MICHIGAN MILLERS INSURANCE CO., A FOREIGN CORPORATION, APPELLANT,
v.
IRWIN GELLER AND IDA S. GELLER, HUSBAND AND WIFE, APPELLEES
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Michigan Millers Insurance Co. appealed a summary judgment awarding homeowners coverage for a ring that mysteriously disappeared from the insured's finger while shopping. The court affirmed, holding that an 'Extended Theft Coverage' rider covering 'mysterious disappearance' requires no showing of probable theft, as the specific exception for stones in jewelry settings demonstrates the insurer intended broader coverage.
The court held that mysterious disappearance is a covered loss under the policy without requiring the insured to show a reasonable probability of theft. The inclusion of the specific exception for stones in jewelry settings demonstrates that the insurer intended mysterious disappearance to be independently covered.
“Where mysterious disappearance is relied upon there is no need to show a reasonable probability that the disappearance was due to theft, because the language of the policy makes loss from mysterious disappearance equivalent to theft.”
Establishes the core holding that mysterious disappearance coverage does not require proof of probable theft
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Join FLexlaw to unlock all legal intelligenceIda S. Geller's ring disappeared from her finger while she was shopping at two stores in a shopping center. The disappearance was not witnessed or exp…
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This is an appeal by the defendant below from a summary judgment which was entered in favor of the plaintiffs for the value of a ring which disappeared from the finger of the appellee Ida S. Geller while shopping, during the course of visiting two stores in the 163rd Street Shopping Center, in Dade County. The trial judge’s order granting summary judgment stated as follows :
“That there are no issues of material fact and this cause resolves itself into a construction of a rider to Homeowners Insurance Policy, which rider is labeled ‘Extended Theft Coverage’ and reads as follows:
“ ‘Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance (except mysterious disappearance of a precious or semiprecious stone from its setting in any watch or piece of jewelry).’
“That this Court will construe the above rider against the defendant and in so doing interprets the rider as providing coverage for ‘mysterious disappearance,’ without the necessity of the insured showing circumstances which suggest the probability of theft.”
*205In so holding the trial judge was eminently correct. Where mysterious dis-' appearance is relied upon there is no need to show a reasonable probability that the disappearance was due to theft, because the language of the policy makes loss from mysterious disappearance equivalent to theft. That construction gives meaning and purpose to .the exception stated in the policy as to the loss of a stone from a setting or piece of jewelry. Thus in dealing with a similar policy provision, in the case of Conlin v. Dakota Fire Insurance Company, N.D.1964, 126 N.W.2d 421, 424, the North Dakota court made reference to the change in wording of the policy to include the mysterious disappearance clause, and then commented on it as follows:
“ T. Inclusion of Mysterious Disappearance: So much of the description of the peril of theft under the caption “Perils Insured Against,” in Section I of the form attached to this policy, as reads:
Theft, meaning any act of stealing or attempt thereat” is amended to read:
“Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance (except mysterious disappearance of a precious or semi-precious stone from its setting in any watch or piece of jewelry).’” ■ ’
“If the amendment to include 'mysterious disappearance’ were intended to apply only to disappearance where theft was shown to be possible or probable, the exception of mysterious disappearance of a precious or semiprecious stone from its setting would be unnecessary.”
We have been shown no case on the point decided in this state, and while the rulings in other jurisdictions are not uniform, we approve the construction announced by the trial court, which is supported by Seward v. Assurance Co. of America, Super.Ct.App.Dep’t 1963, 218 Cal.App.2d Supp. 895, 32 Cal.Rptr. 821; Englehart v. Assurance Co. of America, La.App. 1962, 139 So.2d 108; Conlin v. Dakota Fire Insurance Co., supra.
Accordingly, the judgment appealed from is affirmed.
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The Travelers Indem. Co. v. Universal Time, Inc., 430 So. 2d 987 (Fla. 3d DCA 1983)…covered peril or, as in many such policies, by including such an occurrence, presumptively or otherwise, within the meaning of an insured “theft” itself. For this reason, the instant case is in sharp contrast to Michigan Millers Ins. Co. v. Geller, 168 So. 2d 204 (Fla. 3d DCA 1964), in which this court held that the inclusion of such a provision rendered it unnecessary to show a reasonable probability that a disappearance had been caused by theft, and Conlin v. Dakota Fire Ins. Co., 126 N.W. 2d 421 (N.D.1964…