Accident Must “Arise out of” the Use of Auto — Nexus to Injury Required

Automobile insurance is, by definition, limited to actions or events causing bodily injury or property damage arising out of or as a result of the operation, use, loading or unloading of a vehicle. It is not enough to find coverage that a vehicle was close to the site where the injury occurred and might have been used in the future. In Selective Ins. Co. of America v. Zurich American Ins. Co., Not Reported in A.3d, 2015 WL 6758358 (N.J.Super.A.D., 11/06/2015), Plaintiff, Selective Insurance Company of America (Selective), appealed the trial court’s granting of summary judgment to defendants Zurich American Insurance Company (Zurich), and Republic Services, Inc., doing business as Midco Waste Systems (Midco) claiming that since the vehicle was at the location to do work its insurer should provide coverage for the injury incurred by its driver. The court needed to determine, therefore, whether there was any nexus between the vehicle and the injury.
FACTS

In May 2009, trees and vegetation were being cleared from a right-of-way owned by Public Service Electric and Gas (PSE & G).  The initial tree-cutting was done by Nelson Tree Service (Nelson). Dante Enterprises (Dante) was engaged to remove the vegetation and the trees felled by Nelson. Midco was hired to provide a truck and a driver, Nicholas Ciuba, to haul away the trees and vegetation.
After all of the trees had been cut by Nelson and were left wherever they fell, Ciuba drove his truck to the site and parked near a retaining wall at the bottom of a hill. Dante employees were responsible for “staging” the logs, which required moving the logs down the hill to the edge of the retaining wall, and loading them into the Midco truck. The hill was too steep for a machine, so the logs had to be moved by hand. Dante employees brought the logs to the edge of the retaining wall, then Ciuba would move his truck as close to the wall as possible and the logs would be rolled into the truck.
Ciuba was injured by a rogue log that rolled from the hill and over the retaining wall, striking him in the head and causing severe injuries. At the time of the accident, three Dante employees were on the jobsite.
All of the Dante employees confirmed that no one was near the rogue log when it began to roll down the hill. Although Dante employees were working their way up the hill clearing logs row by row, the closest Dante employee was about twenty feet from the rogue log as it was rolling down the hill.
Ciuba sued PSE & G, Nelson, and Dante, claiming they failed to provide him with a safe place to work. On the date of Ciuba’s accident, Selective was the general liability insurer for Dante and Zurich was Midco’s commercial automobile insurer.
The underlying action settled with Selective paying $800,000 on Dante’s behalf. Zurich and Midco did not contribute to the settlement. Selective then sued seeking contribution. The trial court concluded that Zurich did not afford coverage to Dante for Ciuba’s accident because the log that struck Ciuba was never given into Midco’s possession, which is a requirement to be part of the loading and unloading process; and Dante’s “staging” of the logs was not part of the loading process because it was “not necessary for Midco’s truck to be at the site for this staging to occur.”
ANALYSIS.

The Zurich policy covers “all sums an insured legally must pay as damages because of bodily injury … caused by an accident and resulting from the ownership, maintenance or use of a covered auto.”
Because it is not disputed that the Midco truck was a covered vehicle under the auto policy, the issue is whether the accident to Ciuba arises out of the vehicle’s use. “[T]he phrase ‘arising out of’ must be interpreted in a broad and comprehensive sense to mean ‘originating from’ or ‘growing out of’ the use of the automobile.” Penn Nat. Ins. Co. v. Costa, 198 N.J. 229, 237 (2009) (internal citations omitted).

For an injury to arise out of a vehicle’s use, there must be a substantial nexus between the injury suffered and the asserted negligent use of the motor vehicle. Automobile insurance coverage only comes into play if the injuries were caused by a negligent act and that negligent act, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile.

In Penn, a worker was injured as he was leaving his employer’s property after offering to assist his employer in changing a tire on a pickup truck parked in the employer’s driveway. The worker slipped on ice on the driveway and struck his head on a bumper jack that was being used to lift the truck.  The Court held that there was not a substantial nexus between the maintenance of the truck by the employer and the worker’s fall because the injury occurred as a result of the employer’s failure to keep his driveway clear of ice rather than the vehicle’s maintenance.
Plaintiff argues that the “staging” was done in preparation for the loading of the Midco truck, and that the purpose was to facilitate the loading of the logs. Here, it is undisputed that Dante employees were not engaged in loading the Midco truck when the rogue log struck Ciuba. Rather, they were engaged in staging the logs at the time of the accident. Dante’s staging of logs was not an integral part of the loading process. It was not even necessary for Midco’s truck to be at the site for staging to occur.

Indeed, as the motion judge observed, the staging could have been completed “even before Midco was hired.”
Therefore the motion judge correctly determined that the staging of the logs was not part of the “loading and unloading” process and did not constitute “use” of the Midco truck.
Ciuba’s accident arose not from any loading or unloading activities but from the negligent acts of those involved in the clearing of the trees. As such, those involved parties were in the best position to avert harm and Dante’s insured is not entitled to contribution from defendants.

ZALMA OPINION
The accident did not arise out of the operation or use of the vehicle. When an accident is caused by the negligent maintenance of the premises and the only connection to that event is the fact that the motor vehicle is present, no realistic social or public policy is served by straining to shift coverage from the property owner’s insurer to the auto insurer. The only connection with the vehicle in this case was that it was close by, not a cause of the injury.