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Lising v. New Jersey Manufacturers Insurance Co.

August 26, 2010

ELAINE LISING, ADMINISTRATOR AD PROSEQUENDUM AND ADMINISTRATOR OF THE ESTATE OF EARL TITO LISING, JR., DECEASED AND ELAINE LISING, INDIVIDUALLY, PLAINTIFFS,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY AND CONTINENTAL INSURANCE COMPANY, DEFENDANTS, AND TESIMA KOREA CO., LTD AND DAEGU EXPORT PACKAGING CO., K.E.C. INTERNATIONAL CO., LTD AND KOREA EXPRESS U.S.A., INC., INTERVENING PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY AND CONTINENTAL INSURANCE COMPANY, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, Docket No. L-7906-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2010

Before Judges Rodríguez, Reisner and Yannotti.

The issue presented on this appeal stems from a declaratory judgment action involving an insurer's obligation to provide coverage to additional insureds in a "loading and unloading case" pursuant to the omnibus automobile-insurance provision. Specifically, whether the negligent loading of goods overseas prior to a shipping container being attached to the insured's vehicle arises out of the "use of the motor vehicle." We hold that it does and affirm the trial court's decision.

These are the facts relevant to this appeal. Earl Tito Lising, Jr. (decedent), an M&M International (M&M) employee, was killed on March 30, 2005, while unloading crates of steel tubing from a shipping container. It is undisputed that the container remained sealed until its delivery to M&M's place of business in Edison.

M&M, which is located in Edison, purchased steel tubing from Tesima, a South Korean company. Tesima purchased wooden crates from Daegu, a South Korean company, to ship the steel tubing. Tesima contracted with Korea Express International Company (KEIC), a South Korean company, to transmit the steel tubing overseas to the New Jersey Inter Rail terminal (NJIRT), located in Jersey City. KEIC contracted with Hanjin Shipping, a South Korean company, to provide a shipping container to Tesima at Daegu's place of business.

Prior to the container leaving Daegu's place of business, a Korean truck driver loaded the container with the crates. The container was sealed in the presence of a Tesima representative. Hanjin shipped the container on its vessel from Pusan, South Korea to Long Beach, California. KEIC hired Korea Express U.S., Inc. (Korea Express) as its freight forwarding agent to ship the container by rail to NJIRT. M&M hired Niban Express as its freight forwarding agent to clear the container through United States Customs and to hire Port of New York Express (PONYE), a trucking company, to transport the container from NJIRT to Edison. Following its arrival at NJIRT, the sealed Hanjin container was placed on a chassis by NJIRT personnel and released to PONYE for transportation to M&M. The container was attached to the PONYE vehicle at the time of the accident.

New Jersey Manufacturers (NJM) provided PONYE with a trucker insurance policy, which contained an omnibus provision providing coverage for "use" of the insured vehicles. Specifically, the NJM policy provides that it "will pay all sums an 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 ownership, maintenance or use of a covered auto." "Trailers" constitute covered autos under the policy. The policy defines "trailer" as including "semitrailer or dollie used to convert a semi-trailer into a trailer. But for Trailer Interchange coverage only, trailer also includes a container." The policy contains an "Intermodal Interchange Uniform Endorsement Form UIIE-1."

The policy defines "insured" as follows:

1. WHO IS AN INSURED

The following are insureds:

a. You for any covered auto.

b. Anyone else while using with your permission a covered auto you own, ...


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