Opinion
DOCKET NO. A-5585-13T1
11-06-2015
SELECTIVE INSURANCE COMPANY OF AMERICA, Plaintiff-Appellant, v. ZURICH AMERICAN INSURANCE COMPANY and REPUBLIC SERVICES, INC., d/b/a MIDCO WASTE SYSTEMS, Defendants-Respondents.
Todd J. Leon argued the cause for appellant (Hill Wallack LLP, attorneys; Mr. Leon, of counsel and on the brief; David P. Oberkofler, on the brief). Kathleen M. Mulholland argued the cause for respondents (Camacho Mauro & Mulholland, LLP, attorneys; Ms. Mulholland, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John, and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-335-13. Todd J. Leon argued the cause for appellant (Hill Wallack LLP, attorneys; Mr. Leon, of counsel and on the brief; David P. Oberkofler, on the brief). Kathleen M. Mulholland argued the cause for respondents (Camacho Mauro & Mulholland, LLP, attorneys; Ms. Mulholland, on the brief). PER CURIAM
Plaintiff, Selective Insurance Company of America (Selective), appeals from the June 20, 2014 order of the Law Division granting summary judgment to defendants Zurich American Insurance Company (Zurich), and Republic Services, Inc., doing business as Midco Waste Systems (Midco). We affirm.
I.
The facts are not disputed. In May 2009, trees and vegetation were being cleared from a right-of-way owned by Public Service Electric and Gas (PSE&G). The jobsite was located on a hill fronting Valley Road in Clifton. The initial tree-cutting was done by Nelson Tree Service (Nelson). Dante Enterprises (Dante) was engaged to remove the vegetation and the trees felled by Nelson. Midco was hired to provide a truck and a driver, Nicholas Ciuba, to haul away the trees and vegetation.
On May 22, 2008, all of the trees had been cut by Nelson and were left wherever they fell. Ciuba drove his truck to the site and parked near a retaining wall at the bottom of a hill. Dante employees were responsible for "staging" the logs, which required moving the logs down the hill to the edge of the retaining wall, and loading them into the Midco truck. The hill was too steep for a machine, so the logs had to be moved by hand. Dante employees brought the logs to the edge of the retaining wall, then Ciuba would move his truck as close to the wall as possible and the logs would be rolled into the truck.
Around 9:00 a.m., Dante employees began working at the site. Just before 10:55 a.m., Ciuba was injured by a rogue log that rolled from the hill and over the retaining wall, striking him in the head and causing severe injuries. At the time of the accident, three Dante employees were on the jobsite. Dennis McCabe, the Dante supervisor, was near the roadway; Michael Brusco was on the hill; and Alex Zayas was setting up cones in the street as he was walking with Ciuba near the tailgate of Ciuba's truck.
All of the Dante employees confirmed that no one was near the rogue log when it began to roll down the hill. Although Dante employees were working their way up the hill clearing logs row by row, the closest Dante employee was about twenty feet from the rogue log as it was rolling down the hill.
Ciuba sued PSE&G, Nelson, and Dante, claiming they failed to provide him with a safe place to work. On the date of Ciuba's accident, Selective was the general liability insurer for Dante and Zurich was Midco's commercial automobile insurer.
The underlying action settled with Selective paying $800,000 on Dante's behalf. Zurich and Midco did not contribute to the settlement. Selective then brought this action seeking contribution. The Law Division held that the policy issued by Zurich did not afford coverage to Dante for Ciuba's accident because the log that struck Ciuba was never given into Midco's possession, which is a requirement to be part of the loading and unloading process; and Dante's "staging" of the logs was not part of the loading process because it was "not necessary for Midco's truck to be at the site for this staging to occur." The judge granted summary judgment to Zurich and Midco.
On appeal, Selective argues that the judge erroneously concluded that (1) Ciuba's accident did not occur during the loading and unloading of the Midco truck, and (2) did not arise out of Dante's use of the Midco truck.
II.
We review a trial court's order granting summary judgment under the same standard employed by the trial court. In considering a motion for summary judgment, "both trial and appellate courts must view the facts in the light most favorable to the non-moving party, which in this case is plaintiff." Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009) (citing R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Summary judgment is proper if the record demonstrates "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law." Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009) (internal quotation mark and citation omitted).
Issues of law are subject to the de novo standard of review, Selective Insurance Co. of America v. Hudson East Pain Management, 210 N.J. 597, 605 (2012), and the trial court's determination of such issues is accorded no deference. Ibid. (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). A trial court's interpretation of an insurance contract is a determination of law; thus, this court reviews the trial court's interpretation of the insurance policy de novo. Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 375 (App. Div.), certif. denied, 196 N.J. 601 (2008).
The Zurich policy covers "all sums an insured legally must pay as damages because of bodily injury . . . caused by an accident and resulting from the ownership, maintenance or use of a covered auto." This policy language differs slightly from that mandated by N.J.S.A. 39:6B-1, which requires that "[e]very owner . . . of a motor vehicle . . . shall maintain motor vehicle liability insurance . . . insuring against . . . bodily injury . . . sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle[.]" We must construe the Zurich policy to conform to the statute. "It is axiomatic that an insurer may not afford less coverage than that mandated by the Legislature." Home State Ins. Co. v. Continental Ins. Co., 313 N.J. Super. 584, 587 (App. Div. 1998), aff'd, 158 N.J. 104 (1999). "Where a policy provision conflicts with the coverage required by a statute, it is inapplicable and is deemed amended to conform to the statutory standard." Ibid.
Because is it not disputed that the Midco truck was a covered vehicle under the auto policy, the issue is whether the accident to Ciuba arises out of the vehicle's use. N.J.S.A. 39:6B-1. "[T]he phrase 'arising out of' must be interpreted in a broad and comprehensive sense to mean 'originating from' or 'growing out of the use of the automobile." Penn Nat. Ins. Co. v. Costa, 198 N.J. 229, 237 (2009) (internal citations omitted). For an injury to arise out of a vehicle's use, "there must be a substantial nexus between the injury suffered and the asserted negligent . . . use of the motor vehicle." Id. at 240. Automobile insurance coverage "only comes into play if the injuries were caused by a negligent act and that negligent act, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile[.]" Ibid. (internal citation and quotation mark omitted).
In Penn, a worker was injured as he was leaving his employer's property after offering to assist his employer in changing a tire on a pickup truck parked in the employer's driveway. Id. at 233. The worker slipped on ice on the driveway and struck his head on a bumper jack that was being used to lift the truck. Ibid. The Court held that there was not a substantial nexus between the maintenance of the truck by the employer and the worker's fall because the injury occurred as a result of the employer's failure to keep his driveway clear of ice rather than the vehicle's maintenance. Id. at 241. The Court noted that "[w]hen an accident . . . is occasioned by negligent maintenance of the premises and the only connection to that event is the fact that the motor vehicle [is] present . . . no realistic social or public policy is served by straining to shift coverage." Ibid. (alterations in original).
Plaintiff relies on Kennedy v. Jefferson Smurfit Co., 147 N.J. 394, 401-02 (1997), in arguing that Dante's "staging" of the logs constituted use of the Midco truck. In Kennedy, the owner of a tractor was dispatched to pick up a loaded trailer filled with cardboard at Jefferson Smurfit Company's facility and deliver it to Ultra Packaging Corporation. Id. at 396. The tractor owner picked up the cardboard, which was placed in bundles on wood pallets, from Jefferson and, while observing the unloading procedure at Ultra, was injured by a rotted pallet that collapsed and fell on him. Ibid. The Kennedy Court noted that, although the injury occurred during unloading, the negligent act, the selecting of the pallet, "occurred before the physical loading of the goods" and therefore the question was "whether selecting the pallet was an act in preparation of loading the vehicle or an unrelated act." Id. at 401.
The Court found that the selection of the pallet was an "integral part" of the loading operation and therefore constituted "use" of the motor vehicle. Ibid. The Court reasoned that "selection of the pallet was necessary and preliminary to the process of loading" because "pallets are a common technique used to facilitate the movement of goods" and the "pallet was selected in preparation for the loading and shipping of the cardboard." Id. at 401, 403.
Plaintiff argues that the "staging" was done in preparation for the loading of the Midco truck, and that, like in Kennedy, the purpose was to facilitate the loading of the logs. We find the facts in Kennedy distinguishable.
In Kennedy, the injury occurred during the actual unloading. Here, it is undisputed that Dante employees were not engaged in loading the Midco truck when the rogue log struck Ciuba. Rather, they were engaged in staging the logs at the time of the accident. Moreover, Dante's staging of logs was not an integral part of the loading process. It was not even necessary for Midco's truck to be at the site for staging to occur. Indeed, as the motion judge observed, the staging could have been completed "even before Midco was hired."
We are satisfied that the motion judge correctly determined that the staging of the logs was not part of the "loading and unloading" process and did not constitute "use" of the Midco truck. Ciuba's accident arose not from any loading or unloading activities but from the negligent acts of those involved in the clearing of the trees. As such, those involved parties were in the best position to avert harm and Dante's insured is not entitled to contribution from defendants.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION