American National Property & Casualty Co. v. Sorensen , 749 Utah Adv. Rep. 4 ( 2013 )

THORNE, Judge

(dissenting):

4 31 I respectfully dissent from the majority opinion because I disagree with its conclusion that the definition of an "insured location" under Simmons's homeowner's policy is broad enough to include the common area where Olsen was injured in this cise. Further, I agree with American National's argument that coverage is excluded under the policy because the ATV in this case is eithér a "motor vehicle," a "motorized land conveyance," or both, Accordingly, I would reverse the judgment of the district court and remand this matter for the entry of judgment in favor of American National.

132 The policy language, as it applies to this case, defines an "insured location" to include any premises "used by [Simmons] in connection 'with" the residence premises. The majority opinion concludes that this definition is "fairly susceptible to different interpretations," see supra 28 (citation and internal quotation marks omitted), and must therefore be construed to include the location where Olsen was injured. I disagree:;

T 33 I find the reasoning of Massachusetts Property Insurance Underwriting Association v. Wynn, 60 Mass.App.Ct. 824, 806 N.E.2d 447 (App.Ct.2004), to be persuasive on this issue. In Wynn, the party seeking coverage arguéd that a beach was an insured location because it was used "in connection with" an insured residence. See id. at 451. The beach was owned by the insured's homeowners association and was located less than 500 feet from the residence, and the insured regularly used the beach. See id., The court concluded that the beach was not used in connection Wlth the residence premises, stating,

We think that Wynn's proffered 1nterpre~ tation proves too much and, if adopted, would render the definition of "insured location" meaningless and provide no. dis-_cernible geographical limit . to , coverage. - The term "insured location" and its accompanying reference to "[alny premises used in connection with" the residence premises is cireumsecribed by an obvious and necessary geographic limitation, The definition is not meant to encompass adjacent nonowned land on which an ATV might be used any more than it is intended to include parks or recreational facilities in proximity to the residence that the insured may enjoy and use regularly. Such locations are neither intended nor reasonably understood to be "insured locations" under a homeowner's policy. |

Id. (alteration and omission in original). The court concluded that "the term 'insured location' is intended and appropriately understood to be limited to the residence and premises integral to its use as a residence." Id. at 452.

[ 34 I agree with tlrns analysis. and would hold that, for purposes of the definition of an insured location under the policy, premises are used in connection with a residence only when their use is "integral to [the resi-denee's] use as a residence." See id. Nothing in the record before us suggests that Simmons's use of the common area where Olsen was injured could be characterized as integral to Simmons's use of her residence⁷ I would therefore conclude, as a matter of law, that the common area was not an msured location under the policy.

35 I also agree with American National's argument that, regardless of whether the common area is an insured location, the policy excludes coverage for Olsen's injuries. The policy provides that coverage is excluded for bodily injuries "arising out of the ownership, maintenance, use, loading, or unloading of motor vehicles or all other motorized land conveyances, including any trailers, owned or operated by or rented or loaned to any insured." - (Emphasis added.) It is undisputed in this case that Olsen's injuries arose from the use of an ATV and that the ATV. was owned by Simmons, an insured. Thus, coverage is excluded if the ATV is either a motor vehicle or a motorized land éonveyance.

[ 36 I would conclude that the ATV meets the policy's definition of a motor vehicle because, at the time of the accident, it was a "motorized land vehicle owned by any insured and designed for recreational use off public roads, while off an insured location." However, even if the ATV does not meet this definition because it was on an insured location at the time of the accident, it clearly falls within the category of "all other motgfizéd land conveyances."⁸ Thus, the policy clearly excludes coverage for Olsen's injuries regardless of whether the common area is an insured location.

137 For these reasons, I respectfully dissent from the majority opinion.

7 . In Wynn, the court expressly noted that the injured party had presented no evidence that the insured had easement rights to 'the beach under his deed. Massachusetts Prop. Ins. Underwriting Ass'n v. Wynn, 60 Mass.App.Ct. 824, 806 N.E.2d 447, 451 n. 6 (2004). Here, it is undisputed that Simmons did possess an easement. to use the common areas, including the area where Olsen was injured. However, the policy defines insured premises in terms of kow the premises are 'used, not whether the use 15 under a legal right, ~ For this reason, I would not distinguish this case from Wynn on the basis of Simmons's easement.

8 . The policy does not provide a definition for the term "motorized land conveyance." However, looking at its plain language, the term clearly encompasses the ATV in this case: the ATV has a motor, it conveys persons, and it is used on land.