The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff A.M.I. Diamonds
Company's ("AMI") motion for summary judgment, Defendant Hanover
Insurance Company's ("Hanover") motion for summary judgment, and
Plaintiff AMI's motion to strike. For the reasons below, we deny
AMI's motion for summary judgment, grant Hanover's motion for
summary judgment, and deny AMI's motion to strike as moot.
AMI is an Illinois corporation that is in the business of
wholesaling loose, finished diamonds to retail jewelers. Hanover
is a Massachusetts corporation that is in the business of issuing
Jewelers' Block policies of insurance. In return for valuable
consideration by AMI, Hanover issued to AMI a Jewelers' Block
Policy of insurance insuring against risks of physical loss or damage to
property insured under the policy during the time period of
November 1, 2002 to November 1, 2003.
On or about November 8, 2002, AMI's sales representative, Maged
Soliman ("Soliman") was traveling in Arlington Heights, Illinois
making business calls in furtherance of the business of AMI. Mr.
Soliman was carrying approximately $150,000.00 worth of finished
diamonds belonging to AMI in a briefcase. After calling on a
retail jeweler and client of AMI, Soliman drove to a gas station
to use the telephone to call AMI's business manager at AMI's
downtown office to inform him of his whereabouts and to obtain
instructions as to the next retail store he should visit. Soliman
pulled into a designated parking space adjacent to the telephone.
The diamonds were contained in the briefcase and was situated
between the driver's seat and the passenger's seat. Soliman had
to step outside the car to reach the telephone. He leaned on the
door of the driver's side of the car while speaking to the
business manager on the telephone. He then hung up the phone, and
opened the car door to re-enter.
At this time, a Hispanic woman from the passenger side of a
maroon minivan diverted Soliman's attention by calling him and
asking for help. The minivan was approximately five feet from
where Mr. Soliman's car was parked. He asked her what she needed,
and the woman replied that she needed directions.
Mr. Soliman proceeded to walk the five feet to the minivan,
stood at the passenger side of the minivan, and turned at an
angle so as to keep his own car in sight. The woman persisted in
her purported need for assistance in reading the map, and then she dropped the map to the ground where Soliman was
standing. As he bent to pick it up, Soliman observed a white car
near his vehicle. Instantly, Mr. Soliman knew he was being set
up, and that the woman in the maroon minivan was a decoy to lure
him away from his car.
Soliman then ran the few steps back to his car and the white
car sped away. Soliman then saw that his briefcase containing the
diamonds was gone. He looked up and saw the maroon minivan
speeding away as well. Soliman then alleged that he became crazy,
and jumped into his car to try and chase the minivan, to no
avail. He then returned to the gas station where he exclaimed
that he had been robbed, and then called 911. The Arlington
Heights police took Soliman to the Chicago Police Station at
O'Hare Airport and showed him pictures of known Columbian
nationals who specialize in jewelry theft to see if Soliman could
identify any of them. He could not. The diamonds were never
AMI submitted a claim for coverage for the stolen diamonds to
Hanover under its Jewelers' Block Policy. Four months later,
Hanover denied coverage, asserting three separate provisions of
the Policy in support of its position. First, Hanover asserted
the "unexplained loss mysterious disappearance" exclusion,
stating that, because Soliman did not actually see anyone take
the diamonds from his car, and because there were no signs of a
forcible entry, the loss was "unexplained". Second, Hanover
contended that, pursuant to the "in or upon" exclusion clause,
Soliman was not "in" or "upon" the vehicle at the time the loss
occurred. Finally, Hanover claimed that, pursuant to the
"personal conveyance clause", the diamonds were not in Mr. Soliman's "close personal custody" and "under his direct
control "at the time of the theft.
As a result, AMI brought three counts against Hanover. Count I
seeks a declaratory judgment that Hanover is obligated to
indemnify AMI with respect to the loss of over $150,000.00 worth
of goods and merchandise covered under the Jewelers' Block Policy
of insurance issued by Hanover to AMI. Count II asserts a claim
for breach of contract as to the Jewelers' Block Policy issued by
Hanover to AMI, and Count III is for damages for vexatious and
unreasonable conduct under Section 155 of the Illinois Insurance
Summary judgment is appropriate when the record reveals that
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)). In seeking a grant of summary judgment the moving party
must identify "those portions of `the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). This initial burden may be satisfied by presenting
specific evidence on a particular issue or by pointing out "an
absence of evidence to support the non-moving party's case."
Id. at 325. Once the movant has met this burden, the non-moving
party cannot simply rest on the allegations or denials in the pleadings, but, "by
affidavits or as otherwise provided for in [Rule 56], must set
forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context
of a motion for summary judgment is not simply a "metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986). Rather, a
genuine issue of material fact exists when "the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599
(7th Cir. 2000). The court must consider the record as a
whole, in a light most favorable to the non-moving party, and
draw all reasonable inferences that favor the non-moving party.
Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co.,
212 F.3d 969, 972 (7th Cir. 2000).