Norman v. Banasik

• Decision Date: 03 November 1981
• Docket Number: No. 19,19
• Citation: 283 S.E.2d 489,304 N.C. 341
• Parties: Russell NORMAN v. Rick BANASIK d/b/a The Motor Works and Ohio Casualty Company.
• Court: North Carolina Supreme Court

Page 489

283 S.E.2d 489

304 N.C. 341

Russell NORMAN v. Rick BANASIK d/b/a The Motor Works and Ohio Casualty Company.

No. 19.

Supreme Court of North Carolina.

Nov. 3, 1981.

William B. Gibson, Winston-Salem, for defendant-appellant Banasik.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by W. Thompson Comerford, Jr. and William A. Brafford, Winston-Salem, for defendant-appellee, Ohio Cas. Ins. Co.

MEYER, Justice.

The evidence at trial tended to show that Rick Banasik owned and operated an automobile repair shop known as The Motor Works located in an old brick building with a concrete floor on Northwest Boulevard in Winston-Salem. His brother Robert worked as a mechanic there, and when Robert reported to work on Saturday morning, 2 December 1978, he discovered the front door to the building closed but unlocked, several items out of place and several tool boxes opened. Robert called the police and his brother to report a probable burglary. A police officer and Rick Banasik arrived shortly thereafter and began investigating for clues as to how the thief or thieves might have entered the building. They failed to discover initially any signs of forced entry and the police officer left the scene. In continuing his investigation, Rick Banasik discovered an area on the concrete floor where the mortar dust had been "swept" aside. At that location a steel plate anchored to the floor at the bottom of the left side of the rear door held the door against the rear wall on the interior of the building. He also noticed that one of the bolts was missing from this L-shaped steel plate and was lying several feet away underneath a car. He recalled the police officer to the scene and showed him his discoveries.

The rear door is a large wooden sliding door, and this L-shaped steel plate, along with a similar one on the right side, held in place by two lag bolts on each plate which were screwed into receptacles in the concrete floor, serves to prevent the door from being pushed inward. These plates hold the sliding door within its proper path between the plates and the rear wall. The door is opened and closed by sliding it from side to side along the wall. When the steel plates are in their proper location, there is a clearance of a few inches between the door and the wall, so that a person on the outside of the building could put his hand through the clearance between the door and the wall and, with the use of a tool, remove the bolt from the plate. However, with the bolt missing, the steel plate on the left side could swivel so that the door could be pushed inward between twelve and eighteen inches, creating an opening large enough to allow a person to crawl through, and through which the missing items could be removed.

The testimony indicated that the front door had been locked and the bolt and plate on the left side of the rear door were in their normal positions the night before. The front door could be locked or unlocked from the outside only with a key and from the inside only by turning a brass hasp. Keys to the front door were in the possession of Banasik, his brother Robert, and two secretaries. The rear door was secured by a chain and lock and could only be unlocked from the inside. There was no evidence of forced entry or exit at any other door or any window. The front of the building faced a lighted street and the rear faced an unlighted parking lot away from the street.

Banasik was insured against burglary by Ohio Casualty under a policy which defined burglary as:

[t]he felonious abstraction of insured property (1) from within the premises by a person making felonious entry therein by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the exterior of the premises at the place of such entry, or (2) from within a showcase or show window outside the premises by a person making felonious entry into such showcase or show window by actual force and violence, of which force and violence there are visible marks thereon, or (3) from within the premises by a person making felonious exit therefrom by actual force and violence as evidenced by visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the interior of the premises at the place of such exit. (Emphasis added).

The company denied Banasik's claim for recovery under the policy for the items taken, contending then as it does now before this Court, that there was no burglary within the definition of the policy.

The appellant contends that both the trial court and the Court of Appeals erred in concluding that the evidence at trial was insufficient to permit the jury to find that a burglary as defined by the policy of insurance had in fact occurred. We agree.

Ohio Casualty argues that we should affirm the rulings of the lower courts because (1) Banasik's evidence is insufficient to show an entry or exit at the rear door as a more reasonable inference than other theories not covered under the policy, and (2) regardless of where entry or exit may have occurred, a missing bolt does not constitute "visible marks" or "physical damage" within the meaning of the policy.

To support its first contention, Ohio Casualty argues that Banasik has failed to carry the burden of showing that a "burglary" is the more reasonable inference from the evidence, that Banasik has merely offered evidence tending to show that a burglary could have occurred, but no substantial evidence tending to show that a burglary did occur. The insurance company argues that even if this Court agrees with the appellant that the removal of the bolt constitutes "visible marks ... or physical damage," it is more likely, or at least equally likely, that any purported entry or exit occurred through the front door of the building which was found unlocked the next morning.

First, we note that it is not uncommon for insurance companies to include in their burglary policies provisions requiring visible marks or physical damage as evidence of felonious entry or exit. The rule requiring construction in favor of the insured does not apply to such provisions because they are not ambiguous. Clemmons v. Insurance Co., 2 N.C.App. 479, 163 S.E.2d 425 (1968); 44 Am.Jur.2d Insurance § 1401 (1969); Annot., 99 A.L.R.2d 129 (1965).

We also note that in order to establish a burglary within the wording of the policy, appellant must prove that the thief or thieves at some point used this rear opening as an exit because the only possible visible mark or physical damage existing in this case is on the interior of the premises. Under the definition of "burglary" set out in the policy, if Banasik were proceeding under the theory of entry at this rear door, he would have to show visible marks upon or physical damage to the exterior of the premises. The question on the insurance company's motion for a directed verdict becomes then whether there was sufficient evidence to justify a conclusion by the jury that it is more reasonable to infer that the rear door was used that night to make a felonious exit. See Adler v. Insurance Co., 280 N.C. 146, 185 S.E.2d 144 (1971). In answering this question, the Court must view the evidence in the light most favorable to the non-movant, resolving all conflicts in his favor and giving him the benefit of every inference that could reasonably be drawn from the evidence in his favor. Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E.2d 507 (1978), citing Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973); Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977),citing Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585 (1974) and Adler v. Insurance Co., 280 N.C. 146, 185 S.E.2d 144 (1971). The court's granting of Ohio Casualty's motion for directed verdict was proper only if it appears that Banasik failed to show a right to recover upon any view of the facts...