Opinion
April 21, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 656
Phelps, Hall & Keller, Richard P. Hall, Denver, for plaintiff in error.
Yegge, Hall, Treece & Evans, James L. Treece, Edward H. Widman, Denver, for defendant in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
This is an action on an insurance policy to recover the value of personal property destroyed by flood. The case was submitted to the trial court on a stipulated statement of facts. The trial court dismissed the plaintiff insured's complaint and entered judgment in favor of the defendant Insurance Company. This appeal followed.
The insurance policy involved consists of a so-called 'master plan of multiple-peril protection,' which is a compilation of the following:
(a) A basic, comprehensive contract which, insofar as personal property is concerned, insures against damage or loss of personal property situated within, or within 100 feet of, the insured's principal business premises. This basic contract expressly excludes flood losses.
(b) A 'supplemental contract,' which is a 'Scheduled property floater' insuring against loss of or damage to personal property which is in transit. This supplemental contract is an attachment to the basic contract, but specifically states that none of the terms or limits of liability contained in the contract to which it is attached shall apply to its coverage. The supplemental contract itself has a liability limit of $4,000.00, but does not exclude losses from floods. It carries its own comprehensive endorsement as to the terms and conditions of coverage, which endorsement is designated as 'Form 6224A.'
(c) Lastly, there is short-form endorsement adding coverage for property described with the following wording:
"PROPERTY ANYWHERE WITHIN THE CONTINENTAL UNITED STATES,' EXCEPT PROPERTY COVERED UNDER CONVERAGE A AND FORM 6224A ATTACHED. $4,000.00 AT ALL UNNAMED LOCATIONS NOT TO EXCEED $4,000.00 AT ANY ONE LOCATION.'
It is the meaning of this endorsement which is at issue here. The insured contends it extends the coverage of the supplemental in-transit property contract, which does not exclude flood losses, whereas the insurer contends it extends the personal property coverage of the basic contract, which does exclude flood losses, by merely deleting the geographical 'on premises' limitation of the basic contract.
Both parties are in agreement that the insured cannot recover more than $4,000.00, and that the destroyed property was neither on the insured's premises nor in transit. They jointly urge that the policy, although comprised of three parts, is to be construed as a whole. Government Employees Insurance Company v. Lally, 4 Cir., 327 F.2d 568. They mutually acknowledge that since we have the written instrument before us we are not bound by the determination of the trial court. Meier v. Denver U.S. National Bank, 164 Colo. 25, 431 P.2d 1019.
It is our opinion that the endorsement in question can only be construed as an extension of the coverage provided by the basic contract. There is a specific statement at the heading of the endorsement that it forms a part of policy No. M 439--38--29 issued by the National Fire Insurance Company. Such language is, in itself, descriptive of the basic contract. Additionally, the endorsement in question specifically excepts from its coverage the coverages of Form 6224A, and it is this form that almost totally defines the coverage of the supplemental contract. We last note that the property covered by the endorsement had to be at a definite, although unnamed, location and consequently it would be illogical to assume that the coverage relating to property in transit applied to property which was at a stationary location. The insured has urged that in any event where there is an ambiguity in an insurance policy the ambiguity should be resolved in favor of the insured. To so rule, however, would be to disregard certain unambiguous provisions of the policy, and, in effect, to rewrite to contract. This cannot be done during the course of judicial construction. Newark Insurance Company v. State Farm Mutual Automobile Insurance Company, 164 Colo. 498, 436 P.2d 353.
The judgment of the trial court is affirmed.
COYTE and DWYER, JJ., concur.