E.M.M.I. Inc. v. Zurich American Insurance
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E.M.M.I. INC., Plaintiff and Appellant,
v.
ZURICH AMERICAN INSURANCE COMPANY, Defendant and Respondent.
Supreme Court of California.
*703 Quisenberry & Kabateck, Kabateck & Kropff, Kabateck & Garris, John N. Quisenberry, Brian S. Kabateck, James B. Kropff, Heather M. Mason, Los Angeles, Suzanne L. Havens Beckman and Jerilyn Jacobs for Plaintiff and Appellant.
Cummins & White and Annabelle M. Harris, Newport Beach, for Vartan Karlubian and Cummins & White as Amici Curiae on behalf of Plaintiff and Appellant.
Bishop, Barry, Howe, Haney & Ryder, Mark Koop, Jonathan Gross and Jay *704 E. Framson for Defendant and Respondent.
Deborah J. La Fetra for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent.
*702 MORENO, J.
We are called upon in this case to interpret the scope of an exception to a provision excluding coverage in a "jeweler's block" insurance policy. The provision at issue exempted from coverage jewelry stolen from a vehicle unless the insured was "actually in or upon such vehicle at the time of the theft." The question presented is whether the exception to that exclusion applies when the insured is not in the vehicle but is in close proximity to the vehicle and is attending to it when the theft occurs. We conclude the vehicle theft exclusion, as a whole, is ambiguous and fails to plainly and clearly alert insureds that there is no coverage if a theft occurs when the insured has stepped out of the vehicle but remains in close proximity and is attending to it. We therefore hold that coverage is not precluded as a matter of law and reverse the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts in this case are simple and essentially undisputed. On February 17, 2000, Brian Callahan, a jewelry salesman, left his home with two "hard cloth garment bags" containing jewelry (some of which belonged to E.M.M.I. Inc., a manufacturer and marketer of jewelry) in the trunk of his vehicle. Shortly after driving away from his home, he heard a clanking noise emanating from the rear of the vehicle. Callahan stopped on the side of the road to investigate the source of the noise, got out of the car and closed the car door but left the engine running. He walked to the rear of the vehicle and, as he crouched down to visually inspect the exhaust pipes, he felt someone pass quickly by him. When he looked up, he saw an individual get into his car and drive away. Callahan was no more than approximately two feet from the car during the entire time he was outside the vehicle until the time of the theft. The police subsequently found the vehicle, but the jewelry was missing.
E.M.M.I. was insured under a jeweler's block insurance policy issued by Zurich American Insurance Company (Zurich). The policy insured E.M.M.I. against "risks of direct physical `loss' to the covered [jewelry] except those causes of `loss' listed in the Exclusions." Under "Exclusions" the policy provided that Zurich would "not pay for `loss' caused or resulting from ... [t]heft from any vehicle unless, you, an employee, or other person whose only duty is to attend to the vehicle are actually in or upon such vehicle at the time of the theft." (Italics added.) Callahan was specifically designated to carry E.M.M.I.'s jewelry.
E.M.M.I. submitted a claim to Zurich under the policy. Zurich's field adjuster was instructed to ascertain whether Callahan had been physically touching the car when the theft occurred, and therefore had been "in or upon" the car. Because E.M.M.I. was unable to show that Callahan had been physically touching the vehicle when the theft occurred, Zurich denied the claim.
On July 20, 2000, E.M.M.I. filed a lawsuit against Zurich for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices. E.M.M.I. also sued its insurance agent, Vartan Karlubian, for professional negligence.
The parties, E.M.M.I., Zurich, and Karlubian, subsequently filed cross motions for summary judgment and summary adjudication. The superior court granted Zurich's motion for summary judgment and denied E.M.M.I.'s and Karlubian's motions. *705 The court found that "where the insured was outside the car, crouched down, inspecting the underneath exhaust pipes, before the sequence of events of theft commenced, there unequivocally is no coverage under terms requiring the insured to be in or upon the vehicle at the time of theft."[1]
The Court of Appeal affirmed the resulting judgment. It ruled that "[a]lthough [the salesman] was in close proximity to the car, he was not actually in or upon it." We granted review.
II. DISCUSSION
Jeweler's block insurance, conceived at the turn of the last century, provides coverage under a single policy for the "various risks inherent" in the jewelry business. (Annot., Construction and Effect of "Jeweler's Block" Policies on Provisions Contained Therein (1994) 22 A.L.R.5th 579, 1994 WL 906511; 1 Couch on Insurance (3d ed.1997) § 1:57.) It "is different from most other traditional forms of property insurance which are considered `named-peril' insurance policies. Under named-peril policies, an insurer agrees to indemnify its insured for losses resulting from certain risks of loss or damage which are specifically enumerated within the provisions of the policy. In contrast, under a jewelers' block policy all risks of loss or damage to jewelry may be insured, subject to certain exceptions." (Star Diamond, Inc. v. Underwriters at Lloyd's, London (E.D.Va.1997) 965 F.Supp. 763, 765 (Star Diamond).) Thus, the coverage language in this type of insurance policy is quite broad, generally insuring against all losses not expressly excluded. In the present case, the policy excluded from coverage theft from a vehicle unless the insured or a designated employee was "actually in or upon" the vehicle at the time of the theft. As the Minnesota Supreme Court has observed, "The [exclusion] was obviously intended to cover any situation where a loss occurred when the property was not protected by the presence of someone in or upon the car...." (Ruvelson, Inc. v. St. Paul Fire & Marine Ins. Co. (1951) 235 Minn. 243, 251, 50 N.W.2d 629, 634 (Ruvelson).)
A. Rules Governing Interpretation of Insurance Policies
As a question of law, the interpretation of an insurance policy is reviewed de novo under well-settled rules of contract interpretation. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18, 44 Cal.Rptr.2d 370, 900 P.2d 619 (Waller).) "The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give effect to the `mutual intention' of the parties. `Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ.Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The "clear and explicit" meaning of these provisions, interpreted in their "ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage" (id., § 1644), controls judicial interpretation. (Id., § 1638.)'" (Ibid.)
A policy provision is ambiguous when it is susceptible to two or more reasonable constructions. (Waller, supra, 11 Cal.4th at p. 18, 44 Cal.Rptr.2d 370, 900 P.2d 619.) Language in an insurance policy is "interpreted as a whole, and in the *706 circumstances of the case, and cannot be found to be ambiguous in the abstract." (Ibid.) "The proper question is whether the [provision or] word is ambiguous in the context of this policy and the circumstances of this case. [Citation.] `The provision will shift between clarity and ambiguity with changes in the event at hand.' [Citation.]" (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 868, 21 Cal.Rptr.2d 691, 855 P.2d 1263.) Ambiguity "`"is resolved by interpreting the ambiguous provisions in the sense the [insurer] believed the [insured] understood them at the time of formation. [Citation.] If application of this rule does not eliminate the ambiguity, ambiguous language is construed against the party who caused the uncertainty to exist. [Citation.]" "This rule, as applied to a promise of coverage in an insurance policy, protects not the subjective beliefs of the insurer but, rather, `the objectively reasonable expectations of the insured.'"' [Citation.] `Any ambiguous terms are resolved in the insureds' favor, consistent with the insureds' reasonable expectations.'" (Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 763, 110 Cal.Rptr.2d 844, 28 P.3d 889.)
Furthermore, policy exclusions are strictly construed (see e.g., Waller, supra, 11 Cal.4th at p. 16, 44 Cal.Rptr.2d 370, 900 P.2d 619; MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 648, 3 Cal.Rptr.3d 228, 73 P.3d 1205), while exceptions to exclusions are broadly construed in favor of the insured (Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1192, 77 Cal.Rptr.2d 537, 959 P.2d 1213; National Union Fire Ins. Co. v. Lynette C. (1991) 228 Cal.App.3d 1073, 279 Cal.Rptr. 394.). "`[A]n insurer cannot escape its basic duty to insure by means of an exclusionary clause that is unclear. As we have declared time and again "any exception to the performance of the basic underlying obligation must be so stated as clearly to apprise the insured of its effect." [Citation.] Thus, "the burden rests upon the insurer to phrase exceptions and exclusions in clear and unmistakable language." [Citation.] The exclusionary clause "must be conspicuous, plain and clear."' [Citation.] This rule applies with particular force when the coverage portion of the insurance policy would lead an insured to reasonably expect coverage for the claim purportedly excluded." (MacKinnon, supra, at p. 648, 3 Cal.Rptr.3d 228, 73 P.3d 1205.)
B. Interpretation of the Vehicle Theft Exclusion and Exception
E.M.M.I. does not contend that Callahan, E.M.M.I.'s designated salesperson, was "in" the vehicle at the time of the theft, but instead argues that he was "upon" the vehicle. The controversy therefore centers on the meaning of the term "upon" as it is used in the exception to the vehicle theft exclusion. While the parties contend that the term "upon" is unambiguous as applied to the facts of this case, they disagree on how that term should be defined.
Preliminarily, we reject Zurich's contention that an ordinary and reasonable person would understand the phrase "actually in or upon" only in a legal sense or as a "legalism, used only for distinctly legal purposes." We reject this construction because it runs afoul of elementary rules of contract interpretation that policy language is interpreted in its ordinary and popular sense (Waller, supra, 11 Cal.4th at p. 18, 44 Cal.Rptr.2d 370, 900 P.2d 619) and as a "layman would read it and not as it might be analyzed by an attorney or an insurance expert." (E.g., Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 115, 95 Cal.Rptr. 513, 485 P.2d 1129; see *707 Civ.Code, § 1638; id., § 1644 ["words ... are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning" unless used by the parties in that sense].) The policy at issue in this case defines certain words, such as "we" and "us" and further provides that "[o]ther words and phrases that appear in quotation marks have special meaning." Neither the phrase "actually in or upon" nor the term "upon" is enclosed in quotation marks. Thus, nothing in the policy indicates or suggests that the exception to the vehicle theft exclusion is to be construed in a specialized or technical manner, or as Zurich contends as used in statutes and ordinances. Absent evidence that the parties intended the provision to have a specialized meaning, we must reject Zurich's contention and construe the term in question as would a layperson.
E.M.M.I. contends the exception to the vehicle theft exclusion applies in this case because its salesman was in close proximity to the automobile when the theft occurred. It rests on the fact that the word "upon" is interchangeable with "on" and that the definition of "on" includes "in close proximity." (Merriam-Webster's 10th New Collegiate Dict. (1995) pp. 811, 1298 ["a village [on] the sea"]; Black's Law Dict. (6th ed.1990) p. 1088 [defining "on" as "upon; as soon as; near to; along; along side of; adjacent to; contiguous to; at the time of; following upon; during; at or in contact with the upper surface of a thing"].) Zurich disagrees that close proximity is sufficient and implicitly relies on the definition of "on" "indicat[ing] means of conveyance" (Merriam-Webster's 10th New Collegiate Dict., supra, at p. 811; Random House College Dict. (rev. ed.1980) p. 1444), such as "on a ship" or "on a train" and the definition of "upon" meaning "up and on; upward so as to get or be on" (Random House College Dict., supra, at p. 1444), such as "upon" a motorcycle.
Of course, the fact that a word carries multiple meanings does not by itself render it ambiguous. (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co., supra, 5 Cal.4th at 868, 21 Cal.Rptr.2d 691, 855 P.2d 1263.) The context in which the word "upon" appears in this policy and under the circumstances of this case, however, renders its meaning ambiguous. Generally, one does not use the phrase "upon the vehicle" in ordinary usage, especially in the sense of "traveling upon the vehicle." Nor is the phrase "upon the vehicle" generally used to mean in close proximity to a vehicle, as E.M.M.I. contends. It is true that "upon" could refer to someone riding upon a motorcycle or the running board of an antique car, such as: "the salesman must be on or upon the motorcycle." Along this line the Court of Appeal observed that when the jeweler's block policy was conceived in the early 1900's, the words "on" or "upon" would have unambiguously applied to a horse or a horse-drawn carriage, and today, the same holds true with respect to motorcycles. But there is no indication that motorcycles are widely used by jewelry salespeople as a means of transporting jewelry; thus an insured would not reasonably expect that "upon" was intended to apply to motorcycles, as opposed to offering an alternative to the requirement that the insured actually be in the vehicle.[2] Moreover, *708 the language in the policy does not clearly alert the insured to Zurich's restricted meaning, and it is improbable that a reasonable insured would interpret the language to apply to motorcycles, as opposed to automobiles. In short, neither definition squarely supports the parties' respective arguments. We therefore conclude the language in the vehicle theft exception is ambiguous.
Although the main culprit for this ambiguity is the use of the word "upon" to refer to a vehicle, the ambiguity is exacerbated by the use of the word "or." The exception to the vehicle theft exclusion is phrased in the disjunctive "actually in or upon" and therefore a reasonable insured would likely interpret the exception to mean that the insured must be either inside the vehicle, or in some other location relative to the vehicle. (See, e.g., Houge v. Ford (1955) 44 Cal.2d 706, 712, 285 P.2d 257 ["In its ordinary sense, the function of the word `or' is to mark an alternative such as `either this or that'"].) Presented with such an alternative, we do not believe a reasonable insured would construe the exception to the vehicle theft exclusion to mean that the insured must be either inside or on top of the vehicle, or that the term "upon" applies solely to motorcycles. An insured using an automobile would not expect coverage to vanish when engaged in routine and necessary activity such as stepping out of the car to retrieve the jewelry from the backseat or trunk. Had the insurer intended the phrase "or upon" to apply solely to the use of motorcycles or other means of transportations such as ships and trains, it could, and should, have made this intention clear to the insured. The insurer could have, for example, defined the meaning of "upon" in the context of the policy language. This is a burden that rests squarely with Zurich, as the insurer. (MacKinnon v. Truck Ins. Exchange, supra, 31 Cal.4th at p. 648, 3 Cal.Rptr.3d 228, 73 P.3d 1205.)
Finding the vehicle theft exclusion and its exception ambiguous, we must resolve the ambiguity in favor of the insured, consistent with the insured's reasonable expectations. (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 879, 103 Cal.Rptr.2d 1, 15 P.3d 223.) As noted above, the jeweler's block policy at issue here provided broad coverage against loss of the insured jewelry. Given that broad coverage language, an insured would have a reasonable expectation that coverage would be provided in this context when the insured is in close proximity to the vehicle and attending to it when the theft occurs. To construe the exception to the vehicle theft exclusion, and specifically the word "upon," as applying only to situations in which the insured is inside or physically touching the vehicle would upset the reasonable expectations of the insured. Such a narrow construction would unreasonably preclude coverage when the insured exits the vehicle and walks a short distance to retrieve the insured merchandise from either the backseat or the trunk of the vehicle, unless the salesperson keeps constant contact with the car while walking *709 toward the rear of the vehicle.[3] The broad coverage language providing coverage for all losses except those expressly excluded along with the ambiguous language in the exclusionary provision, does not support this construction. (See Star Diamond, supra, 965 F.Supp. at p. 767 ["Such an interpretation would result in a denial of coverage for a loss occurring when the insured stepped out of his vehicle to open a rear door or the trunk of his car to retrieve the insured property."].)
Because the exclusionary clause as a whole is ambiguous, it cannot be said to be clear and plain in limiting coverage. (MacKinnon v. Truck Ins. Exchange, supra, 31 Cal.4th at p. 649, 3 Cal.Rptr.3d 228, 73 P.3d 1205.) In no way does the policy language alert a reasonable insured that coverage is lost by simply stepping outside of the vehicle. In such a case, the insured is in close proximity to the jewelry and is providing some protection against theft. That Zurich's position is counterintuitive to what a reasonable insured would expect is partly borne out by its response to a question posed at oral argument. In that response, Zurich maintained that an insured traveling by train would come within the exception to the vehicle theft exclusion if the insured left the jewelry in one compartment while he or she walked to a different compartment, such as the dining car, because such insured would be "upon" the train. Thus, according to Zurich, an insured who remains in close proximity to an automobile and is paying attention to it, providing a theft deterrent, would not be covered under the policy, but an insured traveling by train who leaves the jewelry completely unattended, thus providing no deterrence to theft, would be covered. This outcome cannot be said to be consistent with an insured's reasonable expectations.
Zurich further contends that the exception to the vehicle theft exclusion does not apply in the present case because the purpose of the exception is "to insure against theft by force or intimidation, but not by stealth." The Court of Appeal likewise observed: "As courts in other jurisdictions have explained, the purpose of the provision is to cover a loss by theft from a car in the presence of someone in or upon it, that is, theft by force or intimidation directed at those present, but not by stealth alone." We disagree. Nothing in the language of the policy suggests such limitation. Rather, reading the exclusionary clause and the exception in light of the broad coverage language (MacKinnon v. Truck Ins. Exchange, supra, 31 Cal.4th 635, 3 Cal.Rptr.3d 228, 73 P.3d 1205), it appears most reasonable to read the exclusion as applying when the vehicle and the insured jewelry were left unattended and, hence, more vulnerable to thievery. Given the high incidence and relative ease of car theft, it is reasonable that an insurer would exclude coverage for thefts from unattended vehicles. (See, e.g., Ruvelson, supra, 50 N.W.2d at p. 634 [exclusion "obviously intended to cover any situation where a loss occurred when the property was not protected by the presence of someone in or upon the car"].) Coverage for thefts from unattended vehicles might well command an increased premium. But if the insured is "in or upon" the vehicle when the theft occurs, the loss is covered whether or not the theft is accomplished by force or by stealth. A thief, for example, may stealthily break into the trunk of a car while the insured is sitting in the car. (See, e.g., Sphere Drake Ins. PLC v. Trisko *710 (D.Minn.1998) 24 F.Supp.2d 985, 989, affd. on other grounds (8th Cir.2000) 226 F.3d 951, 955-956 [police detective describing situations where thieves, using special tools, were able to break into a vehicle's trunk unbeknownst to the vehicle's occupant].)
Our conclusion that the exception to the vehicle theft exclusion is not limited to thefts accomplished by force or intimidation is bolstered by the fact that the language in the exception uses the term "theft" as opposed to "robbery." Robbery requires the use of force or intimidation, while theft does not. (See, e.g., 2 Witkin and Epstein, Cal.Criminal Law (3d ed. 2000) Crimes Against Property, § 94, p. 125 [explaining that for a robbery to occur, "the property must be taken by either force (violence) or fear (intimidation)]; People v. Ramkeesoon (1985) 39 Cal.3d 346, 351, 216 Cal.Rptr. 455, 702 P.2d 613 ["Theft is a lesser included offense of robbery; robbery has the additional element of a taking by force or fear."].) The common dictionary definition of these terms also supports this distinction. For instance, Merriam-Webster's 10th New Collegiate Dictionary, supra, at page 1222, defines theft as "the felonious taking and removing of personal property with intent to deprive the rightful owner of it," while robbery is defined as "larceny from the person or presence of another by violence or threat" (id. at p. 1013).
Significantly, the word "theft" is used both in the vehicle theft exclusion and its exception. Despite this, Zurich would have us find that the vehicle theft exclusion applies generally to all thefts from a vehicle, while the exception applies only to the greater crime of robbery. Accepting Zurich's interpretation would require that we give different meanings to the same term used in the same policy paragraph. This would run afoul of the rule of contract interpretation that the same word used in an instrument is generally given the same meaning unless the policy indicates otherwise. (See, e.g., Palmer v. Truck Ins. Exchange (1999) 21 Cal.4th 1109, 1116-1117, 90 Cal.Rptr.2d 647, 988 P.2d 568; Victoria v. Superior Court (1985) 40 Cal.3d 734, 741, 222 Cal.Rptr. 1, 710 P.2d 833; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 526, 132 Cal.Rptr.2d 151.) Had Zurich intended the exception to apply only to situations involving force or intimidation, i.e., robbery, while the exclusion applied to theft, it should have used the more accurate term "robbery" to put the insured on notice. As written, a reasonable insured would not interpret the language as Zurich contends.
Construing the ambiguous language in favor of the insured, in a manner consistent with the insured's reasonable expectations, and keeping in mind that exclusionary provisions are narrowly interpreted while exceptions are broadly construed, we hold that the exception to the vehicle theft exclusion applies when an insured is in close proximity to the vehicle and is attending to it.
C. Judicial Interpretations
While this court has never had occasion to interpret the vehicle theft exclusion at issue here, numerous decisions, including two from this state, have interpreted or applied the same or similar language. Although the majority of these decisions denied coverage, as explained below, they do not compel a different outcome here.
Of the California cases, the most significant is Revesz v. Excess Ins. Co. (1973) 30 Cal.App.3d 125, 106 Cal.Rptr. 166 (Revesz). In that case, the Court of Appeal construed a "salesman's floater" policy with exclusion and exception provisions identical to those at issue in this case. *711 There, the salesman, in need of driving directions, parked at a curb in front of a gas station, locked the ignition, got out, and took his keys with him as he walked around in front of the car toward a parkway. Thirty seconds after leaving his car and while he was still within two to three feet from it, the salesman heard the car door close and saw a thief drive away in his car, which contained his jewelry. The insured maintained that the term "upon" in the exception to the policy exclusion should be interpreted to mean "`in or about' or `in close proximity to' [the] vehicle while the insured is engaged in work incidental to loading, unloading or transporting jewelry. Such interpretation would provide coverage while the insured is walking to the rear of his car to remove jewelry, or while he is changing a tire, or while he momentarily leaves his vehicle to obtain directions, the situation presented in [that] case." (Id. at pp. 127-128, 106 Cal.Rptr. 166.) The Court of Appeal found it unnecessary to decide whether the term "upon" should be interpreted as urged by the insured: "Having parked his vehicle at the curb, locked the ignition, removed his keys, and left the vehicle for the purpose of seeking information, he had temporarily abandoned the vehicle." (Id. at p. 129, 106 Cal.Rptr. 166, italics added.) The exception to the exclusion therefore did not apply. The court noted, however, "the word `upon' might under some factual situations require interpretation" and that "[t]he controlling factors are not the time interval and the distance traveled but [the insured's] intent and conduct." (Id. at pp. 128-129, 106 Cal.Rptr. 166; see also Nissel v. Certain Underwriters at Lloyd's of London (1998) 62 Cal.App.4th 1103, 73 Cal.Rptr.2d 174 [no coverage for theft of jewelry from an unattended vehicle].)
The majority of cases from other jurisdictions similarly involve the temporary abandonment of the vehicle, and hence, the courts in those cases reached the same conclusion. In Ruvelson, supra, 235 Minn. 243, 50 N.W.2d 629, for instance, a jewelry salesman parked and locked his vehicle, crossed the street, and entered a hotel to purchase coffee. The salesman did not take the heavy jewelry with him into the hotel because" `[t]here were about six or eight steps to climb, and several doors to be opened, in order to enter the [hotel].'" (Id. at p. 631.) After returning to his vehicle two to four minutes later, the salesman found that his car window had been broken and the jewelry taken. (Ibid.) The Minnesota Supreme Court, in holding that the loss was not covered, concluded that the exception to the vehicle theft exclusion was "clear and unequivocal;" requiring the insured to "be [a]ctually in or upon the automobile when the loss occurs." (Id. at p. 633, italics added; see also Sphere Drake Ins. PLC v. Trisko, supra, 24 F.Supp.2d 985 [applying Minnesota law].)
Conceding that the salesman was "temporarily absent" from the vehicle at the time of the theft (Ruvelson, supra, 50 N.W.2d at p. 631), the insured in Ruvelson argued that "upon" should be given a broad interpretation to include" `in proximity to,' `in the neighborhood of,' `in the presence of,' or `in the charge of.'" (Id. at p. 632.) The court rejected this interpretation, observing that courts "have uniformly construed this and similar language adversely to the contentions of the [insured]." (Id. at pp. 247-248, 50 N.W.2d 629, discussing Greenberg v. Rhode Island Ins. Co. (1946) 188 Misc. 23, 66 N.Y.S.2d 457, 459 in which the court concluded that the word `actually' in the exception "means that which exists in fact or reality, in contrast to that which is constructive, theoretical or speculative.")
In Royce Furs, Inc. v. Home Insurance Co. (1968) 30 A.D.2d 238, 291 N.Y.S.2d 529, a fur salesman parked and locked his vehicle *712 and entered a hotel to register. The vehicle, which contained furs locked in the trunk, was parked six to 10 feet from the hotel entrance and was visible from inside the hotel through a large window. As the salesman returned to his vehicle, a man bolted into the car and drove off. (Id., 291 N.Y.S.2d at p. 530.) The New York Supreme Court, Appellate Division denied coverage because the salesman was not "actually in or upon" the vehicle when the theft occurred, pointing out that the insured's "representative was not in the automobile, but was far enough from it to have given the thief the opportunity to enter the car." (Additional Information