Overton Square, Inc. v. Home Insurance Co.

OPINION FONES, Justice. The question presented is whether plaintiff’s proof made out a prima facie case of coverage under the safe-burglary endorsement in the policy issued to it by defendant. The trial court directed a verdict in favor of defendant at the close of plaintiff’s proof and the Court of Appeals affirmed. We reverse. Unknown burglars entered plaintiff’s premises by knocking a hole through a masonry wall and absconded with the contents of a floor safe, $17,152.21, and the removable “door” that housed the combination locking mechanism. Plaintiff’s vault or safe was described by its vice-president as follows: “The safe, when the foundation to the building was poured, the safe which is a metal wall vault of approximately eighteen inches deep in a twelve-inch square is set into concrete. There is a metal ring around the top of the box that this lid or locking mechanism will set into, and with the proper combination, I think you can notice on the top that rods come out and catch the bottom lip of the metal ring that’s in the floor.” The “door” was not hinged to the “vault” portion of the safe that was imbedded in the floor, and had to be removed in its entirety to gain entrance to the safe. The insuring clause of the safe-burglary endorsement reads as follows: [293] “ ‘Safe Burglary’ means (1) the felonious abstraction of insured property from within a vault or safe, described in the Declarations and located within the premises by a person making felonious entry into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon the exterior of (a) all of said doors of such vault or such safe and any vault containing the safe, if entry is made through such doors, or (b) the top, bottom or walls of such vault or such safe and any vault containing the safe through which entry is made, if not made through such doors, or (2) the felonious abstraction of such safe from within the premises.” The lower courts held that plaintiff had not made out a case of coverage because it had not shown that entry had been made by actual force and violence, evidenced by visible marks appearing either on (a) the “doors” of the safe or (b) the portion of the safe that remained in the premises, imbedded in concrete. Coverage under clause (2), “the felonious abstraction of such safe from within the premises,” was denied, as a matter of law, because the burglars took only the “door,” leaving the portion imbedded in the concrete floor. As we interpret the safe-burglary endorsement involved here, it provides coverage for the felonious abstraction of the contents of an insured vault or safe under three circumstances, to wit: (l)(a)1 Where visible marks of entry are left on the exterior of the door, if entry is made through the door, or (1)(b) Where visible marks of entry are left on the top, bottom or walls of the safe or vault, if entry is not made through the door, or (2) The felonious abstraction of such safe from within the premises. We agree with the courts below that plaintiff has failed to bring itself within coverages (l)(a) or (l)(b). Plaintiff could not show visible marks upon the “door” of the vault or safe because the “door" housing the locking mechanism was “abstracted.” Plaintiff had no coverage under (l)(b) requiring that visible marks be shown on the top, bottom, or walls of the vault or safe, if entry was not made through the door. Obviously, entry was made through the missing door, which was also the top of the plaintiff’s vault or safe. The bottom and walls of plaintiff’s vault or safe were imbedded in concrete and for all practical purposes, were impregnable, non-abstracta-ble, and would never be subject to “visible marks” to gain entry thereto. The foregoing analysis demonstrates that, given the type of vault or safe that defendant’s policy purported to insure, it was impossible for plaintiff to establish coverage under (l)(a) or (l)(b) with the “door” to the safe or vault having been abstracted, as in this case. Defendants admitted on interrogatories introduced at the trial and appearing in the bill of exceptions, that it had knowledge that one of the two safes it insured was set in concrete and that only the door containing the locking mechanism was removable. Coverage (2) reads, “Safe Burglary means ... (2) the felonious abstraction of such safe from within the premises.” The purpose of coverage (2) must be construed to give 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). We think it is significant that throughout coverage (1) the phrase “vault or safe” is used, but in coverage (2) only the word “safe” is used. The “depository” set in concrete falls comfortably within the dictionary definition of vault which is “a room [294] or compartment, often built of steel, for the safekeeping of valuables.” American Heritage Dictionary of the English Language, 1418 (1970). In my view the “depository” set in concrete is a vault, the entrance to which was guarded by the locking mechanism or door which in this instance constituted the “safe.” In short, the policy recognizes that a “vault,” by its very nature, is non-removable and that vaults are a depository for valuables, the entrance to which are guarded by some type of locking mechanism which is the “safe.” Historically, the courts have said that the “visible marks” requirement in this type policy has as its underlying purpose, the exclusion from coverage of “inside jobs.” In Gracey v. American Automobile Insurance Co., 188 Tenn. 230, 218 S.W.2d 735 (1949), this Court speculated that, in addition to inside jobs, the visible-marks requirement was designed to exclude coverage where the thief is an expert in solving the combination. We are unwilling to construe the coverage provisions of a safe-burglary policy that says nothing about “inside” or “outside” jobs or expert lock pickers, against a speculative factual background that silently concludes the presence or absence of one of those factors. 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). In our view such a construction of the policy leaves the insured in the position of paying a premium for nothing. We hold that the conditions precedent to the application of coverage (2) were prima facie satisfied by plaintiff’s proof and it was error to direct a verdict. We remand the case to the trial court for a new trial on that issue. Costs are adjudged against defendant, The Home Insurance Company. BROCK, C. J., and HENRY, J., concur. COOPER and HARBISON, JJ., dissent. Footnotes [1] The three circumstance are numbered (l)(a), ing in the policy endorsement. (l)(b), and (2) to correspond with the number-