Zingani v. Frost

543 P.2d 674, 273 Or. 774, 1975 Ore. LEXIS 376

• Court: Oregon Supreme Court
• Decided: December 18, 1975
• Status: Published

Opinions

DENECKE, J.

The plaintiff brought this action on an insurance policy to recover the value of his tools which were stolen. The trial court sitting without a jury held for the defendant Unigard Insurance Company. Plaintiff appeals.

The plaintiff worked as an automobile body repairman for Mr. Frost. Plaintiff supplied his own tools which he left at Frost’s shop. Frost had obtained insurance from Unigard in the form of a binder which provided that Unigard insured against the theft of “the specified property of the Insured” as well as other perils. Frost was named as the insured. The binder specified that “Tools, Grinders, Paint guns & Misc, parts” were insured.

Plaintiff’s tools were stolen from Frost’s shop. After Unigard refused to pay, plaintiff brought this action. He alleged Unigard insured him against the loss of his tools.

The trial court made both a finding of fact and a conclusion of law that the policy did not cover employees’ tools. The plaintiff assigns the making of both the finding and the conclusion to be error.

If we look only to the language of the binder, with no assistance from any extrinsic evidence, the plaintiff’s property interest in his tools is not insured as a matter of law. The binder states it insures the property of the insured, Frost.

If the language of the binder is considered uncertain and extrinsic evidence is received, interpretation of the coverage of the binder becomes a question for the trier of fact. May v. Chicago Insurance Co., 260 Or 285, 292-294, 490 P2d 150 (1971).

① The trier of fact decides the credibility of the witnesses and the inferences to be drawn from the evidence. The trial court made a finding of fact that plaintiff’s tools were not insured.

The trial court’s finding is supported by evidence, the most important being the language of the binder; therefore, the finding cannot be disturbed.

Affirmed.

Much of the extrinsic evidence offered by plaintiff was excluded by the trial court; however, the plaintiff has not assigned as error the rulings excluding the evidence. Therefore, we will not consider the rulings on the evidence.