F & M Schaefer Brewing Co. v. Forbes Food Div

In F & M Schaefer Brewing Co. v. Forbes Food Div., 151 N.J. Super. 353, 362, 376 A.2d 1282 (Law Div.1977), the driver of a delivery truck consigned to pick up yeast slurry from the plaintiff's premises was injured when one of plaintiff's employee's threw a rope. Id. at 355, 376 A.2d 1282. During the loading operation, the driver had stayed with the truck to determine when and in what quantity the yeast slurry would be transferred into it. Ibid. Through its insurer, the plaintiff compensated the driver for his injuries and then sought indemnification as an additional insured from the insurer of the delivery truck. The court determined that whether the plaintiff was afforded coverage as a "borrower" of the delivery truck depended on whether the plaintiff had exercised sufficient control over the truck during the loading of the slurry into the truck. Id. at 362, 376 A.2d 1282. The plaintiff's employees at the pick-up point had performed the following activities during the loading operation which it claimed evidenced sufficient control to make it a "borrower" of the truck: "preparation of the slurry transfer apparatus (connecting of the necessary hoses and opening of the necessary valves) within the building and the throwing of the rope that led to the truck driver's injuries." Id. at 363, 376 A.2d 1282. The court concluded that the activities of the plaintiff's employees were not sufficient to demonstrate that the plaintiff had the requisite "control, dominion or power over the truck to attain the status of a 'borrower.'" Ibid. The court stated that the plaintiff's employees were merely cooperating with the truck driver in transferring the yeast slurry to the tank truck and that the truck had remained in the possession and control of the driver at all times. Ibid. In addition, the court found that the "employees were acting at the driver's direction, rather than the other way around." Ibid. Therefore, the court concluded that the plaintiff could not be considered a "borrower" and an additional insured within the "loading and unloading" clause, and its policy did not afford the plaintiff coverage for the driver's injuries. Ibid.