Ray v. Shelby Mutual Insurance

James R. Cooper, Judge. The appellant obtained an insurance policy covering losses resulting from burglary or robbery from the appellee through an independent insurance agency in El Dorado, Arkansas. The appellant stored tires in a covered shed which was attached to his main building. The tires were in the open and were secured by means of a chain which was thréaded through them. After the policy was issued, approximately $3,000.00 worth of tires were stolen from the shed. The appellant made demand on the appellee, and the appellee denied coverage. The appellee filed a motion for summary judgment, which the trial court granted. From that decision, comes this appeal. Summary j udgment should be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ARCP Rule 56(c). Summary judgment is an extreme remedy, and should be granted only when no issue as to a material fact exists. Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W.2d 187 (1975). The moving party has the burden of demonstrating that there is no genuine issue of fact for trial, and any evidence submitted in support of the motion must be viewed most favorably to the party against whom the relief is sought. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). On appeal, this Court must view the evidence in the light most favorable to the party resisting the motion. Bourland v. Title Insurance Co. of Minnesota, 4 Ark. App. 68, 627 S.W.2d 567 (1982). The burden is on the appellee to demonstrate that even though the facts may be in dispute, reasonable minds could not differ as to the conclusion to be drawn from them. Hendricks v. Burton, 1 Ark. App. 159, 613 S.W.2d 609 (1981). The appellant argues that there are ambiguities in the insurance policy which presented a fact question for the jury. Specifically, he alleges that fact questions existed as to whether the tires were stolen from a place which was part of the “exterior” or the “interior” of the business premises, whether the policy was a blanket theft policy, and whether the place from which the tires were stolen was a “container”. The insurance policy provides coverage for losses occasioned by burglary or robbery of a watchman, while the business is closed. The coverage is limited to losses from “within the premises”. Premises is defined as: The interior of that portion of the building at the location designated in the declarations . . ., but shall not include (1) showcases or show windows not opening directly into the interior of the premises, or (2) public entrances, halls or stairways. Burglary is defined in the policy as: The felonious abstraction of insured property (1) from within the premises ... or (2) from within a showcase or show window outside the premises by a person making felonious entry into such showcase or show window. . .or (3) from within the premises by a person making felonious exit therefrom. . . . We agree with the trial court that the policy is not ambiguous and that the loss of the tires was excluded under the clear language of the policy in question. The appellant argues that the agent who sold him the policy represented to him that the policy in question would cover such a loss as occurred here. Even if that allegation is true, at most it would give rise to a cause of action against the agent, but would not serve to provide coverage for losses which were specifically excluded by the unambiguous language of the policy. Affirmed. Cloninger, Corbin, and Mayfield, JJ., dissent.