Pangburn v. Travelers Insurance

Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking payment on a policy of automobile insurance issued by Travelers Insurance Company (defendant). Plaintiff sought reimbursement for the alleged “theft” of an automobile seized by the Livingston County Sheriff’s Department (Sheriff) and for depreciation of the vehicle over the two years during which it was impounded by the Sheriff. Plaintiff asserts that the “theft” was a “direct and ac 1045 cidental loss” covered by the policy. Plaintiff appeals from an order of Erie County Court affirming a judgment (denominated order) of Buffalo City Court granting defendant’s cross motion for summary judgment dismissing the complaint. There is no merit to plaintiff’s contention that the seizure and impounding of the vehicle by the Sheriff constituted a “theft” within the comprehensive loss provisions of the policy (cf., Castner v Insurance Co., 40 AD2d 1, 3-4; Sauer v Vigilant Ins. Co., 102 Misc 2d 243, 245; see generally, Annotation, What Constitutes Theft Within Automobile Theft Insurance Policy— Modern Cases, 67 ALR4th 82). In interpreting those provisions, we give effect to the ordinary definition of theft (see, Block v Standard Ins. Co., 292 NY 270, 274) and are guided by what would be the reasonable expectations and purpose of an ordinary businessperson in making such a contract (see, Bolling v Northern Ins. Co., 253 App Div 693, 694-695, affd 280 NY 510). There is also no merit to plaintiff’s claim for damage to the vehicle while in the custody of the Sheriff. As plaintiff himself characterizes that damage or loss, it is attributable solely to wear and tear to and depreciation of the vehicle as a result of the Sheriff’s failure to maintain it. Defendant’s adjuster confirmed that characterization, attributing the loss to rusting and other weather-related deterioration. Such damage does not fall within the policy definition of loss. (Appeal from Order of Erie County Court, D’Amico, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Hayes and Hurlbutt, JJ.