The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On June 30, 2005, Defendant American States Insurance Company filed a Notice of Removal (#1) from the Circuit Court of Sangamon County. On May 13, 2005, Plaintiff Jerry Woltman had filed a complaint in that court alleging breach of insurance contract, improper claims practices, and consumer fraud relative to American States' handling of Woltman's claim for loss after a building Woltman owned burned down. On September 9, 2005, this case was transferred to this court from the Springfield Division of the Central District of Illinois. On February 14, 2006, American States filed a Motion for Summary Judgment (#13). The motion is now fully brief. For the reasons that follow, the Motion for Summary Judgment is GRANTED in part and DENIED in part.*fn1
On November 10, 1998, American States issued property insurance to Woltman for a building located at 11 East West Street in Ridge Farm, Illinois. On October 7, 2002, a fire occurred at the property at approximately 2:45 a.m. Woltman reported the fire to American States on October 8, 2002. Sandra Parker, a general adjuster for American States, called Woltman and questioned him about the fire. On October 9, 2002, Woltman signed a waiver to allow American States to have access to the site of the fire for the purpose of investigation. Woltman also worked with Parker to compile an inventory of property lost in the fire. On October 10, 2002, John Wood, special investigator for American States, took a recorded claims statement from Woltman. Based upon the investigation, American States determined the fire to be incendiary in nature.
American States sent six letters to Woltman between October 2002 and March 2003 asking that he produce records relevant to the claim and loss. Each of these letters set deadlines for Woltman to provide the requested documents. The letter sent March 19, 2003, stated:
Once again you have failed to produce the documents which American States Insurance Company has been requesting for the last five and half months. To afford you one final opportunity to comply with your duties pursuant to the insurance policy, American States Insurance Company hereby extends the time to produced [sic] the documents requested in our letters of October 11, 2002, October 31, 2002,
December 5, 2002, December 19, 2002, January 6, 2003, January 17, 2003 and Meaden & Moore's letter of January 10, 2003, to and including April 11, 2003.
You are specifically notified that failure to produce the documents as set forth herein will constitute a material breach of the insurance policy.
As stated in our letter of February 26, 2003, it is the intention of this Company to conduct your examination under oath. That examination cannot and will not proceed until you comply with your contractual duty to produce documents relevant to the claim submitted. Accordingly, your consistent failure to produce the documents has delayed, and continues to delay, the resolution of the claim. (Emphasis in original). Woltman did not produce the requested documents by April 11, 2003. However, American States did receive proof of loss documents from Woltman on February 14 and 21, 2003.
On May 19, 2003, Parker sent a letter to Woltman indicating his "failure to comply with policy terms has delayed and materially impaired the ongoing investigation of the claim submitted, and constitutes substantial noncompliance with the contract of insurance." Parker also indicated Woltman was to appear on May 28, 2003, for examination under oath. Woltman called and asked to reschedule because he would be involved in spring planting. The deposition was then rescheduled for June 25, 2003. Woltman did not appear for the deposition on June 25, 2003. According to Woltman's affidavit, he did not appear because he had not been provided with copies of the tapes of his interview with Wood or with fire reports. Woltman attached to his response a handwritten letter indicating he would not participate in the deposition without having received these items. Parker indicates that Woltman did not notify her prior to his failure to appear. However, a copy of the fire report was sent to Woltman on August 13, 2003, and a tape of the recorded statement made to Woods was sent on August 6, 2003. There is no indication in the record that American States attempted to reschedule the deposition after Woltman received the tape and documents.
On August 18, 2003, Parker sent a final letter to Woltman indicating his claim was rejected for failure to produce documents relevant to the claim after repeated demands from American States and for failure to appear for deposition. Woltman provided documents requested by American States in response to requests to produce on February 6, 2006. The policy in place between Woltman and American States provides under the heading "Duties in the Event of Loss or Damage:"
a. You must see that the following are done in the event of loss or damage to Covered Property:
(5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values, and amount of loss claimed.
(6) As often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records. Also permit us to take samples of damaged and undamaged property for inspection, testing and analysis, ...