In this suit on a scheduled property floater policy, to which a Furrier’s Block Form was appended, plaintiff seeks to recover up to the limit of the policy for furs which were stolen from the trunk of a eаr, which was being used by the plaintiff’s vice-president. It appears that there is agreement that the loss оccurred in the following manner. The vice-president drove up to a certain hotel and parked the car in a position which was approximately 6 to 10 feet from the hotel’s entrance; he lоcked the car, checked the furs which were in the trunk, and saw that the trunk was locked. He then went to the registration desk. There was testimony that adjacent to the desk was a large window from which the ear cоuld be seen. After registering, which took but a few minutes, he started to walk back to the car. As he did so a man “bоlted” into the car, started it up and drove off. This all took but a few seconds. Sometime later the cаr was found and the furs were gone.
The insurance company denies liability on the basis of, the following prоvision in the policy: “ This policy insures against all risks of direct physical loss of or damage to the insured рroperty from any external cause except as hereinafter excluded. # * * Theft from any autоmobile, motorcycle, truck, trailer or any other vehicle unless at the time the theft occurs there is actually in or upon such vehicle, the insured or a permanent employee of the insured or a person whose sole duty it is to attеnd such vehicle. ’’ (Emphasis supplied.)
We cannot agree. Where the clause is clear and unambiguous, we must give it the interpretation that is indicated by its plain lаnguage. We may not rewrite the contract entered into by the parties. We find no ambiguity in the clause. It сlearly calls for no liability unless “ at the time the theft occurs there is actually in or upon such vehicle, the insured or a permanent employee of the insured or a person whose sole duty it is to attend such vehicle ” (emphasis supplied).
The fact remains thаt in this case there was no employee of the insured in or upon the vehicle, nor was there prеsent the insured or a person whose sole duty it was to attend the vehicle. It should be noted that the language provides for .the necessity of having a person in or upon such vehicle is prefixed by the word “ actually. ” That word must be given a meaning. The best we can gather from plaintiff’s position is that its representаtive was in constructive possession of the vehicle, and not actually in or upon the vehicle.
It wоuld serve no useful purpose to discuss the various cases which have considered this clause or similаr clauses, inasmuch as each case must be judged on its own factual situation. Yet, we note that in almost every instance where similar clauses have been considered by the courts, coverage was denied where the automobile was not attended; or where the insured, or the employee, was nоt in or upon the car; or where there was no employee present whose sole duty was to attend such vehicle. The cases are collated and discussed in Phil G. Ruvelson, Inc. v. St. Paul Fire & Marine Ins. Co. (
Indeed, denial of recovery under the fаcts of this case is supported squarely by the exclusion and clearly comes with its exclusion. The purpose of such clause was aptly summarized in
Accоrdingly, the determination of the Appellate Term of the Supreme Court, entered July 5, 1967, which affirmed the judgment оf the Civil Court in favor of plaintiff, entered August 19, 1966, should be reversed on the law, and the judgment entered in favor of thе plaintiff vacated and the complaint dismissed with costs and disbursements to the defendant-appellаnt.
Steuer, J. P., Tilzer, McNally and Bastow, JJ., concur.
Order entered on July 5, 1967 unanimously reversed on the law, with $50 costs and disbursements to the appellant, the judgment entered in favor of the plaintiff vacated and judgment rendered in favor of the defendant dismissing the complaint.