Deleson Steel Co., Inc. v. Hartford Ins. Group

• Decision Date: 02 March 1977
• Citation: 372 A.2d 663,148 N.J.Super. 336
• Parties: DELESON STEEL COMPANY, INC., Plaintiff, v. The HARTFORD INSURANCE GROUP, Defendant.
• Court: New Jersey Superior Court

Page 336

148 N.J.Super. 336

372 A.2d 663

DELESON STEEL COMPANY, INC., Plaintiff, v. The HARTFORD INSURANCE GROUP, Defendant.

Superior Court of New Jersey,

Law Division.

March 2, 1977.

Jones, Cuccio & Klinger, Hackensack, for plaintiff (Gary S. Redish, Hackensack, of counsel).

Lum, Biunno & Tompkins, Newark, for defendant (Steven E. Brawer, Newark, of counsel).

MORRISON, J.C.C., Temporarily Assigned.

This case comes before the court on cross-motions for summary judgment on the issue of insurance coverage. Plaintiff Deleson asserts that its loss was covered under its theft and embezzlement policy written by defendant Hartford. Hartford denies coverage under the terms of the policy. The parties are fairly in accord as to the factual setting of the case. Therefore, solely for the purposes of these motions, we find the following facts:

In August 1975 plaintiff was engaged in the construction of the structural steel framework for an elementary school in Newark. Deleson's job superintendent for this project was John Speer, Sr. One of Speer's duties on August 22, 1975 was to transport the payroll from plaintiff's office in Englewood to its employees working on the job site. It appears from his affidavit that Speer had performed this 'paymaster' function with some regularity during his 25 years of employment with Deleson.

On August 22, 1975 Speer arrived on the job site at about 7:45 a.m. (this was about 45 minutes prior to the scheduled arrival of the employees whose work day began at 8:30 a.m.). He parked his Deleson van on the site, placed the payroll under the driver's seat and locked the doors. Speer then proceeded to engage in some minor supervisory functions, E.g., conversing with the operating engineer who was responsible for the preliminary oiling and starting of the machinery and equipment to be used that day. This sojourn lasted some 30 to 35 minutes, as Speer testified he returned to the van sometime between 8:15 and 8:30 a.m. Upon his return he discovered that a window had been broken and the payroll stolen.

The theft was subsequently reported to the Newark police and a claim duly made to Hartford under the policy that is now before this court. Defendant denied the claim on the basis that Speer was not in the process of 'conveying' the payroll at the time of the theft. Thus, it is this court's responsibility to determine the coverage provided.

The applicable policy provision is found under the heading, 'Paymaster Broad Form Coverage.' It reads as follows To pay for loss of payroll funds and other money and securities by actual destruction, disappearance or wrongful abstraction thereof outside the premises while being conveyed by a messenger or any armored motor vehicle company, or while within the living quarters in the home of any messenger.

The term 'messenger' is defined in the policy as 'the Insured or a partner of the Insured or any Employer who is duly authorized by the Insured to have the care and custody of the insured property outside the premises.'

We must first concern ourselves with Speer's potential 'messenger' status Vis-a -vis the policy. It is undisputed that Speer was in the employ of the insured during this occurrence. However, there is some question as to whether the payroll was in his 'care and custody' at the time of the theft.

A careful reading of the policy reveals that these terms are undefined. In situations such as this, our law is clear:

In the absence of such definition the term must be given its plain, ordinary and popular meaning, and must be interpreted as understood by the average insured when purchasing the policy. (Wilkinson v. Providence Washington Ins. Co., 124 N.J.Super. 466, 469, 307 A.2d 639, 641 (Law Div.1973))

'Care' is commonly defined as 'charge or supervision'; 'custody' is defined as 'immediate charge and control exercised by a person.' Webster's Seventh New Collegiate Dictionary (1972).

We find that the payroll was under Speer's 'supervision' and 'control' when stolen, even though it was left unattended, in that Speer locked the van, placed the keys in his pocket and remained near the place where the van was parked. See Atlanta Tallow Co. v. Fireman's Fund Ins. Co., 119 Ga.App. 430, 167 S.E.2d 361 (App.Ct.1969). Therefore, we hold that Speer qualified as a 'messenger' under the policy by virtue of his being an employee of the insured and by his having 'care and custody' of the payroll.

The issue now presented is a narrow one--was the payroll that was in the care and custody of plaintiff's messenger 'being conveyed' at the time of the theft? This court acknowledges the excellent briefs submitted by the parties and recognizes that the solution to this problem is not easily achieved.

At the outset, we note that defendant places heavy reliance upon what it contends are the two leading New Jersey cases in this area: Trad Television Corp. v. Hartford, 35 N.J.Super. 36, 113 A.2d 47 (1955), and Boonton Handbag Co. v. Home Ins. Co., 125 N.J.Super. 287, 310 A.2d 510 (1973). This court has carefully considered these two cases and finds that they are factually irreconcilable with the case at bar.

In Trad we have the same issue under similar policy language. However, Trad's anomalous factual setting bars any analogy to this case. On a Friday Trad, the corporation's vice-president, took money that was to be delivered to a fellow corporate employee. These funds were to be expended by the intended recipient the following Tuesday. In the interim Trad was detoured to an impromptu birthday celebration at a local tavern, where the money vanished. The court held that Trad's possession of the money was that of a corporate president; thus, no bailment by a messenger existed. Furthermore, the court went on to say, (35 N.J.Super. at 41, 113 A.2d at 50), 'indeed the transportation, the contemplated purpose of which was intended to be performed on or before the following Tuesday, had not begun.'

In the Boonton case the policy protected against loss of goods and it contained 'in transit' language as opposed to the 'while being conveyed' language that appears in the policy before this court. The goods had arrived at their destination and were being stored overnight due to the tardiness of the delivering driver. The theft occurred sometime...