Overton Square, Inc. v. Home Insurance Co.

COOPER, Justice,

dissenting.

I agree with the majority that the plaintiff failed to bring itself within coverage (l)(a) or (l)(b) of the safe-burglary endorsement. However, I am of the opinion, contrary to the majority, that the plaintiff failed to bring itself within coverage (2) of the safe endorsement policy and that the trial court and Court of Appeals acted properly in dismissing plaintiff’s suit.

Coverage (2) says simply that “Safe Burglary means ... (2) the felonious abstraction of such safe from within the premises.” By construction, the majority adds to this simple language and holds that coverage (2) gives the insured protection when insured property has been feloniously abstracted “along with so much of the safe as prevents a showing of visible marks under either alternative of coverage (1).” The majority then reasons that the “locking mechanism” of a floor-safe, being the only part that could be removed from the insured’s premises, is “the safe” within coverage (2). By this construction and reasoning, in my opinion, the majority of the court has written a new contract for the parties and then concluded that plaintiff’s losses were covered under coverage (2) of the policy as written by the majority.

It is axiomatic that the language of an insurance policy, as any other contract, must be given its ordinary meaning and import. See Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn.1975); Walker v. Tennessee Farmers Mut. Ins. Co., 568 S.W.2d 103 (Tenn.App.1977). Further, the courts must take contracts as written and cannot add clauses not contemplated by the parties. Holland v. Morrison, 14 Tenn.App. 73 (Tenn.App.1931). With these basic rules in mind, I find that Black’s Law Dictionary, 1501 (Rev. 4th ed. 1968), defines “safe” as “a metal receptacle for the preservation of valuables.” I have found other definitions and each of them refers to some type con*295tainer in which valuables are to be placed. Nowhere, though the safe-endorsement coverage in the policy issued plaintiff is standard, have I found any indication that the word “safe” means the “locking mechanism” of a safe or vault — in this case a removable circular combination lock. That device is the mechanism by which the safe is opened; it is a part of the safe even though it is not hinged to the safe and may be removed from it.

In justification of the construction placed on clause (2), it is noted that the majority insists that;

Given the type of safe-vault combination insured in this case it is patently obvious that unless the abstraction of the removable locking mechanism would invoke coverage (2), the policy would provide no coverage whatever; that proof of visible marks would be foreclosed and the taking of all that could be “abstracted” would fall short of satisfying the company’s interpretation of coverage (2) [And that] . . . such a construction of the policy leaves the insured in the position of paying a premium for nothing.

I cannot accept this premise. First, it is based on the assumption that in every case where entry is made into a floor safe, visible marks of entry will be absent. I find no basis in the record for this assertion. To the contrary, Jessie Wilson who is called upon to investigate numerous burglaries in his position as vice president of the American Claim Service, testified:

[T]hat there were no shavings that would indicate any drilling or anything of that nature, no violence, nothing.
So I don’t see how they could have — whoever it was, could have opened the safe and not- — without getting something in there [the bottom of the safe]
And I am certain that they didn’t hang around and clear it out and get out what was still down there.
* * * * * *
A. I feel certain that whoever did it knew the safe combination.

Second, in the instant case the safe endorsement covered two safes on the premises. One was a free-standing safe, subject to being removed totally from the premises. In my opinion this fact justified the inclusion of coverage (2) in the safe-burglary endorsement.

I would affirm the action of the lower courts in dismissing plaintiff’s suit.

HARBISON, J., concurs in this opinion.