Court of Appeals of Michigan.

Gwendolyn NEILL, Personal Representative of the Estate of William John Neill, IV, Plaintiff-Appellant,

v.

STEEL MASTER TRANSFER, INC., Defendant-Appellee,

andRozafa Transport, Inc., and Gjergi Rrogomi, Defendants.

Gwendolyn Neill, Personal Representative of the Estate of William John Neill, IV, Plaintiff-Appellee,

v.

Steel Master Transfer, Inc., Defendant,

andRozafa Transport, Inc., and Gjergi Rrogomi, Defendants-Appellants.

Docket Nos. 279122, 281057.

Oct. 21, 2008.

PER CURIAM.

In Docket No. 279122, plaintiff appeals by leave granted an order granting defendant, Steel Master Transfer, Inc.’s (“Steel Master’s”) motion for summary disposition. In Docket No. 281057, defendant, Rozafa Transport, Inc. (“Rozafa”), and Gjergi Rrogomi appeal by leave granted an order granting plaintiff’s motion to dismiss their notice of nonparty at fault. We affirm in Docket No. 279122 and reverse in Docket No. 281057.

This case arises out of the death of William John Neill, IV (“Neill”), that occurred on February 2, 2006, when an 816-pound piece of machinery that he was unloading from a trailer fell from the trailer and crushed him. On appeal, plaintiff first argues that there exist issues of fact concerning whether Steel Master negligently prepared and loaded the machinery onto the trailer. We disagree.

The Court reviews de novo an appeal from an order granting summary disposition pursuant to MCR 2.116(C)(10). Dressel v. Ameribank, 468 Mich. 557, 561; 664 NW2d 151 (2003). A motion for summary disposition pursuant to MCR 2.116(C)(10) should be granted when the moving party is entitled to judgment as a matter of law because there is no genuine issue of material fact. Maiden v. Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999).“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”  West v. Gen. Motors Corp., 469 Mich. 177, 183; 665 NW2d 468 (2003). In reviewing this issue, we must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence and construe them in the light most favorable to the nonmoving party. Corley v. Detroit Bd. of Ed., 470 Mich. 274, 278; 681 NW2d 342 (2004). If the nonmoving party would bear the burden of proof at trial, that party must show the existence of a genuine issue of material fact by setting forth documentary evidence. Karbel v. Comerica Bank, 247 Mich.App 90, 97; 635 NW2d 69 (2001). A plaintiff may not oppose summary disposition on the basis of unsupported speculation. Id.

As a preliminary matter, we note that plaintiff’s first amended complaint failed to allege negligent preparation and loading. Therefore, the complaint failed on its face to satisfy MCR 2.111(B)(1) regarding this claim.While plaintiff contends that the depositions served as notice to Steel Master that her claims pertained to negligent preparation and loading, plaintiff has cited no authority for the proposition that discovery may trump the rules of notice pleading. It is not this Court’s responsibility to search for authority to sustain a party’s position. Wilson v. Taylor, 457 Mich. 232, 243; 577 NW2d 100 (1998). Therefore, this argument is without merit.

MCR 2.111(B)(1) requires a complaint to contain “[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend….”

Even if plaintiff’s first amended complaint had sufficiently alleged negligent preparation and loading, Steel Master was not liable in accordance with the ruling in United States v. Savage Truck Line, Inc., 209 F.2d 442, 445 (CA 4, 1953). In MCL 480.11a, Michigan adopted the federal Motor Carrier Safety regulations contained in 49 CFR 392.9. DOT v. Initial Transport, Inc., 276 Mich.App 318, 323; 740 NW2d 720 (2007), rev’d in part on other grounds 481 Mich. 862 (2008). This regulation provides, in relevant part, that a driver may not operate a commercial motor vehicle unless the vehicle’s cargo is properly distributed and adequately secured and requires the driver to ensure compliance with this requirement. 49 CFR 392.9(a)(1) and (b)(1). The United States Court of Appeals for the Sixth Circuit has held that “[w]hile not dispositive, [CFR 392.9(b) ] is indicative of the proper allocation of duty as between a common carrier and a shipper for the proper loading of goods.”  Rector v. Gen. Motors Corp., 963 F.2d 144, 147 (CA 6, 1992).

Although not binding, this Court may consider federal precedents persuasive. Rasheed v. Chrysler Corp., 445 Mich. 109, 124 n 20; 517 NW2d 19 (1994).

The United States Court of Appeals for the Fourth Circuit, however, in Savage enunciated the “shipper exception” to this regulation:

The primary duty as to the safe loading of property is therefore upon the carrier [here, Rozafa and Rrogomi]. When the shipper [here, Steel Master] assumes the responsibility of loading, the general rule is that he becomes liable for the defects which are latent and concealed and cannot be discerned by ordinary observation by the agents of the carrier; but if the improper loading is apparent, the carrier will be liable notwithstanding the negligence of the shipper. This rule is not only followed in cases arising under the federal statutes by decisions of the federal courts but also for the most part by the decisions of the state courts. [Savage Truck Line, Inc., supra at 445.]

Although Michigan has not formally adopted the Savage rule, the Maine Supreme Court in Decker v. New England Pub. Warehouse, Inc., 2000 ME 76; 749 A.2d 762, 767 (Me, 2000), noted that, as recently as 2000, the majority of state courts have adopted Savage .See, e.g., Smart v. American Welding & Tank Co., 149 NH 536; 826 A.2d 570 (2003); Brashear v. Liebert Corp., 2007 Ohio 296 (Ohio Ct App 2007); WJ Casey Trucking & Rigging Co. v. Gen. Electric Co., 151 NJ Super 151; 376 A.2d 603 (1977). Although cases from foreign jurisdictions are not binding, they may be persuasive. Hiner v. Mojica, 271 Mich.App 604, 612; 722 NW2d 914 (2006).

Assuming without deciding that Savage is applicable, Steel Master is not liable for preparing and loading the conveyor parts onto the trailer. The elements of negligence are 1) duty; 2) breach of that duty; 3) causation; and 4) damages. Kosmalski v. St. John’s Lutheran Church, 261 Mich.App 56, 60; 680 NW2d 50 (2004). Despite plaintiff’s claim to the contrary, it was undisputed below that Steel Master did not exclusively assume responsibility for loading the conveyor parts. On the contrary, Arthur Nash, a Steel Master employee, explained that loading decisions were made between both himself and Rrogomi. Although Steel Master’s employees loaded the conveyor parts using a hi-lo, Rrogomi strapped the conveyor parts and monitored weight distribution on the trailer. Thus, in accordance with Savage, Steel Master was not liable for defects in the loading process.

Plaintiff next contends that the trial court abused its discretion in denying her motion to file a second amended complaint because a causal link existed between Steel Master’s negligence and Neill’s death. We disagree. Where summary disposition is based on MCR 2.116(C)(8), (9), or (10), a trial court should freely provide the nonprevailing party the opportunity to amend its complaint unless such would not be justified. MCR 2.116(I)(5).“We will not reverse a trial court’s decision to deny leave to amend pleadings unless it constituted an abuse of discretion.”  Ormsby v. Capital Welding, Inc., 471 Mich. 45, 53; 684 NW2d 320 (2004) (internal citation omitted). A trial court abuses its discretion when its decision is outside the range of reasonable and principled outcomes. Maldonado v. Ford Motor Co., 476 Mich. 372, 388; 719 NW2d 809 (2006).

“A motion to amend ordinarily should be granted, and should be denied only for the following particularized reasons: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and 5] futility….”  Weymers v. Khera, 454 Mich. 639, 658; 563 NW2d 647 (1997) (quotation and citation omitted).

Allowing plaintiff to file a second amended complaint to include allegations that Steel Master failed to “prepare, palletize, load [and] ship” the conveyor parts and failed to warn of the “defective method of loading, shipping … [or] inadequacies of the preparation for transport” would have been futile. Indeed, as noted supra, even if plaintiff’s first amended complaint properly placed Steel Master on notice of plaintiff’s theories of recovery, Steel Master was not liable under Savage because it did not assume sole responsibility for loading the conveyor parts. Consequently, the trial court did not abuse its discretion in denying plaintiff’s motion to file a second amended complaint.

We note that the trial court characterized plaintiff’s allegations in the proposed second amended complaint as a product liability action and denied plaintiff’s motion on these grounds;  plaintiff, however, contested this characterization both below and does so on appeal. “This Court is not bound by a party’s choice of labels for his or her action because this would put form over substance.”  Kostyu v. Dep’t of Treasury, 170 Mich.App 123, 130; 427 NW2d 566 (1988).

Plaintiff’s first amended complaint failed to include allegations of negligent design and manufacture as alleged in the original complaint.

Under the product liability statute, MCL 600.2945(h), “ ‘Product liability action’ means an action based on a legal or equitable theory of liability brought for the death of a person or for injury to a person or damage to property caused by or resulting from the production of a product.”“[P]roduction” as defined by the product liability statute includes preparation and packaging of a product. MCL 600.2945(i). Plaintiff’s expert, Paul Singh, testified that Steel Master manufactured and sold a “product-packaged system that consisted of [its] product, the conveyor, and the use of wooden materials to form a structure that was sold and is at issue in this case.”This is consistent with plaintiff’s allegation in her proposed second amended complaint that defendant failed to properly prepare the conveyor parts. In light of this, plaintiff’s allegations in her proposed second amended complaint amounted to a product liability claim.

Steel Master contends that plaintiff improperly relied on her expert witnesses’ depositions because the court entered a protective order restricting those depositions to discovery only. Although MCR 2.302(C)(7) permits a trial court to issue a protective order providing “that a deposition shall be taken only for the purpose of discovery and shall not be admissible in evidence except for the purpose of impeachment,” the order at issue did not expressly limit the depositions to impeachment purposes. Therefore, this argument fails.

Had plaintiff filed her proposed second amended complaint, Steel Master would arguably have suffered prejudice. “[A] trial court may find prejudice when the moving party seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial, and the opposing party shows that he did not have reasonable notice, from any source, that the moving party would rely on the new claim or theory at trial.”Weymers, supra at 659-660 (footnote omitted). Plaintiff sought the amendment at issue after the close of discovery. Despite Singh’s testimony, Steel Master was not on notice that plaintiff would pursue a product liability claim. On the contrary, the crux of plaintiff’s questioning during the depositions was to elicit evidence of negligence and not product liability, per se.Consequently, the court properly denied plaintiff’s motion to amend the complaint on these grounds.

In Docket No. 281057, Rozafa and Rrogomi contend that the trial court erred in granting plaintiff’s motion to dismiss their notice naming Steel Master as a nonparty at fault. We agree. Although the trial court characterized the notice of nonparty at fault as a motion for reconsideration of the order granting Steel Master’s motion for summary disposition under MCR 2.119(F), the notice actually sought a legal determination regarding whether fault may be apportioned to Steel Master. This Court’s review of questions of law, including whether a party owes another a duty in a negligence action, and issues of statutory interpretation is de novo. Devillers v. Auto Club Ins. Ass’n, 473 Mich. 562, 566; 702 NW2d 539 (2005); Fultz v. Union-Commerce Assoc., 470 Mich. 460, 463; 683 NW2d 587 (2004).

Michigan’s 1995 tort reform legislation abolished joint and several liability except in certain, very specific instances. Smiley v. Corrigan, 248 Mich.App 51, 53; 638 NW2d 151 (2001). Regarding the allocation of fault under a comparative fault scheme of several liability, MCL 600.2957 provides, in relevant part:

(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person’s percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.

* * *

(3) … Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action.

Similarly, MCL 600.6304(1)(b) provides that in personal injury and wrongful death actions involving the fault of more than one person, the trial court must instruct the jury to answer special interrogatories regarding the percentage of total fault of all persons that contributed to the death or injury “regardless of whether the person was or could have been named as a party to the action.”Under MCL 600.6304(8), “ ‘fault’ includes an act, an omission, conduct, including intentional conduct, a breach of warranty or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.”  Jones v. Enertel, Inc., 254 Mich.App 432, 436; 656 NW2d 870 (2002). In accordance with Jones,“a duty must first be proved before the issue of fault or proximate cause can be considered.”Id. at 437.

We note that our Supreme Court has recently vacated its opinion in Romain v. Frankenmuth Ins. Co., — Mich. —-;754 NW2d 257 (2008), which affirmed that Jones v. Enertel, Inc., 254 Mich.App 432; 656 NW2d 870 (2002), served as the controlling precedent by requiring proof of a duty before the allocation and apportionment of liability under MCL 600.6304. Romain v. Frankenmuth Ins. Co., — Mich. —-;— NW2d —- (Docket No. 135546, issued September 24, 2008). In vacating their earlier opinion, the Supreme Court is reconsidering, in addition to other issues, “whether the Legislature intended to impose a legal duty requirement as a precondition for allocating fault under …MCL 600.6304.”Id .

In granting Steel Master’s motion for summary disposition, the trial court did not make a determination on the issue of Steel Master’s fault. Rather, the court only found that there was no genuine issue of material fact regarding Steel Master’s liability based on plaintiff’s asserted theories of recovery. Specifically, the court determined that: Steel Master was not liable for negligent transportation and delivery because Rozafa was the carrier responsible for transporting and delivering the conveyor parts to Visteon; Steel Master was not liable for Rrogomi’s actions because Steel Master was not Rrogomi’s employer; plaintiff failed to establish an issue of fact regarding whether Steel Master negligently packaged and loaded the trailer; and Steel Master did not breach a duty to warn given James Borelli’s testimony that both he and Neill assessed the conveyor parts’ stability before unloading the trailer.

Because “a duty must first be proved before the issue of fault or proximate cause can be considered…. [A] party adjudicated to be without fault may not have fault allocated to him under the guise of the doctrine of several liability.”Jones, supra at 437-438.Notably absent from the trial court’s opinion and order was any finding that Steel Master owed plaintiff a duty regarding packaging and loading of the trailer/shipment. Rather, the trial court determined that there existed no issue of fact that Steel Master did not breach a duty under plaintiff’s asserted theories of recovery. Therefore, given that the trial court’s ruling was not based on the absence of a duty, a determination was not made regarding Steel Master’s fault. Because that issue was not resolved, the trial court erred in dismissing Rozafa’s and Rrogomi’s notice of nonparty at fault.

Plaintiff contends that this Court’s analysis in Jones precludes Rozafa and Rrogomi from naming Steel Master a nonparty at fault. However, unlike Jones, in which this Court found that application of the open and obvious doctrine precluded any duty owed by the defendant, the trial court in the instant case did not find the absence of a duty owed by Steel Master. Thus, application of this Court’s reasoning in Jones, supports the conclusion that it was permissible to name Steel Master as a nonparty at fault.

We note that Rozafa and Rrogomi assert that although their position prevails under Jones, that case was wrongly decided because it “equated ‘fault’ with ‘negligence’ “ and failed to apprehend that “duty focuses on the relationship between the parties [whereas] proximate cause focuses on the relationship between the conduct and the injury.” Although MCL 600.6304(8) defines fault in terms of proximate cause, Rozafa’s and Rrogomi’s attempt to isolate duty from proximate cause is misplaced. As our Supreme Court explained in Moning v. Alfono, 400 Mich. 425, 439; 254 NW2d 759 (1977):

The questions of duty and proximate cause are inter-related because the question whether there is the requisite relationship, giving rise to a duty, and the question whether the cause is so significant and important to be regarded a proximate cause both depend on foreseeability-whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable.

Consequently, Jones’s reliance on the determination of fault based on the existence of a duty is correct and Rozafa’s and Rrogomi’s argument on this point fails.

We affirm the trial court’s order granting Steel Master’s motion for summary disposition and denying plaintiff’s motion to file a second amended complaint, but reverse the trial court’s order granting plaintiff’s motion to dismiss Rozafa’s and Rrogomi’s notice of nonparty at fault.

MURRAY, J. (concurring in part, dissenting in part).

I fully concur with the majority opinion affirming the granting of defendant Steel Master Transfer’s motion for summary disposition in Docket No. 279122.In Docket No. 281057, however, I dissent from the reversal of the order granting plaintiff’s motion to dismiss defendants Rozafa Transport, Inc., and Gjergi Rrogomi’s notice of nonparty at fault.

In my view, because Steel Master was dismissed for lack of a breach of duty, it cannot be a nonparty at fault. This conclusion is consistent with the clear text of the controlling statute. MCL 600.6304(8) defines “fault” in part as the “breach of a legal duty … that is a proximate cause of damage” sustained, in this case, by plaintiff. Hence, to be potentially considered at “fault” by the jury, one must (amongst other possible ways not relevant here) have breached a legal duty that was also a proximate cause of the injury. And, as our Court noted in Jones v. Enertel, Inc., 254 Mich.App 432, 437; 656 NW2d 870 (2002), this “breach of duty” element is also required to prove a general negligence claim. Because the trial court properly ruled that Steel Master did not breach a legal duty to the plaintiff, it’s actions could not be a proximate cause of plaintiff’s decedent’s injury, and Steel Master cannot be a nonparty at fault.

Although the majority is correct in stating that Jones was a case involving a finding of no duty, this does not mean that in only those cases where there is a finding of no duty can the nonparty at fault be dismissed. Such a conclusion seems to me to be inconsistent with the definition of fault, which explicitly includes “breach of a legal duty.”

Defendants’ argument that they should be allowed to pursue other theories of fault other than those brought by plaintiff is consistent with the statute, as it allows a party to assert a nonparty is at fault so long as it can be established that the nonparty’s act or omission falls within the fault definition found in MCL 600.6304(8). Here, however, defendant’s notice of nonparty at fault only contained allegations of negligence, and as noted above, pursuant to Jones and the statute, Steel Master cannot be at fault for any injury on a negligence theory.

Appeals Court of Massachusetts,Suffolk.

AMERICAN HOME ASSURANCE COMPANY

v.

FIRST SPECIALTY INSURANCE CORPORATION.

No. 07-P-699.

DREBEN, J.

**1The issue before us is which of two insurance companies is liable for the injuries of David A. Bone, an employee of J.P. Noonan Transportation, Inc. (Noonan), who was injured while loading oil at an oil terminal operated by Global Companies, LLC (Global). Although vehicles were loaded from the top, which was ten feet from the ground, the terminal did not have a protective guardrail for the passenger’s side of a vehicle being loaded, and there was evidence that Global’s equipment was defective. Noonan had agreed to indemnify Global against claims made on account of injuries such as those incurred by Bone. A judge of the Superior Court, in a declaratory judgment action brought by Noonan’s commercial automobile insurer, American Home Assurance Company (American), declared, on cross motions for summary judgment, that American, rather than the Noonan’s general liability insurer, First Specialty Insurance Corporation (First Specialty), “was obligated to defend and indemnify Global in the underlying lawsuit.”This is an appeal by American from the allowance of First Specialty’s motion for summary judgment and the denial of its own. We affirm.

1. Facts.The relevant facts are not in dispute. Noonan, a company operating trucks transporting oil, entered into a contract with Global, the operator of an oil loading terminal, granting Noonan “the right and privilege” to use Global’s facilities “for the purpose [of] receiving petroleum products into [Noonan’s] trucks.”The contract included an indemnification provision whereby Noonan agreed to indemnify and hold Global harmless fromall claims “arising out of or in any way connected with the exercise” by Noonan or its representatives of the privileges granted under the contract.

On September 6, 2002, Bone, one of Noonan’s oil delivery drivers, while loading oil into Noonan’s trailer, fell from the top of the trailer, sustaining serious injuries. Bone had little memory of what happened, but there was evidence from others that Bone had difficulty with one of the pipes and slipped and fell backward to the ground on the passenger’s side of the trailer. Other drivers also had difficulties with the pipes. The top of the trailer was approximately ten feet from the ground and had a two-and-one-half-foot wide walking surface. The terminal had a guardrail for the driver’s side of the trailer, but not for the passenger’s side. After Bone’s fall, the Occupational Safety and Health Administration investigated Global’s terminal and cited Global for a “serious violation” for not adequately protecting employees from fall injuries while “toploading” oil tank trailers.

Recognizing that Bone would file an action against Global, Steadfast Insurance Company, Global’s general liability insurer, sent a demand letter to Noonan demanding that it have the appropriate insurer handle the Bone lawsuit on Global’s behalf. Soon thereafter, Bone (joined by his wife, seeking compensation for loss of consortium) brought an action against Global  alleging negligence, inter alia, in failing to provide adequate fall protection and in having a filler pipe that was not working properly. Global filed a third-party complaint against Noonan for contractual indemnity and also asserted violation of G.L. c. 93A. In a letter dated February 28, 2005, American agreed to assume the defense and indemnity of Global, subject to a full reservation of rights. Soon thereafter, American brought this declaratory judgment action seeking a declaration that First Specialty and not American was obligated to defend and indemnify Global. In April, 2006, American agreed to pay its policy limit ($1 million) towards the settlement of the underlying liability claim, subject to its reservation of rights.

**22. Policy provisions.American’s policy provided:

“We 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.’ ”

American does not dispute that the vehicle involved was a covered automobile, and although the policy does not expressly refer to loading or unloading except in a tangential way in an exclusion relating to handling of property, American does not dispute that the term “use” includes loading and unloading. See Metropolitan Property & Cas. Ins. Co. v. Santos, 55 Mass.App.Ct. 789, 796-797, 774 N.E.2d 1128 (2002).

The First Specialty policy provided:

“We will pay those sums that the insured becomes legally obligated to pay, as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”

The First Specialty policy also contained the following exclusion:

“Aircraft, Auto or Watercraft

“ ‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading.’ ”

Both policies had an exclusion for liability assumed by contract, except for an “insured contract.”  Both insurers agree that the indemnification agreement constitutes an “insured contract”under each of their respective policies and that the indemnification agreement obligates Noonan to pay Global’s litigation expenses and its share of any settlement.

3. Discussion.American claims that the cause of the accident was Global’s negligence in failing to have a protective guardrail and a properly working pipe. There is therefore in its view not the requisite causal connection between Bone’s injury and the loading of the vehicle sufficient to hold American responsible; the accident was not “resulting from” the “use” of a covered automobile. See Liberty Mut. Ins. Co. v. Agrippino, 375 Mass. 108, 114, 375 N.E.2d 702 (1978); Ruggerio Ambulance Serv., Inc. v. National Grange Mut. Ins. Co., 430 Mass. 794, 798, 724 N.E.2d 295 (2000). These cases cited by American do not support its narrow view of causality.

Our cases indicate that the expression “arising out of,” both in coverage and exclusionary clauses,

* “must be read expansively, incorporating a greater range of causation than that encompassed by proximate cause under tort law. Indeed, cases interpreting the phrase … suggest a causation more analogous to ‘but for’ causation, in which the court examining the exclusion inquires whether there would have been personal injuries, and a basis for the plaintiff’s suit, in the absence of the objectionable underlying conduct.”

Bagley v. Monticello Ins. Co., 430 Mass. 454, 457, 720 N.E.2d 813 (1999), and cases cited.

The statement in Ruggerio, supra at 797, 724 N.E.2d 295, that “the expression [‘arising out of’] does not refer to all circumstances in whichthe injury would not have occurred ‘but for’ the involvement of a motor vehicle,” does not weaken the broad standard of Bagley, and that standard has been quoted by the Supreme Judicial Court with approval. See Fuller v. First Financial Ins. Co., 448 Mass. 1, 6-7, 858 N.E.2d 288 (2006). Put another way, what is required for injuries to “arise out of” the loading of a vehicle is a reasonably apparent causal connection between the loading of the vehicle and the injury. See Ruggerio, supra at 798, 724 N.E.2d 295; Metropolitan Property & Cas. Ins. Co. v. Santos, 55 Mass.App.Ct. at 795, 774 N.E.2d 1128.

That other causes for an injury also may exist does not preclude a determination that the injury arises out of activities excluded from coverage under the policy. Thus in Monticello Ins. Co. v. Dion, 65 Mass.App.Ct. 46, 48-49, 836 N.E.2d 1112 (2005), in holding that the death arose out of operations performed for the insured, a determination that precluded coverage because of an exclusion in the policy, we considered it irrelevant that the death could be said to have been proximately caused by the insured’s negligence. Accord Commerce Ins. Co. v. Theodore, 65 Mass.App.Ct. 471, 472-473, 841 N.E.2d 281 (2006).

“The responsibility of construing the language of an insurance contract is a question of law for the trial judge, and then for the reviewing court.”  Ruggerio, supra at 797, 724 N.E.2d 295, quoting from Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234 (1982). A judgment call then must be made as to where the facts of the case fall along a continuum of causation. Ibid., citing Carrigan v. State Farm Mut. Auto. Ins., 140 Or.App. 359, 366, 914 P.2d 1088 (1996), rev’d on other grounds, 326 Or. 97, 949 P.2d 705 (1997).

Bone, while loading his tanker truck, was in the process of trying to make a loading pipe work properly when he fell. He thus was engaged in the very activity for which the tanker truck was present at Global’s terminal. These facts provide a sufficient causal connection between the loading of the tanker truck and Bone’s resulting injury. See Travelers Ins. Co. v.Aetna Life & Cas. Co., 410 Mass. 1002, 1003-1004, 571 N.E.2d 1383 (1991).

Although we find in our cases sufficient causal connection, based on a reading of the term “arising out of,” to affirm the judgment, we note that cases elsewhere in similar circumstances also find coverage under automobile policies, rather than general liability policies. This is so despite a defect in the loadingequipment or negligence by employees other than those of the vehicle owner.

*Coverage by the automobile insurer is, however, usually found on a different basis.That basis is connected to the rule of “complete operation,” a rule also applicable in Massachusetts. The term “use” of vehicles been expanded to include loading and unloading in automobile insurance policies, but the rule of complete operation construes “use” broadly to encompass “not only removing goods from the motor vehicle but [also] their delivery to the purchaser or consignee rather than the more restricted doctrine that the unloading has ended when the goods have come to rest.”  August A. Busch & Co. of Mass., Inc. v. Liberty Mut. Ins. Co., 339 Mass. 239, 242, 158 N.E.2d 351 (1959). Where the automobile policy contains a provision that persons using the vehicle with the consent of the insured are covered as additional insured persons, the complete operation rule has been invoked to hold that the negligence of persons or entities not connected to the automobile constitutes part of the complete operation of loading. Under that doctrine, if their acts are necessary to the loading process, such persons or entities are often held to be using the vehicle and are additional unnamed insureds under the policy. See, e.g., Kennedy v. Jefferson Smurfit Co., 147 N.J. 394, 401, 403, 688 A.2d 89 (1997); *8Travelers Ins. Co. v. Employers’ Liab. Assur. Corp., 367 F.2d 205, 207   4th Cir.1966). See also Improved Mach. Inc. v.Merchants Mut. Ins. Co., 349 Mass. 461, 463, 208 N.E.2d 796 (1965) (forklift fell over while operator was loading machinery onto insured’s truck, killing employee of insured; although no employee of insured had anything to do with loading the machine, forklift operator was held to be using truck and to be additional unnamed insured under insured’s automobile policy).0

As indicated in note 8, supra, the New Jersey court, as domany other courts, distinguishes between the cases where there is negligence in an essential part of the loading and unloading operation and those cases where the negligence is not so related and there is a dangerous condition on the premises. The cases relied on by American fall in the latter category. In contrast, in the present case, at least one of the claims of negligence-the defective pipe-was certainly essential to the loading process.

We have not analyzed the clauses of American’s policy or the statutory requirements to ascertain whether Global could be considered an additional insured and do not rest our decision on that ground, but merely note that holding the automobile insurer responsible in this case is consistent with cases elsewhere.

Judgment affirmed.

The plaintiff’s complaint listed a number of other defendants, who were dismissed by stipulation. In any event, the only defendant having an interest in this appeal is First Specialty Insurance Corporation.

The action also was brought against Chelsea Sandwich, LLC, the owner of the premises. As the claims involving Chelsea are not pertinent to this appeal, we omit any description of pleadings and other matters that refer to any claims brought by or against Chelsea.

We agree with the judge that there is no meaningful distinction between the words “resulting from” in American’s coverage provision and the words “arising out of” in First Specialty’s exclusion provision. As observed by the judge, the two policies were intended to “fit together like two pieces of a jigsaw puzzle,” one covering injuries arising from the use of an automobile, while the other excluding such coverage.

Under First Specialty’s policy, “Insured contract means: … That part of any other contract or agreement pertaining to your business … under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.”There were certain exclusions not here relevant. American’s definition of an “insured contract” was similar, and any differences are immaterial.

In Ruggerio, supra at 797-798, 724 N.E.2d 295, the court held that the delay of an ambulance because of a traffic accident was too attenuated from the decedent’s death for coverage under Ruggerio’s automobile policy. The decedent was not present at the accident and did not receive injuries from it. Ibid. In Liberty Mut. Ins. Co., supra at 114-115, 375 N.E.2d 702, there was no causal relationship between the death of a lifeguard and the insured’s use of a boat trailer, when the insured only had supplied a pulley and shackles to pull a boat. Ibid.

Although the parties have not urged this different basis, a discussion of those cases sheds light on why the cases from other jurisdictions American has urged us to follow are not here applicable. The cases also indicate that our conclusion that there is coverage under the automobile policy is consistent with authorities elsewhere. See, e.g., 6B Appleman, Insurance Law and Practice § 4322, at 396-397 (rev. ed. 1979) (“[I]f the unloading process was going on at the very time the accident occurred, the courts are prone to allow recovery”).

Such clauses often are referred to as “omnibus” clauses. See 8 Couch, Insurance § 111:1 (3d ed. 2005).

In Kennedy v. Jefferson Smurfit Co., supra at 401, 688 A.2d 89, the Supreme Court of New Jersey held that the insurer of the owner’s vehicle was liable for injuries sustained by the owner while his vehicle was being unloaded due to the negligence of the shipper who had selected defective pallets for the loading process. The court determined that the selection of the pallets fell within the complete operation of the loading because the act that resulted in injury was necessary to carry out the loading. The shipper was made an additional insured under the vehicle owner’s policy. The court distinguished between cases where there is negligence in the actual loading and unloading operation and cases where the negligence is not directly related to the loading and unloading process such as where there is a dangerous condition on the premises of the warehouse. In its discussion, the court, id. at 402-403, 688 A.2d 89, distinguished one of the main cases relied on by American, Atlantic Mut. Ins. Co. v. Richards, 100 N.J.Super. 180, 183, 241 A.2d 468 (1968), aff’d, 105 N.J.Super. 48, 251 A.2d 134 (1969), a case in which the premises owner, prior to the arrival of a truck, failed to remove dunnage near an open stairwell and also failed to provide the stairwell with a guardrail.

In Travelers Ins. Co. v. Employers’ Liab. Assur. Corp., supra at 206, an employee was on top of a tanker truck loading oil at a distributor’s facility when he pulled a defective wire cord necessary to carry out the loading process. The wire snapped, and the employee fell backward, sustaining severe injuries. Ibid. Construing Maryland law, the court held the truck owner’s automobile insurer liable, and that the distributor was an additional insured. Id. at 207.

0. Some additional cases holding the automobile insurer responsible and treating the negligent party as a participant in the loading process and an additional insured are, e.g., Fireman’s Fund Ins. Co. v. Canal Ins. Co., 411 F.2d 265, 269-270 (5th Cir.1969) (applying Florida law; premises employee’s negligence in loading truck with ice caused injury to truck driver); Bituminous Cas. Corp. v. Travelers Ins. Co., 122 F.Supp. 197, 200-201 (D.Minn.1954) (applying Minnesota law; premises employee could not control power shovel during loading, injuring trucker); Columbia S. Chem. Corp. v. Manufacturers & Wholesalers Indem. Exch., 190 Cal.App.2d 194, 197, 204, 11 Cal.Rptr. 762 (1961) (defective rope at premises broke, causing truck operator to fall during loading) (disapproved on other grounds in Continental Cas. Co. v. Zurich Ins. Co., 57 Cal.2d 27, 38, 366 P.2d 455 [1961] ); Bituminous Cas. Corp. v. American Fid. & Cas. Co., 22 Ill.App.2d 26, 31, 159 N.E.2d 7 (1959) (premises hoist failed and engine dropped on trucker while being unloaded); Dairyland Ins. Co. v. Concrete Prods. Co., 203 N.W.2d 558, 562-564 (Iowa 1973) (negligent operation of front-end loader by premises employee caused injury to trucker); Kings County Trust Co. v. Tudor Constr. Corp., 28 A.D.2d 853, 854 (N.Y.1967) (while unloading debris from chute maintained on premises, chute gave way, falling on employee); Fidelity & Cas. Co. v. North Carolina Farm Bureau Mut. Ins. Co., 16 N.C.App. 194, 195, 203, 192 S.E.2d 113 (1972) (truck passenger broke ammonia supplier’s hose during loading, causing ammonia gas to escape into air, injuring premises employee); Sinclair Oil Corp. v. New Hampshire Ins. Co., 107 R.I. 469, 471, 475-476, 268 A.2d 281 (1970) (valve release cord at premises snapped during loading, injuring premises employee). Cf. Titan Constr. Co. v. Nolf, 183 Colo. 188, 191, 193-194, 515 P.2d 1123 (1973) (rope or hose of cement pump at premises knocked block or brick off building during loading, injuring trucker). But see Travelers Ins. Co. v. Buckeye Union Cas. Co., 172 Ohio St. 507, 513-515, 178 N.E.2d 792 (1961).