ELAINE LISING v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2927-08T2
ELAINE LISING, ADMINISTRATOR AD
PROSEQUENDUM AND ADMINISTRATOR OF
THE ESTATE OF EARL TITO LISING,
JR., DECEASED AND ELAINE LISING,
INDIVIDUALLY,
Plaintiffs,
v.
NEW JERSEY MANUFACTURERS INSURANCE
COMPANY AND CONTINENTAL INSURANCE
COMPANY,
Defendants,
and
TESIMA KOREA CO., LTD AND DAEGU
EXPORT PACKAGING CO., K.E.C.
INTERNATIONAL CO., LTD AND KOREA
EXPRESS U.S.A., INC.,
Intervening Plaintiffs-
Respondents,
v.
NEW JERSEY MANUFACTURERS INSURANCE
COMPANY AND CONTINENTAL INSURANCE
COMPANY,
Defendants-Appellants.
__________________________________________________
Argued February 8, 2010 Decided August 26, 2010
Before Judges Rodríguez, Reisner and
Yannotti.
On appeal from the Superior Court of New
Jersey, Law Division, Civil Part, Middlesex
County, Docket No. L-7906-07.
Steven J. Polansky argued the cause for
appellant New Jersey Manufacturers
(Marshall, Dennehey, Warner, Coleman &
Goggin, P.C., attorneys; Mr. Polansky and
Michael A. Gorokhovich, on the brief).
Peter Chamas argued the cause for respondent
Elaine Lising Adminstrator Ad Posequendum
and Administrator of the Estate of Earl Tito
Lising, Jr. and Elaine Lising, Individually
(Gill & Chamas, LLC, attorneys; Mr. Chamas,
of counsel; Erroll J. Haythorn, on the
brief).
Chull S. Park argued the cause for
respondent Daegu Export Packaging Co. (Park
Law Group, LLC, attorneys; Mr. Park and Hyun
Suk Choi, on the brief).
Ryan D. Loxam argued the cause for
respondent Tesima Korea Co., LTD (Rebenack,
Aronow, and Mascolo, attorneys; Edward J.
Rebenack, of counsel; Mr. Loxam, on the
brief).
PER CURIAM
The issue presented on this appeal stems from a declaratory
judgment action involving an insurer's obligation to provide
coverage to additional insureds in a "loading and unloading
case" pursuant to the omnibus automobile-insurance provision.
Specifically, whether the negligent loading of goods overseas
prior to a shipping container being attached to the insured's
A-2927-08T2
2
vehicle arises out of the "use of the motor vehicle." We hold
that it does and affirm the trial court's decision.
These are the facts relevant to this appeal. Earl Tito
Lising, Jr. (decedent), an M&M International (M&M) employee, was
killed on March 30, 2005, while unloading crates of steel tubing
from a shipping container. It is undisputed that the container
remained sealed until its delivery to M&M's place of business in
Edison.
M&M, which is located in Edison, purchased steel tubing
from Tesima, a South Korean company. Tesima purchased wooden
crates from Daegu, a South Korean company, to ship the steel
tubing. Tesima contracted with Korea Express International
Company (KEIC), a South Korean company, to transmit the steel
tubing overseas to the New Jersey Inter Rail terminal (NJIRT),
located in Jersey City. KEIC contracted with Hanjin Shipping, a
South Korean company, to provide a shipping container to Tesima
at Daegu's place of business.
Prior to the container leaving Daegu's place of business, a
Korean truck driver loaded the container with the crates. The
container was sealed in the presence of a Tesima representative.
Hanjin shipped the container on its vessel from Pusan, South
Korea to Long Beach, California. KEIC hired Korea Express U.S.,
Inc. (Korea Express) as its freight forwarding agent to ship the
A-2927-08T2
3
container by rail to NJIRT. M&M hired Niban Express as its
freight forwarding agent to clear the container through United
States Customs and to hire Port of New York Express (PONYE), a
trucking company, to transport the container from NJIRT to
Edison. Following its arrival at NJIRT, the sealed Hanjin
container was placed on a chassis by NJIRT personnel and
released to PONYE for transportation to M&M. The container was
attached to the PONYE vehicle at the time of the accident.
New Jersey Manufacturers (NJM) provided PONYE with a
trucker insurance policy, which contained an omnibus provision
providing coverage for "use" of the insured vehicles.
Specifically, the NJM policy provides that it "will pay all sums
an insured legally must pay as damages because of bodily injury
or property damage to which this insurance applies, caused by an
accident and resulting from the ownership, maintenance or use of
a covered auto." "Trailers" constitute covered autos under the
policy. The policy defines "trailer" as including "semitrailer
or dollie used to convert a semi-trailer into a trailer. But
for Trailer Interchange coverage only, trailer also includes a
container." The policy contains an "Intermodal Interchange
Uniform Endorsement Form UIIE-1."
The policy defines "insured" as follows:
1. WHO IS AN INSURED
A-2927-08T2
4
The following are insureds:
a. You for any covered auto.
b. Anyone else while using with your
permission a covered auto you own, hire or
borrow except:
...
(4) Anyone other than your employees,
partners (if you are a partnership), members
(if you are a limited liability company), a
lessee or borrower or any of their
employees, while moving property to or from
a covered auto.
Plaintiff Elaine Lising, the Administratrix ad Prosequendum
and Administratrix of decedent's estate, sued on behalf of the
Estate and herself. The underlying wrongful death action joined
as defendants all entities involved in the transporting of the
container from South Korea to Edison. Plaintiff alleged that
the crates were negligently stacked inside the container when it
was loaded, and that this negligence constituted the proximate
cause of decedent's death.
Daegu wrote to NJM claiming that it was an additional
insured pursuant to PONYE's policy due to its involvement in the
The other entities named in
"loading" of the container.
plaintiff's wrongful death complaint contended that they were
also covered as additional insureds because plaintiff's claims
arose out of the negligent "loading" of the insured vehicle in
NJM declined additional insured coverage.
South Korea.
A-2927-08T2
5
Plaintiff then filed a declaratory judgment action
asserting that Tesima, Daegu, KECI and Korea Express were
additional insureds under the NJM policy issued to PONYE.
Plaintiff's direct claim against NJM was dismissed for lack of
standing. Thereafter, Tesima and Daegu filed the present
declaratory action against NJM.1
NJM moved for summary judgment, seeking a declaration that
Tesima and Daegu were not additional insureds under the NJM
policy. Tesima and Daegu cross-moved for summary judgment.
Judge Phillip Lewis Paley denied NJM's summary judgment motion
and entered summary judgment in favor of Daegu and Tesima. NJM
filed this appeal.
New Jersey's compulsory motor vehicle insurance law
requires insurers of registered vehicles to provide coverage for
losses "resulting from liability imposed by law for bodily
injury, death and property damage sustained by any person
arising out of the ownership, maintenance, operation or use of a
N.J.S.A. 39:6B-1; see also N.J.S.A. 39:6A-3.
motor vehicle."
We have interpreted "use" to impose an obligation to provide
omnibus liability coverage to all persons who participate in the
"loading and unloading" of the named insured's vehicle.
1
KECI and Korea Express did not seek coverage and instead filed
a motion for summary judgment alleging that they were not
involved in the loading of the container.
A-2927-08T2
6
Bellafronte v. Gen. Motors Corp.,
151 N.J. Super. 377, 381-83
(App. Div.), certif. denied,
75 N.J. 533 (1977). This broad
construction of mandatory "use" coverage is necessary "to
effectuate the overriding legislative policy of assuring
financial protection for the innocent victims of motor vehicle
accidents." Id. at 382.
This requirement, however, is not intended to be extended
to insure all defendants against all claims arising from any
accident that is related to loading or unloading regardless of
Pisaneschi v. Turner Constr. Co., 345 N.J. Super.
causation.
336, 343 (App. Div. 2001). Instead, the requirement is only
"intended to protect the named insured and others who, in the
pick-up or delivery process, are actually using the motor
vehicle and its contents during the 'complete operation'" of the
vehicle. Ryder/P.I.E. Nationwide, Inc. v. Harbor Bay Corp.,
Inc.,
119 N.J. 402, 409 (1990) (quoting Wakefern Food Corp. v.
Gen. Accident Grp.,
188 N.J. Super. 77, 86 (App. Div. 1983)).
Pursuant to New Jersey's "complete operation" doctrine,
"loading and unloading" insurance "covers the entire process
involved in the movement of goods, from the moment they are
given into the [named] insured's possession until they are
turned over at the place of destination to the party to whom
delivery is made." Pisaneschi, supra,
345 N.J. Super. at 344-45
A-2927-08T2
7
(alterations in original). Any accident occurring during and
arising out of the process of loading or unloading the insured
Cenno v. W.V. Paper & Pulp Co., 109 N.J.
vehicle is covered.
Super. 41, 46-47 (App. Div.), certif. denied,
56 N.J. 99 (1970).
Further, the distinctions between unloading and delivery and
between loading and preparatory acts are not considered. Id. at
47.
To determine whether a defendant's claim is covered by the
omnibus provision, "[t]he pertinent inquiry is whether the acts
of negligence charged to defendants were part of the overall
loading or unloading operation so that, in the commission of the
negligent acts charged, defendants can be said to have been
using the vehicle and thereby became additional insureds under
Kennedy v. Jefferson Smurfit Co.,
147 N.J. 394,
the policy."
400 (1997). Consequently, to qualify as additional insured, a
defendant must demonstrate: (1) its alleged act or omission
constituted an integral part of the loading or unloading of
insured's vehicle, Kennedy, supra,
147 N.J. at 400-01; Cenno,
supra,
109 N.J. Super. at 45; and (2) plaintiff's injuries
occurred during the process of loading or unloading that vehicle
and was causally connected with defendant's alleged negligent
act, Kennedy, supra,
147 N.J. at 399; Md. Cas. Co. v. N.J. Mfrs.
A-2927-08T2
8
Cas. Ins. Co.,
48 N.J. Super. 314, 320 (App. Div.), aff'd,
28 N.J. 17 (1958).
Here, Judge Paley based his decision on the fact that
loading of the container was completed in South Korea. The
judge noted that the container was insured under the NJM policy
once it was attached to the insured vehicle. Tesima and Daegu
therefore qualified as additional insureds because the loading
of the container was an "integral part" of the "complete
operation."
Applying the appropriate appellate standard of review,
which is the same as in the motion court, see Prudential Prop. &
Cas. Ins. Co. v. Boylan,
307 N.J. Super. 162, 167 (App. Div.),
certif. denied,
154 N.J. 608 (1998), we affirm the grant of
summary judgment in favor of Daegu and Tesima. We reject NJM's
argument that the activities of Tesima and Daegu in placing the
goods into the container did not constitute "loading" of the
insured vehicle. NJM insured the container and chassis once it
See Killeen
became attached to the insured PONYE vehicle.
Trucking, Inc. v. Great Am. Surplus Lines Ins.,
211 N.J. Super.
712, 716-17 (App. Div. 1986). Once a container is coupled with
a chassis, it constitutes a trailer and will be covered by motor
The policy here unambiguously
vehicle insurance. Ibid.
afforded coverage for a trailer that was used by the insured.
A-2927-08T2
9
Thus, the NJM policy covered the "complete operation" of the
loading and unloading of the trailer when it was attached to the
insured vehicle.
We also reject NJM's argument that the activities of Tesima
and Daegu were too attenuated. The stacking of the wooden
crates containing the metal tubing constituted an "integral part
See Kennedy, supra, 147
of the loading" of the insured vehicle.
N.J. at 401. The stacking of the crates was "necessary" to
complete the process of loading. Id. at 399-400. Further, it
was undisputed that decedent's injuries occurred during the
process of unloading. Because the fatal injury was causally
connected to the negligence of Tesima and Daegu in stacking the
crates, coverage is afforded.
NJM further argues that the loading of goods into an
intermodal shipping container for international transportation
was an act unrelated to the loading of the insured's vehicle.
NJM sets forth four reasons. First, NJM argues that if we find
that the activities of Tesima and Daegu constituted the "use" of
the insured's vehicle, then any contact with the goods by an
employee of the shipping or rail companies would constitute
"use" of the insured's vehicle. Second, the use of an
intermodal shipping container was not causally related to the
transportation by the insured's vehicle. Third, the contracts
A-2927-08T2
10
of Tesima and Daegu were limited to delivering the goods to
NJIRT and the packing of the container therefore was not in
preparation for delivery to the insured vehicle. Fourth,
PONYE's responsibilities were limited to transporting a sealed
container. We disagree.
NJM's first argument misconstrues when the policy covering
the insured vehicle affords coverage for loading and unloading.
As mentioned, the shipping container does not constitute an
insured auto until it is connected to the insured's vehicle.
See Killeen Trucking, supra,
211 N.J. Super. at 716-17.
Consequently, if an accident happens prior to the shipping
container attaching to the insured vehicle, the NJM policy will
not afford coverage. Only after an accident occurs as a result
of the unloading of the container, will the policy cover
negligent acts in loading if such acts are causally related to
See Kennedy, supra,
147 N.J. at 399.
the injury sustained.
Next, whether or not Tesima and Daegu loaded the intermodal
container with the contemplation that it would be eventually
attached to the insured vehicle is irrelevant. The pertinent
inquiry is whether the activities were integral to complete
loading and unloading. See Kennedy, supra,
147 N.J. at 400-01.
Third, it is unreasonable to argue that the stacking of the
crates in the container was unrelated to the complete operation
A-2927-08T2
11
of the insured. This conduct was "necessary" to complete the
loading and unloading of the container that was subsequently
insured under the NJM policy.
Finally, case law reflects that the loading and unloading
doctrine pertains to the movement of goods and/or cargo. See
Kennedy, supra,
147 N.J. Super. at 396 (loading constituted
placing cardboard into trailer); Cenno, supra,
109 N.J. Super.
at 44 (unloading constituted removing bale from trailer). The
doctrine is not limited to the loading and unloading of the
container itself. Consequently, in attaching the container to
the insured vehicle, the insured assumed responsibility for the
complete operation, that is the loading and unloading of the
goods packed in the container.
Further, as NJM points out, the case law involves
traditional scenarios involving only one mode of transportation.
See Kennedy, supra, at 396; Pisaneschi, supra,
345 N.J. Super.
at 339-40. However, in this instance and in the context of
international shipping, there will be multiple methods of
transportation before the container carrying cargo will be
attached to the insured vehicle. Requiring that the insured
vehicle be "involved" with the container at the time it is
loaded will narrow the coverage afforded by the omnibus statute
and conflict with the legislative policy.
A-2927-08T2
12
NJM also contends that "any use of a vehicle must be with
permission of the named insured before additional insured
coverage is triggered." NJM argues that this requirement is
consistent with the New Jersey omnibus statute. We disagree.
The obligation to provide coverage for loading and
unloading is created by statute and cannot be limited by
contract. Ryder/P.I.E., supra,
119 N.J. at 407. The Supreme
Court has recognized that "a policy exclusion may not override
statutory mandate to provide insurance coverage and the attempt
to do so in a loading and unloading accident is void."
Potenzone v. Annin Flag Co.,
191 N.J. 147, 155 (2007).
Thus, requiring a person involved in loading or unloading
an insured vehicle to first obtain permission runs counter to
the broad scope of coverage that an insurer must provide for
accidents arising out of the loading and unloading of the
Bellafronte, supra,
151 N.J. Super. at 382.
insured vehicle.
Such a requirement would be contractual. This contractual
requirement therefore cannot override the broad coverage of the
omnibus statute. Pontenzone, supra,
191 N.J. at 155.
Affirmed.
A-2927-08T2
13
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
