Opinion
For Opinion on Hearing, See 72 Cal.Rptr. 698,
Bronson, Bronson & McKinnon, San Francisco, for appellant.
John D. St. Clair, Edward J. McFetridge, Hauerken, St. Clair, Zappettini & Hines, San Francisco, for respondent.
CHRISTIAN, Associate Justice.
This appeal turns upon the interrelationship of two insurance policies. One was an automobile liability policy purchased from appellant Allstate by Richard Oppermann, a plumbing contractor; the other, issued by American Insurance Company, covers the premises and operations of respondeent P. E. O'Hair & Company, a plumbing supply house. The questions presented are whether Oppermann's policy applies, under facts recited below, and if so whether any recovery and costs of defense should be prorated between the two policies. We hold that Oppermann's policy does not apply; the proration issue is therefore extinguished.
On October 14, 1963 Oppermann drove his truck to the premises of O'Hair in San Francisco. At the purchasing counter he ordered two or three lengths of soil pipe. James Keough, an employee of O'Hair whose duties included the taking and filling of orders, waited on Oppermann as he had done a number of times in the past. Oppermann moved his truck to a point near a pyramid stack of pipe behind the building. Keough then borrowed a pair of tin snips from Oppermann and cut a steel It was Keough's job to load the heavy soil pipe onto customers' trucks; however, customers would often assist in this arduous task. Oppermann had done so previously. It was the intention of both Keough and Oppermann that immediately after the band was cut, Keough would place the pipe on Oppermann's truck. Prior to the cutting of the band, nothing had been removed from the pile or placed on the truck.
O'Hair's insurance carrier discovered that Oppermann's policy extended protection both to the named insured and to 'any person while using the automobile, and any person or organization legally responsible for the use thereof, * * *' Another clause in Oppermann's Allstate policy provided that use of the insured vehicle included 'the loading and unloading thereof.' Accordingly, O'Hair was induced by its insurance carrier, American Insurance Company, to bring the present action to obtain a declaratory judgment that Allstate is obliged to indemnify O'Hair and hold it harmless from loss in the action brought against O'Hair by Oppermann.
The cause was submitted on an agreed statement of fact which presented issues of law regarding the liability of the insurers. The court determind that the accident occurred in the course of the loading of the truck and entered judgment declaring that O'Hair was entitled to protection as an insured party under Oppermann's policy. We have reached a contrary conclusion.
Ambiguities and uncertainties in insurance policies are to be resolved against the insurer, who prepared the contract of insurance. (Continental Cas. Co. v. Zurich Ins. Co. (1961) 57 Cal.2d 27, 32, 17 Cal.Rptr. 12, 366 P.2d 455. But while the 'loading and unloading' provision commonly found in automobile liability policies is terse, it is not ambiguous; therefore, the terms 'loading' and 'unloading' are to be given their plain and ordinary meaning and uncertainties of application are to be resolved by reference to the intentions or expectations of the parties to the contract of insurance, inferred from all the circumstances. (Entz v. Fidelity & Casualty Co. of New York (1966) 64 Cal.2d 379, 383, 50 Cal.Rptr. 190, 412 P.2d 382). We are mindful, however, of historical developments in the application of 'loading and unloading' provisions. It was commonly held that loading does not commence until cargo is being lifted onto the vehicle and that unloading ends when the load has been deposited at a place of rest away from the vehicle. This 'coming to rest' doctrine has been largely supplanted by the view that the parties to the insurance contract intended to insure the complete operation of loading and unloading. One writer declares: 'The 'complete operation' doctrine contemplates that the loading commences when the items of cargo leave their original location on the way to the vehicle * * * and that unloading does not cease until the items of cargo have reached the final point of delivery toward which the transportation of the cargo by automobile was a part.' (Risjord, Loading and Unloading, 13 Vanderbilt Law Rev., 903, 904.) California is committed to the 'complete operations' rule. (Entz v. Fidelity & Casualty Co., supra, at 384, 50 Cal.Rptr. 190, 412 P.2d 382; Truck Ins. Exch. etc. v. Webb (1967) 256 A.C.A. 157, 162, 63 Cal.Rptr. 791.)
In the absence of California authorities dealing with when loading commences, we have been cited to numerous decisions from other jurisdictions. For example, in Spurlock v. Boyce-Harvey Machinery etc. (1956) La.App., 90 So.2d 417, loading of the claimant's truck was accomplished by a Boyce--Harvey employee severing the wire bands binding bundles of grader blades, tagging each blade, and having the claimant pull the blade onto the truck. One bundle was loaded; but just as the wire binding the second bundle was cut, the claimant stepped off the truck and was injured General Accident Fire & Life Assur. Corp. v. Jarmuth
We find no California decision which has considered the circumstances in which loading should be held to have commenced. However, useful analogies may be drawn from several cases dealing with the opposite end of the sequence: when unloading is to be held to have ended. Although no simple test can be found in these decisions, the principle which seems to have guided them all is that when the term 'loading and unloading' is used without elaboration or restriction in an insurance policy it is to be applied to each case in the manner most likely to conform with the reasonably implied intentions of the parties to the contract of insurance. Therefore, 'the automobile need not be, in the legal sense, the proximate cause of the claim; the events giving rise to the claim must, however, arise out of and be related to its use.' (American Auto. Ins. Co. v. Transport Indem. Co., (1962) 200 Cal.App.2d 543, 550, 19 Cal.Rptr. 558, 563; Home Indem. Co. v. Transport Indem. Co. (1968) 263 A.C.A. 102, 69 Cal.Rptr. 504.) It seems to us that here the collapse of the pile of pipe did not 'arise out of' the loading of the truck; the accident would as well have occurred if the retaining band had been cut preparatory to moving two or three lengths of pipe to some other place such as a stock bin inside the werehouse.
In Entz v. Fidelity & Casualty Co., supra, 64 Cal.2d 379, at 383, 50 Cal.Rptr. 190 at 193, 412 P.2d 382, at 385, the Supreme Court held, in a case involving an injury which asserted occurred in the course of unloading transit-mix cement, that unloading 'has been completed when, following removal of the material from the vehicle, the deliveror has finished his handling of it, and it has been placed in the hands of the receiver at the designated reception point, even though it is necessary for the consignee, or someone on his behalf, to transport it thereafter to another point.' By analogy it seems to us reasonable to hold here that loading has not commenced when neither of the men had commenced moving the material from its 'original location on the way to the vehicle.' (Risjord, op. cit., supra.) The accident occurred as the result of a merely preparatory step taken by Keough. Compare San Fernando Valley Crane Service, Inc. v. Travellers Ins. Co. (1964) 229 Cal.App.2d 229, 40 Cal.Rptr. 165, another transit-mix cement case, in which unloading was held not to extend to the collapse of a bucket crane which was conveying cement from the insured vehicle to the spot on the construction site where the cement was to be used. This conclusion was held to be more likely to represent the intention of the parties in view of the fact that the cement could have been conveyed away from the truck by other means; it was considered 'not reasonable to conclude that such parties intended an extension of coverage to an accident occurring after concrete has been placed in a receptacle furnished by or on behalf of the purchaser and while it is being mechanically conveyed to a location some distance above the ground.' (229 Cal.App.2d at 236, 40 Cal.Rptr. at 170.) By analogy here, it is not reasonable to conclude that Oppermann and Allstate intended an extension of coverage to an accident which occurred before the workmen commended moving the load to the truck. Such an extension would include risks which Oppermann would hardly think of in connection with the use of his truck, and Truck Ins. Exchange v. Webb,
Amer. Auto. Ins. Co. v. Amer. Fid. & Cas. Co. of Richmond VirginiaThe judgment is reversed with directions to enter judgment for appellant.
DEVINE P. J., and RATTIGAN, J., concur.