Scanlon v. Western Fire Insurance

4 Mich. App. 234 (1966) 144 N.W.2d 677

SCANLON
v.
WESTERN FIRE INSURANCE COMPANY.

Docket No. 1,478.

Michigan Court of Appeals.

Decided September 13, 1966.

James Thomson, for plaintiff.

Bailey & Vella (Paul L. Vella, of counsel), for defendant.

FITZGERALD, J.

The stipulated facts of this case reveal the following:

On February 14, 1964, plaintiff's automobile was parked on the premises of a motel in the vicinity of Litchfield, Illinois, when it was broken into and miscellaneous personal property having a stipulated value of $773.11 was stolen therefrom.

The incident was reported to the Illinois State police whose officers made an investigation and a determination that entry into the plaintiff's automobile was believed made by the use of a table fork handle forced through the rubber molding around the window on the left door to flip the lock into an open position. No marks were found on the car, although a fork was found in the automobile on the rear floor. It was stipulated in the records that there were no visible signs on the exterior of the plaintiff's automobile.

At the time of the loss, the plaintiff was insured by a "homeowners" policy issued by defendant. A claim for the loss was presented and denied by the defendant under the following language of the policy:

"Exclusions applicable to property away from described premises:

"This policy does not apply as respects this peril [theft] to loss away from the premises of: * * * (b) property while unattended in or on any automobile, motorcycle or trailer, other than a public conveyance, unless the loss is the result of forcible entry either into such vehicle while all doors and windows thereof are closed and locked or into a fully enclosed and locked luggage compartment, of which entry there are visible marks upon the exterior of said vehicle." (Emphasis supplied.)

Suit was brought against defendant in the common pleas court for the city of Detroit and submitted on stipulated facts. A judgment of no cause of action was entered and plaintiff filed a claim of appeal with this Court.

Plaintiff's main contention is that the "visible marks" requirement in the insurance policy constitutes an attempt to prescribe the character of evidence necessary to show liability and, hence, is void as against public policy.

Basically, appellant says that the provision, supra, of the insurance policy contracts away judicial notice, burden of proof, and, in general, attempts to set rules of evidence.

The injection of the intangible term "public policy" requires that we examine the means and the end sought by two contracting parties, i.e., the insurer and the insured.

The Court can take judicial notice that provisions such as found in this policy are common, a fact borne out by the statement in 29A Am Jur, Insurance, § 1336:

"It is not uncommon for insurance companies to include in their theft or burglary insurance policies provisions restricting their liability to cases where there was some ``visible marks' or ``visible evidence' or the use of force or violence."

The article continues with the observation that such a clause is entirely competent for an insurer to insert and since such a provision is unambiguous, it does not justify the application of the general principle that the insurance policy will be construed most favorably to the insured. Accord, 5 Appleman, Insurance Law and Practice, § 3176.

In Lehr v. Professional Underwriters (1941), 296 Mich 693, the Court stated, "An insurance company may limit the risks it assumes and fix its premiums accordingly", and further, "the liability was limited in the policy. To hold otherwise would be to write a new contract for the parties." Accord, Cottrill v. Michigan Hospital Service (1960), 359 Mich 472.

Appellant in his brief asks, "How many people read a policy of insurance? How many people understand a policy of insurance?" The answer is probably a small percentage. See Serbinoff v. Wolverine Mutual Motor Insurance Co. (1928), 242 Mich 394. Therein the Court cites Cleaver v. Traders' Insurance Co. (1887), 65 Mich 527 (8 Am St Rep 908, where it was said:

"The fact that the plaintiff may not have read the printed conditions of his policy, and relied, in ignorance of them, upon the implied or assumed powers of the agent, cannot help him. It was his business to know what his contract of insurance was, and there can be no difference in this respect between an insurance policy and any other contract. In the absence of any fraud in the making of the same, and none is claimed in this case, the insured must be held to a knowledge of the conditions of his policy, as he would be in the case of any other contract or agreement."

Accord, House v. Billman (1954), 340 Mich 621.

While the precise question presented to us here has not been passed upon by our Supreme Court, i.e., repugnancy to public policy of a limiting clause in an insurance policy, correlative cases have considered construction of such exclusionary clauses with judgment being rendered in favor of the defendant insurance company. Sturgis National Bank v. Maryland Casualty Co. (1930), 252 Mich 426. Edgar's Warehouse, Inc., v. United States Fidelity & Guaranty Co. (1965), 375 Mich 598. Plaintiff raised the question of construction and ambiguity in his reply brief, but this, not having been raised in the court below, is not a proper subject for consideration on appeal. City of Detroit v. Burke Rental Service, Inc. (1966), 3 Mich App 353.

The Court in Lehr, supra, stated:

"The present provision limiting liability is not against public policy. It is not against public policy for a casualty company, in unambiguous terms, to limit its liability only to claims or suits brought within a time certain, and thus enable the company to make an early investigation, secure proofs, and possibly prevent fraud or collusion."

Here the casualty company has limited its risk, asking that some proof be offered to demonstrate that the automobile entered was in fact locked.

On the record before us, we cannot say that public policy is offended nor violence done to the insured's rights by enforcing the clearly-stated limitations of the policy.

Affirmed. No costs, a question of public policy being involved.

J.H. GILLIS, P.J., and QUINN, J., concurred.