1-00-3523

SPIRIT OF EXCELLENCE, LTD.,				)	Appeal from the

								)	Circuit Court of

	Plaintiff-Appellant and Cross-Appellee,	)	Cook County.

								)

		v.						)	

								)

INTERCARGO INSURANCE COMPANY,				)

								)	

	Defendant-Appellee and Cross-Appellant,	)

								)

		v.						)

								)	

ABACO INTERNATIONAL SHIPPERS, INC.,			)	Honorable

								)	James Henry,

	Defendant-Appellee.				)	Judge Presiding.

	JUSTICE HARTMAN delivered the opinion of the court:	

	Plaintiff-appellant and cross-appellee, Spirit of Excellence (SOE), through a

trustee in bankruptcy, appeals the grant of a motion to reconsider a prior summary

judgment favoring SOE, and entry of summary judgment for defendant-appellee and cross-

appellant, Intercargo Insurance Company (Intercargo).  SOE also appeals the order in

favor of defendant-appellee, Abaco International Shippers, Inc. (Abaco), dismissing

SOE's third-amended complaint.  On cross-appeal, Intercargo challenges the circuit

court's finding that SOE had an insurable interest in certain property under its

policy.

	The issues to be considered on appeal will be limited to those concerned with

SOE's standing and damages and, on cross-appeal, to the circuit court's grant of

summary judgment for SOE on the insurable interest question.

	As recounted by SOE, the final orders entered in this case terminated years of

litigation, including motions to dismiss, motions in limine, twenty-seven depositions, motions for summary judgment and other proceedings.  Only those facts essential to

deciding this appeal, gleaned from the described proceedings, need be set forth.

	On December 10, 1994, two Russian companies, Too Objective (Objective) and  Too

Runo (Runo), contracted to export used American vehicles to Rostov, Russia.  Runo and

Objective agreed to buy 200 to 300 used automobiles in the United States, remove the

engines and transmissions and ship them to Russia, where they would be reassembled (the

project).  The contract stated that Objective, the "supplier," would provide all

necessary documents, including insurance policies.  Runo would prepay all project

funds, including all costs for the purchase of the automobiles, their disassembly,

packing them into ocean containers, transportation and shipping, equipment for

reassembly and insurance.  After the vehicles were reassembled and sold in Russia, Objective would get 20% of the profits and Alexandre Grigorian, Objective's principal,

would receive 10 percent.

	Previously, SOE, an exporter of goods from the United States to Russia,

contracted in writing with Objective and Grigorian, nonparties to this lawsuit, for the

purpose of introducing "goods [consisting of used automobiles] and services provided

by [SOE] into the consumer market of Russia as well as export of goods and services

from Russia" in furtherance of the project.  Objective would act as a "middleman" by

facilitating the transactions with Runo in Russia.  The contract made SOE responsible

for "[a]ppropriately packing the goods," and that "[t]he packing should provide for the

safety of the goods and prevention [of] their damages at transport ***."  Objective

would arrange for prepayments by Runo of the goods by means of non-cash bank transfers

to SOE's account.  Upon the shipment of goods, SOE was required to provide Objective

with a copy of the insurance policy and a statement of the total insurance amount. 

	Runo prepaid SOE for all the following costs of sale:  (1) SOE's purchase cost

for the used cars in the United States; (2) SOE's costs in disassembling the

automobiles; (3) SOE's costs in paying a shipper selected by SOE to have the cars

packed within ocean containers for transportation to Russia; and (4) all the costs

associated with transporting by rail and ocean, and insuring the cars.  Runo paid SOE

in advance for these costs by wiring funds directly to SOE, in the amount of

$5,000,000. 

	In early 1995, Runo began wiring funds from Doninvest Bank in Russia totaling

$100,000 to $250,000 in weekly stages over a four-month period directly to SOE's bank

account.  Grigorian and Oleg Gryzlov, Runo's principal, determined the criteria for

purchasing the vehicles, including the year, make, model and mileage.  SOE began buying

the specified vehicles from dealerships and auctions.  Separate commercial invoices

reflecting monetary values of the automobile bodies to Runo and the engines and fluids

to two other Russian consignees, Too Leks (Leks) and Too Kristall (Kristall), indicated

that these goods were sold to Runo and the other parties in order to present proof of

possession to Russian customs agents upon their arrival in Rostov. 

	SOE hired Abaco, an Illinois corporation engaged in the business of stow, design

and building of custom containers for the overseas transport of goods to foreign

destinations, to design and custom build containers sufficient to withstand the normal rigors of truck, rail and ocean transit.  Abaco also arranged the bookings with the

steamship lines in a freight forwarding capacity.  SOE had no written contract with

Abaco, but previously had done business with it for other shipping projects. 

	SOE directed Abaco to place four cars in each container for a total of 81

containers.  Although the titles of the vehicles initially were in SOE's name, SOE

issued its commercial invoices evidencing the vehicle sales to Runo prior to

transportation of each container.  The commercial invoices do not state the precise

terms of sale, however, according to the deposition testimony of SOE's president,

Michael Vilner, there was an oral agreement that the sale was on a "CIF" basis,

including cost, insurance and freight prepaid by the purchaser, Runo.  The prepayment

of all costs also had the effect of rendering the sale CIF.

	Abaco held the Intercargo open marine policy which allowed the privilege of

countersigning certificates of insurance as part of a profit sharing agreement, to be

issued strictly in accordance with the terms and conditions of the policy.  Abaco

issued 81 such certificates to SOE, showing their issuance "for the account of Abaco"

and loss payable to SOE.  Most of the containers each were insured in the amounts of

$17,600 or $17,995. 

	The containers were transported in a series of shipments over a five-month

period, between February 7, 1995 and July 7, 1995.  The first container departed

Abaco's premises by truck and rail transit to Montreal, Canada, where it was received

by Cast Lines, which issued bills of lading listing Runo as the consignee.  The bills

of lading state that "[s]ubject to Section 7 of conditions of applicable bill of

lading, if the shipment is to be delivered to the consignee without recourse on the

consignor, the consignor shall sign the following statement."  The area provided for

the consignor's signature was left blank.  The bills of lading noted that charges for

shipment were to be prepaid.  In addition, the bills of lading defined "loss" as

"shortage, non-delivery, misdelivery, damage, deterioration, and all physical or

consequential loss or damage of any nature whatsoever to or in connection with GOODS

or any other thing referred to."

	The first containers began arriving in Rostov in April 1995, and were accepted

by Runo.  There was minor damage to the automobiles in the first two containers opened,

but significant damage to the vehicles was observed in the next 79 containers.  There is no evidence in the record, however, that Runo ever rejected any shipped vehicle.

	Konstantin Kaymakov, president of Tamga-Ug Insurance Company in Rostov, agent for

the insurance company listed on Intercargo's insurance certificates, testified by

deposition that he is familiar with methods of packing and securing automobiles for

shipment.  Kaymakov testified that Runo contacted him in April 1995 about the damaged

vehicles.  He surveyed all the containers and prepared reports of damages, including

rubbed off paint, scratches, dents, broken windows and mirrors and dented bumpers. 

From his observations, Kaymakov concluded that the packaging of the vehicles was

improper, as evidenced by broken wooden planks supporting vehicles on the upper tiers

and torn nylon straps securing the automobiles.  In further support of his opinion was

the fact that the automobiles were shipped at different times over various routes, but

the damages were similar.  Kaymakov limited his communication to Runo officials, who

paid him for the surveys.  He did not analyze the cost of repairing the vehicles.  

	Alexander Bondarev, a representative of Runo, testified by  deposition that Runo

hired various companies in Russia to repair the damages to the cars, which had been

noted in the survey reports upon arrival, and Runo paid for all the repairs.  All the

invoices for these repairs are addressed to Runo as the party which ordered and paid

for the repairs.  After the repairs were completed, the vehicles were sold by Runo to

purchasers in Russia.  Thereafter, Runo communicated directly to Intercargo its

position that "all losses according to the Contract was incured [sic] by company 'Runo,'" on April 12, 1996.

	Grigorian testified by deposition that Runo and SOE conducted their business

through Objective.  Runo decided how much insurance to purchase.  Runo paid a total of

$1.9 million for all the repairs made and wanted Objective to reimburse it in that

amount.  An assignment of claims from Runo to Objective, dated March 20, 2000, assigned 

all legal and equitable rights, claims, demands, actions, causes of action, suits,

judgments and orders against Abaco and Intercargo arising out of the damages to the

automobiles shipped in the 81 containers.  SOE paid Grigorian $150,000 for his project

services.

	Michael Vilner, president of SOE, testified by deposition that SOE conducts its

business on a consignment basis.  He met with Grigorian, Gryzlov and Mark Von Ebers,

general manager of Abaco, where insurance coverage was discussed.  Von Ebers  explained the concept of partial insurance, which provides for the recovery of loss of only that

percentage covered.  According to Vilner, Abaco issued the insurance certificates after

the vehicles were packed into the containers.  Vilner testified that he instructed Von

Ebers to provide 50% insurance coverage for the shipments, as requested by the

consignee, Runo. 

	Vilner claimed he did not know if money wired to SOE came from Objective or Runo. 

SOE had no contact with Intercargo during the packing process.  Grigorian and Gryzlov

called Vilner immediately upon discovering damage to the vehicles.  SOE was to have

filed the insurance claim, but Runo possessed the insurance certificates.  After Vilner

received the initial telephone call regarding damages, he contacted Von Ebers, who gave

Vilner the telephone number of Tamga-Ug, the local insurance representative in Rostov. 

Vilner telephoned Grigorian and gave him the information.  Vilner did not know how many

containers were shipped after the initial report of damages.  He was told by Von Ebers

that the vehicles were packaged correctly.

	According to Vilner, SOE profited from the project in the amount of $365,000. 

SOE and Abaco both filed for bankruptcy in 1997.  Objective, Runo's assignee, filed a

bankruptcy claim against SOE in the amount of $1.9 million.  

	Von Ebers, a 20-year Abaco employee, testified by deposition that when the

containers left Abaco's warehouse, he was given bills of sale for the cars to satisfy

U.S. customs requirements for proof of ownership, which listed SOE as the owner. 

Regarding procurement of insurance for SOE, Von Ebers did not deal directly with

Intercargo; rather, all insurance issues were handled by Trade Insurance Services,

Abaco's insurance broker. 

	Alan Spear, of Intercargo, testified by deposition that he is a marine claims

adjuster and loss prevention analyst for Intercargo.  He performed a "failure analysis"

for this project.  A February 7, 1996 letter from Spear to Runo and SOE representatives

acknowledged the receipt of 90 claims.  Spear stated that the insured knew that a

pattern of loss was occurring from April 28, 1995, and did nothing to change the

circumstances.  Ten shipments may have left after April 29, 1995.  Spear testified that

he was told by Von Ebers that the damage was minor, so the method of packaging was not

changed.  If he had known about the damage, he would have stopped the last ten

shipments.

	An April 9, 1996 report prepared by Spear noted that as the damaged vehicles were

unloaded from their containers, they were taken to an automotive plant where the

engines were re-installed.  During this time, the cars were inspected by a repair

company, Transtourservice, which developed estimates for the repairs.  The

Transtourservice estimates were between 30% and 50% over the amount of average prices. 

Transtourservice made the repairs.  Runo sold the repaired cars at random prices, but

did not profit because the community had heard about the damages.

	A letter from Spear to SOE, dated May 8, 1996, denied coverage by Intercargo for

all claims due to the following:  (1) late notice of the claims; (2) the named insured,

SOE, had no insurable interest in the goods at the time of loss; (3) an exclusion for

improper packing applied; (4) coverage for damages of goods shipped to Russia ceased

30 days after arrival of the goods in port; (5) an exclusion for used merchandise

applied; (6) SOE failed to make immediate claims against the carriers; (7) SOE's claims

were time-barred; (8) the certificates were void because SOE breached its obligation

of utmost good faith and fair dealing with Intercargo; and (9) SOE vastly underinsured

the shipments.  

	On May 20, 1996, SOE filed its initial complaint against Intercargo for breach

of contract, and later added Abaco as a defendant in an amended complaint, alleging

negligence.  In its third-amended complaint, SOE sought damages for repair costs of

$924,356, an amount later increased to $1,912,863.32.

	In September 1997, a creditor unrelated to the instant case filed an involuntary

petition against SOE pursuant to chapter 7 of the United States Bankruptcy Code (11

U.S.C. §701 et seq. (1994)), naming SOE as the debtor.  The bankruptcy case currently is pending in the United States Bankruptcy Court in the Northern District of Illinois. 

Objective thereafter also filed a bankruptcy claim against SOE.  

	On February 3, 1999, Abaco moved for summary judgment with respect to the

negligence count, claiming that SOE could not prove any facts to support the existence

of damages.  The circuit court denied the motion on May 25, 1999, finding that there

was a question of fact as to who owned the automobiles, and set the case for trial on

June 21, 1999, which later was stricken.  Thereafter, SOE and Intercargo cross-moved

for summary judgment on various grounds, including SOE's inability to prove damages. 

Abaco moved to reconsider the May 25, 1999 order denying its summary judgment motion.

	On September 10, 1999, the circuit court ruled on all then-pending motions,

denying Abaco's motion to reconsider and Intercargo's summary judgment motion.  The

court granted SOE's summary judgment motion, finding that SOE had an insurable interest

in the automobiles, as a matter of law.  During the hearing, however, the court stated

that "the real party in interest is nowhere before me," referring to Runo.  The court

also expressed concern with regard to an issue of standing.  

	On April 14, 2000, the circuit court ruled on certain motions in limine, granting Intercargo's motion to bar evidence of repair invoices on the basis of hearsay.  The

court granted Abaco's motion in limine to bar SOE from "presenting any evidence of Runo's or its assigns' payments to repair the damaged automobiles."  In its motion,

Abaco reiterated for the court that Runo paid for the entire project and the repair of

the cars, arguing that, although SOE claimed that it was damaged in the amount of

$1,912,863.32, SOE itself had suffered no damages and, therefore, had no standing to

sue Abaco.  In its findings barring evidence of repair payments, the court stated that

the claims brought by SOE against Abaco actually were claims that belonged to SOE's

creditors.  The court ruled that the claims of SOE's creditors were personal and that

SOE lacked standing to bring these claims against Abaco.  

	On July 31, 2000, Intercargo moved to reconsider the order denying its motion for

summary judgment.  Abaco filed its motion to dismiss on August 30, 2000.

	On September 7, 2000, the day before trial, Intercargo noticed an emergency

motion for hearing, requesting leave to take an evidence deposition of an out-of-state

witness.  At the hearing on the motion, the circuit court informed counsel for the

parties that there would be no trial.  Thereafter, the court granted both Intercargo's

motion to reconsider the September 1999 ruling on its summary judgment motion and

entered summary judgment favoring Intercargo, and also granted Abaco's motion to

dismiss.  In its findings, the court ruled that SOE could not establish that it had

suffered any damages which could be submitted to a jury, as previously argued by

Intercargo.  That argument had asserted that all losses were personal to SOE's third-

party creditors, including Objective as assignee of Runo's claims against SOE.  The

court found that all matters as to all parties were disposed of and that the order was

final and appealable.  

	On September 25, 2000, SOE moved to vacate the orders entered on September 8, 2000, and for leave to make an offer of proof as to testimony to be given by Pavel

Panov and Michael Simon regarding repair costs for the damaged vehicles.  The circuit

court denied the motion, but granted SOE leave to file the deposition testimony of

Panov and Simon, for the record.  SOE timely appeals and Intercargo cross-appeals.

	A reviewing court exercises de novo review when determining whether the circuit court properly granted a motion for summary judgment.  Zoeller v. Augustine, 271 Ill. App. 3d 370, 374, 648 N.E.2d 939 (1995) (Zoeller).  Summary judgment "shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law."  735 ILCS 5/2-1005

(West 2000).  Summary judgment is a "drastic means of disposing of litigation and

therefore should be allowed only when the right of the moving party is clear and free

from doubt."  Purtill v. Hess,  111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986).  The court must award summary judgment with caution to avoid preempting a litigant's right to

trial by jury or his right to present fully the factual basis of a case where a

material dispute may exist.  Lamkin v. Towner, 246 Ill. App. 3d 201, 204, 615 N.E.2d 1208 (1993).  In determining a summary judgment motion, the court must construe the

pleadings, affidavits, depositions and admissions on file strictly against the moving

party and liberally in favor of the opponent.  In re Estate of Hoover, 155 Ill. 2d 402, 410-11, 615 N.E.2d 736 (1993).  Reversal of a summary judgment motion is warranted if,

on review of the case, a material issue of fact or an inaccurate interpretation of the

law exists.  Zoeller, 271 Ill. App. 3d at 374.

	The standard of review of a motion to dismiss under section 2-619 is de novo.  Neppl v. Murphy, 316 Ill. App. 3d 581, 584, 736 N.E.2d 1174 (2000) (Neppl).  A section 2-619 motion admits the legal sufficiency of the complaint and raises defects, defenses

or other affirmative matter which appear on the face of the complaint or are

established by external submissions which act to defeat plaintiff's claim.  Neppl, 316 Ill. App. 3d at 584.  If a cause of action is dismissed pursuant to section 2-619, the

question on appeal is whether a genuine issue of material fact exists and whether

defendant is entitled to a judgment as a matter of law.  McGee v. State Farm Fire & Casualty Co., 315 Ill. App. 3d 673, 680, 734 N.E.2d 144 (2000).	

	I

	SOE asserts that the circuit court erred in finding that it lacked standing to

prosecute its claims for damages because the damages it seeks to recover were those

sustained by its creditors, and erred in finding that SOE did not suffer damages as a

matter of law because the only measure of SOE's recovery was the amount actually spent

by it to repair the automobiles rather than the amounts listed on the insurance

certificates.  

	A.	SOE maintains that it has standing to prosecute claims for its damages.  Specifically, SOE challenges the circuit court's application of the findings in Holland v. Arthur Andersen & Co., 212 Ill. App. 3d 645, 571 N.E.2d 777 (1991) (Holland II) to the instant case and relies upon Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492, 524 N.E.2d 561 (1988) (Greer).  In Greer the court held that the claimed injury need only be (1) "distinct and palpable"; (2) "fairly traceable" to

defendant's actions; and (3) "substantially likely to be prevented or redressed by the

grant of the requested relief."  Greer, 122 Ill. 2d at 492-93.  

	The party seeking to invoke the jurisdiction of the court must have some real

interest in the cause of action, however, or a legal or equitable right, title or

interest in the subject matter of the controversy.  Unger v. Nunda Township Rural Fire Protection District, 135 Ill. App. 3d 758, 763, 482 N.E.2d 123 (1985).  This principle is exemplified in Holland II, where plaintiff, a trustee in bankruptcy for the estate of American Reserve Corporation (ARC), appealed from a summary judgment order entered

in favor of defendant, contending that a genuine issue of material fact remained as to

the existence of damages sustained by ARC.  In Holland II, plaintiff alleged that it was damaged by misleading financial statements and unqualified opinions issued by

defendant about ARC's financial condition.  Defendant argued that plaintiff's proposed

claims belonged to third-party creditors and shareholders, for which plaintiff lacked

standing to sue.  The Holland II court found that plaintiff could not pursue the creditors' claims because they were personal to the creditors.  The court held that

summary judgment was appropriate since plaintiff failed to identify any other damage

to ARC.  Holland II, 212 Ill. App. 3d at 651.

	Defendants in Scholes v. Stone, McGuire & Benjamin, 821 F. Supp. 533 (N.D. Ill. 1993) (Scholes), upon which SOE relies, similarly argued that summary judgment was proper where the damages alleged by a receiver were those suffered by investors and not by the entities in the receivership.  There, plaintiff was appointed to represent the

receivership entities established by Michael Douglas in furtherance of what was a

continuing scheme to lure investors into investing their money in what were supposed

to be legitimate limited partnerships.  Douglas, through a series of lies and

concealment, successfully induced investors to invest large sums into these entities. 

Eventually, the Securities and Exchange Commission (SEC) shut down all of Douglas'

operations, but only after the public had invested over $30 million in the receivership

entities.  Defendants consisted of attorneys and a law firm who performed substantial

legal work for Douglas and the receivership entities.  Plaintiff alleged that this

legal work substantially furthered the fraud and misappropriation that gave rise to the

initial SEC action.

	The Scholes court determined whether the receiver had alleged damages suffered by the receivership entities as distinct from damages suffered by the individual

investors, finding that the parties intended to form and invest in the limited

partnerships and that Douglas' subsequent fraud did not negate the existence of the

entities.  According to the court, "any wrongful actions of the defendants resulting

in the loss of funds invested in the Receivership Entities damaged the entities to the

extent the loss is attributable to the wrongful acts.  Merely because the losses

alleged include funds contributed by the investors does not negate this fact." 

Scholes, 821 F. Supp. at 537.

	The Scholes decision does not aid SOE.  There, the court determined the issue of whether dissipation of funds contributed for partnership interests damaged the

partnership entities or the investors in those entities.  The Scholes court noted that "[i]f the funds deposited by investors into the Receivership Entities became funds

belonging to the entities, then a claim of legal malpractice or breach of fiduciary

duty resulting in the loss of those funds would sufficiently allege damage to the

entities"; however, "if the funds never actually belonged to the entities or the

entities were never otherwise entitled to these funds, the entities could not have been

damaged by their wrongful dissipation."  Scholes, 821 F. Supp. at 536.

	Here, unlike the receivership entities in Scholes, there is no record evidence to show that funds wired from Runo to SOE actually belonged to SOE or that SOE was

entitled to these funds, other than the $365,000 that it kept as profit after the cars were shipped.  Because no "wrongful dissipation" of SOE's funds occurred, as SOE solely

relied on Runo to finance and "invest" in the export project, SOE cannot claim damages.

	The findings in Holland II are applicable to this case.  Although SOE did not assert that the only damages suffered were those of the creditors, the record

establishes that the damages SOE are seeking are identical to the bankruptcy claim

filed by Objective, as Runo's assignee.  The only damages for which SOE has provided

evidence are those claims which personally belong to the creditor.  The circuit court

specifically noted that SOE was given every opportunity to discover legally cognizable

damages; however, SOE has shown nothing to support the claimed damages essential to its

case. 

 	The circuit court properly determined that SOE lacks standing to bring this action for claims which in fact belong to a third-party creditor.  Accordingly, the

court's September 8, 2000 grant of Intercargo's motion for summary judgment and Abaco's

motion to dismiss must be affirmed.1

	B.	Assuming, arguendo, that SOE possessed the requisite standing to pursue its putative claim, nevertheless, it could not prove cognizable damages to its interests. 

In its findings, the circuit court stated that it did not believe that a "jury could

possibly find that [SOE] is entitled to any money," and that "even if there was a

decision made by the jury or a fact finder as to some moneys that might be due to

[SOE]," a remittitur would be requested because out-of-pocket expenses were absent. 

	In construing the meaning of an insurance contract, a reviewing court must

consider the fundamental purpose of the insurance coverage.  Paluszek v. Safeco Insurance Co. of America, 164 Ill. App. 3d 511, 516, 517 N.E.2d 565 (1987) (Paluszek).  The proceeds of an insurance contract are indemnity for actual loss sustained by the

insured (Paluszek, 164 Ill. App. 3d at 516) or loss payee.2  Unless and until an actual loss is sustained and proved, he or she is not entitled to reimbursement. Paluszek, 164 Ill. App. 3d at 516.

	Further, the Paluszek court stated that "[p]roperty insurance is not insurance on the property itself, but rather on the interest of the person insured.  Insurance coverage does not run with the property when transferred."  (Emphasis added.)  164 Ill. App. 3d at 516.  An insurance contract is one that pays an amount of money equal to the

loss the insured party has suffered.  Consistent with this principle, the court held

that defendant was not obligated to reimburse plaintiff for repairs to the dwelling

performed and paid for by another party, that defendant does not insure the subsequent

owner and, therefore, cannot reimburse plaintiff for pecuniary loss suffered by the

subsequent owner.  Paluszek, 164 Ill. App. 3d at 517.

	Based upon facts relating to the sale of the cars from SOE to Runo, paid for with Runo's money, it is clear that SOE had no insurable interest in the cars at the time

of loss.  The transaction underlying these insurance claims was a sale of goods,

namely, automobiles, pursuant to the Illinois Uniform Commercial Code (UCC) (810 ILCS

5/2-101 et seq. (West 2000)).  Title or a security interest are the two prerequisites to a seller's insurable interest in goods which are the subject of a UCC sales

transaction.  See 810 ILCS 5/2-501(2) (West 2000) (section 2-501(2)).  The UCC provides

that "[t]he seller retains an insurable interest in the goods so long as title to or

any security interest in the goods remains in him ***."  810 ILCS 5/2-501(2) (West

2000).  The UCC specifies when title passes from seller to buyer, which depends on the terms and circumstances of the underlying sale.

	The terms of SOE's sale of the cars to Runo are relevant to these proceedings. 

Vilner, SOE's president, admitted that the sale of the cars to Runo was based upon CIF

terms.  The facts and circumstances of the sale further demonstrate a consummated CIF

sale because the purchase price was prepaid fully by Runo to SOE, including the cost

of insurance and freight to destination.  See 810 ILCS 5/2-320 (West 2000) (section 2- 320).  As a matter of law, title passed to Runo upon SOE's tender of possession of the

cars to a carrier for transportation and, thereafter, it was Runo, not SOE, which had

an insurable interest in the vehicles.  See 810 ILCS Ann. 8/2-320, Uniform Commercial

Code Comment, at 254 (Smith-Hurd 1993) ("[d]elivery to the carrier is delivery to the

buyer for purposes of risk and 'title'").  This transaction was not executory.  There

is no support in the record for SOE's claim that it had retained a security interest. 

	The case of Tupman Thurlow Co. v. Cook, 342 Ill. App. 344, 96 N.E.2d 666 (1950) (Cook) also supports the conclusion that the sales transaction in this case was a consummated sale on CIF terms.  There, the issue was whether a particular transaction

qualified as a CIF sale.  The parties agreed that while the contract of sale for the

goods included the cost of the merchandise, insurance and freight charges to

destination, it was not strictly a CIF transaction because the seller was required to

pay duty on the buyer's behalf.  The buyer argued that title had not shifted to him

from the seller upon the seller's tender of the goods to the carrier because this

additional term transformed the contract to one on other than strictly CIF terms. 

Cook, 342 Ill. App. at 349.  The court stated "[b]ecause the contract was not C.I.F. it does not follow that title did not pass when the merchandise was put on board at

Wellington."  Cook, 342 Ill. App. at 350.  The court held that under the then "Uniform Sales Act" (Ill. Rev. Stat. 1949, ch. 1211⁄2, para. 19), where goods are appropriated

unconditionally to the contract of sale in a deliverable state by the seller with the

buyer's consent, title passes to the buyer.  Cook, 342 Ill. App. at 350-51.  The court further noted that all of the indicia of the contract favored this result.  Cook, 342 Ill. App. at 351.  

	Assuming, arguendo, that SOE somehow can claim ownership of the vehicles during shipments, the record shows that ownership transferred upon arrival of the goods in

Russia.  The only way Runo, Leks and Kristall could accept the goods upon their arrival was by demonstrating their right to possession to Russian customs agents, which the

record shows occurred through the presentation of sales invoices and insurance

certificates.3  The record establishes that Runo paid for the repairs to the damaged cars.  SOE seeks to collect for repairs that it neither made nor paid for.  Possession

of the insured property at issue here was transferred and, therefore, coverage does not

run with that property.  Accordingly, the circuit court did not err in finding that SOE

had not sustained a compensable loss. 

	C.	SOE argues that the clear language of the insurance certificates mandates a finding that prior to the loss, the parties agreed to the amounts due in case of loss

and, therefore, SOE is entitled to recover as a matter of law.

	The primary objective in construing the language of an insurance policy is to

ascertain and give effect to the intentions of the parties as expressed in their

agreement.  Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391, 620 N.E.2d 1073 (1993) (Crum & Forster).  If the terms of the policy are clear and unambiguous, they must be given their plain and ordinary meaning.  Outboard Marine Corp. v. Liberty Mutual Insurance, 154 Ill. 2d 90, 108, 607 N.E.2d 1204 (1992) (Outboard Marine).  Conversely, if the terms of the policy are susceptible to more than one meaning, they are considered ambiguous and will be construed strictly against the

insurer who drafted the policy.  Outboard Marine, 154 Ill. 2d at 108-09.  In addition, provisions that limit or exclude coverage will be interpreted liberally in favor of the

insured and against the insurer.  National Union Fire Insurance Co. v. Glenview Park District, 158 Ill. 2d 116, 122, 632 N.E.2d 1039 (1994).  The policy must be construed as a whole, taking into account the type of insurance purchased, the nature of the

risks involved and the overall purpose of the contract.  Crum & Forster, 156 Ill. 2d at 391.  The construction of an insurance policy is a question of law subject to de novo review.  Oakley Transport, Inc. v. Zurich Insurance Co., 271 Ill. App. 3d 716, 720, 648 N.E.2d 1099 (1995).

	SOE contends that, because the insurance certificates include the term "valued

at sum insured," the insurance contract here is a "valued contract," which stipulates

the amount of damages in advance, thereby making the actual value of the loss

irrelevant.  The authorities upon which SOE relies, however, both state that for valued

policies to apply, a "total loss of the insured property" must occur.  Clark v. Aetna Casualty & Surety Co., 778 F.2d 242, 247 (5th Cir. 1985); Polytech, Inc. v. Affiliated FM Insurance Co., 21 F.3d 271, 273 (8th Cir. 1994).  In the present case, there was no total loss of the insured property.  Therefore, SOE's valued contract argument must be

rejected.

	SOE cites other authority to support its contention that it had no requirement

to prove any damages:  Perzy v. Intercargo Corp., 827 F. Supp. 1365 (N.D. Ill. 1993); Aguilera v. Pacific Insurance Co., No. 95 C 1163 (N.D. Ill. Jan. 11, 1996) (Aquilera); Edwin v. Security Insurance Co., 269 F.2d 159 (7th Cir. 1959); and First National Bank of Highland Park v. Boston Insurance Co., 17 Ill. 2d 147, 160 N.E.2d 802 (1959).  All the above-cited cases are distinguishable since none of them involved the specific

factual occurrence here, namely, that after discovering damage to the goods shipped,

Runo accepted the goods and repaired the damage, not SOE.

	The face of the insurance policy states that "in case of loss, the same is

payable to the order of [SOE]."  All property insurance contracts, including marine contracts, are considered "contracts of indemnity, intended solely to indemnify the

insured for his actual monetary loss by the occurrence of the disaster.  Unless the insured has sustained an actual loss, the insurer has no liability."  (Emphasis added.) 

4 Appleman on Insurance Law and Practice § 2107 (1969).  SOE did not pay for repairs

using its own funds.  The policy in favor of coverage does not apply here because the

putative insured, SOE, was not deprived of a benefit for which it paid.  Dash Messenger Service, Inc. v. Hartford Insurance Co. of Illinois, 221 Ill. App. 3d  1007, 1010, 582 N.E.2d 1257 (1991).  

	The language of the insurance certificates does not support a finding that prior

to the loss, the parties agreed to the amounts due in case of loss.  The circuit

court's conclusion that SOE is not entitled to recover as a matter of law must be

affirmed.

	Considering the foregoing result, SOE's negligence claim against Abaco need not

be analyzed. 

	II

	SOE next contends that a question of material fact exists with respect to whether

it sustained compensable damages.  SOE insists that there is ample evidence proving the

amount of damages it suffered, pointing to record evidence of photographs, witness

testimony, insurance surveys, answers to interrogatories and the bankruptcy claim.  

	SOE did not provide case law in support of these contentions, in contravention

of Supreme Court Rule 341(e)(7).  177 Ill. 2d R. 341(e)(7).  Bare contentions without

argument or citation of authority do not merit consideration on appeal.  See Fuller v. Justice, 117 Ill. App. 3d 933, 942-43, 453 N.E.2d 1133 (1983).  Therefore, this argument is waived.  See Nancy's Home of the Stuffed Pizza, Inc. v. Cirrincione, 144 Ill. App. 3d 934, 939, 494 N.E.2d 795 (1986).

	Notwithstanding waiver, the parties do not dispute that the cars were damaged

during shipment.  There is a difference, however, between claiming that a loss occurred

and proving a loss to the claimant.  SOE claims that it suffered the damages but the

record does not show a connection between SOE and the damages sustained.  Instead, the

evidence shows that Runo suffered the actual loss.  Again, as discussed earlier, the

record contains no evidence of SOE paying for anything using its own funds.  Further,

SOE benefitted from the project by receiving payment in the amount of $365,000 for its services.

	SOE also claims that the circuit court, in its September 10, 1999 and September

7, 2000 findings, stated that a question of fact remained over the value of the claim,

referring to $50,000 that SOE paid for shipment of automobile parts for the repairs. 

In viewing the context of the report of proceedings, however, the court only asked

about the existence of the $50,000 claim; it did not find that a question of material

fact existed with respect to whether SOE sustained compensable damages.

	Based on the foregoing, SOE has not shown the existence of a material fact with

respect to whether SOE sustained compensable damages and the circuit court must be

affirmed on this issue as well.

	III

	SOE next asserts that the circuit court erred by reconsidering Intercargo's

motion for summary judgment and vacating its prior order denying the motion, because

the court violated Cook County Rule 2.1(f) (Cook Co. Ct. R. 2.1(f) (eff. June 15, 1988)

(Rule 2.1(f))) in deciding Intercargo's motion one day before trial.  Rule 2.1(f)

states that "[a]ll motions for summary judgment shall be filed and noticed for hearing

not later than forty-five (45) days before the trial date, except by prior leave of

court and for good cause shown."  Cook Co. Ct. R. 2.1(f) (eff. June 15, 1988).

	SOE raises this contention for the first time on appeal.  Failure to raise this

issue below in the original proceedings constitutes a waiver of the right to raise it

for the first time on appeal.  E & E Hauling, Inc. v. Pollution Control Board, 107 Ill. 2d 33, 38, 481 N.E.2d 664 (1985); McLean v. Department of Revenue, 326 Ill. App. 3d 667, 674, 761 N.E.2d 226 (2001).  SOE has waived review of this issue.

	IV

	SOE next contends that the circuit court erred in granting certain motions in limine regarding repairs to the damaged vehicles.  In light of the dispositions under the preceding points I through III, this contention need not be addressed, since SOE

has not shown its entitlement to recover damages in any amount.

	V

	On cross-appeal, in an argument closely related to Part II of this opinion,

Intercargo maintains that SOE had no insurable interest in the goods under the

insurance certificates once transit commenced.  In support of its contention, Intercargo notes that Runo prepaid all the expenses involved in the export project,

Runo was listed as the consignee on all the bills of lading and commercial invoices and

Vilner testified that the transaction was on a CIF basis.  Intercargo asserts that

because the transaction falls under the UCC, SOE would have had to possess title to or

a security interest in the goods at the time of loss. 

	As previously noted, a person has an insurable interest in property when he owns

"'any interest in the property cognizable in law or equity [or] is the owner of

equitable title ***.'"  Aguilera, No. 95 C 1163, slip op. at 2, quoting Milan v. Providence Washington Insurance Co., 227 F. Supp. 251, 254 (E.D. La. 1964).  

	Section 2-501(2) of the UCC provides, "[t]he seller retains an insurable interest

in the goods so long as title to or any security interest in the goods remains in him

***."  Section 2-320 of the UCC states that CIF means that "the price includes in a

lump sum the cost of the goods and the insurance and freight to the named destination."4  810 ILCS 5/2-320 (West 2000).

	Here, the cars were identified in the contract of sale by SOE with Runo's

consent, with all costs associated with the purchase and transportation having been

prepaid to SOE by Runo.  The contract was based on CIF terms; title passed to Runo once

the vehicles commenced their transit.  Thereafter, SOE had no insurable interest at the

time of loss, either as an insured or as a loss payee.

	SOE's contention, that its obligation was to deliver the vehicles to Russia

undamaged, does not change the fact that title to the vehicles passed as a matter of

law when they were tendered to the first carrier for transportation.  Further, SOE's

claim against Intercargo is a first party claim for property damage insurance, not a

liability claim.  The fact that SOE may believe it has potential liability to Runo for

the cars, or that Objective has made a claim against SOE in bankruptcy, does not

establish an insurable interest under the policy at issue.  There is a clear distinction between contracts to indemnify against liability incurred, and those to

indemnify against loss.  See Ohio Farmers Insurance Co. v. Lanta, 246 F.2d 1182, 1185 (7th Cir. 1957); Daugherty v. Alliance Casualty Co., 271 Ill. App. 71, 80 (1933) (Daughtery).  Policies insuring against loss as opposed to indemnity require proof of an actual loss.  Kinnan v. Charles B. Hurst Co., 317 Ill. 251, 255, 148 N.E. 12 (1925); Daughtery, 271 Ill. App. at 80; 5 Couch Cyclopedia of Insurance Law, §1165, at 4085 (1929).  SOE could have insured its potential commercial liability for breach of

contract under an appropriate policy; it had an insurable interest in its own contracts

to do so.  That interest, however, is insufficient in the context of insuring its own

actual loss for physical loss or damage to goods where, as here, they belonged to a

different entity.  

	The circuit court improperly found that SOE possessed an insurable interest in

the vehicles, which finding must be reversed.

	In view of this disposition, other issues raised in the counter-appeal require

no further consideration.

	A trustee in bankruptcy can bring only those claims that belong to the entity it

represents and cannot pursue third-party claims.  See Scholes, 821 F. Supp. at 535-36.  Since SOE's complaint sought damages for repairs to property it neither owned nor in

which it had an insurable interest, the circuit court properly granted Intercargo's

summary judgment motion and Abaco's motion to dismiss.

	For the above stated reasons, the judgment of the circuit court of Cook County

is affirmed on SOE's principal appeal and reversed on Intercargo's cross-appeal.

	Affirmed in part and reversed in part.

	THEIS , P..J., and KARNEZIS, JJ., concur.

	Grigorian then contacted SOE about the export project and SOE agreed to purchase

the automobiles in Chicago, disassemble them and arrange for their shipment to Rostov

on a "cost insurance freight" (CIF) basis.  (14C. 3352, 18C. 4381)  SOE had no

contract with Runo.  (18C. 4256)

In addition, he was not asked to provide copies of his surveys to any insurance

company, but upon discovering the bulk was insured, he contacted Ingosstrakh.  

Once he received notice of damages, he was told by Von Ebers that improvements had

been made to the packaging.  (17C. 4102)  Spektor does not know what improvements were

made.  (17C. 4114)

	Von Ebers testified by deposition that he is a 20-year employee of Abaco.  (19C.

4528)  SOE rented office space from Abaco.  (19C. 4535)  He believed that vehicles

were disassembled prior to shipment in order to pay lower import duty taxes in Russia. 

(19C. 4551)

	According to Von Ebers, Abaco had workers experienced in packing cars into

containers.  (19C. 4565)  Abaco employees did not receive additional training for this

project.  (19C. 4567)  This project was not the first time that Abaco employees packed

four cars into a container.  (19C. 4618)  

	Abaco employees packed two to four containers each day for a period of six or

seven weeks.  (19C. 4572-73)  Von Ebers observed some portion of the loading of every

container.  (19C. 4615) He personally took responsibility for the loading plan.  (19C.

4619)  The upper tier of cars were blocked and braced around the tires with wood and

secured at four points from the undercarriage to the side walls of the containers. 

(19C. 4637-38)  Abaco used one-inch nylon ratchet straps to secure the vehicles at

the A-frame.  (19C. 4625)  The automobiles were tied down at the corners.  (19C. 4627) 

Either SOE or Runo determined the route of the shipments.  (19C. 4573)  SOE was aware

of the underinsurance of the goods shipped.  (19C. 4582)  

	SOE informed Von Ebers of damage to the vehicles in April 1995.  (19C. 4596) 

According to Von Ebers, SOE waited until surveys of the damage were completed before

filing its claim.  (19C. 4599)

	Spear believes that Abaco is the insured, not SOE.  Trade Insurance issues blank

insurance certificates to Abaco.  (16C. 3902)  Abaco then charges certificate holders

for coverage under the Intercargo policy and remits a portion of the premium that

Intercargo has mandated to it.  (16C. 3902)  

	Intercargo did not have an opportunity to inspect the damages before repairs

were made.  (16C. 3909)  Intercargo retained a Finnish company, Oy Lars Krogius

(Krogius), which Spear believes is Intercargo's agent in Russia, to investigate the

losses.  (16C. 3910, 3916, 3977-78)  Intercargo was unable to trace the sources of

the vehicles, but found that they may have been rental cars from Avis Rent A Car. 

(16C. 3925)   

	After the investigation, Spear, utilizing a coinsurance factor, calculated

$850,000 in damages, reduced from $1.4 million because of the underinsurance.  (16C.

3918)  According to Spear, SOE was underinsured by 60 percent.  (16C. 3921)  

	Spear concluded that packaging of the vehicles was inadequate due to improper

blocking and bracing techniques, the 31% stretch ratio of the straps and the 4500-

pound breaking strength of the straps.  (16C. 3929, 3932, 3938)  Spear testified that

it was "reasonable to expect that the stress against those straps by the movement of

the automobiles could have been as much as the weight of the automobile, up to twice

that weight," thereby exceeding the 4500-pound breaking strength of the straps.  (16C.

3938)  The method of blocking failed because improper nails were used to hold the wood

together.  (16C. 3942)  No damage to the exterior of the containers was reported, suggesting that the containers themselves were not mishandled during transit.  (16C.

3945)

	Intercargo's surveyor was not on site of the unloading of the containers due

to late reporting of damages.  (16C. 3948)  Intercargo did not negotiate the costs

of repairs for any of the cars.  (16C. 3948)  

	Spear believes that material misrepresentations occurred because false

information was presented to Intercargo during the claims process.  (16C. 3950-51) 

He testified that the insured committed bad faith by not providing invoices.  (16C.

3960-61)

	Spear stated that SOE appeared to have a "contractual interest" in this case. 

(16C. 3958-59)  The interest attached when the goods left Abaco's warehouse.  (16C.

3859) He defined an insurable interest as a fiduciary or financial interest in the

condition and value of the goods insured.  (16C. 3957)

	Spear testified that the repair damages are inflated, basing his opinion on the

Krogius reports.  (16C. 3964)  In his personal notes, he stated that the vehicles were

disassembled in the United States to avoid "big customs taxes" in Russia.  (16C. 3968)

SOE's brief claims damages as follows: (1) $1,917,863.32 for the cost to repair the

automobiles; (2) more than $800,000 for payment to Abaco for packaging and shipping

the automobiles; (3) $50,000 to supply repair parts to fix the automobiles; (4)

22,173,750 Rubles to tow the damaged vehicles to the repair shop; (5) $12,000,000 for

lost profits, interest charged to finance the project; and (6) the sums insured on

each certificate.

	Other than the $1,917,863.32 and the sums listed on the insurance certificates,

the record is devoid of evidence showing the amounts of other damages that SOE claims.

It should be noted, however, that in its reply brief, SOE states that "[t]he parties agree that the measure of damages under Policy No. 30381 [sic] is repair cost."

	The findings in Paluszek apply in the instant case with respect to Intercargo.  Plaintiff in Paluszek, unlike SOE, was made whole by defendant's payments for the actual cash value of the damaged property.  The difference here, however, is that SOE

did not pay for any of the expenses involved in the subject transaction and,

therefore, cannot be made whole because it lost nothing.

plaintiff was in the business of manufacturing and selling snowball paperweights. 

He shipped 20 pallets of the paperweights from Austria to a California importer. 

Plaintiff agreed to the importer's request that if the paperweights were not sold

during the Christmas season, they would be returned to Austria.  The importer hired

a customs broker freight forwarder to arrange for the shipment and insurance of the

paperweights.  Plaintiff received a certificate of marine insurance stating that it

covered the cargo against "all risks."  The paperweights arrived in Austria in a

"frozen and damaged condition."  After the surveyor characterized the shipment as a

"total loss," defendant denied plaintiff's claim. 

	The Perzy court, noting a policy provision permitting insurance coverage for "[v]alue *** at amount declared prior to shipment and prior to any known or reported

loss or accident," construed this language in favor of coverage for plaintiff as a

valued contract.  827 F. Supp. at 1376.

plaintiff sought to recover the full value for damaged property even though he owned

only a one-third beneficial interest in the land trust.  The Aguilera court stated that "[l]egal ownership is not a prerequisite to an insurable interest.  A person has

an insurable interest in property when he owns 'any interest in the property

cognizable in law or equity [or] is the owner of equitable title ***.'"  No. 95 C 1163, slip op. at 2, quoting Milan v. Providence Washington Insurance Co., 227 F. Supp. 251, 254 (E.D. La. 1964) (Milan).  The court held that plaintiff's fractional interest did not mandate a fractional recovery, noting that defendant's policy

provision merely required plaintiff to have an insurable ownership interest in the

building.  Aguilera, No. 95 C 1163, slip op. at 3. 

plaintiffs owned property in which, on September 3, 1952, the Peoria Housing Authority

(Authority), pursuant to eminent domain, condemned the property.  Prior to that date,

defendant insurers issued their respective fire insurance policies to plaintiffs

covering the property.  In November 1952, a fire totally destroyed the property; the

loss sustained amounted to more than the aggregate sums of all said policies.  The

Authority paid plaintiffs the fair cash market value of the property. Plaintiffs filed

suit against defendants to recover the amount of the loss.  Defendants argued that

plaintiffs, having been paid the full value of the property in question without

diminution or depreciation, sustained no pecuniary or actual loss and, therefore, was

not entitled to indemnity.

	The Edlin court held that plaintiffs suffered a loss under the policies issued by defendants, noting that the risk of destruction of the insured property by fire

remained with the title and contract of insurance that was personal to plaintiffs. 

269 F.2d at 162-63.  Further, the court found that the Authority was not entitled to

reimbursement under the doctrine of equitable subrogation because the insurance

policies never became the property of the Authority.  Edlin, 269 F.2d at 163.

There, defendant insurance companies issued fire insurance policies in the aggregate

amount of $46,750 to plaintiff bank for property which it held title as trustee under

a land trust.  Thereafter, plaintiff contracted to sell the property for $19,000, of

which, $3,000 was paid as a down payment.  Prior to closing, the building totally was destroyed by fire.  Plaintiff filed suit to recover the face amount of the policies. 

Defendants argued that because of the existence of the contract for sale of the

property for $19,000, $3,000 of which had been paid, the interest of the insured did

not exceed $16,000.  

	The Boston Insurance court held that the contract price did not determine conclusively the value of plaintiff's interest for the purpose of determining the

amount due upon the insurance policies.  17 Ill. 2d at 152.

	In Paluszek, defendant insurance company appealed from an order granting summary judgment to plaintiff on the issue of coverage under the repair or replacement cost

provision of her homeowner's insurance policy, which also provided coverage against

loss caused by fire.  Plaintiff's home suffered extensive damage as a result of a

fire.  After investigating the origin of the fire, defendant afforded coverage for

plaintiff's claim and paid her $39,122.14, the actual cash value of the dwelling. 

Shortly thereafter, the parties agreed to a contractor's repair bid of $41,286.56. 

The insurance policy included a clause that stated defendant was not liable for more

than the actual cash value of the property unless and until actual repair or

replacement is completed.  Prior to completing any repairs and without giving notice

to defendant, plaintiff sold her home in "as is" condition.  Plaintiff then brought

an action to recover the $2,064.32 difference between the actual cash value she

received from defendant and the agreed cost of repairs of the dwelling.  Defendant

responded that since the insured (plaintiff) expended nothing in the repair of the

house, it did not owe any additional money under the repair and replacement cost

clause.

	The Paluszek court found that additional payment for repairs would result in profit for the insured.  164 Ill. App. 3d at 516.  The court noted that plaintiff

elected to sell her house and was attempting to collect for repairs she did not make.  According to the court, plaintiff was attempting to contravene the fundamentals of

insurance law by profiting from her insurance.  The court ruled that the repair and

replacement provision requires that repairs be made by the insured in order to be

consistent with the goal of indemnification for the actual loss suffered.  Paluszek, 164 Ill. App. 3d at 516.

	The admission of evidence is within the circuit court's sound discretion and

its ruling will not be disturbed by a reviewing court absent an abuse of that

discretion.  People v. Ward, 101 Ill. 2d 443, 455-56, 463 N.E.2d 696 (1984).

	A

	First, SOE argues that the circuit court erred by barring evidence of paid

invoices reflecting the costs to tow and repair the damaged automobiles on the basis

of hearsay.  SOE maintains that the invoices were admissible because (1) they were

paid; (2) they were admitted into evidence during the evidence deposition of Alexandre

Bondarev, Executive Director of Marketing and Advertisement for Runo; and (3) they

did not lack trustworthiness.

	In Illinois, a paid automobile repair bill is admissible in evidence without

other foundation as prima facie evidence of the necessity and reasonableness of such repairs.  Smith v. Champaign Urbana City Lines, Inc., 116 Ill. App. 2d 289, 291, 252 N.E.2d 381 (1969) (Smith).  In Smith, however, plaintiff offered evidence of a bookkeeper at the garage where her car was repaired.  The bookkeeper testified that

she had a repair bill which her books showed paid.  Here, SOE offered evidence of

Bondarev, who did not work at the location where the vehicles were repaired or where

the invoices were prepared.

	In Sesemann v. Ellington, 51 Ill. App. 3d 790, 793, 367 N.E.2d 219 (1977) (Sesemann), the court ruled that no substantial prejudice resulted when plaintiff testified about her repair estimate, which she did not prepare.  The court found that the repair bill represented an acceptance of payment and damage to plaintiff's car. 

Sesemann, 51 Ill. App. 3d at 793.

	Intercargo cites Saunders v. Wilson, 114 Ill. App. 2d 380, 382, 253 N.E.2d 89 (1969) (Saunders) for the proposition that SOE did not lay a proper foundation when seeking to admit this evidence.  There, the court held that it was not the repair bill

itself that provides the proof, rather, "[i]t is the uncontroverted testimony of the

plaintiff under oath that the repairs were necessitated by the accident, that the

repairman was in the business of making such repairs and that he paid the bill." 

Saunders, 114 Ill. App. 2d at 382.  Intercargo argues that Bondarev's testimony shows that he does not possess the personal knowledge to lay the foundation to apply this

rule.

	Bondarev testified by deposition that he observed about 30% of the vehicles upon

their arrival in Rostov and that several firms were involved in repairing them. 

Transtourservice completed the majority of the repairs.  Bondarev directly oversaw

the process of repairing the automobiles, but inspected only 20% of the cars after

repair.  He stated that a lot of the repairs made involved body work, specifically,

damaged trunks.  Bondarev also testified that the repair invoices were stamped upon

their arrival at Runo to indicate satisfaction and payment, and that the invoices were

kept in Runo's offices as a part of their business.  He stated that the invoices were

retained to make reports to the government for tax purposes.  Counsel for Intercargo

did not object to the authenticity of these documents, but did object to Bondarev's

lack of personal knowledge in that he was not competent to lay a business record

foundation.  

	Intercargo also contends that Bondarev's testimony lacks trustworthiness because

(1) there is a question of whether Bondarev is acting on behalf of Objective instead

of Runo; (2) the invoices were all prepared by Transtourservice, but repairs were

completed by more than one repair shop; and (3) Runo's representatives made physical threats against Vilner.  According to Intercargo, Runo had motive to falsify the

repair invoices.

	In Benford v. Chicago Transit Authority, 9 Ill. App. 3d 875, 876-77, 293 N.E.2d 496 (1973) (Benford), the court applied Supreme Court Rule 236(a) (145 Ill. 2d R. 236(a) (Rule 236(a))), the admission of business records in evidence, to its

findings.5  There, defendant appealed the circuit court's exclusion of certain exhibits which it claimed would have had the effect of reducing the amount of damages. 

The three exhibits at issue consisted of certain documents kept by plaintiff's

employer, Hotpoint Electric Company (Hotpoint), and were offered by defendant to show

the number of days of work missed by plaintiff.  Exhibit 3 was a printed form, signed

by "manager-medical service" at Hotpoint, stating that plaintiff could return to work

on June 26, 1967.  Exhibit 4 consisted of a note from plaintiff's private physician,

written on the physician's stationary, dated June 24, 1967, and signed by the doctor. 

Defendant's exhibit 5, entitled "Employee Attendance Record," indicated plaintiff's

daily attendance record for the years 1966, 1967 and 1968.

	To establish a foundation for the introduction of these records, defendant

called a Mrs. Watson, who worked at Hotpoint as the personnel record clerk.  She

testified that she did not begin to work in that department until 1970.  Watson stated that exhibits 3 and 5 were made and kept in the ordinary course of Hotpoint's

business, while exhibit 4 was not made by Hotpoint, but kept in the regular course

of Hotpoint's business.

	The Benford court upheld the exclusion of exhibit 4, noting that it was not made by Hotpoint, thereby failing to meet one of the main elements of Rule 236(a).  9 Ill.

App. 3d at 877-78.  The court found improper exclusion of exhibits 3 and 5, stating

that they were kept in the regular course of business and that it was the ordinary

course of Hotpoint's business to make and keep such records.  Benford, 9 Ill. App. 3d at 878.

	Applying the ruling in Benford to the case sub judice, the circuit court properly excluded the repair invoices.  The invoices failed to meet one of the main

elements of Rule 236(a), namely, that they were not made by Runo.  The court here did

not abuse its discretion by granting motions in limine barring admission of the repair invoices.

	B

	Second, SOE avers that the paid invoices were admitted into evidence during the

evidence deposition of Bondarev pursuant to the business record exception to the

hearsay rule.  Again, SOE did not provide case law in support of its contention in

contravention of Supreme Court Rule 341(e)(7).  177 Ill. 2d R. 341(e)(7).  Bare

contentions without argument or citation of authority do not merit consideration on

appeal.  See Fuller v. Justice, 117 Ill. App. 3d 933, 942-43, 453 N.E.2d 1133 (1983).  Therefore, this argument should be waived.  See Nancy's Home of the Stuffed Pizza, Inc. v. Cirrincione, 144 Ill. App. 3d 934, 939, 494 N.E.2d 795 (1986).

	Notwithstanding waiver, Part A concludes that the repair invoices do not fall

under the business record exception of the hearsay rule.

	C

	Third, SOE contends that the circuit court erred by barring Pavel Panov and Michael Simon as witnesses.  The record shows, however, SOE was allowed to file the

deposition transcripts of both  Panov and Aimon in order to enable SOE to file a

complete record on appeal.

damages must be the proximate result of the wrong.  Central Illinois Light Co. v. Stenzel, 44 Ill. App. 2d 388, 394, 195 N.E.2d 207 (1964) (Stenzel).  Courts attempt to make the injured party whole again, but not enable him or her to profit at

defendant's expense.  Stenzel, 44 Ill. App. 2d at 394; P.A.M. Transport, Inc. v. Builders Transport, Inc., 209 Ill. App. 3d 889, 896, 568 N.E.2d 453 (1991) (P.A.M. Transport).  Where the property can be repaired, damage to personal property is measured, by the necessary cost of making the repairs and value of the use of the

property while it is undergoing repairs.  Stenzel, 44 Ill. App. 3d at 394; P.A.M. Transport, 209 Ill. App. 3d at 896.  If property is damaged and can be repaired, the true measure of damages is the reasonable cost of repairs, provided it is less than

the value of the property before it was injured.  Stenzel, 44 Ill. App. 3d at 394; P.A.M. Transport, 209 Ill. App. 3d at 896.

	In light of the above, the circuit court correctly identified the appropriate

repair expense measure of damages.

	Steve Spektor, an SOE employee, testified by deposition that he also believed

SOE was responsible for the damages to the vehicles.  Spektor kept track of all the

transactions and paperwork for the project and communicated with all the parties

involved.  He had never seen a demand in writing from Runo regarding payment for

repairs.  He observed that Grigorian, Gryzlov and Hipwell monitored the packaging. 

The court also granted Intercargo's motions in limine to bar the opinion testimony of Pavel Panov and Michael Simon regarding repair costs for the damaged cars.  

The Intercargo open cargo policy is incorporated into the insurance certificates. 

Under a section entitled "Terms and Conditions," the certificates state  "[t]his

insurance attaches from the time the goods leave the Warehouse and/or Store at the

place named in the Policy for the commencement of the transit and continues during

the ordinary course of transit, including customary transhipment if any until the

goods are discharged overside from the overseas vessel at the final port.  Thereafter,

the insurance continues whilst the goods are in transit and/or awaiting transit until

delivered to the final warehouse at the destination named in the policy or until the

expiry of 15 days (or 30 days if the destination to which the goods are insured is

outside the limits of the port) whichever shall first occur."  

	In a section entitled, "Additional Conditions," the insurance certificates

provide that "[i]n no case shall this insurance cover loss damage or expense caused

by insufficiency or unsuitability of packaging or preparation of the subject matter

insured (for the purpose of this Clause, 'packing' shall be deemed to include storage

in a container or liftvan but only when such storage is carried out prior to

attachment of this insurance or by the Assured or their servants)."  The open cargo

policy, however, under clause 13, subsection A, number 3, entitled, "Average Terms

and Conditions," states that automobiles in "approved overseas packing are insured

*** [a]gainst all risks of physical loss or damage from any external cause,

irrespective of percentage ***."

	Linda Krause, a marine surveyor for Inland Surveyors, Inc., testified by

deposition that she provided reports for her principal, Alan Spear of Intercargo. 

After viewing photographs of the damages, she concluded that the method of shipping

the vehicles was inadequate, but Runo approved the method of securing the vehicles

at the outset and would not allow any changes.  Krause did not know the cause of the

damage, but surmised that during transit, the cars shifted due to a 31% stretch ratio in the straps and poor blocking in the upper tiers, causing the wood framework

supporting them to break and fall upon cars in the bottom tiers.

	A motion to reconsider involves the sound discretion of the circuit court and,

absent an abuse of discretion, the court's ruling will not be disturbed on review. 

Higgens v. House, 288 Ill. App. 3d 543, 546, 680 N.E.2d 1089 (1997) (Higgens).  Whether the court's ruling on a motion to reconsider achieved substantial justice

between the litigants is relevant in assessing the abuse of discretion issue.  A

reviewing court must determine whether, under the circumstances, it would have been

reasonable to compel the nonmoving party to go to trial on the merits of the case. 

Higgens, 288 Ill. App. 3d at 547.

In an earlier appeal, this court reversed a circuit court order dismissing plaintiff's

complaint for failure to state a cause of action, finding that the pleadings were

sufficient.  See Holland v. Arthur Andersen & Co., 127 Ill. App. 3d 854, 862, 469 N.E.2d 419 (1984).  

In addition, the action in Holland II proceeded past the pleading stage, allowing for more discovery in order for plaintiff to identify legally cognizable damages.  The

purpose of summary judgment is to avoid the needless expense and time of a full trial

where there is no showing of a prima facie case.  Holland, 212 Ill. App. 3d at 652-53.  

The Illinois car titles showing SOE as purchaser of the cars immediately prior to sale

and transportation of the cars to Runo in Russia are irrelevant.  

	Insurance policy language can be viewed as ambiguous in two ways: First, the

language itself may be considered "intrinsically unclear, in the sense that a person

reading it without the benefit of some extrinsic knowledge simply [could] not

determine what it means."  American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 481, 687 N.E.2d 72 (1997) (Koloms).  Second, "the language, although clear on its face, may become uncertain when applied to a particular object or circumstance." 

Koloms, 177 Ill. 2d at 481.  The plain meaning of the policy language must be considered without searching for a non-existent ambiguity.  United States Fire Insurance Co. v. Schnackenberg, 88 Ill. 2d 1, 5, 429 N.E.2d 1203 (1981).  In doubtful cases, however, courts will construe the policy in favor of coverage so that the

insured is not deprived of a benefit for which it paid.  Dash Messenger Service, Inc. v. Hartford Insurance Co. of Illinois, 221 Ill. App. 3d 1007, 1010, 582 N.E.2d 1257 (1991) (Dash Messenger Service).