State Liquor Stores 1 v. United States Fire Ins. Co.

243 So. 2d 228
CourtDistrict Court of Appeal of Florida
DecidedJanuary 26, 1971
DocketN-485
StatusPublished
Cited by11 cases

This text of 243 So. 2d 228 (State Liquor Stores 1 v. United States Fire Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Liquor Stores 1 v. United States Fire Ins. Co., 243 So. 2d 228 (Fla. Ct. App. 1971).

Opinion

243 So.2d 228 (1971)

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.

January 26, 1971.

*229 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 issued 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 *230 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 coverge 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 *231 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 money 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:

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Bluebook (online)
243 So. 2d 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-liquor-stores-1-v-united-states-fire-ins-co-fladistctapp-1971.