Feinberg, J.c.c., Temporarily Assigned.
Vito Del Vecchio and Louis Muhaw, trading as Del's Delivery Service, Inc., purchased motor truck cargo insurance from defendant Old Reliable Fire Insurance Company, the period of coverage being from June 1, 1971 to June 1, 1972.
On Sunday, January 16, 1972, certain chattels were feloniously removed from plaintiff's warehouse, the premises having been forcibly entered. On the same day one Frank Masi was involved in an auto accident while driving a commercial vehicle owned by plaintiff. The stolen items were found in Masi's possession at that time. In addition, one Jaspar Evans gave a statement to police in which he related that he saw Masi at plaintiff's warehouse on the day of the theft. The fact that the day in question was a Sunday lends significant credence to Evans' statement, in that the
warehouse was closed on Sunday and Evans, who lived adjacent thereto, was able to observe any unusual activity, and that Masi was known to Evans as one of plaintiff's employees.
There is no dispute as to the fact of Masi's employment by plaintiff for two years prior to the theft, nor is there any dispute that the stolen goods were found in Masi's possession or that he thereafter retracted a not guilty plea and pleaded guilty to receiving stolen goods.
Defendant insurance company disclaims liability based on the following portion of the policy:
This policy is hereby extended to cover the risk of theft of an entire shipping package, excluding all pilferage; also excluding conversion, sabotage or other act of dishonest character on the part of the insured or his or their employees and/or agents.
The sole question before this court is whether this exclusionary clause is sufficiently clear and unambiguous to relieve defendant of liability for plaintiff's loss.
It is plaintiff's position that the loss is compensable, the exclusionary clause notwithstanding, because the theft occurred on a Sunday when plaintiff's warehouse was locked and idle, and Masi had no authority, permission or lawful means to enter the premises. Plaintiff contends that in light of the foregoing facts Masi, when he perpetrated the theft, was not an employee within the intendment of the exclusionary clause but a mere trespasser who came on the premises unlawfully and who, thereafter, engaged in the felonious conduct of breaking, entry and larceny. Masi's Monday-to-Friday employee status did not give him the right to enter the warehouse at other times, nor did it provide him with a set of keys or permission to enter at will -- for example, the possession of keys would authorize his access to the goods at any time.
Plaintiff therefore alleges that the theft was of the type the insured could reasonably expect to be covered by his policy, i.e., a theft perpetrated by a trespasser gaining forcible,
illegal entry, with larcenous intent, after hours, and through such surreptitious means ...