Summary
carrying property toward the truck is merely preparatory to loading and not covered by the exception
Summary of this case from Gallagher v. Northland Farms, LLCOpinion
Docket No. 28745.
Decided June 7, 1977.
Appeal from Macomb, Robert J. Chrzanowski, J. Submitted May 3, 1977, at Lansing. (Docket No. 28745.) Decided June 7, 1977.
Complaint by Lawrence Dembinski against Aetna Casualty Surety Company to recover under an insurance contract covering the plaintiff's truck. Summary judgment for defendant. Plaintiff appeals. Affirmed.
Frank R. Langton, for plaintiff.
Collins Einhorn, P.C., for defendant.
Plaintiff had summary judgment entered against him in an action to recover under an insurance contract covering his truck, and appeals.
While plaintiff was carrying a ceramic mold from his store through a vestibule or hallway toward an outside doorway to load the mold into his truck, he slipped in a puddle of water, fell, and injured his back. He was twenty feet from his truck when he fell. The mold did not land on him.
Plaintiff's insurance policy provides that defendant will pay "personal protection benefits * * * as a result of bodily injury caused by accident and arising out of the ownership, operation, maintenance or use, including loading or unloading, of a motor vehicle * * * ". Plaintiff contends that his injury was caused by an accident arising out of the loading of his truck.
Loading and unloading clauses in insurance contracts have been broadly construed against insurance companies because they have been ambiguous and because a broad construction prevents the clause from being consumed by the term "use" and rendered mere surplusage. Thus, such a clause could encompass the period during which an object was removed from its place of rest and was carried to and placed in a vehicle. See e.g., Allstate Insurance Co v Valdez, 190 F. Supp. 893 (ED Mich, 1961).
The clause is not ambiguous in the instant case. The insurance contract excludes "bodily injury * * * arising out of * * * use, including loading and unloading, of a parked vehicle unless * * * such bodily injury was the direct result of physical contact with * * * property being lifted onto or lowered from such motor vehicle in the loading or unloading process". The wording of this exclusion is similar to and complies with the definition of accidental bodily injury arising out of use of a parked vehicle contained in MCLA 500.3106; MSA 24.13106. Thus, it is clear that the loading process consists only of the lifting of property into the vehicle.
Since plaintiff was not lifting the mold into the truck, he was not loading the truck. He was merely preparing to load the truck. This type of injury was excluded from the contract.
Nor was plaintiff's injury a direct result of physical contact with property being lifted into the truck. His injury was a result of slipping in the puddle, and the mold, not having landed on plaintiff, did not contribute to the injury.
Plaintiff also argues that summary judgment was improper because there existed a genuine issue as to a material fact, i.e., whether plaintiff's injury occurred while he was loading the truck. The dispute is not as to what occurred, but as to whether what occurred came within the insurance coverage of loading. This is a question of law, not fact, so that summary judgment was properly granted. See Burroughs Corp v Detroit, 18 Mich. App. 668, 674-675; 171 N.W.2d 678, 681 (1969).
Affirmed. Costs to defendant.