State Liquor Stores No. 1 v. U.S. Fire Ins. Co.

• Decision Date: 26 January 1971
• Docket Number: No. N--485,N--485
• Citation: 243 So.2d 228
• Parties: STATE LIQUOR STORES #1, State Liquor Stores #2, Variety Package Store, Inc., Appellants, v. UNITED STATES FIRE INSURANCE CO., Appellee.
• Court: Florida District Court of Appeals

Page 228

243 So.2d 228

STATE LIQUOR STORES #1, State Liquor Stores #2, Variety Package Store, Inc., Appellants, v. UNITED STATES FIRE INSURANCE CO., Appellee.

No. N--485.

District Court of Appeal of Florida, First District.

Jan. 26, 1971.

Fisher, Hepner & Hertz, Pensacola, for appellants.

Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.

WIGGINTON, Acting Chief Judge.

Plaintiffs in these consolidated cases appeal and seek reversal of a final judgment in favor of defendant based upon a verdict directed by the court at the conclusion of plaintiffs' evidence.

This suit was instituted by plaintiffs on a mercantile robbery insurance policy is sued to each of them by defendant. Plaintiffs seek judgment for the amount of company funds stolen from their president under the circumstances of this case. The pleadings of the parties raise two basic issues for determination. The first issue involves the question of whether at the time of the robbery the money stolen was in the process of being 'conveyed by a messenger' within the coverage provided by the terms of the policies. If this question is resolved in the negative, then the second issue presented is whether appellee insurance company agreed to provide coverage for money lost by robbery outside the insured premises when not in the process of being 'conveyed by a messenger' at the time the robbery occurs.

The facts of the case are not in dispute. Appellants purchased the burglary insurance policies involved in this case through a local agency, Waldorff's Insurance and Bonding, Inc., which agency was the general agent for the appellee, United States Fire Insurance Co. At the time the insurance was discussed the president of the agency was fully apprised of the procedure followed by appellants in the handling of their money received in the course of their respective businesses. The agency was informed that each night at the close of business all money on hand in each business was accumulated by the company's president, Clary, and taken to the latter's home where he maintained an office. The company funds were kept in his personal possession until the following business day when bank deposit slips were made out and the money taken to the bank for deposit. After being informed of such practice by appellants, appellee's agent advised that the burglary insurance policy then being offered to appellants would fully protect them from loss by robbery. It was on the basis of this understanding that the insurance policies were issued by appellee and delivered to appellants.

At the close of business on Saturday night, July 27, 1969, appellants' president picked up the company funds accumulated during the day at all three places of business and took them to his home where he placed the money on a desk next to his bed. On the following morning a robber entered the president's home and robbed him of the company's funds. Had the robbery not occurred, a portion of the money in the possession of appellants' president would have been returned to each of the three stores on Sunday morning for use as petty cash when the stores opened that day for business. In this event, Sunday's receipts from sales would in a like manner have been taken by the president to his home after the close of business and added to the money derived from Saturday's business, which together would have been made the subject of a deposit in the bank when that institution opened on the following Monday morning.

We first consider the question of whether under the facts hereinabove recounted it should be held as a matter of law that at the time of the robbery the money was in the process of being 'conveyed by a messenger' within the coverage provisions of the policies. Coverage A of each of the insurance policies provides that the company will pay for loss of money, securities and other property by robbery or attempt thereat within the insured premises. Coverage B of the policies provides:

'Robbery Outside the Premises. To pay for loss of money, securities and other property by robbery or attempt thereat outside the premises while being conveyed by a messenger.'

Under the definition clause of the special provision section of the policies it is provided:

"Messenger' means the insured, a partner therein or an officer thereof, or any employee thereof who is in the regular service of and duly authorized by the insured to have the care and custody of the insured property outside the premises.'

The law relating to the construction of insurance policies is well established in this state. If the language of the policy is plain and unambiguous, the words must be given their commonly accepted meaning. When the meaning of the policy provision is clear and free from doubt, it will be enforced as written and resort will not be made to extrinsic evidence for the purpose of arriving at a proper construction of the language used.

It is appellants' position that when the company's money involved in this proceeding was stolen, it was in the process of being conveyed by their president to the bank because he fully intended to deposit the money in the bank when it opened for business on the following Monday morning.

On the contrary, appellee contends that at the time the company's funds were stolen they were not being 'conveyed by a messenger' within the clear and unambiguous provisions of the policies and, therefore, off-the-premises coverage is not available for payment of the loss.

No decision by an appellate court in this state has been cited by either party, in which the policy provision with which we are here concerned has been construed. The identical language of these policies has been construed, however, by courts of other jurisdictions. Those courts have uniformly held that a loss by robbery under circumstances similar, if not identical, with those present in the case sub judice does not come within the coverage of the policy.

In J & C Drug Company v. Maryland Casualty Company ¹ three retail drug companies, each a separate corporate entity, held insurance policies which provided coverage for company money lost by robbery off the insured premises 'while being conveyed by a messenger.' All three companies were owned and controlled by the same persons and managed by one Pessin who was an officer in each corporation. In accordance with his customary practice, Pessin accumulated all of the money realized from sales by each of the three companies at the end of the business day on Saturday, and took such money to his home where he kept it until the following Monday morning. Upon leaving his home on Monday morning Pessin took the money to a fourth drug store owned by him and his associates and, upon arriving there prior to banking hours, placed all of the money in his safe located in the office at the rear of the store. It was his intention to take the moeny to the bank and deposit it as soon as the bank opened for business that day. Before being able to accomplish his intended purpose, Pessin was robbed by a bandit who forced him to open the safe from which the money owned by the three corporate insureds was stolen. The insurance company disclaimed liability on the ground that at the time of the robbery the money was not being 'conveyed' within the restrictive provisions of the insurance policy sued upon.

In rejecting the claim by the drug companies against their insurance carrier, the court framed the question for determination as follows:

'The sole question to be resolved has to do with the meaning of the clause in the policies which insured against the loss of money 'occurring outside the premises * * * while being conveyed by a messenger'. The money was outside the premises of the insured plaintiffs and on this score there is no dispute. There is no question raised about Pessin qualifying as a messenger under the terms of the policies. The defendant does contend that Pessin was neither acting as a messenger nor 'conveying' the money at the time of the holdup. The plaintiffs conversely maintain that since the money had left its point of origin and had not yet reached the bank, it was still being 'conveyed' even though it was in the safe of the Sands Drug Company at the time the robbery took place.'

In reaching its determination that the stolen money was not being 'conveyed by a messenger' at the time of the robbery as required by the policy provisions, the court said:

'In the case under consideration Pessin had conveyed the money to the Sands Drug store where he placed it in a safe. He had then turned his attention and activities to the business of running the store. It was during this time that the holdup occurred and the fact that Pessin had intended to take the money to the bank later did not make him a messenger at the time of the robbery, nor was the money being conveyed.'

In Monteleone v. American Employers' Insurance Company ² the plaintiff owner of a supermarket held a broad form theft insurance policy which covered loss of money and securities by wrongful abstraction thereof outside the premises 'while being conveyed by a messenger.' At the close of business on the day prior to the robbery, the insured placed all money derived from that day's sales in two separate money bags and took them to his home where he placed them in a cedar chest. The next morning he removed from the chest one of the bags of money, made out a deposit slip covering the amount contained in that bag and took it to his store, leaving the other bag in the cedar chest at his home. After the bank opened for business, the insured made a deposit of the money contained in the bag which he had brought from his home and then returned to his store where he continued to engage in the normal course of business. Later in the morning he was informed that his home had been burglarized. Upon returning to his home he found that the bag containing money of the previous day's business had been stolen from the cedar chest where he had...