Randolph v. Ackerson , 108 Mich. App. 746 ( 1981 )

108 Mich. App. 746 (1981) 310 N.W.2d 865

RANDOLPH
v.
ACKERSON.

Docket No. 52698.

Michigan Court of Appeals.

Decided August 18, 1981.

Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C., for plaintiff.

Best, Arnold, Gleeson & Best, P.C. (by Chad C. Schmucker and Dennis L. Viglione), for defendant.

Before: BRONSON, P.J., and J.H. GILLIS and C.L. BOSMAN,^[*] JJ.

C.L. BOSMAN, J.

Defendant appeals by right from a judgment granted in favor of plaintiff on his complaint. The judgment was based on the trial court's opinion that a policy of insurance issued to defendant excluding coverage for bodily injury arising out of "business pursuits of any insured except (i) activities therein which are ordinarily incident to non-business pursuits and (ii) farming * * *" did not exclude coverage for plaintiff's injury. Based on said exclusion, the Pioneer State Mutual Insurance Company which insured defendant under a comprehensive farm owners liability insurance policy denied coverage.

The parties stipulated to bring the issue of Pioneer's liability before the trial court on a motion for declaratory judgment. The parties agreed that if the trial court determined that coverage was not precluded, the defendant would owe plaintiff $11,022.00; but, that, if the trial court found that coverage was precluded, defendant would owe plaintiff nothing.

Defendant purchased from his neighbor a barn which he razed, moved to his property and advertised for sale. Several people responded to the advertisement but only plaintiff and another purchased the barn wood. Plaintiff was injured when he and defendant were loading the wood on plaintiff's pickup truck.

The trial court concluded that defendant was not engaged in a business pursuit when plaintiff was injured and, therefore, the exclusion to the policy of insurance was not applicable. The trial court concluded that since it found that Pioneer was liable to plaintiff for his injuries, it was not necessary to address plaintiff's alternative claim that Pioneer was liable because the razing of the barn was incident to ordinary farming operations.

In Roese Contracting Corp, Inc v Zgliczynski, 97 Mich. App. 199, 202; 293 NW2d 763 (1980), the Court set forth the applicable standard of review:

"Our review of the declaratory judgment is de novo, and the findings below must be sustained unless we conclude that we would have ruled differently, sitting in the trial court's stead. Salvador v Connor, 87 Mich. App. 664, 675-676; 276 NW2d 458 (1978), lv den 406 Mich. 966 (1979)."

Jurisdictions differ in their interpretations of what constitutes a business pursuit for purposes of determining whether a business pursuit exclusion contained in a policy of insurance precludes coverage. In certain jurisdictions, any activity that is profit motivated constitutes a business pursuit for such purposes. However, as the trial court in the instant case recognized, Michigan employs a two-prong test in which, in addition to the profit motive, there must be a degree of continuity to the activity involved. See State Mutual Cyclone Ins Co v Abbott, 52 Mich. App. 103; 216 NW2d 606 (1974).

In this case, the record clearly supports the trial court's conclusion that defendant's activity was profit motivated. The record also supports the trial court's finding that defendant's involvement in the activity was not continuous. The trial court noted in its opinion that there was no evidence presented that defendant had ever engaged in the business of razing old barns for profit prior to the occasion at issue or that he had done so since. The defendant was a full-time employee at Lansing Motor Wheel Corporation and additionally conducted a sizeable farming operation. That is indicative of the singular nature of the activity in question. The fact that defendant's venture required a great amount of effort and a great amount of time is not determinative. Since defendant's activity was not a "stated occupation" or a "customary engagement", it was not continuous. State Mutual Cyclone Ins Co v Abbott, supra.

We conclude that the trial court correctly determined that defendant was not engaged in a business pursuit when plaintiff was injured and, therefore, the business pursuit exclusion to the policy of insurance does not act to preclude coverage. Based on the above, we also find it unnecessary to address plaintiff's alternative theory that coverage was not precluded because defendant's activity was incidental to ordinary farming operations.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.