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Greentree Associates v. United States Fidelity & Guaranty Co.

Decided: May 14, 1992.

GREENTREE ASSOCIATES, PLAINTIFF-APPELLANT,
v.
UNITED STATES FIDELITY & GUARANTY COMPANY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Monmouth County.

R.s. Cohen, A.m. Stein and Kestin. The opinion of the court was delivered by R.s. Cohen, J.A.D.

Cohen

R.S. COHEN, J.A.D.

This appeal requires us once again to explore the breadth of an automobile liability insurer's coverage obligation for a "loading and unloading" accident. The specific question is whether a general contractor who is charged with failure to supervise a construction site is a "user" of a subcontractor's construction vehicles when an employee of the subcontractor is injured during the refueling of one of the vehicles by the other. We conclude that the general contractor is not a user of the subcontractor's vehicles, and therefore is not entitled to coverage under the liability policy covering those vehicles.

Plaintiff Greentree Associates (Greentree) was the general contractor at a large housing project. Greentree hired Jay Prusko Contractors, Inc. (Prusko) to clear out trees and brush from the site, and to begin rough grading the road beds.

A work site accident occurred on July 22, 1986. Michael Mayer, a laborer employed by Prusko, was involved in the site clearing work, when Aldwin Merz, a Prusko equipment operator, asked Mayer to refuel his bulldozer. A gas tank on the back of a pickup truck owned by Prusko was used for refueling. Because the bulldozer was some distance away and also at a higher elevation than the truck, Mayer moved the truck to a position directly below the bulldozer, and Merz began backing down the slope. The terrain was basically loose soil, since the grade of the road was incomplete.

When the bulldozer stopped, it was perpendicular to the truck and at a level about four feet higher than it. Merz shut the engine, engaged the safety, and then proceeded to open the fuel tank. At that moment, the machine began sliding down the slope toward Mayer and the pickup truck. Merz dove for the brakes and applied them, but his efforts had no effect. Mayer,

who had begun unlocking the truck's refueling tank, was pinned against the truck by the rolling bulldozer, and suffered injuries.

Mayer and his wife sued Greentree and others not involved in this appeal. Their complaint alleged that Mayer's injuries were caused because Greentree negligently "maintained, controlled, and supervised the [construction site] so as to cause the land to give way, crushing [Mayer]," and also because Greentree "failed to provide a safe place for [Mayer] to work, thereby causing [him] to be crushed, due to the land giving way." Mayer's wife sued per quod.

The Mayer suit was ultimately settled without prejudice to a declaratory judgment action for coverage and indemnification earlier brought by Greentree against Prusko's vehicle insurer, defendant United States Fidelity & Guaranty Co. (USF & G). On cross-motions for summary judgment, the Law Division Judge granted USF & G's motion, holding that Greentree was not covered as an additional insured under the USF & G policy. Greentree appealed. We affirm.

The USF & G business auto policy affords liability coverage for

all sums the insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ...


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