The majority holds that the words “actually in or upon” a vehicle in a “jeweler’s block” insurance policy means in close proximity to a vehicle, not actually in it or on it. (Maj. opn., ante, at p. 476.) I disagree. The majority’s holding misreads the plain meaning of the language, and is contrary to the holdings of the overwhelming majority of courts in other jurisdictions. We should enforce the contract between the parties as it is written, not rewrite its terms.
I
Plaintiff E.M.M.I, Inc., doing business as Universal Fine Jewelry, sells jewelry. Its salesman, Brian Callahan, was carrying jewelry in his car. When Callahan heard a “clunking” noise coming from the car, he pulled the car over, got out of the car while leaving its engine running, went to the back of the car and bent over to look under the car. A thief ran by him, got into the car, and drove away.
Defendant Zurich American Insurance Company (Zurich) insured E.M.M.I. under a “jeweler’s block” policy. The policy excludes from coverage any loss from a vehicle unless an employee is “actually in or upon such vehicle at the time of the theft.” E.M.M.I. brought this action against Zurich to recover for the loss under the policy. The trial court granted Zurich’s motion for summary judgment because “there unequivocally is no coverage under terms requiring the insured to be in or upon the vehicle at the time of the theft.” The Court of Appeal, after reviewing the policy and applicable law in depth, affirmed, holding that the words “actually in or upon” do not mean close proximity. The majority reverses the Court of Appeal. I would affirm its decision.
II
The applicable law is well established and clear. The ordinary rules of contract interpretation apply to the construction of an insurance policy. (Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 762-763 [110 Cal.Rptr.2d 844, 28 P.3d 889]; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 [10 Cal.Rptr.2d 538, 833 P.2d 545].) Judicial interpretation is controlled by words, as they are understood in their ordinary and *484popular sense. (Civ. Code, § 1644; Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 [44 Cal.Rptr.2d 370, 900 P.2d 619].) The function of the court in interpreting an instrument “is simply to ascertain and declare what is in its terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted.” (Code Civ. Proc., § 1858; Safeco Ins. Co. v. Robert S., supra, at p. 764; Jensen v. Traders & General Ins. Co. (1959) 52 Cal.2d 786, 790 [345 P.2d 1].) Language cannot be found to be ambiguous in the abstract and courts are “not to strain to create an ambiguity where none exists.” (Waller v. Truck Ins. Exchange, Inc., supra, at pp. 18-19.)
The ordinary, common, and popular understanding of the words “actually upon” mean in fact on a vehicle. Here, Presiding Justice Turner, writing for a unanimous Court of Appeal panel, put it thus: “[T]he provision in question is unambiguous. In its ordinary and popular usage (Civ. Code, § 1644; Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1265), ‘upon’ is interchangeable with ‘on.’ (E.g., Newbury House Online Dict. (1999) <http://nhd.heinle.com/nhd-bin/searchNHD.pl> [as of July 22, 2002]; Merriam-Webster’s Collegiate Diet. (10th ed. 1995) p. 1298; Webster’s New World Diet. (3d college ed. 1991) p. 1466; Oxford English Dict. Online (2d ed. 1989) <http://dictionary.oed.com> [as of July 22, 2002], [‘upon,’ prep.]’, American Heritage Dict. (2d college ed. 1985) p. 1328.) Webster’s New World Dictionary, supra, at page 1466 defines ‘upon’ as follows, ‘[0]n (in various senses), or up and on: on and upon are generally interchangeable, the choice being governed by idiom, sentence rhythm, etc.’ ‘On’ can mean ‘in close proximity with,’ as in ‘a village [on] the sea,’ or ‘stay [on] your opponent.’ (Merriam-Webster’s Collegiate Diet., supra, p. 811.) ‘Upon’ can also mean ‘in or into close proximity or contact with’ as in ‘the enemy is [upon] us,’ or ‘despondency fell [upon] me.’ (Webster’s 3d New Intemat. Dict. (1981) p. 2517.) But we have not found any definition of ‘on’ or ‘upon’ that includes in close proximity to a car. (See Webster’s 3d New Intemat. Diet., supra, p. 1574 [‘on’ is ‘used as a function word to indicate presence within,’ as in ‘rode there [on] a train,’ or ‘booked passage [on] an ocean liner’].)”
No one would understand the statement that “a person is on a car” to mean that the person was standing next to the car or two feet away from it. There simply is no room in this context to refuse to recognize and give meaning to the ordinary and common understanding and usage of the words. The language is clear. The use of the word “actually” in the phrase “actually in or upon” makes what is already clear unquestionable. As numerous courts have already recognized, the word “actually” in the phrase “clearly negates constructive presence and possession. (See Royce Furs, Inc. v. Home Insurance Company (1968) 30 App.Div.2d 238 [291 N.Y.S.2d 529, 530-531]; Phil G. Ruvelson, Inc. v. St. Paul Fire & Marine Ins. Co. (1951) 235 Minn. *485243 [50 N.W.2d 629, 633]; Greenberg v. Rhode Island Ins. Co. (1946) 188 Misc. 23 [66 N.Y.S.2d 457, 459].)” (Revesz v. Excess Ins. Co. (1973) 30 Cal.App.3d 125, 129 [106 Cal.Rptr. 166].)
Not surprisingly, the overwhelming majority of courts that have addressed this policy provision have also found it clear and unambiguous. Recently, in American Stone Diamond, Inc. v. Lloyds of London (S.D.Tex. 1996) 934 F.Supp. 839, 843, the court summarized and cited some of these decisions. “Courts have consistently held nearly identical policy language [‘actually in or upon’] to be unambiguous and, based upon such exclusions, have denied coverage to insureds who were not literally in or upon their vehicles at the time of the losses, even though the insureds may have been only a short distance away from the vehicle, watching the vehicle, or absent from the vehicle for only a short period of time. See, e.g., Williams v. Fallaize Ins. Agency, Inc., 220 Ga.App. 411 [469 S.E.2d 752] (1996) (exclusion applicable where insured was in store 25 feet from vehicle at time of theft); Wideband Jewelry Corp. v. Sun Ins. Co. of N.Y., 210 A.D.2d 220 [619 N.Y.S.2d 339] (1994) (exclusion applicable where insured’s employee was six feet from vehicle at time of theft); Jerome I. Silverman, Inc. v. Lloyd’s Underwriters, 422 F.Supp. 89 (S.D.N.Y. 1976) (exclusion applicable where insured was temporarily away from vehicle at time of theft); Revesz v. Excess Ins. Co., 30 Cal.App.3d 125 [106 Cal.Rptr. 166] (1973) (exclusion applicable where insured was getting directions a few feet from vehicle at time of theft); Royce Furs, Inc. v. Home Ins. Co., 30 A.D.2d 238 [291 N.Y.S.2d 529] (1968) (exclusion applicable where insured was registering inside hotel for a few minutes while vehicle was six to 10 feet outside hotel at time of theft); American Charm Corp. v. St. Paul Fire & Marine Ins. Co., 56 Misc.2d 574 [289 N.Y.S.2d 383] (1968) (exclusion applicable where insured was in his home with vehicle locked in adjacent garage at time of theft); Phil G. Ruvelson, Inc. v. St. Paul Fire & Marine Ins. Co., 235 Minn. 243 [50 N.W.2d 629] (1951) (exclusion applicable where insured was away from vehicle for a few minutes to use bathroom and drink cup of coffee at time of theft). See especially JMP Associates, Inc. v. St. Paul Fire & Marine Ins. Co., 109 Md.App. 343 [674 A.2d 562] (1996) (exclusion applicable where insured was inside service station paying for gasoline at time of theft).” (See also Annot., Construction and Effect of “Jeweler’s Block” Policies or Provisions Contained Therein (1994) 22 A.L.R.5th 579, § 2.)
The words “actually in or upon” are clear and unequivocal. It is not for this court to rewrite the parties’ contract by construing language to mean something it does not mean.
Accordingly, I dissent.