On Appeal from Superior Court, Law Division, Hunterdon County.
Furman, Petrella and Skillman. The opinion of the court was delivered by Petrella, J.A.D.
[209 NJSuper Page 609] This is essentially another dispute between two insurance carriers over which should bear responsibility for defense and coverage regarding an accident which occurred while a truck was attempting to make a delivery at the loading dock of the receiving company. The trial judge concluded in ruling on the cross-motions for summary judgment that Hartford Insurance
Company (Hartford), which provided insurance for the involved premises, was responsible for coverage rather than New Jersey Manufacturers Insurance Co. (Manufacturers), which insured the truck and its driver who was injured while attempting to use what was apparently a defective loading dock plate. We affirm.
The present state of the legal precedent in this area is somewhat conflicting. More recent cases have distinguished Streeter v. Henry Heide, Inc., 171 N.J. Super. 58 (App.Div.1979). We thus consider the facts involved in the underlying case in light of Streeter and the other case authorities in this State to determine the present viability of Streeter as precedent.
The underlying law suit brought by plaintiff, Edward F. Forsythe, the truck driver, and his spouse, Linda Forsythe (who asserted a per quod claim), was settled without prejudice to the resolution of the dispute between the two insurance carriers, Hartford and Manufacturers. The sole issue on this appeal is whether Hartford as comprehensive general liability carrier for defendant-third party plaintiff Teledyne Turner Tube (Teledyne) or Manufacturers, as insurer for the vehicle making or attempting to make the delivery on Teledyne's property when the accident occurred, is responsible for coverage for the accident.
Forsythe had backed his truck into a loading bay of Teledyne's building. According to plaintiff's deposition, it was his practice when making deliveries at Teledyne to obtain assistance from an employee of Teledyne in unloading boxes from his truck. The loading dock was equipped with a movable loading dock plate that adjusted to the height of the floor of the truck. After Forsythe dropped off delivery papers at the desk in the warehouse, he went to Teledyne's loading dock in order to unload boxes from his truck. To do this Forsythe had to raise the rear door and manually adjust the loading dock plate so that it became even with the floor bed of the truck. Forsythe raised the docking plate with the help of James Runyon, a
Teledyne employee, who was to hold the plate as a safety precaution. The process of adjusting the docking plate and opening the rear truck door was standard procedure. Forsythe indicated that the docking plate was supposed to stay level with the floor of the truck, but that "it never did as long as I can remember. It went down below the floor level. It had to have a stick under it to hold it up to the floor level." Forsythe also indicated that nothing unusual occurred in the unloading process until the docking plate collapsed on him.
The accident happened immediately after Forsythe and Runyon had raised the docking plate. Forsythe released his hand from the plate and took one step with the intention of raising his rear door in order to place the docking plate upon the rear floor bed of the truck. In its cross-motion for summary judgment, Teledyne (by its insurer, Hartford) had attached and relied on extracts of Forsythe's depositions. According to Forsythe, the weight balance mechanism of the loading docking plate broke at that point causing the docking plate to fall upon him. Forsythe testified that he was aware that the docking plate was to facilitate the loading and unloading of the truck and that in the normal course of the loading operation he first had to raise the docking plate in order to raise the truck's door, and lower the docking plate onto the truck bed.
Plaintiff's complaint alleged*fn1 that his injuries were proximately caused by Teledyne's negligence in failing to:
[I]nspect and remedy hazardous and potentially dangerous conditions at its plant facility which it was obligated to do in the exercise of ordinary care for business invitees and licensees entering upon the premises, to inspect and remedy a dangerous condition on its property of which it had prior knowledge, improperly maintaining or failing to maintain the loading, unloading dock and the scale area, by failing to warn business invitees or licensees by appropriate notice of the hazardous and dangerous condition, and in otherwise neglecting ...