The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is plaintiff/counterclaim defendant Western World Insurance Company's motion for summary judgment (Doc. 27), to which defendant has filed a response (Doc. 30), a memorandum in opposition (Doc. 31), and a statement of facts in opposition (Doc. 32-1); plaintiff then filed a reply to plaintiff's statement of facts (Doc. 33), and a reply to defendant's opposition to their summary judgment motion (Doc. 34). After obtaining leave from the Court, plaintiff later filed a supplement to its motion for summary judgment (Doc. 40-1),*fn1 and defendant responded (Doc. 41).
Plaintiff Western World Insurance Company ("Western World") filed this declaratory judgment action on December 16, 2005. Defendant Jackie Johnson, through her husband Roszell Johnson, applied for and received an insurance policy from Western World, policy number NPP913811, effective July 9, 2004. According to the terms of the policy, the policy provided insurance coverage to a restaurant-Jackie Johnson d/b/a Family Matters & Moore & Sam's Carryout-located at 1503 Kingshighway Avenue, Washington Park, Illinois. (Doc. 1, Ex. 3). On February 10, 2005, fire heavily damaged the building and business property covered by the policy. Plaintiff alleges that the state fire marshal described this fire as an arson fire. (Doc. 1, ¶ 8).
Defendant filed a claim with plaintiff, alleging damages resulting from the fire totaling $200,097.91. (Doc. 1, Ex. 7). Plaintiff alleges that in accordance with the terms of the policy, plaintiff repeatedly made oral and written requests to defendant for a sworn statement under oath and other information and documents regarding the alleged losses. Plaintiff argues that defendant has been uncooperative in its investigative efforts, refusing to provide requested documents and refusing to appear on the scheduled date of April 26, 2005, for purposes of giving a recorded statement. Plaintiff alleges that after her initial failures to cooperate, defendant agreed that she and her husband would appear for an examination under oath on July 6, 2005, and at which time she would also produce the requested documents. However, plaintiff further alleges that on July 6, 2005, defendant's counsel informed plaintiff that defendant was not going to appear for the examination under oath, nor was she, or her husband, going to produce any documents. Citing her failure to cooperate, plaintiff ultimately rejected defendant's request for payment on the claim.
Plaintiff asserts that under the provisions of the policy, defendant has a duty to cooperate in its investigation of the loss, and that under Illinois law, plaintiff has a contractual right to examine the books or invoices and have the insured submit to an examination under oath. Plaintiff seeks a judgment declaring that insurance policy number NPP913811 is void ab initio or, in the alternative, that the policy provides no coverage for the subject fire damage. (Doc. 1). Plaintiff now moves for summary judgment. (Doc. 27). Plaintiff argues that it is entitled to summary judgment because the terms and conditions of the policy require an insured to produce documents and participate in an examination under oath, plaintiff requested that defendant actually produce documents and participate in an examination under oath, and defendant failed and refused to comply with plaintiff's requests. (Doc. 29, p. 4).
The policy states, in pertinent part:
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, and permit us to make copies from your books and records.
7) Send us a signed, sworn proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.
8) Cooperate with us in the investigation or settlement of the claim.
b. We may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured's books and records. In ...