Sheldon Hatton, an employee of Red Line Carriers (hereinafter Red Line), while moving a desk, slipped on an eraser on the floor of
On October 1, 1963, two employees of Red Line, John Mazzullo and Sheldon Hatton, drove a Red Line truck to the IBM premises. During the morning, pursuant to IBM's instructions, they moved various pieces of furniture and equipment around those premises. About 3 p.m. the IBM coordinator directed them to move a chair and desk from IBM Building 25 to the Red Line warehouse. They drove the truck to Building 25, entered the premises, placed the desk on a Red Line dolly, and wheeled it to the receiving area. Mazzullo pulled the desk from the front; Hatton pushed from the rear. When they had gone about two-thirds of the distance across the receiving area toward the truck, Hatton slipped on an eraser on the floor, fell, and sustained injuries. The eraser was of the type used by IBM, and not the type used by Red Line's employees. For purposes of this action we must assume that Hatton's injuries resulted from the negligence of an IBM employee.
Red Line carried its insurance with Truck; IBM with Zurich. IBM tendered the defense of Hatton's action to Truck, which denied coverage. IBM then brought this action for declaratory relief; Truck cross-complained against Zurich to determine which policy provided primary coverage. The trial court found that Hatton's injuries did not arise out of the "use" of the Red Line truck by IBM, that the Truck policy did not cover IBM as an additional insured, and that, therefore, IBM was not entitled to defense under that policy.
The Truck policy does not extend coverage to permissive users. Vehicle Code section 16451, however, provides that a motor vehicle liability policy must insure not only the owner, but "any other person ... using [the] ... motor vehicle with the express or implied permission of said assured, against loss from the liability imposed by law for damages arising out of ownership, maintenance, or use of such motor vehicle...." (Italics added.) Truck concedes that such coverage is incorporated by law
Although Hatton and Mazzullo were thus engaged in the loading of the truck, neither of them served as an agent or employee of IBM. In the language of Entz v. Fidelity & Cas. Co. (1966) 64 Cal.2d 379, 385 [50 Cal.Rptr. 190, 412 P.2d 382], the question, then, is "not whether the accident occurred during the unloading, but, rather, whether the injury arose out of the use of the vehicle." Did IBM, the shipper, become a "user" of the truck by reason of the fact it maintained the loading dock?
In certain circumscribed situations, the courts have held that the shipper
The concept that the mere presence of a loading dock, without more, converts the shipper who loads there into a "user" of the truck is a somewhat metaphysical one; presumably the dock serves as a physical invitation to load or unload, and upon acceptance by the trucker the shipper becomes the "user" of the truck. Although we can see the efficacy of the fiction if some further element is added, such as the active use of the shipper's equipment, participation of the shipper's personnel in the loading operation, or the shipper's direction of that operation, the reality of the situation makes it difficult to press the dock itself into the medium for dubbing the shipper as the truck user. To hold that the presence of the loading dock constitutes such "use," would be simply an exercise in "mental gymnastics" (American Home Assur. Co. v. State Farm Mut. Auto. Ins. Co. (1969) 1 Cal.App.3d 355, 357 [81 Cal.Rptr. 732]) far removed from the ordinary meaning of the concept of "use" of the vehicle.
Such a limitation on the concept of "use" of the loading area finds expression in the recent decision in American Home Assur. Co. v. State Farm Mut. Auto. Ins. Co., supra, 1 Cal.App.3d 355. In that case a Mrs. Crawford was engaged in unloading boxes from her station wagon parked on the parking lot of McColl's Dairy when she slipped and fell because of a defect in the parking lot surface. Mrs. Crawford clearly was unloading, and thus "using," her station wagon; further, the dairy presumably maintains the parking lot in part to facilitate such loading and unloading. The dairy argued that by its maintenance of the lot it was a "user" of the station wagon and that therefore Mrs. Crawford's automobile liability policy covered
Although the Court of Appeal in Shippers Dev. Co. v. General Ins. Co. of America (1969) 274 Cal.App.2d 661 [79 Cal.Rptr. 388], and two decisions of the New York Appellate Division
The judgment is affirmed.
Wright, C.J., McComb, J., Peters, J., Burke, J., and Sullivan, J., concurred.
The nature of the necessary causal connection has not been further defined in our cases. Truck suggests a test formulated in General Accident Fire & Life Assur. Corp. v. Brown, supra, 35 Ill.App.2d 43 [181 N.E.2d 191, 194]: that the use of the vehicle must be the "efficient and predominating cause" of the injury. That language, however, does nothing but obscure matters. Taken literally, an efficient cause is one which produces its effect with maximum economy, and a predominating cause is one which overweighs a subordinate cause; neither concept has any relevance to the facts of General Accident or of the present case. Taken figuratively, General Accident appears to hold that a causal connection greater than mere coincidence in time and space, but not necessarily amounting to proximate cause, is required, which is approximately what we said in Entz.
In the instant case the task of finding the requisite causal connection presents no problem. IBM's only arguable participation in loading the truck lies in its maintenance of the loading area, and the injury arose from the negligent maintenance. If maintenance of the loading dock makes IBM a user of the truck, the injury plainly arose out of that use; if IBM is not a user the question of cause does not arise.