Bekins Van Lines Co. v. Hartford Ins. Group.

• Decision Date: 30 September 1976
• Docket Number: CA-CIV,No. 2,2
• Parties: BEKINS VAN LINES COMPANY, a corporation, Appellant, v. HARTFORD INSURANCE GROUP, a corporation, Appellee. 2125.
• Court: Arizona Court of Appeals

Page 1087

557 P.2d 1087

27 Ariz.App. 655

BEKINS VAN LINES COMPANY, a corporation, Appellant, v. HARTFORD INSURANCE GROUP, a corporation, Appellee.

No. 2 CA-CIV 2125.

Court of Appeals of Arizona, Division 2.

Sept. 30, 1976.

Rehearing Denied Nov. 4, 1976.

Petition for Review Denied Dec. 7, 1976.

Merchant, Lohse & Bloom by Ashby I. Lohse, Tucson, for appellant.

Mesch, Marquez & Rothschild, P.C. by Tom R. Clark, Tucson, for appellee.

OPINION

HOWARD, Chief Judge.

Bekins Van Lines Company, defendant below, appeals a judgment for $1,000 in favor of plaintiff-appellee Hartford Insurance Group, as subrogee of one Harry B. Warren.

The facts show that Mr. Warren stored six parcels with Bekins in May of 1971. The warehouse receipt and storage agreement provided that the depositor could either release Bekins' liability for damages to 30 cents per pound per article or could declare a lump sum value on the entire lot, in which case Bekins agreed to 'indemnify the depositor for all physical loss or damage to property while in the care, custody and control of company, caused by: . . . 2. Burglary, theft, pilferage, mysterious disappearance vandalism . . ..' Mr. Warren elected to declare a lump sum value of $1,000 on the six parcels and therefore paid an additional charge of $.50 a month for the increased coverage. The documents also contained provisions disclaiming liability for items of 'extraordinary value' unless such items were specifically listed. In September of 1971, Mr. Warren learned that some of the parcels he had stored were missing. There was evidence that the items might have been stolen by a Bekins employee. Mr. Warren filled out a statement of claim, listing as missing a color television set, a 30.06 rifle and an antique German double-barreled shotgun which he said was a family heirloom.

An exchange of correspondence between Bekins and Mr. Warren ensued. Bekins demanded substantiation of the ownership and value of the missing items, and Mr. Warren replied that he simply could not provide receipts or sales slips for the guns as Bekins had requested since they had been in the family for a considerable period of time. Warren, however, did produce a receipt for the television set and claimed an approximate value of $2,830 for all three items, $2,400 of which was for the antique gun. Bekins continued to insist on 'substantiation' of the value of the guns.

On November 2, 1971, Bekins sent a check for $455 to Mr. Warren (which included $50 attributable to the antique gun) as full settlement of all claims Warren had against Bekins. Frustrated in his attempts to deal with Bekins, Warren turned to the Hartford Insurance Group which carried his homeowner's policy. On November 16, Hartford notified Bekins that it would pay Warren the reasonable value of the missing items, deduct any amounts Bekins had paid to Warren, and look to Bekins for reimbursement of the balance.

On December 2, 1971 Hartford agreed to settle Warren's claim for $1,623, from which it deducted the $455 Bekins had sent Warren. Mr. Warren then cashed the Bekins check and received a check for $1,168 from Hartford.

Most of the evidence at trial was documentary. The trial court entered judgment for Hartford in the sum of $1,000 stating:

'The Court agrees with the position of the Defendant but feels it was unreasonable in demanding proof of ownership of the rifle by sales slip or otherwise when said evidence was not available.'

Appellant presents nine questions for review; however, we need only discuss whether the antique shotgun was excluded from Bekins' liability as an item of extraordinary value which Warren did not declare.

The exclusion of items of extraordinary value appeared in three places--on the preliminary warehouse receipt, the service order agreement and the final warehouse receipt.

Paragraph 9 of the service order agreement signed by the parties stated in bold red print:

'LIMITATION OF COMPANY'S LIABILITY:

A. ITEMS OF EXTRAORDINARY VALUE: Documents, currency, money, jewelry, watches, precious stones or articles of extraordinary value must be listed in writing under Special Provisions. Carrier will not be liable for their loss or damage unless they have been listed. The Company recommends that the customer take such valuable items with him.'

No listing of the shotgun appears in Paragraph 4 under 'Special Provisions'. The failure to list the shotgun on this document is not dispositive, however, since the service order agreement recited that it would be superseded by the standard warehouse receipt and contract unless the party objected to the receipt's terms within fifteen days of its mailing. The standard warehouse receipt issued to Mr. Warren declared that its terms and those of the preliminary warehouse receipt constituted the entire contract between the parties.

Both the preliminary and the final receipt contained the...