Sullivan, Foley and Lewis. Lewis, J.A.D. (dissenting).
This case involves the interpretation of a coverage clause of an automobile owner's comprehensive insurance policy issued by defendant. The clause in question, under "Supplementary Payments," provides:
"(b) if the automobile is stolen, pay $10.00 per day, subject to a maximum of $300, for loss of use until settlement for such theft is offered by the Company. Such loss of use shall begin 48 hours after the theft is reported to the Company and police; * * *"
Plaintiff, the insured, had his automobile stolen on June 18, 1966. He reported the loss to the police and defendant. The police found the car on June 20, 1966 in a damaged
condition and removed it to a police garage. Plaintiff and the insurance company were notified the same day.
Defendant immediately undertook to repair the automobile under its comprehensive coverage and, with plaintiff's consent, removed it to a repair shop on the following day. However, repairs were not completed until July 22, 1966. Plaintiff claimed loss of use coverage under the policy and, when defendant rejected his claim, the instant suit was commenced.
The trial court found in favor of defendant, holding that the policy coverage was for "loss of use occasioned by theft and not loss of use occasioned by repair time."
We agree and affirm substantially for the reasons expressed by the trial court in its written conclusions of law.
While the clause in question is not entirely free from ambiguity, we do not understand it to extend coverage for loss of use due to repairs on the automobile even though the repairs were of damage done to the automobile while it was stolen.
The purpose of the clause is to require the insurer to settle a stolen automobile claim promptly at the risk of paying a penalty for every day (after 48 hours) that an offer of settlement of the theft claim is not made. Assuming that damages done to an automobile during its theft be held to come under this clause, it is undisputed that defendant immediately undertook to repair the car. This would constitute an offer of full settlement within the meaning of the clause. Moreover, plaintiff accepted such offer.
LEWIS, J.A.D. (dissenting). While the policy provision in controversy may be construed as stated in the majority opinion, it appears to me that it is both ambiguous and susceptible, within a fair contemplation of the contracting parties, to a reasonable and logical interpretation that favors the contention of the insured. ...