Gem East Corp. v. Jewelers Mutual Insurance

MEMORANDUM *

Gem East Corporation (“Gem”) appeals the district court’s judgment ruling that Jewelers Mutual Insurance Company (“Jewelers”) properly denied Gem’s insurance claim on the basis of the policy’s unattended vehicle exclusion. We affirm.

I.

Smith was not in or physically touching any part of his car when the thieves stole the jewelry. He therefore was not “actually in or on the vehicle,” in the ordinary understanding of that phrase, when the theft occurred.

Gem urges us to adopt a broad reading of the phrase, as articulated in E.M.M.I., Inc. v. Zurich American Insurance Co., 32 Cal.4th 465 , 9 Cal.Rptr.3d 701 , 84 P.3d 385 (2004). However, even if we were to follow E.M.M.I., Gem would still not be entitled to coverage, given the facts of this case.

The E.M.M.I. court required more than mere proximity for coverage to apply; the insured also had to be “actually attending” to the vehicle at the time of the theft. See id. at 482 , 9 Cal.Rptr.3d 701 , 84 P.3d 385 (holding that salesman “who was approximately two feet from and actually attending to his vehicle when the theft occurred” was covered (emphasis added)); see also id. at 481 , 9 Cal.Rptr.3d 701 , 84 P.3d 385…