. Group, supra (188 N.J. Super. at 83-84) and Atlantic Mut. Ins. Co. v. Richards, supra (100 N.J. Super. at 185).
We repeat what we said in Wakefern Food: