Sphere Drake Ins. Plc v. Trisko

Decision Date22 September 1998
Docket NumberNo. CIV. 97-334 RLE.,CIV. 97-334 RLE.
Citation24 F.Supp.2d 985
PartiesSPHERE DRAKE INSURANCE PLC, UnionAmerica Insurance Company, Ltd., Copenhagen Reinsurance Company, St. Paul Reinsurance Company, and Terra Nova Insurance Company, Ltd., Plaintiffs, v. Robert TRISKO, d/b/a Trisko Designer Jewelry and Trisko Jewelry Sculptures, Ltd., Defendants.
CourtU.S. District Court — District of Minnesota

James Thomas Martin, Dan Thomas Ryerson, Gislason Martin & Varpness, Edina, MN, for Sphere Drake Ins. PLC, UnionAmerica Ins. Co., Ltd., Copenhagen Reinsurance Co., St. Paul Reinsurance Co., Terra Nova Ins. Co., Ltd. Kevin Starr Carpenter, Holmen & Carpenter, St. Cloud, MN, for Robert Trisko, Trisko Jewelry Sculptures, Ltd.


ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, made in accordance with the provisions of Title 28 U.S.C. § 636(c), upon the Defendants' Motion for Summary Judgment.

A Hearing on the Motion was conducted on March 26, 1998, at which time the Plaintiffs appeared by James T. Martin, Esq., and the Defendants appeared by Kevin S. Carpenter, Esq.

For reasons which follow, the Defendants' Motion for Summary Judgment is denied.

II. Factual and Procedural History

The events which underlie this action are, in large measure, undisputed. The Plaintiffs issued a jeweler's block policy to the Defendants in which they agreed to indemnify the Defendants for "any loss whatsoever," and with a policy limit of $450,000.00. The policy also provided certain exceptions to the Defendants' coverage and, as here pertinent, provided as follows:

This policy insures against all risks of loss of or damage to the above described property arising from any cause whatsoever EXCEPT:

* * * * * *

(I) Loss of or damage to property insured hereunder while in or upon any automobile, motorcycle or any other vehicle unless at the time the loss or damage occurs, there is actually in or upon such vehicle, the assured, or a permanent employee of the assured, or a person whose sole duty it is to attend the vehicle.

* * * * * *

(M) Unexplained loss, mysterious disappearance or loss or shortage disclosed on taking inventory. * * *

Defendant's Insurance Policy at Section 5, Clause (I), (M). The policy covered the period from July 17, 1996, through July 17, 1997, and the Defendants submitted a claim to the Plaintiffs, in the amount of $249,292.00, for the theft of certain jewelry which was said to have occurred on December 1, 1996.1 The Plaintiffs filed this action on February 12, 1997, seeking a declaration that they have no duty to indemnify the Defendants for their alleged loss.

The Plaintiffs maintain that the Defendants' policy expressly excludes coverage under the circumstances which attended the Defendants' claimed loss. Specifically, the Plaintiffs assert that: (1) the loss occurred when the jewelry was in an automobile which was not physically occupied by the Defendants or by permanent employees of the Defendants, and (2) the Defendants' claim arises out of an unexplained loss, or a mysterious disappearance of the jewelry. Under the previously quoted policy provisions, both of these circumstances would appear to fall within exceptions to the policy's coverage. The Defendants counterclaimed and, at the close of discovery on February 26, 1998, they moved for the entry of Summary Judgment, asserting that there are no material facts in dispute, and that they are entitled to Judgment as a matter of law.

The Defendants manufacture jewelry for exhibition and for sale in their store in Waite Park, Minnesota, and throughout the country by means of a network of retailers. See, Deposition of Robert Trisko ("Def. Dep.") at 11. The Defendants principal means of sale, however, is through "juried" shows at which selected artists present their crafts to the public in display booths. See, Defendants' Memorandum in Support of His Motion for Summary Judgment ("Def. Mem.") at 6. For this purpose, the Defendants maintain two booths, which are stored in trailers, and which they transport to various shows where he markets his jewelry. Id.

According to the Defendants, on November 28, 1996, they packed two suitcases full of jewelry to deliver to Florida. Def. Dep. at 105. There were two shows scheduled in Florida at which he intended to display his jewelry; one at an outdoor show in Kendall — which is located near Fort Lauderdale, Florida — and one in Boca Raton. Id. at 7. The Plaintiff Robert Trisko ("Trisko"), who is the principal party making the insurance claim, was accompanied to Florida by two of the Plaintiffs' employees — Dale Walz ("Walz") and Eric Liberacki ("Liberacki"). Id. The three men flew to Florida on November 29, 1996. A third employee, Ian Lieberman ("Lieberman"), left his home, in Baltimore, Maryland, and meet the others on the following day. Id.

Upon arriving in Florida, Trisko and his employees prepared for the exhibitions which were to take place on Saturday and Sunday. They rented an automobile to travel to the exhibitions, and they retrieved a van, which Trisko stored in Fort Lauderdale, and which is employed to travel to the shows on the East Coast. The van contained the two display cases which would be displayed at each of the Florida exhibitions. Id.

Trisko maintains that, after arriving in Florida, he distributed the jewelry, which he had packed for the trip, between two suitcases. One suitcase, which is alleged to have contained 300 pieces of jewelry of "lesser quality," was entrusted to Lieberman and Walz for the show to be held in Boca Raton. Id. Trisko contends that he kept the second suitcase, which held an additional 450 pieces of jewelry that he intended to display at the show in Kendall, Florida. Id. On Friday, November 29, Trisko and his employees set the booth in place at the Kendall showroom, and then Lieberman and Walz proceeded to Boca Raton to follow the same routine. Trisko and Liberacki returned to their hotel, in Kendall, for the evening. Id.

On the following day, November 30, 1996, Trisko displayed his jewelry without incident. Thereafter, on Sunday, December 1, 1996, Trisko returned to his booth at the Kendall show, displayed his goods and, as the show ended and nightfall approached, he and Liberacki collected the jewelry from their booth, and placed the merchandise into one or more suitcases.2 See, Defendant's Statement at 12, 16; Plaintiffs' Exhibit C ("Plt. Ex."). After doing so, they proceeded to disassemble the booth, in anticipation of the return of Lieberman and Walz, who had the van, and trailer, into which the booth would eventually be loaded. According to Trisko, they kept the suitcase, or suitcases, which contained the jewelry, next to their feet as they completed the booth's disassembly. Id. Upon completing the task, they placed the suitcase(s) in the trunk of the rental car, closed the trunk, and waited for 30 minutes while resting against the pedestals of the booth. Def. Dep. at 108. Both Trisko and Liberacki claim that, during the time that they were outside of their car, and while the suitcase(s) were inside the trunk of that car, they remained either at, or somewheres between 8 and 16 feet from the car, and were vigilant in their surveillance of the car, and the area immediately around it. Id.; Liberacki Dep. at 67.

As related by Trisko, the area around where they were observing the car was the site of great activity. Around them, vendors were removing their displays, and preparing them for transport to other areas. There was a "fair amount of clanging, hammering and other noises," and cars were driving through the area as well. Def. Mem. at 11. Nonetheless, Trisko maintains that he and Liberacki were not distracted, and that no one was able to access the suitcase(s) which had been placed in the secured trunk of his car. Def. Mem. at 10-11.

Both Trisko and Liberacki have testified that, after approximately 30 minutes, they moved from outside to sit within the vehicle. Def. Mem. at 11. They sat in the front seat of the car, and remained there for approximately one hour, at which time they were joined by Lieberman and Walz, who had just returned from Boca Raton with the van, and trailer, which contained the Defendants' second display booth. Def. Mem. at 11. Trisko and Liberacki assert that they remained in the automobile for the entire period between entering the car, and the arrival of Lieberman and Walz. Trisko spoke with Lieberman about the Boca Raton show, while Liberacki and Walz loaded the trailer with the disassembled display case.3 Immediately after they completed the loading of the booth, Trisko and Liberacki drove to an airport car rental facility, in order to return their rental vehicle. Using the key to the trunk, Trisko opened it to find that the suitcase(s) were not there. Def. Statement at 19; Plt. Ex. C.

The missing suitcase(s) were reported to the Metro-Dade Police Department, and Trisko provided a statement concerning the events which surrounded the loss of the suitcase(s), and the jewels contained therein. The case was assigned to Detective Michael Crowley ("Crowley"), who speculated that the robbery could have occurred as the Defendant and Liberacki sat in their car. Plt. Ex. C at 18. Under Crowley's hypothesis, the noise and bustle of the events around the car could have concealed the sound of a thief entering the trunk with a tool designed for such purposes. He recounted his awareness of prior instances in which trunks were breached in such a manner while the vehicle was occupied. Id. According to Crowley, the Dade County area is inhabited by very accomplished professional thieves who, by distraction, were capable of completing the crime that appeared to be involved here.

The Plaintiffs take exception to any contention that the lock on the trunk of the Defendants' vehicle could have been opened in the manner suggested by Crowley — at...

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