Summary
In Anchor Armored Delivery v. Certain Underwriters at Lloyd's of London (146 Misc.2d 545, 546, affd 177 A.D.2d 611), the court held that the fact that the truck had only a two-man crew constituted a breach where it was "[w]arranted not less than three crew to each vehicle whilst carrying interest insured."
Summary of this case from Star City Sportswear, Inc. v. Yasuda Fire & Marine Insurance of AmericaOpinion
February 6, 1990
Bandes Byrnes, P.C., for plaintiff.
Kroll Tract for defendants.
The plaintiff has moved for an order dismissing the first affirmative defense.
On or about November 21, 1983, the defendants, Certain Underwriters at Lloyd's of London, issued an insurance policy covering the plaintiff's business, which involved the delivery of cargoes in armored trucks. The policy reads in relevant part:
"It is hereby understood and agreed that, effective 21st November 1983 it is a warranty of this Policy that when vehicles are carrying amounts in excess of US$300,000 and/or amounts in excess of US$150,000 are in transit between vehicle and premises then subject to the overall limits of this Policy the warranties in respect of all operations appearing on page two of the policy wording are amended to read:
"Warranted not less than three crew to each vehicle whilst carrying interest insured."
On September 19, 1988, one of plaintiff's trucks was robbed in The Bronx while it was carrying a cargo worth $385,621.80. Of this sum, $108,520.33 was in cash and $261,739.12 was in checks. The defendants have disclaimed liability because the truck had only a two-man crew, and this is the subject raised by their first affirmative defense.
The issue to be determined is whether the plaintiff breached the warranty requiring a three-man crew because the term "US$300,000" includes both cash and checks. The court believes that this issue must be resolved in favor of the defendants. In the first place, the policy was not written to insure cash cargoes alone. The policy is "on cash and/or notes and/or valuables and the like in transit by armoured vehicle [etc.]". Moreover, the primary consideration in interpreting insurance contracts is the intention of the parties. (McGrail v Equitable Life Assur. Socy., 292 N.Y. 419; J.G.A. Constr. Corp. v Charter Oak Fire Ins. Co., 66 A.D.2d 315.) In the case at bar, it is clear that the symbol "US$" as used throughout the policy was not intended to refer to cash alone. For example, the premium is stated to be "US$10,000". The symbol "US$" is also used in connection with the limits on liability, and these limits were set on the defendants' over-all risk.
Accordingly, the plaintiff's motion is denied.