State Farm Fire & Cas. Co. v. Ackerman, 871A153

• Decision Date: 27 March 1972
• Docket Number: No. 871A153,871A153
• Citation: 151 Ind.App. 464,280 N.E.2d 332
• Parties: STATE FARM FIRE & CASUALTY CO., Appellant, v. Robert ACKERMAN, d/b/a Ackerman's Super Shell Service, Appellee.
• Court: Indiana Appellate Court

Page 332

280 N.E.2d 332

151 Ind.App. 464

STATE FARM FIRE & CASUALTY CO., Appellant, v. Robert ACKERMAN, d/b/a Ackerman's Super Shell Service, Appellee.

No. 871A153.

Court of Appeals of Indiana, Third District.

March 27, 1972.

Rehearing Denied April 27, 1972.

Michael E. Connelly, Given, Dawson & Cappas, East Chicago, for appellant.

Richard P. Komyatte, Daniel L. Freeland, Efron, Efron & Komyatte, Hammond, for appellee.

HOFFMAN, Chief Judge.

The sole issue presented by this appeal is whether the taking of money from a service station cash drawer was a robbery as defined in an insurance policy issued by defendant-appellant, State Farm Fire & Casualty Company, (State Farm) to plaintiff-appellee, Robert Ackerman, d/b/a Ackerman's Super Shell Service (Ackerman). The questioned provision of the insurance policy defines robbery in the following manner:

"Robbery' means the taking of insured property * * * (3) by any other overt felonious act committed in his presence and of which he was actually cognizant * * *.'

The facts to which this definition is sought to be applied may be summarized as follows from the 'Stipulation of Facts as Evidence' entered into by the parties and filed with the trial court:

On January 27, 1970, the insured, Robert Ackerman, and three employees were on duty at the insured's service station. Ackerman and another employee were working in the bay or garage area of the station. A third employee was servicing a car near the pumps, and the other employee was in the showroom of the station.

A 1964 Cadillac bearing Illinois license plates drove into the station area. A man and woman entered the showroom and asked for change for the candy machine. The employee gave them two dollars worth of dimes from the counter drawer which was the cash drawer for the station, locked the drawer and then went into the bay or garage area himself.

In the meantime, the third employee had finished gassing the automobile and went into the bay or garage area.

While all four attendants were working in the day area, the man stood in the doorway between the bay area and the showroom looking into the garage area. He continued to so stand for a period of time and was clearly visible to the four attents.

During this period of time the woman kept operating the candy machine. There was a popping of the machine two or three times, followed by a silence of a few seconds, and then another popping of the machine two or three times. After a period of minutes the man and woman returned to the car and drove off.

Within a couple of minutes another car drove up for gas. One of the employees walked from the bay or garage area through the showroom and out to the pump area. No one was in the showroom, but he didn't look toward the area of the cash drawer as he walked through the showroom. He gassed the car and then went into the showroom to make change. He then saw the cash drawer standing open. There were pry marks on the drawer and the tongue of the drawer was still in a closed or locked position, since the drawer had been pried open. He then called Robert Ackerman who came into the showroom and observed the pried open drawer where only a few pieces of change remained. The sum of $388.57 had been taken.

The policy contained a $50 deductible clause, thereby leaving allegedly recoverable losses in the amount of $338.57.

Trial by jury was waived, and the trial court having heard the arguments of counsel and having considered the evidence as stipulated and agreed by the parties, entered judgment for plaintiff-Ackerman in the amount of $388.51.

Defendant-State Farm then filed its motion to correct errors containing the following specifications:

'1. The amount of the recovery awarded by the court is excessive, in that the parties had stipulated that damages to the plaintiff covered by the policy in effect could only be the sum of $338.57 (Page 3, Paragraph 2 of stipulation) and the court entered judgment in the amount of $388.51.

'2. The decision is not supported by sufficient evidence and is contrary to evidence * * *.

'3. The decision is contrary to law in that the court is expanding both the common law and the policy definition of 'Robbery' to make the word an all embracing definition such as larceny, rather than the definition which makes violence, fear of violence or awareness of the theft a condition of 'Robbery'.'

Following a hearing on defendant-State Farm's motion to correct errors, the trial court reassessed the damages and entered its amended judgment for plaintiff-Ackerman in the amount of $338.57 under rhetorical paragraph 1 of said motion and overruled said motion as to rhetorical paragraphs 2 and 3.

Both appellant and appellee have cited case law from other jurisdictions interpreting insurance provisions similar to the one here in question. Under similar contractual language and somewhat similar factual conditions, there seems to be a division of authority among the courts as to whether or not coverage should be allowed.

In interpreting the provision of the policy in question, this court cannot rewrite or extend the coverage intended by the clear and unambiguous language of the insurance contract. Ely v. State Farm Mutual Automobile Insurance Co. (1971), Ind.App., 268 N.E.2d 316, 320, 25 Ind.Dce. 289 (transfer denied).

Where there is no ambiguity the terms of the policy must be given their plain, usual and ordinary meaning. O'Meara v. American States Insurance Company (1971), Ind.App., 268 N.E.2d 109, 111, 25 Ind.Dec. 261, (transfer denied).

Where however, the language of an insurance policy is so ambiguous as to be susceptible of more than one interpretation, the court will adopt the construction most favorable to the insured. Patton v. Safeco Insurance Company of America (1971), Ind.App., 267 N.E.2d 859, 25 Ind.Dec. 191.

In the instant case, the provision of the policy in which the clause in question is found, reads as follows:

"Robbery' means the taking of insured property (1) by violence inflicted upon a messenger or a custodian; (2) by putting him in fear of violence; (3) by any other overt felonious act committed in his presence and of which he was actually cognizant, provided such other act is not committed by an officer, partner or employee of the Insured; * * *.'

The criminal definition of robbery is inapplicable in interpreting the above provision. This insurance policy was intended to encompass a wider range of activity than the taking 'from the person of another any article of value by violence or by putting in fear.' See: IC 1971, 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956). We, therefore, must determine whether Ackerman has been robbed solely under the terms of the insurance policy.

In O'Meara v....