dissenting.
I disagree that the defective condition in the shipper’s loading pallet constituted a “use” of the trucker’s vehicle that required the trucker’s automobile insurance policy to indemnify the shipper for damages caused by the pallet’s defective condition.
The essential predicate to find coverage under the truck policy is whether the negligent act of the party to be covered constituted a “use” of the motor vehicle. Motor vehicle insurance policies insure against damages arising out of the ownership, maintenance, or use of a vehicle. Under policy language or statutory requirement, the “use” of a vehicle includes the loading and unloading of a vehicle. In New Jersey, the obligation to provide coverage in a motor vehicle liability policy for loading and unloading operations derives from the statutes requiring insurance covering use of a vehicle and cannot be limited by contract. N.J.S.A. 39:6A-3; 39:6B-1. See also Bellafronte v. General Motors Corp., 151 N.J.Super. 377, 376 A.2d 1294 (App.Div.), certif. denied, 75 N.J. 533, 384 A.2d 513 (1977).
*406Thus, when a defendant in a negligence action seeks coverage, “the 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 the policy.” Smithbower v. Navistar Int’l Transp. Corp., 265 N.J.Super. 119, 124, 625 A.2d 586 (App.Div.1993) (quoting Cenno v. West Virginia Paper & Pulp Co., 109 N.J.Super. 41, 45, 262 A.2d 223 (App.Div.), certif. denied, 56 N.J. 99, 265 A.2d 149 (1970)). That the plaintiff may have been “using” the truck at the time he sustained his injuries is simply not relevant to the question of whether the act of defendant that caused his injuries was a use of the truck. Halifko v. Cities Service Oil Co., 510 F.Supp. 1131, 1134 (D.N.J.1981), aff'd, 676 F.2d 684 (3rd Cir.1982). Our inquiry should focus on the act of negligence charged: whether Jefferson Smurfit was engaged in the loading or unloading of the truck when it selected or provided the defective pallet, not on whether Kennedy was engaged in unloading the truck at the time he was injured. In that latter instance the truck may have merely been the situs of the accident.
Assume that propane gas fumes had escaped from a leaking tank that had been loaded on the truck. If the leaking propane had caused an accident and injury while en route to its destination, would the shipper’s act of negligence in defectively packing its product be considered a use of the vehicle? I should think not. Should it make a difference that the accident occurred during the unloading of the truck? Again, I think not. There is an insufficient relationship between the act of negligence charged and the act of loading and unloading.
This case is most similar to that involving a defect in a hand truck used in the loading and unloading operation. Neuman v. Wakefern Foods, 205 N.J.Super. 263, 500 A.2d 752 (App.Div.1985). A hand truck is a device that is used in the loading and unloading operation. A pallet is a device that is used in a loading and unloading operation. In Neuman, the accident and the plaintiffs *407injuries resulted from a defect in an electric hand truck, which defect was allegedly due to improper design or improper maintenance. The Neuman court found no coverage under the trucker’s policy for the party causing the defect in the hand truck. “That defect was not directly dependent on the loading or unloading of the ... truck.” Id. at 266, 500 A.2d 752. Such an analysis is consistent with those cases that hold that a defective condition existing at the shipper’s location at the time of the loading and unloading — due, for example, to negligent maintenance of a loading platform — is not a “use” of the vehicle within the scope of the vehicle owner’s insurance coverage. Atlantic Mutual Ins. Co. v. Richards, 100 N.J.Super. 180, 241 A.2d 468 (Ch.Div.1968), aff'd, 105 N.J.Super. 48, 251 A.2d 134 (App.Div.1969). See also Wakefern Food Corp. v. General Accident Group, 188 N.J.Super. 77, 455 A.2d 1160 (App.Div.1983) (holding act of leaving debris on loading dock that caused accident not covered by vehicle insurance policy).
In contrast, when the act of negligence constitutes a use of the vehicle in the sense of actually loading or unloading a truck, the vehicle’s insurance policy will provide coverage. Parkway Iron & Metal Co. v. New Jersey Mfr’s Ins. Co., 266 N.J.Super. 386, 629 A.2d 1352 (App.Div.1993), certif. denied, 135 N.J. 302, 639 A.2d 301 (1994) (holding negligent use of crane covered by vehicle’s insurance policy); see also Bellafronte, supra, 151 N.J.Super. 377, 376 A.2d 1294 (holding negligent use of crane magnet during unloading constitutes use of vehicle). Thus in Neuman, supra, 205 N.J.Super. 263, 500 A.2d 752, had the operator of the hand truck negligently driven into the plaintiff, there would have been coverage under the trucker’s policy.
The lines drawn are subtle and present varying ranges of difficulty in the proper determination of which liability insurance policy should cover the risk, the comprehensive general liability insurance of the shipper or the automobile liability insurance policy of the truck owner. One theory for allocating responsibility among liability insurance companies that provide overlapping eov*408erage for the same loss would require us to consider which risk-bearer was in the best position to avert the harm:
[Mjarket coordination aims at appropriate and efficient functioning of the industry, allocating responsibility based upon the risk undertaken by the insurer. If the market operates efficiently, primary responsibility for a loss will fall on the insurer who was in the best position to classify and rate the risks accepted. Such allocation guarantees that the insurer which receives premium payments most accurately reflecting insured risks also bears the loss. That insurer is also in the best position to predict loss. Appropriate allocation of loss thus increases accuracy in loss prediction, enhancing industry efficiency, with obvious benefits for insurance consumers in the form of lower costs, and for society generally in the form of added financial stability of the insurance industry. Misallocation of losses to insurers with less information about the risk causing loss ensures that actual losses will vary from predicted losses to a greater degree, upsetting the foundation of the industry.
[Susan Randall, Coordinating Liability Insurance, 1995 Wis. L.Rev. 1339, 1368 (footnotes omitted).]
Obviously, the party with the most information about the risk of defect in a pallet was Jefferson Smurfit and Jefferson Smurfit’s insurance company was in the best position to assess the risks relevant to that conduct.1 In the usual straightforward loading and unloading case, the trucker is present at the time of loading and unloading and has some ability to manage the risk at the scene by observation of the loading and unloading operations and by intervention if an actor does not exercise due care during the loading or unloading of the vehicle. In this case, the trucker had absolutely no ability to control the risk from the defective pallet.
In Cenno, one of the earliest loading and unloading decisions of New Jersey and one almost identical to this, a truck driver was delivering a load of baled cardboard. While attempting to pull a bale from the rear of the truck, the band securing the bale came apart and injured the truck driver. The shipper of the goods sought coverage as an additional insured under the motor vehicle liability policy issued by the trucker. The court’s opinion by Justice Sullivan, then sitting in the Appellate Division, stated: “The policy affords coverage as an additional insured to one while *409using the vehicle and specifies that ... ‘use of an automobile includes the loading and unloading thereof.’ ” Cenno, supra, 109 N.J.Super. at 45, 262 A.2d 223. The court concluded that because the commission of the negligent act (the provision of a defective baling band) did not occur during the use of the vehicle, the shipper could not be considered an additional insured for an act that preceded the loading and unloading of the vehicle.
So too here. The negligent act of providing a defective pallet did not occur diming the use of the vehicle. The negligent act occurred at Jefferson Smurfit’s facility. The North truck, therefore, became the situs of the damage due to a prior negligent act.
We thus have in this case an accident that was not causally connected with the loading and unloading, but merely occurred during it. The person charged with the negligent act is not to be considered to have been using the vehicle so as to be covered by the vehicle’s liability policy for such act as an additional insured.
For affirmance and remandment — Justices HANDLER, GARIBALDI, STEIN and COLEMAN — 4.
Opposed — Justice O’HERN and Chief Justice PORITZ and Justice POLLOCK — 3.
In this case, the shipper, Jefferson Smurfit, was in fact self-insured for these risks.