Viviano v. Jewelers Mut. Ins. Co.

• Decision Date: 10 September 1982
• Citation: 115 Misc.2d 518,454 N.Y.S.2d 404
• Court: New York District Court
• Parties: Michael VIVIANO & Yvonne Lockwood Viviano, Plaintiffs, v. JEWELERS MUTUAL INSURANCE COMPANY, Defendant.

Page 404

454 N.Y.S.2d 404

115 Misc.2d 518

Michael VIVIANO & Yvonne Lockwood Viviano, Plaintiffs, v. JEWELERS MUTUAL INSURANCE COMPANY, Defendant.

District Court, Nassau County First District, Civil Part.

Sept. 10, 1982.

McCabe, Nicolini & Paradise, Mineola, for plaintiffs.

Abrams & Martin, P. C., New York City, for the defendant.

HENRY J. KALINOWSKI, Judge.

DECISION ON MOTION FOR SUMMARY JUDGMENT

The plaintiffs bring this suit to recover under an insurance policy for the loss of an engagement ring. The defendant has denied coverage based upon one of the exclusions of the policy.

The defendant has moved this Court for summary judgment pursuant to CPLR 3212 alleging that there exists no triable issue of fact and that one of the exclusions of the insurance policy in question applies to the present fact pattern.

The defendant contends that the language of the exclusion is clear and unambiguous and in that the ring was not in the "care, custody and control of the named insured" when it was lost. The defendant claims that based upon this exclusionary portion of the policy the plaintiff was properly denied coverage.

The plaintiffs' papers assert the position that the ring was lost and that at no time did she intend to or relinquish the "care, custody and control" of the jewelry.

The question presented is whether the actions of the plaintiff Yvonne Lockwood Viviano triggered one of the exclusions of the policy so that the defendant could correctly deny coverage under it.

The essential facts of the case are not in dispute. On January 19, 1981, the plaintiffs, husband and wife, went to dinner at Cooky's Restaurant in Valley Stream. In the course of the evening, Mrs. Viviano went to the ladies' room. There she took her engagement ring off and placed it on the sink. She also placed her purse alongside the ring. After washing her hands, she picked up her purse, but failed to take her ring. After dinner and upon leaving the restaurant, the plaintiffs realized that the jewelry was missing. Mr. Viviano returned to search for the ring, but his search was to no avail. The Nassau County Police were called and a report of the incident was taken. The following day, Mrs. Viviano phoned the defendant to inform it of her loss and followed the call with a letter dated January 21, 1981.

After receiving the claim of loss under the "Customers Personal Jewelry Policy" the defendant, by letter dated February 6, 1981, denied coverage under exclusion # 5, which reads as follows:

"There shall be no coverage under this policy if the article insured is lost, stolen or damaged in any way when not in the care, custody and control of the named insured, except when in the custody of a jeweler for repair, alteration or appraisal or when being shipped by registered first-class mail and in the custody of the United States Post Office."

There is no issue regarding the effectiveness of the policy at the time of the alleged loss, nor is there a question of proper and timely notice to the defendant. Therefore, the Court finds that the policy was in effect and that the plaintiffs' notice to the defendant conformed to the requirements of the policy.

The type of insurance policy involved in this action was first known as "inland marine insurance" and more recently has been referred to as a "personal property floater policy." These policies have been designed to cover the loss of or damage to various personal items of the insured and have been used extensively to cover the loss of personal jewelry. Selected portions of 30 N.Y.Jur. Insurance § 1161 shed some light on the interpretation of this type of insurance.

"Generally speaking, an inland marine policy insuring personal property, jewelry, and furs against all risks of loss or damage is an agreement of indemnity and is designed to compensate for actual loss sustained... And, as in liability insurance, the insurer assumes the risk of negligence of the insured, and the insured is protected against the consequences of his own conduct if unattended by fraud or design to cause damage. In other words, only fraud or intentional wrongdoing or gross negligence, such as a deliberate disregard of plainly foreseeable consequences, defeats recovery." (Emphasis added)

The case of Finkelstein v. Central Mutual Insurance, (City Ct. N.Y., 1957) 8 Misc.2d 261, 166 N.Y.S.2d 989, cited under footnotes 16 and 17 supports the plaintiffs' position in the present lawsuit, since no evidence of gross negligence or wrongful intent on the part of either plaintiff has been found or alleged. If the Court were to base its determination on this general statement of law, the plaintiffs would summarily succeed. However, a closer look at the defendants' position is required. Defendant has denied coverage to the plaintiffs based upon the previously recited exclusion contending that the loss of the ring occurred while the ring was not within Mrs. Viviano's "care, custody and control." It alleges that the ring was voluntarily parted with or mislaid and that this falls within the exception quoted above.

Based...