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May 20, 2003


The opinion of the court was delivered by: Joan Humphrey Lefkow, District Judge


On October 18, 2001, plaintiff, Jirawan Harger ("Harger"), filed suit in the Circuit Court of Cook County, Illinois, Law Division, against defendant, Spirit Airlines, Inc. ("Spirit"), alleging negligence and bailment theories resulting from Harger's loss of jewelry contained in a bag she checked before a Spirit flight from Chicago, Illinois to Orlando, Florida. On November 8, 2001, Spirit removed the case to this court on diversity of citizenship grounds. On December 16, 2002, Harger filed an Amended Complaint alleging breach of contract of carriage (Count I), breach of contract of bailment (Count II), and negligent misrepresentation (Count III). Spirit has now moved under Rule 56, Fed.R. Civ. P., for summary judgment as to all the claims. Harger is a citizen of Thailand who is domiciled in Nevada. Spirit is a Delaware Corporation with its principal place of business in Florida. The amount in controversy exceeds $75,000. The court, therefore, has jurisdiction over the claims pursuant to 28 U.S.C. § 1332(a)(1). For the reasons set forth below, Spirit's motion is granted in part and denied in part.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed R. Civ. P. 56(c) Advisory Committee's notes. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the nonmoving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome determinative under the governing law. Insolia, 216 F.3d at 598-99. Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party as well as view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).


On or about October 16, 2000, Harger, who is engaged in the jewelry business, purchased one round-trip ticket through a travel agency for travel on October 19, 2000 from Chicago, Illinois to Orlando, Florida via Spirit, a commercial airline. (Def. L.R. 56.1 ¶ 7.) Spirit maintains that Harger received a standard passenger and baggage ticket coupon at this time, which stated that contract terms are incorporated by reference and made part of the contract of carriage.*fn2 (Def. L.R. 56.1 ¶¶ 7-8.) Harger maintains that she never received any documents from her travel agency with her ticket, which was purchased by e-mail. (Pl. L.R. 56.1 ¶ 1.) Instead, Harger claims that on October 19 while at O'Hare International Airport in Chicago, she received a "Boarding Pass" which stated "Passenger Ticket and Baggage Check." (Pl. Resp. to Def. LR. 56.1 ¶ 7.)

Relevant portions of Spirit's contract of carriage provides as follows,

A. Free Baggage Allowance

For each ticketed passenger, Spirit Airlines will transport, as checked baggage free of charge two (2) bags; the first shall not exceed 62" and the second shall not exceed 55" in overall dimensions (L寡). Passengers may also carryon, with out charge, one additional piece totaling no more than 22"흿" which is capable of being stowed under a passenger seat or in an approved overhead cabin compartment.
B. Conditions of Acceptance
Items considered as unacceptable for transportation in checked baggage, with or without Spirit's knowledge, include: money, negotiable papers, securities, irreplaceable business documents . . . jewelry . . . and other similarly valuable items and commercial effects.
C. Baggage Claims Limits and Procedures
Total liability for provable direct or consequential damages resulting from the loss, delay, or damage to baggage in Spirit Airlines custody for travel wholly between U.S. points is limited to $2,500 per ticketed passenger, unless a higher value is declared in advance and additional charges are paid.
H. Baggage Liability
Baggage liability is limited to those amounts set forth in the above terms. There is no liability to cover loss of, damage to or delay in delivery of: money negotiable papers, securities, irreplaceable business documents . . . jewelry . . . and other similar valuable items and commercial effects.
(Def. L.R. 56.1 ¶ 21.) Harger maintains that she was unfamiliar with the terms of the contract of carriage. (Pl. L.R. 56.1 ¶ 11.)

Prior to her flight on Spirit, Harger had previously booked flights through a travel agency for jewelry trade shows. (Def. L.R. 56.1 ¶ 10.) On some occasions, Harger received the travel agency's standard invoice. (Id.) The reverse side of the travel agency's invoice states,

Important Information

Insurance: Airline and other travel suppliers' insurance for baggage have limited liability. Your personal insurance may not adequately cover losses incurred by cancellation, accident, illness or stolen or damaged property. We strongly urge you to purchase additional insurance offered to you.

On the day of the flight from Chicago, Harger reported to the Spirit ticket counter and indicated that she intended to check-in two bags and take one bag ("the jewelry bag") — which allegedly contained $250,000 worth of jewelry-as a carry-on item. (Def. L.R. 56.1 ¶ 11.) Spirit's ground handling service agent, Worldwide Flight Services ("Spirit's Agent"), informed Harger that she could not carry-on the jewelry bag and that it would need to be checked. (Id.) Harger maintains that the bag did not exceed the permitted size for carry-on baggage and she had previously carried it on flights with other airlines. (Pl. Resp. to Def. L.R. 56.1 ¶ 11.) Harger told Spirit's Agent that her jewelry bag contained expensive jewelry and that she desired to take it as a carry-on item. (Def. L.R. 56.1 ¶ 12.) Spirit's agent informed Harger that the jewelry bag had to be checked in due to its excessive size. (Id.) Spirit's agent represented that the jewelry bag would be safe. (Id.) Harger claims that the jewelry bag was "taken from her" after she informed the check-in agents it contained jewelry and she desired to carry the bag. (Pl. Resp. to Def. L.R. 56.1 ¶ 13.) Harger did not see any notice of baggage liability limitations. (Pl. L.R. 56.1 ¶ 2.)

Spirits claims that at this time Harger was issued three baggage claim check tags, which ...

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