E.M.M.I., Inc. v. Zurich American Insurance Company

32 Cal.4th 465 (2004)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Brian Callahan, a jewelry salesman, left his home with two “hard cloth garment bags” containing jewelry. Shortly after driving away from his home, he heard a clanking noise emanating from the rear of the vehicle. He stopped on the side of the road to investigate the source of the noise, got out of the car, and closed the car door but left the engine running. He walked to the rear of the vehicle and, as he crouched to inspect the exhaust pipes. He felt someone pass quickly by him. An individual got into his car and drove away. Callahan was two feet from the car during the entire time he was outside the vehicle until the time of the theft. Police found the vehicle, but the jewelry was missing. P was insured with D. Under “Exclusions” the policy provided that D would “not pay for ‘loss’ caused or resulting from … theft from any vehicle unless, you, an employee, or other person whose only duty is to attend to the vehicle are actually in or upon such vehicle at the time of the theft.” P was unable to show that Callahan had been physically touching the vehicle when the theft occurred. D denied the claim. P sued D for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices. The court granted D’s motion for summary judgment. The Court of Appeal affirmed. D appealed.