Gomez v. Security Ins. Co. of HartfordGomez v. Security Ins. Co. of Hartford
Plaintiff sued his automobile insurer under the comprehensive coverage of the policy, which included protection against loss caused by theft. The suit was dismissed after a trial on the merits, and plaintiff appealed.
The issue is whether or not the occurrence which caused plaintiff‘s loss constituted a theft for which the policy provided coverage.1
Plaintiff‘s version of the ocсurrence was: On the evening of Friday, May 21, 1971 Donald Rigger came to his home in response to a newspaper advertisement, which he had placed in an effort to sell the insured vehicle. After he, Rigger and a рerson identified as a mechanic took a test ride, Rigger indicated an interest in buying the car, wrote a check for $1,250.00, and asked to see the title as a precaution against liens. He showed Rigger the title but dеclined the check, stating he preferred to wait until Monday to complete the transaction. Rigger then asked permission to show the car to another mechanic and left but never returned. Unknown to him, Rigger had taken the title and left the check. (He explained he had endorsed the title in blank when his mother wanted to buy the car, but she later decided against it.) He then called the police who informed him that since Rigger had left a check for the sale price, they could not take action until the check was rejected by the bank. On Monday morning he learned at the bank that the check was drawn on an account that Rigger had opened an hour before their meeting the past Friday with a deposit of $25.00. (Testimony by a bank official established that Rigger wrote several other fraudulent checks over the weekend on that account, which the bank immediately closed.) He was unable to locate Rigger at the phony address but did find the vehicle at a used car lot. The dealer, who had the endorsed title (and a bill of sale, according to the testimony of the dealer and two policemen), refused to return the car, but at the suggestion of a policeman agreed to return the car to him upon payment of the sum $600.00, which was the amount the dеaler had paid Rigger. After his insurer denied his claim for that sum, he filed this suit.
Counsel for plaintiff argues that the evidence shows his client was taken by a “bunko” artist who knew the police would not pursue him immediately as long as he had left a check which purported to pay for the stolen car. On the other hand, defendant argues that the more reasonable factual finding from the evidence was that plaintiff and Rigger agreed to the sale of the automobile at $1,250.00, at which time the sale was completed (citing
We agree that plaintiff‘s version contains many improbabilities and unlikely coincidences. However, even if plaintiff‘s testimony is completely disregarded, the remaining evidence аnd the overall circumstances clearly establish that the occurrence was a taking under false pretenses rather than a sale.
The evidence taken as a whole is overwhelming that Rigger did not intend tо buy the car for $1,250.00. His intention to permanently misappropriate the vehicle by means of fraudulent conduct was demonstrated by his opening the small bank account listing a false address, by his writing a large check on that account, and by his immediate sale of the car the next morning for less than half the amount of the check he left at plaintiff‘s home.
Since Rigger did not truly consent to buy the thing at the price set by plaintiff, the fact that plaintiff alone intended a contract of sale is not determinative. Both parties must agree on the thing and the price for a valid sale to be complete under
The case thus turns on thе legal issue of whether Rigger‘s fraudulent acquisition of the vehicle constituted a loss to plaintiff caused by theft, as contemplated by the policy. The broad language of the policy does not excludе coverage when the theft is perpetrated by fraudulent conduct or false pretenses. Furthermore, since the provisions of an insurance policy are to be interpreted according to thе natural import of the language used, we believe the common and usual signification of the word “theft” reasonably includes a taking by fraudulent conduct under circumstances which evidence an intent to steal. In any event, the use of the broad term without definition or limitation is ambiguous at best and must be construed against the insurance company. Finally, we find persuasive this state‘s legislative definition of the crime of theft in
We conclude all of the circumstances surrounding Rigger‘s taking of thе car prove plaintiff‘s loss was caused by theft, and defendant is liable under the broad coverage of the policy. We further conclude plaintiff proved the amount of his
II
Plaintiff also sought recovery of penalties and attorney‘s fees under
While plaintiff did not validly consent to the sale of the car, he did consent to Rigger‘s taking temporary possession of the car and either willingly or negligently allowed Rigger to obtain the title. Under such circumstances the courts of various jurisdictions have reached differing results in determining whether the comprehensive coverage clause afforded coverage. See generally 11 Couch, Cyclopedia of Insurance Law, §§ 42:269, 270 (2d ed. 1963); 5 Appleman, Insurance Law and Practice, §§ 3211, 3212 (1970); 48 A.L.R.2d 8 (1956).
III
As subrogee to its insured‘s rights, defendant filed a third party petition against the used car dеaler for the price plaintiff paid to recover the car. After plaintiff‘s appeal was lodged in this court, defendant answered the appeal to protect its rights under the third party demand in the event of reversal.4
In the incidental demand defendant stands in plaintiff‘s shoes and has no greater rights than plaintiff had. We conclude that under the facts of this case plaintiff (and therefore plaintiff‘s subrogee) is not entitled to recovery against the third party defendant.
By consenting to Rigger‘s temporary possession of the car and by willingly or negligently allowing him to obtain the title which was endorsed in blank, plaintiff provided Rigger with considerable indicia of ownership. On the other hand, the third party defendant reasonably believed Rigger (who had possession, title and a bill of sale) had acquired the automobile from plaintiff in payment of a debt.
Of thе two innocent persons who dealt with the swindler, plaintiff was the more blameworthy, and his conduct made the accomplishment of the fraud possible. As between the two, plaintiff must suffer the burden of the loss. Flatte v. Nichols, 233 La. 171, 96 So.2d 477 (1957).5 The third party dеmand by plaintiff‘s subrogee must therefore be dismissed.
For these reasons, that part of the trial court judgment which dismissed plaintiff‘s suit is reversed, and it is now ordered that judgment be rendered in favor of plaintiff and against defendant in thе sum of $600.00, together with legal interest thereon
Affirmed in part, reversed and rendered in part.
Notes
Under the pertinent provisions of thе policy‘s comprehensive coverage the company agreed as follows:
“To pay for loss caused other than by collision to the owned automobile or to a non-owned automobilе. For the purpose of this coverage, breakage of glass and loss caused by * * * theft or larceny * * * shall not be deemed to be loss caused by collision.”