On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1008-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically January 28, 2011
Before Judges Lisa, Reisner and Sabatino.
Defendant, The Travelers Indemnity Company (Travelers), appeals from an order dated February 20, 2009 and two April 6, 2009 orders, in favor of plaintiff Harleysville Insurance Company of New Jersey (Harleysville) and defendant Dray-Con Transport, Inc. (Dray-Con). We affirm.
This case arises from a 2004 accident in which Jairo Delcid and Edwin Zambrano, tractor-trailer truck drivers hired by DrayCon, were dispatched to pick up freight containers located at a rail yard operated by CSX Transportation, Inc. (CSX). Dray-Con vehicles were permitted access to the CSX rail yard under the terms of an agreement in which Dray-Con was to indemnify CSX for claims arising out of Dray-Con's negligence. Nothing in the agreement specifically required Dray-Con to indemnify CSX for CSX's own negligence. See Azurak v. Corporate Prop. Investors, 175 N.J. 110, 112-13 (2003).
Each of the two drivers was operating a truck cab that could be attached to a freight container loaded on a chassis. Once attached to the cab, the freight container/chassis would become the "trailer" portion of the driver's tractor-trailer truck. When the two drivers arrived at the rail yard, they found that the containers had been left very close to the train tracks. Nonetheless, they proceeded with their assignment and attempted to attach their truck cabs to the containers. Zambrano successfully attached his cab to a container, but Delcid was unable to do so. Therefore, he asked Zambrano to assist him. Zambrano stood behind Delcid's cab, on the side closest to the train tracks, and attempted to guide Delcid as he backed his truck cab toward the container. As Zambrano was guiding Delcid's moving truck cab, a train on the tracks started moving and hit Zambrano, causing fatal injuries.
On December 7, 2004, Zambrano's widow sued several parties, including Dray-Con, alleging negligence (the Zambrano lawsuit). CSX and a related company, CSX Intermodel (CSXI),*fn1 were accused of negligently operating the train, failing to provide safe premises, and failing to supervise another defendant, Pacific Rail Services, which allegedly placed the containers too close to the train tracks. In cross-claims for contribution, common law indemnification and contractual indemnification, CSX accused Dray-Con of having negligently failed to train its drivers to safely maneuver their trucks in a rail yard.*fn2 CSX also filed a third-party complaint against Delcid for alleged negligence in using his truck.
The Zambrano lawsuit triggered an insurance coverage dispute between Harleysville, which had provided Dray-Con with a Commercial General Liability (CGL) policy, and Travelers, which had provided an auto insurance policy to Dray-Con. The Travelers policy provided comprehensive coverage for vehicle-related liability. The policy provided that Travelers would "pay all sums an 'insured' legally must pay as damages because of "bodily injury" . . . to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto'." There is no dispute that the policy covered Zambrano's and Delcid's trucks.
The Harleysville policy had a comprehensive exclusion for claims in any way arising out of the use of a motor vehicle. The exclusion applied to the following:
"Bodily injury" . . . arising out of the ownership, maintenance, use or entrustment to others of any . . . "auto" . . . owned or operated or rented or loaned to any insured.
Use includes operation and "loading or unloading."
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, . .. training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the ownership, maintenance, use or entrustment to others of any ...