Revesz v. Excess Ins. Co

In Revesz v. Excess Ins. Co. (1973) 30 Cal. App. 3d 125, the Court of Appeal considered language in two "'salesman's floater'" insurance policies procured by the plaintiff, a jewelry salesperson. The facts were undisputed. In order to get directions, the plaintiff stopped and parked his car in front of a service station. Sample cases of jewelry were locked in the truck. The plaintiff had walked two or three feet away in search of directions when the car was stolen. One insurance policy contained a "'holdup and robbery endorsement'" which provided: "'In consideration of the premium for which this policy is written, . . . coverage as granted by the policy shall not apply to any loss of or damage to merchandise: . . . 3. whilst in or upon any automobile . . . unless, at the time the loss or damage occurs, the assured is actually in or upon such vehicle and the merchandise is in his possession.' " ( Id. at p. 127.) The second policy similarly excluded theft from an unoccupied vehicle: "'This policy does not insure loss of or damage to property. . . . 3) in or upon any automobile . . . unless at the time the loss or damage occurs there is actually in or upon the vehicle, the Assured, or a permanent employee of the Assured, or a person whose sole duty it is to attend the vehicle. . . .' " (Ibid.) The Court of Appeal concluded that under the facts before it, the word "upon" did not require interpretation. ( Id. at pp. 128-129.) The court held: "The controlling factors are not the time interval and the distance traveled but plaintiff's intent and conduct. Having parked his vehicle at the curb, locked the ignition, removed his keys, and left his vehicle for the purpose of seeking information, he had temporarily abandoned the vehicle. At the time of the loss the jewelry was not in his 'personal custody' and he was not 'actually in or upon' his vehicle, as required by the policies, in any sense of these words. The temporary abandonment is clearly evidenced by the fact that the thief was able to take possession of the vehicle and its contents without interference from him. Our reasoning and conclusion are consistent with reported decisions construing these key words in policies insuring against loss of property from a vehicle; in each the insured was clearly absent from his vehicle at the time of loss; in each the court found that under the facts presented the words 'actually in or upon' were not ambiguous; and in each the court placed great emphasis on the word 'actually,' indicating that it clearly negates constructive presence and possession. (See Royce Furs, Inc. v. Home Insurance Company (N.Y.App.Div. 1968) 30 A.D.2d 238, 291 N.Y.S.2d 529 ; Phil G. Ruvelson, Inc. v. St. Paul Fire & Marine Ins. Co. (1951) 235 Minn. 243, 50 N.W.2d 629 ; Greenberg v. Rhode Island Ins. Co. (N.Y.App.Term. 1946) 188 Misc. 23, 66 N.Y.S.2d 457 .)" ( Revesz v. Excess Ins. Co., supra, 30 Cal. App. 3d at pp. 128-129.)