Superior Court of New Jersey,

Appellate Division.

BURLINGTON COAT FACTORY OF NEW JERSEY, L.L.C., Plaintiff–Appellant,

v.

JAY DEE TRUCKING, National Specialty Insurance Company, Seepaul Singh and Bhagwandai Singh, Defendants–Respondents.

 

Submitted March 4, 2014.

Decided June 2, 2014.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L–2564–12.

Barrett Lazar, L.L.C., attorneys for appellant (Marc B. Schuley, of counsel and on the brief).

 

Rawle & Henderson L.L.P., attorneys for respondents (James R. Callan, on the brief).

 

Before Judges ESPINOSA and O’CONNOR.

 

PER CURIAM.

*1 This is a dispute over insurance coverage. The underlying matter was brought by Seepaul Singh FN1 against his employer, plaintiff Burlington Coat Factory of New Jersey, LLC, (Burlington), for personal injuries he suffered while cargo was being unloaded from a truck owned by defendant Jay Dee Fast Delivery Trucking FN2 (Jay) at Burlington’s loading dock.

 

FN1. His wife, Bhagwandai Singh, also sued per quod.

 

FN2. This defendant was improperly identified as Jay Dee Trucking in the complaint.

 

Plaintiff filed the within declaratory judgment action against Jay and its insurance carrier, defendant National Specialty Insurance Company (National). Plaintiff claimed it was entitled to a defense and indemnification under a Trucker’s Policy issued to Jay by National. The trial court granted defendants’ motion for summary judgment and dismissed plaintiff’s complaint. We affirm.

 

I

In his action against Burlington, Singh contended that Burlington had previously used a dock plate to bridge the gap between its loading dock and any delivery truck parked at the dock to unload cargo. Three or four years before his accident, Burlington misplaced its dock plate, causing Singh and his co-workers to resort to placing “just any piece of board” they could find to bridge the gap between the dock and the back of a truck.

 

On the day of the accident, the driver of Jay’s truck backed up to the loading dock in preparation for unloading cargo. One of Burlington’s employees placed a piece of plywood measuring approximately five feet long, two feet wide, and three-quarters of an inch thick between the dock and the truck. The plywood was not secured or anchored in any way. Singh then went inside of the truck to scan boxes.

 

Although he was somewhat uncertain about how he was injured because “it happened so fast,” at his deposition Singh claimed that what “probably” occurred was that he stepped onto the piece of plywood and the board “slid.” He did specifically recall the board moving beneath his feet. After he slid, he briefly blacked out and when he regained consciousness, he was “hanging” in the space between the truck and the dock. In answers to interrogatories in the underlying matter, Burlington also claimed Singh fell between the truck and the loading dock.FN3

 

FN3. In its brief, Burlington asserts Singh was “in the process of assisting in the unloading of a Jay Dee Trucking truck, when he was caused to fall near the edge of the back of the truck.” A close reading of Singh’s deposition testimony does not support this version and is contrary to Burlington’s answers to interrogatories in the underlying matter.

 

On June 15, 2012, Burlington filed its complaint for declaratory judgment. On June 29, 2012, Burlington settled the underlying matter with Singh for $32,500. Defendants filed and the trial court granted their motion for summary judgment and dismissed the complaint. Finding that Forsythe v. Teledyne Turner Tube, 209 N.J.Super. 608 (App.Div.1986) controls, and stating:

 

The Loading and Unloading Doctrine does not apply in this case. The complaint, the underlying complaint, was couched [in] premises liability, and the facts allege premises liability as submitted, and there is no coverage ….

 

Plaintiff appeals, challenging the trial court’s ruling.

 

II

Our review of the grant or denial of summary judgment is de novo, using the same legal standard as the trial court. Dugan Constr. Co. v. N.J. Tpk. Auth., 398 N.J.Super. 229, 238 (App.Div.), certif. denied, 196 N.J. 346, 953 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is proper if, viewing the evidence in the light most favorable to the non-moving party, no genuine issue of material fact is disputed. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46–2(c). The trial court’s factual findings are binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Conversely, the trial court’s conclusions of law “and the legal consequences that flow from established facts are not entitled to any special deference.” Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Here, there were not any material issues of fact in dispute, making the matter ripe for summary disposition.

 

*2 In its brief, Burlington asserts National is obligated to provide a defense and indemnification in the underlying matter, as “an accident must be covered by the auto insurance policy of a truck’s owner, where negligence is directly upon the act and preparation of the loading and unloading process of the truck at issue.” We find, as did the trial court, Forsythe dispositive.

 

In Forsythe, the plaintiff backed his truck into the defendant’s loading bay for the purpose of unloading cargo. supra, 209 N.J.Super. at 610. The plaintiff was injured while attempting to put the loading dock plate into place. Id. at 610–11. The plaintiff asserted the defendant, the owner of the premises, was negligent for failing to properly maintain the loading area.   Id. at 611. The defendant and its carrier argued that, as the use of the docking plate was an integral part of the loading and unloading process, then the carrier that insured the truck was obligated to provide insurance coverage for the accident to the defendant. Id. at 612.

 

We held the negligence of the premises owner in failing to maintain its loading dock, which resulted in the collapse of a docking plate upon one preparing to unload cargo, cannot be viewed as a negligent use of the truck that would trigger insurance coverage under the truck’s policy. Id. at 616. We distinguished

 

between cases where there is negligence in the actual loading and unloading operation, such as by an employee of a warehouse in loading a truck, and those cases where the negligence is not directly related to the loading and unloading, but the accident occurs during the loading and unloading process, such as where there is a dangerous condition on the premises of the warehouse…. We are satisfied that the attempt to adjust the loading dock plate, although necessary to unload the truck, should not be construed to constitute a use of the vehicle.

 

Here, the allegations of negligence that [the owner of the premises] failed to maintain its loading dock plate in proper condition or warn of its dangerous condition, is analogous to negligent maintenance of the loading dock itself and any liability for that condition would rest with [the owner of the premises], and its insurer, Hartford. We are satisfied that the attempt to adjust the loading dock plate, although necessary to unload the truck, should not be construed to constitute a use of the vehicle.

 

[Id. at 616–17.]

 

Here, Singh fell when he stepped onto an unsecured piece of plywood that shifted, causing him to lose his balance and fall. Burlington’s employees put the plywood in place to facilitate access to delivery trucks parked at the loading dock because, as Singh alleged, Burlington failed to provide a safe loading area by providing a docking plate. While the accident occurred during the unloading process, it was the placement of this unstable, makeshift device to bridge the gap between the dock and the Jay truck, precipitated by Burlington’s failure to maintain the premises, that caused Singh to be injured. The accident was not due to any negligence that was reasonably attributable to the use of the truck. In fact, in the underlying action Singh did not even allege Jay was culpable, and nor did Burlington file a third party action alleging another party caused Singh’s injuries.

 

*3 Accordingly, “[o]nce it is determined that the fall was caused by the condition of the premises, the case is controlled by those cases which deny coverage under the loading/unloading clause ‘because the accident arose not from the loading or unloading activities, but from the negligent acts of the owner of the premises where the accident occurred.’ “ Craggan v. Ikea United States, 332 N.J.Super. 53, 68 (App.Div.2000) (quoting Kennedy v. Jefferson Smurfit Co., 147 N.J. 394, 401 (1997)).

 

Burlington also claims an agreement between it and Jay obligates Jay to indemnify and hold Burlington harmless. We disagree. The agreement states

 

[Jay] agrees to save [Burlington] and its personnel harmless and to indemnify them against any and all claims for all loss, expense liability or damage arising out of or in connection with the negligent performance of work under this agreement, except to the extent that any claim which is the result, either in whole or in part, of any negligent or deliberately injurious act or omission on the part of [Burlington], its employees or agents.

 

The agreement does not compel Jay to indemnify Burlington for Burlington’s own negligent or intentional acts; the agreement is unavailing to Burlington.

 

After carefully considering the record and the briefs, we conclude plaintiff’s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).

 

Affirmed.