On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1466-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and Sabatino.
Plaintiffs, Plescia Roofing and Mark Plescia (hereinafter "plaintiffs" or "Plescia"), appeal from an order of the Law Division entered on May 10, 2005, which dismissed their complaint against American Guarantee and Liability Insurance Company ("American Guarantee") and other entities after having, on November 19, 2004, denied their motion for summary judgment. Plaintiffs seek liability coverage from American Guarantee as a result of an accident of August 8, 2000 involving Petrit Sokoli, an employee of defendant Recycled Paperboard Inc. ("RPB"). Sokoli filed a complaint against plaintiffs as well as RPB and City Mill Supplies ("City Mill"), the owner of a flatbed trailer which was on the RPB premises at the time of the accident. Sokoli alleged he was injured while "loading and/or unloading" the City Mill trailer, which was insured by American Guarantee.
On this appeal, the plaintiffs argue that the "trailer is a covered 'auto' under the American Guarantee policy[,]" that "Plescia was a 'user' of the insured vehicle" and was injured while "loading and unloading" it, and that "the insured vehicle need not inflict the injury[.]" In essence, plaintiffs assert that the American Guarantee policy was "primarily" responsible for coverage to plaintiffs and that "judgment should be entered awarding primary liability insurance coverage to the Plescia parties under the American Guarantee policy[.]" The underlying Sokoli action has been settled.
The plaintiffs' theory of coverage is that City Mill gave RPB permission to use the trailer, RPB permitted Plescia to use it, and that Sokoli was injured while assisting in the loading or unloading process.*fn1 Plaintiffs further assert that the trailer's use at the time of the accident came within the "initial permission rule."
The material facts are essentially undisputed. In any event, for purposes of this appeal, we incorporate the Plescias' recitation:
RPB was engaged in the business of recycling wastepaper and similar items. City Mills was a source of wastepaper for RPB's activities. When City Mills had a quantity of wastepaper to sell to RPB, City Mills would load the cargo onto one of its flatbed trailers, haul the trailer to RPB's premises, and drop the loaded trailer in RPB's trailer yard.
When RPB's plant was ready to process the load, RPB's own tractor would haul the loaded City Mills trailer to RPB's unloading area, and RPB's personnel would weigh the cargo and unload the trailer. After RPB completed that task, it would haul the now-empty trailer back to RPB's trailer yard. Eventually, City Mills would retrieve and back-haul the empty trailer. City Mills' empty trailers would remain in RPB's yard for an indefinite length of time, from one week to four weeks or longer, until City Mills chose to back-haul the trailers.
Thus, City Mills permitted RPB to use the subject trailer and others. City Mills permitted RPB to haul the trailers from RPB's trailer yard to the unloading area. City Mills permitted RPB to unload the trailers . . . . City Mills permitted RPB to utilize forklifts to unload the trailers. In addition, RPB sometimes hauled City Mills' trailers over-the-road to other facilities and consignees if RPB chose to do so.
According to documents provided by City Mills, the subject trailer was dropped off by City Mills at the RPB yard on July 11, 2000. RPB moved this trailer to RPB's unloading area and unloaded the waste paper on July 23, 2000. The subject trailer remained at RPB's premises continuously thereafter -- until well after the Sokoli accident of August 8, 2000.
On July 25, 2000, a fire occurred at the RPB plant, severely damaging the roof of a manufacturing building. RPB immediately contacted Plescia Roofing for assistance in the repair process.
The roofing repair work included the purchase, preparation and placement of new steel roof beams. RPB purchased the steel and hired a welder to install it. RPB retained Plescia Roofing to prepare the beams for installation. Plescia Roofing sandblasted and painted the beams some distance away from the damaged building. The prepared beams were then transported by trailer to the location of the ...