A US construction worker was fatally shocked while repairing a bridge. He was working on a platform scissor-lift mounted on a truck owned by his employer construction company. He was working on a bridge owned by New Jersey Transit.
His widow claimed damages from the New Jersey Transit company. NJT then sought cover under the construction company’s insurance policy on the basis that NJT was a “user” of the vehicle. The insured’s denied that they were a user and also pointed to an exclusion for the use of “cherry pickers and similar devices.”
The court held that NJT was a permissive user of the vehicle because it was supervising the worksite. They were overseeing the construction company’s work on its property and the use of the vehicle. They actively exerted control over the vehicle to ensure its safety in and around the area where the accident occurred. The workman was killed when an arc of electricity from overhead wires struck the scissor-lift mounted on the truck. The cherry picker exclusion was not applicable because the scissor lift was more of a mobile scaffold. Had the insurer intended to exclude the operation of all types of chassis-mounted lifting devices they could easily have done so but had not.
With exclusions, insurers are expected to think of every possibility but they can never have that degree of foresight.
(Sherry Clemente v New Jersey Transit et al., case number A-2355-12T3, in the Superior Court of New Jersey, Appellate Division)