This claim arose when the claimant, a member of the insured's fitness facility in Las Vegas, NV was followed in to the facility by an unknown person. The insured employee, who attends the front desk, stepped away from the front desk at the time the claimant and unknown person entered the facility. The unknown person did not have a membership. The claimant locked his personal property in a locker with his own pad lock and went to exercise. While the claimant was exercising, an unknown culprit broke the pad lock and stole the contents of the claimant's locker. The contents of the locker include: a wallet, a debit card, Nevada driver's license, Social Security card, $800.00 cash, flip phone, the claimant's change of clothes, and the claimant's car keys. The unknown culprit, using the stolen car keys, stole the claimant's car from the parking lot. Within the claimant's vehicle was an Apple computer that was also stolen. The vehicle was eventually recovered by the police but none of the personal property was. The vehicle had sustained physical damage. The claimant was partially indemnified through his personal auto and homeowner's insurance carrier who is pursuing a subrogation claim. The claimant maintains the insured was negligent as their employee left the front desk at the main entrance unattended. The culprit who stole the claimant's personal property was never identified but it is assumed it was the person who followed the claimant in to the facility.

At issue is the exclusion J. Damage to Property, which reads in part:

"j. Damage To Property

"Property damage" to:

(4) Personal property in the care, custody or control of the insured;

The definition of property damage reads in part:

17. "Property damage" means:

    1.  Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

    2.  Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.

All of the claimant's stolen personal property sustained property damage. At issue is if the personal property in the locker and the vehicle that was stolen as a result of the stolen keys is considered in the care, custody or control of the insured.

A court case, Liberty Mut. Ins. Co. v. Zurich Ins. Co., 402 Ill. App. 3d 37, 930 N.E.2d 573 (2010), has a similar facts of loss. In the above court case the exclusion j. 4. was upheld when the claimant's jewelry was stolen from a room safe inside their hotel room. The jewelry, in a room safe provided by the hotel, was still considered to be in the car custody or control of the hotel.