This is another contest between two insurers of a common assured neither of whom bears any relation to the other, so that the standing of one to sue the other rests finally on an intricate legalistic structure.

The protagonists are Great American1 who issued a Comprehensive General Liability policy (CGL) and General Accident2 who issued a standard automobile policy covering vehicles. The common assured was Trees.3 It all grows out of an accident occurring during the time that Trees was carrying out its contract with Power Company4 by which, for a fee, Trees removed, replaced and transplanted trees in the Miami area.

The contract between Trees and Power Company requires two things of significance here. The first was that Trees was to provide liability insurance. Second, Trees agreed to indemnify Power Company.5 As to the first (insurance), this was afforded through the two policies now in controversy. Concerning the second (the indemnity), the CGL policy insured Trees' contractual indemnity liability under an appropriate broad form endorsement.6

Pursuant to the contract, Power Company directed Trees to transplant a coconut palm tree in Miami Springs, Florida. For the job, Trees supplied its own land motor vehicle equipped with an Aframe and a cable. Loyd Bell, Jr., an employee of Trees, fastened the cable to the palm tree. When the coconut palm was hoisted, the palm fronds came in contact with Power Company's overhead high voltage line causing severe injuries to Bell. Bell brought suit in the state court against Power Company alleging several grounds of negligence, but principally a failure of Power Company to furnish him a safe place to work. Under the indemnity agreement, note 5, supra, which Great American insured under its CGL policy, it undertook the defense of the suit which resulted in a judgment for approximately $23,000. Great American has paid this and now wants to get it back. Its target, by a direct suit for declaratory relief — without going through the steps of an assignment by Power Company, by Trees, or both — is General Accident, the automobile insurer of Trees' truck.

Of course Great American does not claim either to be a party to General Accident's policy, or that it was made for it as a third party beneficiary. Its claim is that it has the advantage of a contract with a stranger by reason of a series of involved steps through which it succeeds to the rights of one or more or all of such persons against General Accident pursuant to the terms of the automobile policy. Severely simplified, the theory is that Power Company was an assured under the automobile policy, and Great American somehow, someway, sometimes steps into its shoes.

The first step rests on the insuring clause which undertakes "to pay on behalf of the insured * * *" such sums for which the assured is legally obligated "caused by accident and arising out of the ownership, maintenance or use of" the scheduled vehicle. Use, of course, includes loading and unloading.7 Consequently, broadly stated, the policy covers any accident arising out of the ownership, maintenance, use, loading or unloading of the automobile. Since the policy names Trees as the assured, the next step is to broaden the scope of the persons insured. This is done through the omnibus clause8 which includes as an assured any person using, loading, unloading a scheduled vehicle and any person or organization legally responsible for the use, loading, unloading thereof.

Next comes the third step. This arises because it is uncontradicted that Power Company had no person on or near the truck or in the vicinity of the work being done. Hence, neither Power Company nor any of its employees were using, loading, unloading the truck. Consequently, to connect Power Company into this policy it has to be brought into the category of "any person or organization legally responsible for the use", loading, unloading of the vehicle. Now we take the fourth step. Based upon a number of Florida cases whose scope we need not examine,9 the contention is made that since Bell was an employee of an independent contractor and hence an invitee on the Power Company's "premises" and one toward whom the Power Company must exercise the highest degree of care in providing a safe place to work, the Power Company was "legally responsible for the use" of this truck. To put it another way, the theory is that since Power Company under some circumstances could be held legally liable where an employee of an independent contractor used a truck on its "premises" this is the equivalent of the truck being used, loaded, unloaded by a person for whom it is "legally responsible."

Even though approached with the greatest latitude, we do not think Great American's claim withstands analysis. But in so concluding, we would emphasize at the outset that there can be no real question about the vehicle being "used." Much is said in the briefs about the extension of use by loading or unloading. That is not needed here. For here the purpose of the truck was to hoist the palm tree. Whether the palm was to be hoisted onto the bed of the truck and then transported some distance for transplanting, or whether, as seems more likely, it was simply hoisted sufficiently so that the truck could maneuver the tree to its new, but nearby, location is not revealed.10 But the truck was being used. More than that, it was that use of the truck which, in a physical, if not legal, sense brought about the accident. For the accident occurred when the palm fronds came in contact with the power line while the hoisting operation was going on. Consequently, it is unnecessary for us to make an Erie-Florida choice between the "coming to rest," or the "completed operations" doctrine.11 But while we hold with General Accident, we do not adopt its contention that the showing of a relationship between the vehicle and the cause of the accident was inadequate.12

Nor we do not think that we should rest affirmance on General Accident's contention that the employee exclusion of its policy prevents coverage since Bell, the injured plaintiff, was an employee of Trees, the named assured.13 Of course it is Great American's theory that it gets the benefit of General Accident's policy because Power Company was an additional omnibus insured. That brings into play the running, ceaseless controversy over "Who is the Insured?" on which courts have differed and continued to divide so sharply. See, American Agricultural Chemical Co. v. Tampa Armature Works, Inc., 5 Cir., 1963, 315 F.2d 856, 860, 862 (concurring opinion). With material so equivocal, we ought not to predict what the Florida Courts will finally hold.14

But assuming, arguendo, that coverage is not denied Power Company in the defense of a claim by Bell, an employee of the named assured, it is nonetheless clear to us that the claim fails. This is so because Power Company is not, and cannot here properly claim the status of an omnibus assured. It was not using the truck. Nor were any of its employees. Neither it nor anyone for whom it had a legal responsibility was engaged in directing or supervising or controlling the use of the truck. The only persons using the truck were employees of Trees. Power Company had no legal responsibility for the acts of the employees of Trees. It might, and undoubtedly did have, an obligation to them as well as to members of the public. But it was not legally responsible on the usual doctrines of respondeat superior for their acts. Nor was it responsible legally for the use of the truck. Assuming that the cases (see note 9, supra) hold what is claimed of them, the legal liability to employees of Trees or members of the public arises out of Power Company's duties in the transmission of electricity. That the consequence of this liability comes into being out of the circumstance that others were using a vehicle in the vicinity of its electricity facilities does not make their use the use of Power Company. The party claiming to be an omnibus assured either himself or through servants, agents, employees or other persons for whom he has a legal responsibility must be engaged in physical operations which fairly can be described as using, loading, unloading a vehicle. It is not enough that the vehicle is being used, loaded, unloaded. Physical operational use of the vehicle, at least to some degree, by a party or by one for whose acts it has a legal responsibility is required to give the stranger the status of an omnibus assured.15

All of this seems borne out by a more detailed consideration of Great American's theory. It talks in terms of subrogation. But to whose rights and what rights do they claim to be subrogated? The theory is vague indeed. Of course, the policy provides that Great American shall be subrogated to the rights of its assured.16 But what rights does Trees, the named assured, have? So far as here revealed, Trees has no evident right of action against Bell, or for that matter any other of its employees (if any) then engaged in the transplanting operations.17 Does Trees have any rights (to which Great American may be subrogated) against its automobile insurer, General Accident? We can, of course, assume that vis-a-vis a CGL and an automobile insurer, the CGL underwriter through the guise of subrogation can compel its assured to get protection from the automobile policy for sums which the assured has become legally obligated to pay because of accident arising out of the ownership or use of an automobile. But there is neither charge nor proof that Trees had any legal obligation whatsoever either for the damages sustained by Bell, or for the cause of the occurrence from a legal point of view. Trees was not held liable because of negligence of it or any one of its servants. Indeed, it has not been held liable at all. So far as this record reflects, Great American, conscious of its obligation to defend claims within the terms of the indemnity, see note 5, supra, undertook the defense of Power Company direct. Without going through the form of a nominal payment by its assured (Trees) or by Power Company it paid the judgment direct. The liability of Trees, if there is one at all, is not one imposed as a result of accident arising out of the operation or use of the vehicle. The liability is imposed because of the plain language of the contract of indemnity.

There being no rights of Trees to which Great American could effectually subrogate, what other rights are open? To whom do they belong? All that is left is Power Company. The complaint shows only that Great American undertook the defense of Bell's suit because of the indemnity agreement. The judgment was paid by it with no indication of any assignment of rights by Power Company. Assuming that under these unusual circumstances, this put Great American in the position of a subrogee of one to whom it owed no legal duty, not a mere volunteer,18 it can push this loss off onto another only by showing that Power Company was using the truck.

The truck was assuredly used. But it was not operated, used, loaded, unloaded by Power Company or any one for whose acts in thus using the vehicle it was legally responsible. The intricate legal structure fails at this point.

Affirmed.

JONES, Circuit Judge, concurs in the result.