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Schoffer Enterprises v. Delos Insurance Co.

April 8, 2010

SCHOFFER ENTERPRISES, PLAINTIFF-APPELLANT,
v.
DELOS INSURANCE COMPANY F/K/A SIRIUS AMERICAN INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-195-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2009

Before Judges Lihotz and Ashrafi.

In this insurance coverage dispute, plaintiff Schoffer Enterprises (Schoffer) appeals a Law Division order entered following cross-motions for summary judgment denying its motion and granting that of defendant Delos Insurance Company f/k/a Sirius American Insurance Company (Delos). At issue is whether injuries suffered by a third-party occurred while loading and unloading a truck and, therefore, are covered under the omnibus vehicle use clause in an insurance policy issued by Delos. In dismissing Schoffer's complaint, the trial judge concluded the injury resulted from the negligent maintenance of property owned by Schoffer and was thus covered under its premises liability policy.

Schoffer raises these issues on appeal:

POINT I

NEW JERSEY SUBSCRIBES TO THE COMPLETE OPERATION DOCTRINE AND ALL THAT IS REQUIRED TO ESTABLISH COVERAGE IS THAT THE ACT OR OMISSION WHICH RESULTED IN THE INJURY WAS NECESSARY TO CARRY OUT THE LOADING OR UNL[O]ADING OPERATION.

POINT II

ALTHOUGH THE ACCIDENT OCCURRED "ON THE PREMISES" OWNED BY SCHOFFER, THE LOADING AND UNLOADING COVERAGE AFFORDED BY DELOS TRUMPS THE PREMISES LIABILITY ISSUE.

We affirm.

The facts are undisputed. On January 9, 2004, Thomas S. Blankenship was employed as a journeyman sheet metal worker with United Heating and Sheet Metal (UHSM). Blankenship and UHSM's owner, David Appolonia, were moving heating, ventilation and air-conditioning components stored on the premises of Schoffer's tenant, Mechanical Supply Company (Mechanical), onto a truck. Mechanical allowed UHSM to store the components on its parking lot when a strong storm prevented their intended installation.

Blankenship was responsible for retrieving boxes of parts, which had been stacked on pallets. Using a pallet jack, he transported each pallet loaded with boxes to UHSM's truck. He then handed each box to Appolonia, who was inside the truck bed. Once emptied, he placed the pallet in a stack along the side of Mechanical's building and retrieved another loaded pallet. After discarding an empty pallet, Blankenship was walking the pallet jack away from the truck when his right foot stepped on a four-foot wide, eight-foot long "hump" in the concrete parking lot. As a result, he lost his balance and fell on the right knee. Though able to complete work that day, Blankenship complained of severe pain in his knee, which required several surgical procedures over the next two years.

Blankenship's personal injury action against Schoffer and Mechanical was settled for $800,000. On January 11, 2008, Schoffer*fn1 filed its complaint in this matter against Appolonia and UHSM, claiming Blankenship's injuries occurred while he was "loading a vehicle owned by (UHSM) and (Appolonia)." Schoffer asserted primary insurance coverage for the accident rested with the carrier insuring UHSM's truck, later determined to be Delos. Schoffer amended its ...


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