Brugioni v. Maryland Cas. Co.
| Decision Date | 14 September 1964 |
| Docket Number | No. 50220,No. 2,50220,2 |
| Citation | 382 S.W.2d 707 |
| Parties | Guido BRUGIONI, Surviving Partner of Dominick Brugioni and Guido Brugioni, a Partnership, d/b/a Manhattan Club, Appellant, v. MARYLAND CASUALTY COMPANY, an Insurance Corporation, and Manufacturers and Mechanics Bank of Kansas City, a Corporation, Respondents |
| Court | Missouri Supreme Court |
Roger C. Slaughter R. T. Brewster, Slaughter & Brewster, Kansas City, for appellant.
Hale Houts, Ralph H. Smith, Jr., Houts, James, Hogsett & McCanse, Kansas City, for respondents.
The plaintiff Guido Brugioni sued as a third-party beneficiary to recover under a bond or policy of insurance the sum of $16,800 which amount he lost when he was held up and robbed on a parking lot maintained by the defendant Manufacturers and Mechanics Bank for the use of its customers. The bond was issued by the defendant Maryland Casualty Company and the named insureds were the Bank and the Sheffield Safe Deposit Company. The theory of the plaintiff's action is that, in addition to the named insureds, the bond is for the benefit of customers of the Bank who suffer losses at the place and in the manner he did. A jury was waived; the court found the issues in favor of both defendants and the plaintiff has appealed. The question presented in this court as in the trial court is whether the bond affords protection to customers of the Bank, a class of which the plaintiff is a member, or whether indemnification is limited to the named insureds, the Bank and the Safe Deposit Company. In the view we take of the case, the material facts are not in dispute.
The plaintiff and his father were partners in the operation of a tavern in Kansas City known as the Manhattan Club. The father died after the loss in question and the plaintiff became the sole owner of the cause of action. The plaintiff had been a customer of the Bank for a number of years and frequently borrowed money for the purpose of cashing payroll checks for his customers, chiefly employees of Sheffield Steel Company. Pursuant to previous arrangements, he went to the Bank on January 7, 1960, near noontime, and borrowed the sum of $16,800. As collateral security he gave the Bank an assignment of a savings and loan account and a lien on his home. The plaintiff put the cash proceeds of the loan in a cloth bag and went to his automobile which was on a parking lot maintained by the Bank for the convenience of its customers. As he started to get into the car he was held up and robbed by a band of three or four men. He was severely beaten during the robbery and was taken to a hospital where he remained until January 20, 1960.
None of the $16,800 taken in the robbery was recovered. The plaintiff paid off the Bank's loan in full, the last of it in June 1962. The plaintiff and his counsel had several interviews with Bank officers, who took the position that the loss was not covered by any of the Bank's insurance policies. Under date of April 1, 1960, plaintiff's attorney wrote a joint letter to the defendant Bank and the defendant Casualty Company in which he asserted that the loss was completely covered by the Bank's policy of insurance with Maryland Casualty Company an demanded immediate payment of the loss. The demand was not met and this suit was filed on June 13, 1960. The separate answers of the defendants admitted the existence of a contract of insurance but denied it was for the benefit of the plaintiff and further alleged that the defendant Casualty Company by its contract of insurance 'agreed to indemnify and hold harmless only the Manufacturers & Mechanics Bank from and against any loss of its property through robbery in its parking lot.'
The contract of insurance issued by Maryland Casualty Company is in evidence as plaintiff's exhibit 1 and the five riders attached are plaintiff's exhibits 1-A through 1-E. The contract and riders are all dated November 15, 1959. The contract on its face is designated 'Bankers Blanket Bond, Standard Form No. 24'. It is in the form of a policy of indemnity insurance and will sometimes be referred to as the bond.
The provisions of the bond relating to customers, and with which we are primarily concerned, is a rider identified as plaintiff's exhibit 1-C which we will sometimes refer to as rider 1-C. The pertinent insuring provisions and particularly insuring clause (B) with rider 1-C incorporated therein are as follows:
'(a) * * *
'(b) * * *
'(c) through robbery or hold-up during banking hours while such customer or representative is in any building or on any driveway, parking lot, or similar facility maintained by the Insured as a convenience for such customers or representatives using motor vehicles provided that any such customer or representative is present in such building or on such facility for the purpose of transacting banking business with the Insured at any of the Insured's offices covered hereunder;
excluding, in any event, loss caused by such customer or any representative of such customer.' Italics added.
The second paragraph of insuring clause (B), for which rider 1-C was substituted, covered losses of the same kind of property through the same hazards 'while within any of the Insured's offices covered hereunder'. The legal effect of rider 1-C was to extend the coverage, among other places, to a 'parking lot or similar facility maintained by the Insured as a convenience' for its customers present on such facility for the purpose of transacting banking business with the Insured.
The first paragraph of the bond recites that the Casualty Company 'undertakes and agrees to indemnify and hold harmless THOSE DESIGNATED AS INSURED IN THE JOINT INSURED RIDER ATTACHED HERETO AS A PART HEREOF hereinafter referred to as Insured'. The joint insured rider attached thereto is marked for identification as plaintiff's exhibit 1-D. Omitting immaterial portions, the rider provides as follows:
'1. From and after the time this rider becomes effective the Insured under the attached bond are: MANUFACTURERS AND MECHANICS BANK OF KANSAS CITY, KANSAS CITY, MISSOURI SHEFFIELD SAFE DEPOSIT COMPANY, KANSAS CITY, MISSOURI
'2. The first named Insured shall act for itself and for each and all of the Insured for all the purposes of the attached bond.
'3. * * *
'4. * * *
'5. * * * Payment by the Underwriter to the first named Insured of loss sustained by any Insured shall fully release the Underwriter on account of such loss.
The contract provisions making the Bank and the Safe Deposit Company the named Insureds do not preclude other persons or classes of persons, such as customers, from being covered if other portions of the contract of insurance so provide. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 638-639; Kelso v. Kelso, Mo., 306 S.W.2d 534, 536[2, 3]; Couch on Insurance 2d, Vol. 3, Sec. 23:4; Couch on Insurance 2d, Vol. 4, Sec. 27:24. See also Wise v. St. Louis Marine Insurance Company, 23 Mo. 80.
It is true as the defendants contend that it is the court's duty to interpret insurance contracts and enforce them as they are written and not to remake them. Forir v. Toman, Mo., 202 S.W.2d 32, 34; Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745, 748. On the other hand, an insurance policy being a contract designed to furnish protection will, if reasonably possible, be interpreted so as to accomplish that object and not to defeat it, and, if terms of the contract are susceptible of two possible interpretations and there is room for construction, the provisions limiting or cutting down on the coverage of the policy, or avoiding liability therefor, will be construed most strongly against the insurer. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 638-640; Consumers Money Order Corporation v. Pettit, Mo.App., 358 S.W.2d 422, 424.
The defendants further contend that the money of which the plaintiff was robbed was not 'Property' within the meaning of the bond because it was not money 'in which the Insured has an interest' which is one of the terms or qualifications used in the paragraph of the bond defining 'Property'. There is no doubt that by reason of the completed loan the plaintiff owned the money and had exclusive possession of it and that the Bank had no direct interest in it. We are not concerned with the business interest or motive a bank would have in providing indemnity protection for its customers who are depositors and borrowers from loss by holdup or robbery while they are on the bank's premises.
The paragraph of the bond defining property deals with two categories; the first consists of enumerated items of property and the other of chattels not enumerated. Each has its own modifying clauses. The definition of Property mentions by name more than forty different kinds of property. Omitting the items of enumerated property not here involved, the paragraph reads as follows:
'DEFINITION OF PROPERTY
'Wherever used in this bond Property shall be deemed to mean money, currency, coin, bank notes, Federal Reserve notes, * * * (1) in which the Insured has an...
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