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ALLSTATE INS. CO. v. SENTRY INS.

May 9, 1983

ALLSTATE INSURANCE COMPANY
v.
SENTRY INSURANCE, a Mutual Company



The opinion of the court was delivered by: MCGLYNN

 McGLYNN, District Judge.

 The issue in this diversity action is which of two insurance companies is required to defend and indemnify the insureds, William and Ellen Assman, in a separate negligence suit brought against them by an injured third party. The Assmans have liability insurance with the present plaintiff, Allstate Insurance Company ("Allstate"), under an automobile policy and with the defendant, Sentry Insurance, A Mutual Company ("Sentry"), under a homeowner policy. Allstate seeks a declaratory judgment *fn1" construing the provisions of the respective policies and determining the rights and responsibilities of the parties under the circumstances of the accident. *fn2" The matter is before me on cross-motions for summary judgment. Because I have determined that there is no genuine issue as to any material fact and that Allstate is entitled to judgment in its favor as a matter of law, I will grant plaintiff's motion and deny defendant's motion.

 The underlying negligence action *fn3" arose from injuries suffered by Francis Palmer on June 27, 1981, when a desk owned by the Assmans allegedly fell off a dolly and knocked him to the pavement. The desk was being transported from the eighth floor office where Ellen Assman worked to the Assmans' pickup truck parked on the street below.

 At the time of the accident Ellen Assman worked as a secretary for the International Association of Machinists at the union's district office on Arch Street in Philadelphia. When the union decided to move its office to New Haven, Connecticut, it offered to sell some of the office furniture to its employees. Mrs. Assman did not intend to transfer to New Haven and informed her boss that she would buy her desk, chair and typewriter. The desk was made of metal and was L-shaped, the smaller section unable to stand on its own if detached from the larger section.

 On Saturday, June 27, 1981, Mr. and Mrs. Assman drove their pickup truck to the office to remove the purchased furniture. So as not to block the side street (Juniper Street) from which they would be putting the furniture into the truck, Mr. Assman parked the vehicle in a lot behind the building while he and his wife went up to the eighth floor to get the desk, chair and typewriter. On the eighth floor the elevator operator provided the Assmans with a four-wheeled dolly to carry the desk. Mr. Assman separated the two parts of the desk, placed the larger section on the dolly, and put the smaller section inside the legs of the larger section. The Assmans and the elevator operator then took the furniture down to the first floor on the elevator. Mr. and Mrs. Assman pushed the dolly out onto the Arch Street sidewalk. When they reached the Juniper Street building line, Mr. Assman left to get the pickup truck. Mrs. Assman waited with the dolly.

 Mr. Assman backed the truck down Juniper Street to a point near the corner of Arch and Juniper. He parked the truck and lowered the tailgate about eight to ten feet from the dolly. Mr. Assman walked back to where his wife was holding the desk on the dolly. He took the smaller piece of the desk and began to carry it toward the truck. When he had gone a little more than halfway to the truck, his wife yelled that the desk was falling. At the same time Francis Palmer was walking past the dolly on the sidewalk. The larger part of the desk fell off the dolly and allegedly knocked Palmer to the ground. Palmer suffered a back injury that required hospitalization and surgery. There is no dispute that when the accident occurred: (1) none of the furniture had been placed in the truck and (2) the larger part of the desk was in a stationary position on the dolly at least eight feet from the truck.

 The pickup truck was insured by Allstate's automobile liability policy. The policy covers "claims for accidents arising out of the ownership, maintenance or use, loading or unloading of the auto . . . ." Sentry's homeowner policy also provides liability insurance but contains an express exclusion for third-party bodily injury and property damage "arising out of the ownership, maintenance, use, loading or unloading of . . . a motor vehicle . . . ." Sentry bases its cross-motion for summary judgment on this exclusion. *fn4" It is clear that one of these two policies covers the accident. The question is whether the accident arose out of the loading of the Assmans' truck.

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Although any doubts as to the existence of genuine issues of fact must be resolved against the moving party and any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the non-moving party, "summary judgment is a useful procedure when there is no dispute about the critical facts and it serves to eliminate the expense and delay of unnecessary trials." Peterson v. Lehigh Valley District Council, United Brotherhood of Carpenters and Joiners, 676 F.2d 81, 84 (3d Cir.1982).

 In this case the parties do not disagree on what happened. Nor does anyone contend that the "loading and unloading" clause is ambiguous. It is, of course, well-settled that if the language of an insurance policy is clear and unambiguous, courts are to give effect to its plain and ordinary meaning. St. Paul Fire & Marine Insurance Co. v. United States Fire Insurance Co., 655 F.2d 521, 524 (3d Cir.1981); Pennsylvania Manufacturers' Association Insurance Co. v. Aetna Casualty & Surety Co., 426 Pa. 453, 457, 233 A.2d 548, 551 (1967). As the Pennsylvania Superior Court said in construing a similar "loading and unloading" clause:

 
There is nothing to indicate that the terms "loading" and "unloading" have acquired a different and technical meaning in commercial usage from the popular meaning usually attributed to them, nor does it appear from the policy that it was the intention of the parties to use such terms in a technical or peculiar sense. Consequently, the only question for determination is whether the situation here involved is one which reasonably comes within the terms of the policy . . . .

 Ferry v. Protective Indemnity Company of New York, 155 Pa.Super. 266, 269, 38 A.2d 493, 494 (1944), allocatur denied, 155 Pa.Super. xxiii, 38 A.2d 493 (1944). Since the sole question is the legal significance of undisputed facts, the matter is appropriate for disposition by summary judgment.

 The most recent statement of Pennsylvania law on "loading and unloading" was given by the Superior Court in Presbyterian-University of Pennsylvania Medical Center v. Keystone Insurance Co., 251 Pa.Super. 71, 380 A.2d 381 (1977). There a hospital orderly was in the process of helping a patient get out of his parked car and into a nearby wheelchair. After the orderly had assisted the patient from the car but before he had placed him in the wheelchair, he allegedly dropped the patient resulting in serious injuries. The medical center sought a declaratory judgment that the automobile's liability insurer should defend it in the patient's suit against the medical center because the orderly was "unloading" the ...


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