On appeal from Superior Court, Law Division, Middlesex County.
Petrella and Dreier. The opinion of the court was delivered by Petrella, P.J.A.D.
This appeal involves a dispute regarding the obligation to provide a defense and coverage for an accident which occurred while a tank trailer owned by Narrows Carriers, Inc. (Carrier) was being loaded with gasoline by its driver at Amerada Hess Corporation's (Amerada) plant. The underlying action brought by the trailer driver, Stanley J. Lesniakowski, and his wife, Carol Lesniakowski, who asserted a per quod claim, was settled without prejudice to the resolution of the insurance coverage issue raised by Amerada's third-party complaint. The issue on appeal is whether Amerada or Forum Insurance Company (Forum), insurer of Carrier (the operator of the trailer), is responsible for providing a defense to Amerada as an "insured" and coverage of plaintiffs' damages. The trial judge determined on cross-motions for summary judgment that Forum was responsible for coverage for the accident because plaintiff Lesniakowski was an additional insured under the "loading and unloading" provision of its liability policy.
Lesniakowski was loading a tank trailer with gasoline at Amerada's plant in Port Reading when he fell off the top of the trailer's tank and was injured. In order to load a tank trailer with gasoline, it must be driven into a loading bay over which hangs a loading rack. The loading rack consists of three meters and spillers. Each spiller, which is best described as an arm, provides different types of gasoline. Once Lesniakowski
positioned his truck under the appropriate spiller, he climbed on top of the truck by using a metal ladder attached to the rear of the truck and leading to a 15 inch wide catwalk along the top length of the trailer's tank. The driver positions the spiller by using an air control valve attached to the spiller that enables the spiller to be maneuvered either up or down.
The loader must unhook a chain that holds the spiller and then position the spiller over one of the four compartments in the trailer's tank that is being filled. Ordinarily the spillers are supported by pneumatic pressure and the hook and chain are used as safeguards to prevent the spiller from falling into the path of a truck in the event of pneumatic failure. The chain is attached to a building support beam and holds the spiller up so trailers can enter the loading bay. Once the hook is removed from the spiller it is usually placed in a small cylinder although it may be allowed to hang down. The number of gallons of gasoline to be pumped into the compartment is preset by the meter. Once the spiller is locked in place in the compartment dome the loader pushes a button and the tank is automatically loaded to the amount of preset gallonage. When the compartment is filled, the spiller is raised from the dome and the safety hook is reconnected.
According to the deposition of Amerada's Vice President of Terminals, if another compartment in the tank must be filled, the loader should reposition his trailer under the appropriate spiller. He testified, however, that it is possible to fill an additional compartment without moving the truck by pulling the spiller from side to side. He did not know if the drivers were instructed about use of the safety hooks and chains on the spillers. A sign entitled "Vapor Recovery Systems Loading Instructions" which is in the area of the spiller does not include any instruction for positioning the tank trailer before loading and does not refer to use of the safety hook and chain.
Lesniakowski had driven his tank trailer into the loading bay in order to load unleaded gasoline in compartments numbered
two and four. He proceeded to load compartment number four which was located exactly under the unleaded spiller. The unleaded spiller was at one end of the row of three spillers. The middle spiller pumped premium unleaded gasoline and the third spiller pumped regular leaded gasoline.
After he had loaded the fourth compartment, Lesniakowski attempted to load the second compartment without moving the trailer, but by moving the premium spiller out of the way and pulling the unleaded spiller over to the dome of the second compartment. In order to pull the unleaded spiller to the second compartment, Lesniakowski had to first unhook the chain holding the middle spiller (for premium gas) which was located between the unleaded spiller over the fourth compartment and the second compartment. He put the hook and chain from the middle spiller in its cylinder. Although he did not see the hook slip out of the cylinder, Lesniakowski claimed that it slipped out. As he pulled the spiller from compartment four to compartment two, the hook from the middle spiller caught the unleaded spiller which he was pulling. When the hook caught the spiller, Lesniakowski lost his balance and fell off the truck because the spiller would no longer move when he pulled it.
According to plaintiff's deposition, Amerada never instructed the drivers about use of the hooks and chains on the spillers. Lesniakowski stated that the original hooks broke because they were not durable enough to bear the weight of the spiller. He testified that these smaller hooks were replaced by larger hooks as they broke. These larger hooks did not fit into the cylinders because the cylinders were designed for the smaller hooks.
Plaintiff's complaint alleged*fn1 that his injuries were caused because Amerada "failed to provide a safe place for the plaintiff
to work, in that the rig [spiller] was makeshift, ...