Opinion
No. 70-336
Decided May 12, 1971.
Insurance — Construction of policy — Coverage for loss of collectors' coins during transit — Theft from locked and unattended vehicle excluded — Exclusion inapplicable to theft of vehicle with contents, when — Insured entitled to recover for loss of coins, when.
Where a policy of insurance covering loss of collectors' coins during transit contains an exclusionary clause relieving the insurer from liability in the event theft from the vehicle occurs under certain circumstances while the vehicle is locked and unattended, and the vehicle, together with the insured coins contained therein, itself is stolen from a restaurant parking lot where the insured's agent left it locked and unattended, the language of the clause excluding liability for theft from the locked and unattended vehicle is insufficient to make the exclusionary clause applicable to theft of the vehicle with its contents, and the insured is entitled to be indemnified for the loss of the coins contained in the vehicle at the time it was stolen.
APPEAL from the Court of Appeals for Hamilton County.
Plaintiff, Security Finance Company, a dealer in collectors' coins, contracted with each of the defendants, Aetna, St. Paul Fire Marine, Federal and Great American Insurance companies, for an insurance policy in the amount of $2,500, covering loss of coins occurring during transit.
In the trunk of his automobile, plaintiff's agent, one Peterson, transported two grips containing coins valued at approximately $17,000 to a numismatic convention in Chicago. On the return trip to Cincinnati, Peterson, and a friend who accompanied him, decided to stop at a restaurant in Lafayette, Indiana.
When the two men went into the restaurant, the automobile was completely locked. Approximately 15 minutes later, when they returned to the restaurant parking lot, the car was gone. Later, when the car was recovered about a quarter-mile from the restaurant, the coins were missing. There were no visible marks of forcible entry anywhere on the automobile.
Seeking indemnification for its loss, plaintiff filed an action in the Court of Common Pleas against defendants for the amount of coverage set forth in the policies issued by them. Defendants set up as an affirmative defense to the action an exclusionary provision contained in all the policies and filed a motion for summary judgment.
The exclusionary provision, which was common to all the policies in question, reads:
"4. This policy does not insure against * * * (h) theft from any vehicles occurring while such vehicles are unattended, unless at the time of such theft the windows, doors, and compartments of the vehicle are securely locked and closed and such theft results from forcible entry evidenced by visible marks."
The Court of Common Pleas granted the motion for summary judgment in favor of defendants. The Court of Appeals affirmed that judgment.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Steer, Strauss, White Tobias and Mr. Charles H. Tobias, Jr., for appellant.
Messrs. Rendigs, Fry, Kiely Dennis and Mr. David W. Peck, for appellees.
The desideratum of the parties to the impasse raised by these insurance contracts requires our judicial answer as to whether the exclusionary provisions contained in the policies preclude recovery by plaintiff under the facts of this case.
It is clear that the exclusionary clause in question was intended, under certain conditions, to relieve defendants from liability where the operator of the vehicle used in transporting the coins leaves the vehicle unattended. It is likewise clear that if the theft of the coins from the vehicle had occurred in the parking lot where plaintiff's agent parked it, the exclusionary clause would apply and plaintiff could not recover as there were no visible marks of forcible entry.
Here, however, the theft of the coins did not occur from the vehicle in the parking lot, where the vehicle had been left locked and unattended by the insured's agent, but the theft occurred at the time the vehicle with its contents was stolen from the parking lot.
Plaintiff urges that under such circumstances the exclusionary clause is inapplicable. It is argued on plaintiff's behalf that the theft of the coins occurred when the vehicle was removed from the parking lot and that the "theft of an automobile together with its contents does not amount to the theft of the contents `from the vehicle' within the language of" the exclusionary clause. Stated differently, it is plaintiff's position that since at the time the vehicle was stolen "the coins remained in the automobile they could not be deemed to be within an exclusion of theft ` from' the vehicle."
On this point plaintiff relies on the case of Sally Chain Stores v. Ace Bonded Carriers (1940), 307 Ill. App. 644, 30 N.E.2d 966, which involved an exclusionary provision similar to the one in question here, and in which the vehicle was stolen along with its contents. The court there found the exclusion to be inapplicable, stating, at page 651:
"In our judgment the material facts of this case do not bring it within the scope of the exception * * *. The theft of the packages involved in the instant action occurred when the thief drove the automobile from the place where it had been parked, and under the circumstances the theft was not a theft from an automobile. The provision in question was not intended to apply to a case where the thief drove away with an automobile and its contents, but it was intended to apply to a case where a thief took a package or packages from an automobile or truck while it was standing unattended at a place of delivery * * *."
A contrary interpretation of such an exclusionary clause is found in Gorman Sons v. American Surety Co. (1965), 99 R.I. 177, 206 A.2d 460, where the court, on similar facts, gave such clause a broader interpretation and specifically disapproved of the holding in Sally Chain Stores. The court there stated, at page 179, that no significance should be attached "* * * to whether the theft of the insured property preceded or followed that of the automobile * * *."
At this point, it is apposite to bear in mind that in construing provisions of insurance policies a court must resolve "any doubts arising from the language used" in favor of the insured and that "* * * if the words used in the policy bear more than one reasonable meaning, they should be interpreted liberally in favor of" the insured. Munchick v. Fidelity Casualty Co. (1965), 2 Ohio St.2d 303, 305.
The holdings in the Sally Chain Stores and Gorman cases illustrate that in the circumstances presented here such exclusionary clauses are susceptible of different interpretations. We are of the opinion, however, that, under the wording of the exclusion itself, the reasoning of the Sally Chain Stores case is the more persuasive.
The exclusionary clause states that it applies where property is stolen from the vehicle. Here, plaintiff's property was stolen at the time the thief removed the vehicle from the parking lot. Nothing is said in the exclusionary clause about theft of the vehicle itself, and if it were intended that the exclusion should apply where the vehicle itself is stolen, then specific language so extending application of the exclusion could have been incorporated in the policies.
In speaking of "exceptions, qualifications and exemptions" contained in insurance policies, this court, in Home Indemnity Co. v. Plymouth (1945), 146 Ohio St. 96, said, that where such conditions are introduced into an insurance contract "a general presumption arises to the effect that that which is not clearly excluded from the operation of such contract is included in the operation thereof." We therefore conclude that, in the absence of specific language in the exclusionary clause extending its operation to theft of the vehicle, the exclusionary clause relieving the insurer from liability for theft from the vehicle does not relieve the insurer from liability for theft of the property where the vehicle, including the property contained therein, is itself stolen.
The judgment of the Court of Appeals is reversed and cause is remanded for further proceedings according to law.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, STERN and LEACH, JJ., concur.
Duncan, J. dissents.