On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
King, Brody and Thomas. The opinion of the court was delivered by King, P.J.A.D.
This case involves a dispute between a motor vehicle liability insurance carrier and a comprehensive general liability carrier (CGL) over the efficacy of an exclusion in the vehicle policy. The exclusion seeks to eliminate coverage for certain loading and unloading operations. The exclusion says:
This insurance does not apply to:
8. Bodily injury or property damage resulting from the movement of property by a mechanical device (other than a hand truck) not attached to the covered auto.
New Jersey Manufacturers Insurance Company (NJM), the insurer of the vehicle, contends that the exclusion is valid under New Jersey law. The Law Division Judge so ruled and granted summary judgment to NJM. Liberty Mutual, the CGL carrier, claims that the exclusion is invalid and against the declared public policy of this State. We resolve the dispute against NJM and find the exclusion invalid.
On June 16, 1989 Paul Passenti was the operator of a truck owned by Bonland Industries, Inc. and insured by defendant, NJM. Plaintiff Lewis Williams was a crane operator employed by Parkway Iron and Metal Company (Parkway). On that date Passenti drove his truck to Parkway, the consignee of its cargo, where the truck was unloaded by a crane operated by Williams.
Passenti alleged in his complaint filed in the Law Division, that Williams was negligent during the course of unloading Bonland Industries' truck causing a dangerous condition resulting in Passenti's injury. Passenti claimed that he "was the operator of a truck vehicle which he brought to . . . Parkway at 613 Route 46 East in the City of Clifton for the purpose of removing scrap metal from the aforesaid truck." Passenti claimed that:
At the time and place aforesaid, the defendant, PARKWAY IRON & METAL CO. was the owner of a crane vehicle which was operated by the defendant, LEWIS WILLIAMS, as agent, servant and/or employee of defendant, PARKWAY IRON & METAL CO., in a careless and negligent manner causing a dangerous and hazardous condition to exist on the truck vehicle which plaintiff was operating.
As a result of the alleged negligence of Williams, who was acting for Parkway, the claimant Passenti demanded damages for "severe and permanent injuries." Passenti seemed to claim that while Williams was unloading sheet metal from the truck with Parkway's crane, Williams loosened a metal bar on the truck which later caused the accident and Passenti's injuries. Parkway's crane was not attached to the truck.
Under Part IV(A) of the "Business Auto Policy" issued to Passenti's employer, Bonland Industries, NJM agreed to:
(1) pay 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 ...