Theft of Employee Tools and Care, Custody, or Control Question
September 2, 2014
I have a claim involving theft of employee tools and need your opinion. I understand that theft is excluded in the base policy for the coverage extension of personal effects and property of others. The way the policy is structured involves blanketing both your business personal property and property of others. I believe there is coverage, within 100 feet of the described premises, for theft of employee tools. Can you please provide your opinion?
Ohio Subscriber
Whether the tools would be covered depends on whether the insured exercised care, custody, or control over the tools. Coverage would not fall under your business personal property as that applies to property the insured owns or leases or tenants' use interest. For personal property of others coverage to apply, the property must be located in or on the building or structure or in the open or in a vehicle within 100 feet of the building or structure or within 100 feet of the premises and be in the insured's care, custody, or control.
Whether coverage applies comes down to the specific facts of how the tools were handled. For instance, in Clausen v. Columbia Nat. Ins. Co., 510 N.W.2d 399 (Neb. 1993), the court noted that the employee's tools were required to be brought to the workplace as a condition of employment, and the tools were allowed to be left there during nonworking hours. After working hours, the employer, and no one else, had care, custody, or control of the building and everything in it. The employer alone had control of who had keys and who could enter the premises and was fully in control of what, if any, security arrangements were provided for the property and its contents. After working hours, the employee had no access to or control over the tools on the business premises, except by consent of and with arrangements acceptable to the employer. Thus, the court found that, in this case, the employer had care, custody, or control of the tools, and there should be coverage under the employer's property policy for the tools.
However, a different set of facts may result in a different decision, such as if the employee always had access to the tools or was not required to provide his own tools as a condition of employment. We cannot make that determination, but if it is determined that the tools were in the insured's care, custody, or control, then, yes, coverage should apply under personal property of others.
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