Revesz v. Excess Ins. Co.

• Decision Date: 23 January 1973
• Citation: 30 Cal.App.3d 125,106 Cal.Rptr. 166
• Court: California Court of Appeals Court of Appeals
• Parties: Laszlo REVESZ, Plaintiff and Appellant, v. EXCESS INSURANCE COMPANY, etc., et al., Defendants and Respondents. Civ. 39718.

Page 166

106 Cal.Rptr. 166

30 Cal.App.3d 125

Laszlo REVESZ, Plaintiff and Appellant, v. EXCESS INSURANCE COMPANY, etc., et al., Defendants and Respondents.

Civ. 39718.

Court of Appeal, Second District, Division 3, California.

Jan. 23, 1973.

McBain & Morgan, Kermit J. Morgan, Los Angeles, for plaintiff and appellant.

Spray, Gould & Bowers and Daniel O. Howard, Los Angeles, for defendants and respondents.

SCHWEITZER, Acting Presiding Justice.

Plaintiff, a jewelry salesman, procured a 'salesman's floater' insurance policy from each defendant insurance company, insuring him against certain losses under stated conditions. Following the theft of jewelry from his automobile, plaintiff made demand on defendants for payment. Defendants denied liability. Plaintiff thereupon filed the instant action; by separate answers defendants denied coverage under the facts of the claimed loss on the grounds that their respective policies provided coverage for loss of jewelry from an automobile only while the insured was 'actually in or upon' his vehicle and the jewelry was in his 'personal custody.' Each defendant moved for summary judgment; each motion was granted; separate judgments were entered; plaintiff appeals from each judgment.

There is no dispute as to the facts surrounding the loss. On April 24, 1969 plaintiff was utilizing his auto in calling upon prospective customers. Sample cases of jewelry were locked in the car's trunk. In order to get directions to Downey, he parked his car at a curb in front of a service station, locked the ignition, got out of the car, taking his car keys with him, and walked around in front of his auto to the parkway. Thirty seconds after leaving the car and while plaintiff was still within two to three feet thereof, he heard a door slam and the motor of his car start; he turned and saw an unidentified man drive off at high speed. The car was recovered by police approximately one hour later; the trunk lid had been forced and the jewelry removed.

The 'salesman's floater' of each insurance policy provides for indemnity 'against all risks of physical loss . . . to Travelers Stock and/or Samples . . . either whilst in the Personal custody of the Assured's Salesmen . . . or whilst deposited by them in any shop, hotel, house, store or warehouse for safe custody. . . .' (Italics added.)

The policy of the Excess Insurance Company contains a 'holdup and robbery endorsement' providing in pertinent part, 'In consideration of the premium for which this policy is written, . . . coverage as granted by the policy shall not apply to any loss of or damage to merchandise: . . . ( ) 3. Whilst in or upon any automobile . . . Unless, at the time the loss or damage occurs, the assured is actually in or upon such vehicle and the merchandise is in hes possession.' (Italics added.)

The Yosemite Insurance Company has a similar exclusion, stating in pertient part: 'This Policy does not insure loss of or damage to property. . . . ( ) 3) in or upon any automobile . . . Unless at the time the loss or damage occurs there is actually in or upon the vehicle, the Assured, or a permanent employee of the Assured, or a person whose sole duty it is to attend the vehicle. . . .' (Italics added.)

'Since there was no conflict in the facts and no showing of extrinsic factors the interpretation of the (policies) was a matter of law for the court.' (Enos v. Foster, 155 Cal.App.2d 152, 157, 317 P.2d 670, 673.)

Plaintiff argues that the phrase 'actually in or upon' is ambiguous, and that under the well-established rules of construction of insurance policies, the ambiguous phrase must be construed strictly against the insurer and liberally infavor of the insured. (See generally, Gray v. Zurich Insurance Co., 65 Cal.2d 263, 269--270, 54 Cal.Rptr. 104, 419 P.2d 168; State Farm Mut. Auto. Ins. Co. v. Flynt, 17 Cal.App.3d 538, 547, 95 Cal.Rptr. 296; Utah Home Fire Ins. Co. v. Fireman's Fund Ins. Co., 14 Cal.App.3d 50, 55, 91 Cal.Rptr. 781.) He points out that the word 'in' is clear; that the disjunctive word 'or' preceding the word 'upon' indicates that the latter word means something different from the word 'in'; and that the word 'upon,' if strictly construed, would have a ludicrous meaning when used in conjunction with an automobile. In effect he suggests that it would be reasonable to interpret the phrase as meaning 'in or about' or 'in close proximity to' his vehicle while the insured is engaged in work incidental to loading, unloading or transporting jewelry. Such interpretation would provide coverage while the insured is walking to the rear of his car to remove jewelry, or while he is changing a tire, or while he momentarily leaves his vehicle to obtain directions, the situation presented in the instant case.

The precise factual question presented herein does not appear to have been...