Commercial Law Keyed to Lopucki
Ferguson v. Phoenix Assurance Company of New York
Plaintiff was insured under a Storekeepers Burglary and Robbery Policy issued by the Defendant. Plaintiff operated a drug store, which was broken into, drugs were taken from a storage drawer, and $433.76 was taken from within the safe. The insurance company paid everything except for the money taken from the safe. There were two doors on the safe, an exterior door and an inner door, there were no marks on the exterior door to show the use of force but there were marks on the inner door did show marks of force and violence upon its exterior. The insurance policy limited liability for safe burglary to $50.00. The policy also had an exclusion clause that the policy does not apply to any fraudulent or dishonest acts by the insured, but this exclusion does not apply to safe burglary or robbery by other than the insured. The exclusion was amended to include conditions, which required there to be visible marks on the exterior of the doors of the vault for the insured to recover for s afe burglary. The trial court held that the clause was an escape clause and allowed for full recovery under the policy. Defendant appealed.
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