Unpublished Disposition, 848 F.2d 199 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 848 F.2d 199 (9th Cir. 1985)

Graham PALMER, as Lead Underwriter, Plaintiff-Appellee,v.NOVA STYLINGS, INC., Defendant-Appellant.

No. 87-5561.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 6, 1988.Decided May 18, 1988.

Before PREGERSON, CANBY and WIGGINS, Circuit Judges.


MEMORANDUM* 

INTRODUCTION

Nova Stylings, Inc. ("Nova"), an importer and distributor of fine jewelry, appeals from a summary judgment in favor of its insurer, plaintiff-appellee "Lloyds" (Graham Palmer and all those certain Underwriters at Lloyd's London subscribing to jeweler's block insurance policy # LL31338). In this declaratory judgment action, the district court held that Lloyds owed no coverage obligation to Nova under the policy at issue for the loss of Nova's jewelry on the night of September 5, 1985 at a Red Roof Inn motel. We affirm.

DISCUSSION

The Exclusion

The jewelry in question was brought to the motel by a salesman of Nova, who was staying at the motel. When he went out to dinner, he asked a companion to leave the jewelry bag in the custody of the motel manager. The person in charge of the motel desk placed the bag in the manager's office, a small room or cubicle that apparently had no door of its own, but was reached only through a door behind the motel desk. That door was kept locked after 8:00 p.m.

A short while after the bag was deposited a man checked a briefcase into the same room. He returned 15 minutes later to claim his briefcase and was permitted to proceed unescorted into the room. He took not only his briefcase but also Nova's jewelry bag.

At the heart of the controversy is the following exclusionary clause:

"In consideration of the premium at which this insurance is written and notwithstanding anything contained elsewhere to the contrary, this insurance EXCLUDES all loss of or damage to property whilst on the premises of Hotels or Motels except loss or damage to insured property resulting from Robbery and/or Holdup UNLESS the said property is contained in the locked safe or vault of the Hotel or Motel.

The words Robbery and Holdup when used in the J.B. Hotel/Motel Restriction Clause shall mean the felonious and/or forcible taking of insured property by violence inflicted upon authorized custodian of the property, or put/putting any such custodian in fear and/or under threat of violence."

The district court held that this clause precluded Nova from recovering on the Lloyd's policy. We agree; the theft was not by robbery or violence, and the jewels were not taken from a safe or vault.

Nova contends that the policy is ambiguous, and should be construed against the insurers who drafted it. Nova argues that in common parlance, a theft is often called a robbery. We question that Nova, a business enterprise sophisticated in the jewelry business, is entitled to rely on common parlance in construing its insurance contracts. In any event, "robbery" and "holdup" are expressly limited in the exclusionary clause to takings by violence or the threat of violence. See National Insurance Underwriters v. Carter, 551 P.2d 352, 365 (1976) (general definitional provision must yield to specific and unambiguous limitation in the policy). There is simply no way to construe the theft in this case as a "robbery" or "holdup" as those terms are defined in the policy.

Nova also contends that the motel manager's office qualifies as a "vault" within the meaning of the exclusionary clause. Although "vault" is not further defined in the exclusionary clause, we conclude that its plain meaning, as well as its location in the phrase "safe or vault," precludes its application to the motel manager's office, which had no special security features, and into which patrons were permitted to come and go without escort.

Nova finally contends that the exclusionary clause ought not to exclude coverage if the policy is construed to meet Nova's "reasonable expectations" of coverage. Nova concedes, however, that such expectations must be objectively reasonable. See Atlantic National Insurance Co. v. Armstrong, 65 Cal. 2d 100, 416 P.2d 801 (1966). As we have said, Nova was experienced in the jewelry business and its needs for security. In light of the clear language of the exclusionary clause, we cannot accept the view that one in Nova's position could reasonably expect coverage under the Lloyd's policy for theft of its jewelry from a motel manager's office.

Other Theories

Nova next argues that even if the clause is clear and unambiguous, the court should not have foreclosed Nova from introducing extrinsic evidence to advance other theories of recovery. However, each of these theories requires the introduction of parol evidence. Nova cites Matter of Beverly Hills Bancorp, 649 F.2d 1329, 1335 (9th Cir. 1981) for the proposition that " [u]nder California law, parol evidence is admissible to construe a facially unambiguous contract if the proffered interpretation is one to which the written agreement is reasonably susceptible."

We accept the quoted proposition, but it cannot assist Nova in this case. The exclusion in the policy is simply not "reasonably susceptible" to the interpretation that would result in Lloyds' liability for theft of a sample case, without violence, from a motel manager's office. And the exclusion applies "not-withstanding anything contained elsewhere [in the policy] to the contrary." Nova points to no clause of the policy that would permit us to interpret the contract outside of its bounds. Parol evidence is simply inadmissible. Summary judgment precluding recovery on other theories was therefore appropriate.

CONCLUSION

We affirm the district court's judgment because the terms of the clause at issue do not permit a construction that would render it inapplicable to the facts of this case. There is no ambiguity to resolve against the insurer. Summary judgment in favor of the plaintiff-appellee Lloyds was appropriate.

Nova could only have prevailed on other theories of recovery through the introduction of parol evidence. As the agreement at issue was not susceptible of Nova's interpretation, and represented the final expression of the parties intent, such evidence was barred. The district court therefore did not err in precluding Nova from proceeding on other theories of recovery.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3