Appeal from the Circuit Court of St. Clair County; the Hon.
Richard Goldenhersh, Judge, presiding.
PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1985.
Plaintiff, Hawkeye-Security Insurance Company (hereinafter Hawkeye-Security), appeals from an order granting the motion of defendant, United States Fidelity & Guaranty Company (hereinafter USF&G), for summary judgment and simultaneously denying plaintiff's motion for summary judgment in a declaratory judgment action to determine which company's insurance policy would furnish primary coverage for an alleged personal injury sustained on the premises of the Hy-Ho Cafe in Belleville. This declaratory judgment action brought by plaintiff, Hawkeye-Security, was consolidated for purposes of discovery with, and arose out of, a personal injury action initiated by Patricia Woodside, an employee of the Hy-Ho Cafe. Various defendants were named in Woodside's complaint, including the Gerken Food Company (hereinafter Gerken), a wholesale food supplier for the cafe and the insured of both parties now before us. Plaintiff, Hawkeye-Security, contends on appeal that the denial of their motion for summary judgment and the granting of defendant's motion was improper because the injury on which we are focusing did not come within the terms of Gerken's motor vehicle liability policy issued by Hawkeye-Security, but rather was encompassed by the provisions of Gerken's general liability policy issued by defendant USF&G. After consideration of both motions for summary judgment, the circuit court held that the injury sustained by Woodside fell within the loading and unloading clause of the policy issued by Hawkeye-Security. We affirm.
The facts are that on the morning of September 26, 1979, Gerken delivered two sacks of potatoes, each weighing 100 pounds, to the Hy-Ho Cafe for use in its restaurant business. An employee for Gerken deposited both sacks inside the doorway entrance of a walk-in storage cooler which was situated adjacent to the kitchen. He departed from Hy-Ho's premises immediately after obtaining a signature on a receipt form. Patricia Woodside, the head cook of the cafe and person responsible for taking deliveries, was unaware at the time that the Gerken delivery had been accomplished.
Woodside had cause to obtain some food supplies from the walk-in storage cooler sometime later that morning. Upon reaching the entrance of the cooler, she encountered the two sacks of potatoes sitting up inside the doorway impeding entry into the walk-in cooler. In an effort to clear the entrance, Woodside dragged one sack of potatoes approximately 12 feet to the rear wall of the cooler where potatoes were ordinarily kept. She returned to the doorway and lifted the second sack into her arms. Upon turning to carry it back to the rear wall, Woodside slipped and fell, incurring serious injuries to her back, hip and legs. There was evidence that the concrete floor of the cooler was substantially covered with water and, as a result, may have contributed to Woodside's injury. The record further indicates that there was a persistent leak within the cooler.
There was also substantial uncontroverted evidence that the potatoes were to have been delivered to the rear of the walk-in cooler to where Woodside had successfully moved the first sack. More specifically, Woodside, as head cook, had explicitly instructed each Gerken delivery employee to deposit the potatoes against the rear wall of the storage cooler. Each such employee, except one, had had no difficulty in complying with this direction. The nonconforming driver frequently deposited the potatoes in the doorway to the cooler despite Woodside's instructions to discontinue this practice.
On September 24, 1981, Patricia Woodside filed suit against Gerken on the basis of negligence as a result of her injuries. The complaint alleged, inter alia, that Gerken had negligently and carelessly placed the sacks of potatoes in the doorway of the cooler, thereby precluding access to the cafe's food supplies and subjecting her to a dangerous condition.
A dispute arose between the two insurers, USF&G and Hawkeye-Security, as to who would furnish primary coverage to Gerken. The plaintiff, Hawkeye-Security, filed a complaint for declaratory relief to resolve the issue whether the comprehensive general liability policy issued by the defendant, USF&G, or the motor vehicle liability policy issued by Hawkeye-Security was to provide coverage for the injuries to Woodside. Resolution of that issue depends entirely on whether the occurrence complained of by Woodside was covered by the "loading and unloading" clause of the motor vehicle policy issued by Hawkeye-Security.
On July 21, 1982, plaintiff filed its motion for summary judgment, which prompted defendant, USF&G, to file a motion for summary judgment on its own behalf. The circuit court granted defendant's motion for summary judgment on October 15, 1982, holding, in effect, that the loading and unloading clause contained in the motor vehicle policy provided coverage to the exclusion of the general liability policy. Plaintiff's motion for reconsideration was subsequently denied, and this appeal followed.
Hawkeye-Security contends on appeal that the circuit court erred in finding that the accident in question came within the coverage of their policy. In pertinent part Hawkeye-Security's motor vehicle policy provided coverage for bodily injury "caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading" of the insured vehicle. Hawkeye-Security contends that the accident did not arise from the use of the delivery vehicle, or from the unloading which is part of its use, because Woodside's act of moving the potatoes occurred subsequent to their delivery of the potatoes and departure of the vehicle and was, therefore, not part of the unloading process. Hawkeye-Security contends further that the causal relation between the accident and the use of the vehicle was insufficient to give rise to liability under their policy.
To ascertain whether an act constitutes "loading or unloading," the courts have adopted two basic tests: the "coming to rest" doctrine under which "unloading" includes only the actual removing or lifting of the article from the motor vehicle up to the moment when it has actually come to rest, and the "complete operations" doctrine which holds that "unloading" encompasses all of the operations which are required to effect a complete delivery. (Entz v. Fidelity & Casualty Co. (1966), 64 Cal.2d 379, 412 P.2d 382, 50 Cal.Rptr. 190; Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp, 893.) The "complete operations" doctrine, therefore, covers the entire process involved in moving the goods, while coverage under the "coming to rest" doctrine terminates when the deliveryman has finished his handling of the goods.
Illinois courts have unequivocally adopted the "complete operations" doctrine in construing the coverage of a "loading and unloading" clause contained in a motor vehicle insurance policy. Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill.2d 228, 402 N.E.2d 613; see also Liberty Mutual Insurance Co. v. Hartford Accident & Indemnity Co. (7th Cir. 1958), 251 F.2d 761; Coulter v. American Employers' Insurance Co. (1948), 333 Ill. App. 631, 78 N.E.2d 131.
In Estes, the Illinois Supreme Court established that motor vehicle insurance policies containing "loading and unloading" clauses will provide coverage under that clause to the point that unloading has been completed. They held that "`unloading' has been completed when, subsequent to removal of the material from the vehicle, the deliverer has finished his handling of it, and the material has been placed in the hands of the receiver at the designated reception point, despite the fact that it is necessary to transport the material thereafter to another point." Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill.2d 228, 234, 402 N.E.2d 613, 616.
The injury in Estes occurred after cement had been delivered by Ready Mixed Concrete Company to the Anderson Construction Company by pouring the concrete from the truck into a bucket connected to an overhead crane. The bucket and crane were used to transport the concrete to locations where it was to be placed in forms. It had been established that the bucket was the designated reception point for delivery of the concrete. The supreme court in Estes relied principally upon this unrebutted fact in holding that the "loading and unloading" clause of the motor vehicle ...