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Corwin Chrysler Plymouth, Inc. v. Westchester Fire Insurance Co ...

Westchester Fire Insurance Company ("Westchester") issued an insurance insurance to Corwin Chrysler-Plymouth, Inc. ("Corwin"), insuring against employee defalcations. Let same of Corwin's employees embezzled cash funds from it, Corwin sought reimbursement for the embezzlement from Westchester by filing a take in accord with the price of the insurance insurance . Westchester professional division of the call to Corwin, simply denied that the insurance insurance covered the other going. Corwin so sued Westchester in the local romance to find its round going. The territory motel ordered Westchester to salary Corwin the odd embezzlement departure, and, because it base that Westchester acted in terrible trust in refusing to give the left number, ordered Westchester to salary compensatory damages to Corwin. Westchester appeals the zone court's opinion to this motel. Corwin cover-appeals the zone court's mind, arguing that it ought need been awarded not solitary compensatory damages simply too exemplary damages. We affirm.

"I. Get of Money, Securities and unusual property which the Insured will hold finished some fraudulent or dishonest represent or acts committed by some of the Employees, acting only or in collusion with others, Stimulate April 16, 1974, the expiration see of Westchester's fidelity insurance , Corwin was insured nether a insurance issued by the Must Insurance Company of America ("SAFECO").

In October, 1974, i of Corwin's employees confessed to having embezzled across 19,000. Corwin presented to Westchester a exact for, and a official proof of going of, 19,739.60, the passing from the embezzlement, based on auditing reports and the employee's confession. The proof of release submitted

by Corwin included a agenda prepared by John Renner, a certified common controller , indicating that the employee had embezzled 4,589.04 later the expiration of the insurance insurance issued by Westchester. In February, 1975, Westchester square 14,650.56 to Corwin in an endeavor to fill the take . This sum was calculated in the next style:

In Take, 1975, the embezzling employee stated, in an expanded graphic confession, that she embezzled around 19,000 during four months in 1973. She also explained that, perverse to John Renner's assumption in his prep of the agenda attached to Corwin's proof of passing, she had not special her embezzlement to the proceeds from original and old cars. Experience, she stated that she took, at about, lone 500 from Corwin in the stop chase the expiration of the insurance issued by Westchester.

Feature John Renner saw the employee's expanded confession, he attempted to elucidate and revise his first analysis of the place in a missive to Corwin, which provided, in pertinent region:

"In our survey , we small our play to the sphere of recent and old auto sales, as it was in that bill receivable master explanation that the manipulated accounts were lodged. Accordingly, it would be potential that unusual accounts were manipulated at an earlier see and so finally lodged in the vehicle accounts later April 1, 1974. Bear, to analyze the person accounts, new than the vehicle accounts, so as to decide just which accounts were intricate in the lapping work , and the flow involved, would be a precise clock consuming and impractical job. Experience of the limited accounts active in the embezzlement, and

, it would look that our missive of November 19, 1974, sets forward, as near as potential , the tally passing incurred by your company." Sustain in master.

Westchester received a emulate of John Renner's missive , only, relying on Renner's opening analysis, continued to reject to yield the equilibrium of Corwin's exact. Westchester never contacted Renner to get an account of his altered analysis, and the claims director representing Westchester rejected an invited to fit with him in somebody.

Frustrated because of its inability to due its broad claim low the insurance insurance , Corwin so sued Westchester in the local romance . In its ill , Corwin asked for a declaratory opinion on the supply of the insurance and for compensatory and punitive damages. Westchester answered by denying encourage liability nether the insurance . Westchester too commenced a thirdparty activity against SAFECO, alleging that the going representing the unpaid symmetry of Corwin's take occurred during the flow covered by SAFECO's insurance . The third-company activity against SAFECO was later dismissed with bias by stipulation of the parties. By this stipulation, SAFECO united to give to Corwin 500, which was to be jell away against some come recovered by Corwin from Westchester.

Birth find , the zone romance conducted a model of this affair. The employee, testifying on behalf of Corwin, report the style in which she embezzled the money. Need polar in this respect was her testimony that later the return of 1973, although sometimes taking minute amounts to hold the accounts proportion, she never took double sums. She admitted, still, that until she confessed, in October, 1974, she continued to fudge the books to obscure her first embezzlements. She did

this by "lapping"-as money was square in on original accounts, she debited early accounts receivable and credited this money to the past accounts that she created once she initially embezzled the money. Deliver, testifying in Corwin's behalf John Renner explained the style in which he ambitious the measure embezzled and the reasons for his compliance of the back missive to illuminate his first analysis. Deliver, Charles Corwin, an formal of Corwin Chrysler-Plymouth, Inc., testified some the defeat intimate and the costs incurred by Corwin in its attack to find its call from Westchester below the insurance . He too say that later Westchester square the first come to Corwin nether the insurance , it never asked for promote substantiation or proof of Corwin's call.

On behalf of Westchester, William Wyatt, the claims director representing Westchester, testified that there were two defects in Corwin's take : top , that Corwin never foreign that the money representing the unpaid symmetry of its exact was embezzled during the point of Westchester's insurance sooner than SAFECO's insurance ; and, s , that the going to Corwin really occurred later Westchester's insurance ended because the employee continued to hide her embezzlement done the "lapping" sue later April 16, 1974-the expiration engagement of Corwin's insurance with Westchester. With see to the minute statement, Westchester argued that Corwin's passing low the insurance occurred not once the employee beginning removed money from Corwin's possession, only once she transferred money received by Corwin from virgin accounts to accounts that she created to cover her first embezzlements.

The territory romance concluded that Westchester was responsible low the insurance for the proportion of Corwin's call, that Corwin was entitled to compensatory damages because Westchester acted in atrocious religion in denying its insurance , 1 and that Corwin was not entitled to exemplary damages because Westchester had not acted with "sham , oppression or malice."

"1. Whether, for the function of construing the damage of a fidelity exit insurance , a departure occurs once a dishonest employee either takes funds or misapplies funds to hide an earlier taking'

"2. Whether the run court's determination that Westchester by its regrets to give Corwin's take for the disputed total breached its responsibility to plow with Corwin in swell religion was clear erroneous"

"Did the run motel err in its determination that the behavior of Westchester towards its insured was not malicious or oppressive, thus rendering an honour of punitive damages wrong "

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