Chadwick v. Aetna Insurance Company

176 S.E.2d 352 (1970)

9 N.C. App. 446

Kelly A. CHADWICK, t/a Chadwick Thruway Jewelers v. AETNA INSURANCE COMPANY.

No. 7021DC481.

Court of Appeals of North Carolina.

September 16, 1970.

*353 Powell & Powell, by Harrell Powell, Jr., Winston-Salem, for plaintiff.

Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant.

BROCK, Judge.

The crux of defendant's appeal lies in its eighth assignment of error which asserts error in the trial court's construction of the exclusionary provision of the policy quoted above. The trial judge instructed the jury, in effect, that it was not to be concerned whether the loss was an "unexplained loss" or a "mysterious disappearance" unless it was disclosed on taking inventory. He clearly instructed the jury that the provision of the policy quoted above contained only one exclusion, i. e., "loss or shortage disclosed on taking inventory." We disagree with this interpretation.

It is well settled that policies of insurance, having been prepared by the insurer, are to be liberally construed in favor of the insured, and strictly against the insurer. An exception from liability is not favored. Henderson v. Hartford Accident & Indemnity Co., 268 N.C. 129, 150 S.E.2d 17 (1966). However, these rules come into play only where the language is ambiguous and reasonably susceptible of two or more interpretations. Walsh v. United Insurance Co. of America, 265 N.C. 634, 144 S.E.2d 817 (1965).

The parties cite no case, and none is found, in which policy language similar to that here involved was construed. However, we think that the provision in question is sufficiently definite to be construed according to its terms, without resort to the rule of liberality in favor of the insured. The provision clearly contemplated that liability would be precluded in any one of three events, to wit:

It appears plainly that the import of the provision is to bar recovery for unexplained losses or for mysterious disappearances, however they come to light, and for loss or shortage disclosed on taking inventory.

It is not deemed necessary to discuss appellant's remaining assignments of error.

New Trial.

MORRIS and GRAHAM, JJ., concur.