Boggs v. Motors Insurance Corporation

• Citation: 139 A.2d 733
• Decision Date: 17 March 1958
• Docket Number: No. 2049.,2049.
• Parties: Bobby R. BOGGS, Appellant, v. MOTORS INSURANCE CORPORATION, Appellee.
• Court: D.C. Court of Appeals

Page 733

139 A.2d 733

Bobby R. BOGGS, Appellant, v. MOTORS INSURANCE CORPORATION, Appellee.

No. 2049.

Municipal Court of Appeals for the District of Columbia.

Argued October 28, 1957.

Decided March 17, 1958.

Cullen B. Jones, Jr., Washington, D. C., with whom W. Byron Sorrell, Gerard P. Fleischut, and Bernard J. Hammett, Washington, D. C., were on the brief, for appellant.

Charles E. Channing, Jr., Washington, D. C., with whom Hugh Lynch, Jr., Washington, D. C., was on the brief, for appellee. Edward J. Gorman, Jr., Washington, D. C., also entered an appearance for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

The facts in this case closely parallel those in Great American Indemnity Company v. Yoder¹ recently decided by this court.

As in that case appellant advertised his car for sale in a Washington newspaper. He was thereafter approached by an individual using a fictitious name who, with the aid of an accomplice, entered into negotiations for the sale of the car. The price being acceptable to both parties, appellant removed his license plates, transferred his certificate of title and turned the car over to the purchaser. In return appellant accepted a check for the amount of the sale price, which was subsequently dishonored as having been drawn on a nonexistent account.

Suit was then brought against appellee insurance company on a policy by which it agreed, under the theft (broad form) provision, to pay appellant for loss or damage to the automobile caused by "theft, larceny, robbery or pilferage." Under the terms of the policy this coverage is not applicable "if the automobile is or at any time becomes subject to any bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance" or where the loss is "due to conversion, embezzlement or secretion by any person in possession of the automobile" under any of the conditions in the previously mentioned exclusion clause. Cross-motions for summary judgment were filed, and after oral argument judgment was entered for appellant. On appellee's motion judgment was set aside with appellant's consent pending our decision in the Great American case in the belief that that case would be dispositive of the issues here involved. On the basis of our holding in Great American the court entered judgment for the appellee.

In raising the issue as to whether a loss under these circumstances is one for which the insurance company agreed to indemnify appellant, the same question as was presented in Great American is before us in this appeal. Appellant's chief attempt to distinguish the two cases lies in his contention that the insurance contract in the present instance is a Virginia contract and that a different result would be reached if the law of that jurisdiction governs the construction of the policy. He points out that although the policy was written in and issued from the District of Columbia where premiums were paid, the contract was delivered in Virginia and was intended to protect property owned and maintained in that State by a Virginia resident. We do not believe it necessary to determine which law should govern the construction of the contract as we think the same result is reached under the existing state of law in either jurisdiction.

In Great American Indemnity Company v. Yoder, supra, where the loss occurred under identical circumstances, this court held that words in an insurance contract, unless obviously used in a technical sense, are to be given their commonly accepted meaning. In concluding that the word "theft" as used in the comprehensive coverage clause of the policy did not embrace a taking by false pretense, we stated:

"* * * We think the popular definition of `theft' carries the import of a trespass and is not applicable where one intends to voluntarily transfer not merely possession but title to the property."²

While in the present case appellant rests his claim on the theft (broad form) provision which protects against loss due to theft, larceny, robbery, or pilferage, the distinction is without significance. The construction of the same word is in issue; moreover, the principles laid down in Great American have had equal application in cases where recovery has been sought on the basis of this clause or similar provisions in a policy.³

The Great American case was not decided on this basis alone, for the obligations of the parties to an insurance contract must be determined by the protection clauses together with the provisions excepting coverage. The policy here excludes theft coverage "if the automobile is or at any time becomes subject to any bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance" (emphasis supplied) or where the loss is due to conversion, embezzlement, or secretion by any person in possession of the automobile under the previously mentioned conditions. In referring to the above provisions, which were the same in Great American, we stated that these clauses restricted rather than extended the meaning of the term "theft." A reading of the conditions enumerated in...