Summary
involving loss of earnings coverage
Summary of this case from Archer Daniels Midland Co. v. Aon Risk Services, Inc. of MinnesotaOpinion
42533.
ARGUED JANUARY 4, 1967.
DECIDED JANUARY 11, 1967.
Action on insurance policy. Fulton Civil Court. Before Judge Camp.
Rose Silverman, George S. Stern, for appellant.
Bryan, Carter, Ansley Smith, Henry M. Quillian, Jr., W. Colquitt Carter, for appellee.
A general demurrer was properly sustained to a petition seeking recovery, under a loss of profits or business interruption provision of an insurance policy, of loss of profits alleged to have been sustained by reason of the loss by burglary of merchandise which would have been available for sale during three months following the occurrence, the insured having been paid for the merchandise under another provision of the policy.
ARGUED JANUARY 4, 1967 — DECIDED JANUARY 11, 1967.
Jack Rothenberg, d/b/a The Beachcomber, obtained from Liberty Mutual Insurance Company a multiperil insurance policy covering, inter alia, losses from fire or theft of his personal property, his liability as a storekeeper to those who might suffer injury and damage due to his negligence in operating and maintaining the premises or from a product hazard, and loss of earnings resulting from a necessary interruption of the business caused by the perils insured against damaging or destroying the building or business personal property at the location described.
He alleges that on June 13, 1965, at 4 a. m. a burglary occurred at his place of business resulting in a loss of merchandise of the value of $10,764.33, for which the company has made payment.
He further alleges, however, that by reason of the loss of this merchandise from his stock he suffered a loss of sales in June, July and August from which he would have realized a profit of $3,767.53 and that under the "loss of earnings" provisions of the policy he is entitled to recover that amount. A general demurrer to the petition was sustained, and plaintiff appeals.
We affirm. Extensive annotations on business interruption insurance are to be found in 83 ALR2d 885-922, and concerning insurance on profits expected to be realized on particular goods or merchandise, in 83 ALR2d 889. But we need go no further than the provisions of this policy in making our determination. They are clear and unambiguous.
It is provided that: "1. For the purposes of this insurance, the term `perils insured against' shall mean the perils, as defined and limited in the direct property damage form to which this endorsement is attached, applicable to Coverage B, and also subject to the special exclusions and limitations of this endorsement.
"2. Subject to all the provisions and stipulations otherwise applicable to Section I, this policy is extended to cover loss of earnings resulting directly from necessary interruption of business caused by the perils insured against damaging or destroying the buildings or business personal property at [the location specified]." (Emphasis supplied.)
"6. Special Exclusions and Limitations: . . . (c) This company shall not be liable for loss resulting from: . . . (2) Theft of any property which at the time of loss is not an integral part of a building or structure . . . unless loss by a peril not excluded in this policy ensues from theft or attempted theft, and then this company shall be liable for only such ensuing loss."
It is clear from these provisions that the coverage afforded is for business interruption caused by the damage or destruction of the building or business personal property at the business location, e.g., the building or fixtures used in operation of the business, and due to some peril insured against, or due to theft of property which, at the time, is an integral part of the building. This is in keeping with the purpose of the insurance. 11 Couch on Insurance 2d 193, § 42:405; Atlantic Steel Co. v. Hartford Fire Ins. Co., 39 Ga. App. 680 ( 148 S.E. 286).
Construing the petition against the pleader, as must be done on demurrer, he has suffered no interruption of his business — only a diminution in volume.
The coverage afforded here does not extend to loss of profits that might have resulted from a sale of the goods taken in a burglary. He has been fully compensated for the goods. Though not included here, he might have procured insurance against loss of profits to be realized on specific goods and merchandise even without an interruption of the business. That is a matter of contract.
The contention that the exclusion of application of the loss of earnings coverage when it is occasioned by theft of property which is not an integral part of the building is not applicable because the loss here was occasioned by burglary, is without merit. While there is a particular definition of burglary under our criminal statutes making it an offense separate from that of simple larceny, so that theft may not always be burglary, yet every taking of property by burglary is a theft.
The general demurrer was properly sustained.
Judgment affirmed. Felton, C. J., and Hall, J., concur.