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Boonton Handbag Co. v. Home Insurance Co.

Decided: October 15, 1973.

BOONTON HANDBAG CO., INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
THE HOME INSURANCE COMPANY, A NEW YORK CORPORATION, DEFENDANT-RESPONDENT



Conford, Handler and Meanor. The opinion of the court was delivered by Meanor, J.A.D.

Meanor

In this coverage controversy the liability facts are undisputed. An employee of plaintiff drove plaintiff's truck to New York, picked up a load of handbags and returned to plaintiff's plant. He arrived after it was closed and was unable to unload. The locked truck was parked upon plaintiff's premises inside a yard protected by a locked gate. This occurred August 31, 1971. Either later that night or early the next morning, the truck and its contents were stolen.

Plaintiff held a truckmen's and motor carrier's policy issued by defendant. The provisions thereof pertinent here are:

Subject to the following terms and conditions this policy covers:

2. Lawful goods and merchandise the property of the Named Insured or sold by them and in due course of delivery, while loaded for shipment and in transit in or on vehicles described herein owned or operated by the Named Insured and while in his care, custody or control.

The agreed issue is whether the goods were "in transit" at the time of the theft. In a written opinion the trial court held for defendant.

We find the policy to be unambiguous and affirm.

The general understanding of the phrase "in transit" is well expressed in Lariviere v. New Hampshire Fire Ins. Co., 105 N.H. 73, 193 A.2d 13 (Sup. Ct. 1963):

Property is considered in transit when it is moving from one location to another. This does not exclude temporary stops, incidental delays, or some deviation from the planned route of travel. [Citation omitted] However when the property to be transported has reached its destination it is generally no longer considered in transit. [193 A.2d at 15]

The goods here had arrived at their destination and were merely being stored prior to unloading. Transit had ceased. There are several cases illustrating application of the general rule under divergent fact patterns.

Whitehall Company, Ltd. v. New Hampshire Ins. Co., 281 N.E. 2d 234 (Mass. Sup. Jud. Ct. 1972), involved a shipment of whiskey in a trailer on a railroad flatcar. The trailer was unloaded and stored on the railroad's premises on December 2, 1965 and stolen from that location about December 17. The court held that the trailer was not in transit, saying that transit constitutes the course of movement from one place to another.

Den Gre Plastics Co., Inv. v. Travelers Indem. Co., 107 N.J. Super. 535 (Law Div. 1969), and Mayflower Dairy Products v. Fidelity-Phenix Fire Ins. Co., 170 Misc. 2, 9 N.Y.S. 2d 892 (Sup. Ct. App. Term 1938), both involved goods loaded upon a truck at the insured's premises and ...


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