Cenno v. West Virginia Paper & Pulp Co

In Cenno v. West Virginia Paper & Pulp Co., 109 N.J. Super. 41, 262 A.2d 223 (App.Div.), certif. denied, 56 N.J. 99, 265 A.2d 149 (1970), the plaintiff, a truck driver, was injured while delivering a load of baled cardboard manufactured by the West Virginia Paper and Pulp Company (West Virginia). "The cardboard had been baled by West Virginia at its Hoboken plant using metal bands and clips manufactured by defendant Acme Steel Company." After arriving at the Allied Paper plant in Brooklyn, the plaintiff attempted to move one of the bales to the rear of the truck by pulling on the metal band securing the bale. The band broke, causing the plaintiff to lose his balance and fall out of the truck. The Appellate Division found that West Virginia was not an additional insured under the comprehensive automobile-liability policy, on the grounds that the negligent banding of the bales did not "constitute a part of the loading or unloading process." It is unclear whether the cardboard was baled with metal bands solely to facilitate its shipment or whether that was a requirement of West Virginia's customer. If there had been a factual basis for concluding that the baling was done solely to enable shipment of the goods, the Cenno court would have found West Virginia to be an additional insured. Id. at 404-05, 688 A.2d 89. Under New Jersey's "complete operation" doctrine, "loading and unloading" insurance "covers the entire process involved in the movement of goods, from the moment they are given into the named insured's possession until they are turned over at the place of destination to the party to whom delivery is to be made. . . ." Cenno v. West Virginia Paper & Pulp Co., 109 N.J. Super. 41, 262 A.2d 223 (App.Div.), certif. denied, 56 N.J. 99, 265 A.2d 149 (1970); Any accident occurring during and arising out of the process of loading or unloading the insured vehicle is covered, and "for all practical purposes, any distinction between 'unloading' and 'delivery' and between 'loading' and 'preparatory actions' is not considered." Cenno, supra, 109 N.J. Super. at 46-47, 262 A.2d 223; The judge noted: Now the question turns to Kennedy and to Cenno. And here the argument is . . . he may have been injured while unloading, but the alleged negligence took place prior to the act of unloading. That is Cenno, and that requires a finding that there is no coverage. So now what we're looking at is what appears . . . to be a rather tenuous distinction, but a distinction made by the majority of the Court in Kennedy. And I refer now specifically to page 401, 147 N.J. 394, 688 A.2d 89 . . . where the Court says, "The critical issue is whether Jefferson's selection of the defective pallet was an integral part of the loading activity and thus covered under the use provision. The injury occurred during unloading." . . . "But the negligent act occurred before the physical loading of the goods. Therefore, the question becomes whether selecting the pallet"--or in this case the bailing--"was an act in preparation of loading the vehicle or an unrelated act." The Court goes on to say that Cenno is distinguishable because. . . "it is unclear whether the cardboard in Cenno . . . was bailed with metal bands solely to facilitate its shipment, or whether that was a requirement of West Virginia's customer" . . . . "If there had been a factual basis for concluding that the bailing was done solely to enable shipment of the goods, the Cenno court would have found West Virginia to be an additional insured." For the record, . . . based on the documents submitted to me, which include the transcripts of deposition testimony, the two exhibits that were produced thereto being blueprints of the packaging, the testimony in the depositions that this is how all those air handling units were packaged, that there is nothing in the record to suggest that the bailing was done for any other purpose than for the . . . loading, shipping, and unloading of the air handling units. There's . . . no suggestion of any evidence that these bailing strips were requested specifically by Liebert. The testimony clearly is that everybody got the bailing straps. It seems to me that this case is controlled by Kennedy . . . that the injury occurred during the unloading process; that the act of selecting the bailing or bailing the air handling unit by Liebert was an act in preparation of loading the vehicle and had no other purpose; and therefore summary judgment is granted to . . . Liebert and the motion . . . of Penn is denied.