Ladd Warner, A Minor, By His Next Friend and Natural Parent, Richard Warner, and Richard Warner, Individually, and David Helms v. United Farm Family Mutual Insurance Company (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
May 17 2017, 6:06 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Michael E. Simmons John C. Trimble
Hume Smith Geddes Green & Lewis S. Wooton
Simmons, LLP Michael R. Giordano
Indianapolis, Indiana Lewis Wagner, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ladd Warner, A Minor, By His May 17, 2017
Next Friend and Natural Parent, Court of Appeals Case No.
Richard Warner, and Richard 23A04-1607-CC-1495
Warner, Individually, Appeal from the Fountain Circuit
Appellants-Defendants, Court
The Honorable Susan Orr
and Henderson, Judge
Trial Court Cause No.
David Helms, Leah Helms, 23C01-1110-CC-332
Hayden Helms, and Holden
Helms,
Defendants,
v.
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United Farm Family Mutual
Insurance Company,
Appellee-Plaintiff.
Robb, Judge.
Case Summary and Issue
[1] Ladd Warner sustained injuries while driving a Polaris Ranger ATV (“Ranger
ATV”) owned by David Helms. Thereafter, Ladd, by his next friend and
father, Richard Warner, and Richard Warner, individually (collectively, “the
Warners”), filed a lawsuit against David Helms, Leah Helms, Hayden Helms,
and Holden Helms (collectively, “the Helmses”), alleging the Helmses were
liable for Ladd’s injuries. At the time of the accident, the Helmses held a
homeowner’s insurance policy issued by United Farm Family Mutual
Insurance Company (“United Farm”). United Farm filed a complaint seeking
a declaratory judgment that it was not obligated to defend and indemnify the
Helmses for Ladd’s injuries and sought summary judgment on that issue. The
trial court granted United Farm’s motion for summary judgment and denied a
counter-motion for summary judgment filed by the Warners, finding United
Farm had no duty under the homeowner’s insurance policy to defend or
indemnify the Helmses. The Warners now appeal, raising the sole issue of
whether the trial court erred in granting summary judgment in favor of United
Farm. Concluding the trial court did not err in its determination there is no
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insurance coverage available to the Helmses for claims of personal injury
suffered by the Warners, we affirm.
Facts and Procedural History
[2] David Helms purchased the Ranger ATV in December of 2010 and it was
delivered to their home on December 22, 2010. That evening, the Helmses
drove the Ranger ATV around their yard for about an hour and a half. The
next morning, David gave his son, Hayden, permission to drive the Ranger
ATV. Hayden drove through the fields and onto the roadways surrounding his
house for a few hours. When he returned home, his brother, Holden, and their
cousin Ladd, told Hayden that David wanted him to take Ladd back to his
house. Hayden agreed, and Hayden, Holden, and Ladd got into the Ranger
ATV to take Ladd home. After a few minutes of driving, Ladd asked Hayden if
he could drive, and Hayden agreed. Ladd drove the Ranger ATV onto the
roadway and across Highway 41. Shortly thereafter, Ladd tried to turn down a
gravel road and hit a patch of ice, causing the Ranger ATV to tip over. Ladd
sustained injuries from the accident.
[3] On March 28, 2011, the Warners filed a lawsuit alleging the Helmses were
responsible for Ladd’s injuries under theories of negligence, negligent
entrustment, and negligent supervision. On the date of the accident, the
Helmses held a homeowner’s insurance policy with United Farm. The policy
states, in relevant part:
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DEFINITIONS
***
3. “Insured” means you and residents of your household
who are:
a. Your relatives . . . .
***
SECTION II – LIABILITY COVERAGES
***
COVERAGE E – Personal Liability
If a claim is made or a suit is brought against an “insured” for
damages because of “bodily injury” or “property damage”
caused by an “occurrence” to which this coverage applies, we
will:
1. Pay up to our limit of liability for the damages for
which the “insured” is legally liable.
***
COVERAGE F – Medical Payments to Others
We will pay the necessary medical expenses that are incurred or
medically ascertained within three years from the date of an
accident causing “bodily injury.” . . . As to others, the coverage
applies only:
2. To a person off the “insured location,” if the “bodily
injury” . . . is caused by the activities of an
“insured” . . . .
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Appellants’ Appendix, Volume II at 69, 83. The policy also contains exclusions
to the medical payments to others provision, as well as exceptions to those
exclusions.
SECTION II – EXCLUSIONS
1. Coverage E – Personal Liability and Coverage F – Medical
Payments to Others do not apply to “bodily injury” or “property
damage”:
***
f. Arising out of:
(1) The ownership, maintenance, use, loading or
unloading of motor vehicles or all other
motorized land conveyances, including
trailers, owned or operated by or rented or
loaned to an “insured”;
(2) The entrustment by an “insured” of a motor
vehicle or any other motorized land
conveyance to any person; or
(3) Vicarious liability, whether or not statutorily
imposed, for the actions of a child or minor
using a conveyance in paragraph (1) or (2)
above.
This exclusion does not apply to:
***
(2) A motorized land conveyance designed for
recreational use off public roads, not subject
to motor vehicle registration and:
(a) Not owned by an “insured”; or
(b) Owned by an “insured” and on an
“insured location” . . . .
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***
(4) A vehicle or conveyance not subject to motor
vehicle registration which is:
(a) Used to service an “insured’s”
residence . . . .
Id. at 84 (hereinafter referred to as “Exception (2)(a),” “Exception (2)(b),” and
“Exception (4)(a)”).
[4] On October 24, 2011, United Farm filed a complaint for declaratory judgment
alleging it is not obligated to defend or indemnify the Helmses of any liability
for Ladd’s injuries. On March 8, 2016, United Farm filed a motion for
summary judgment relying on Exclusion f of the insurance policy. On April 8,
2016, the Warners, on behalf of themselves and the Helmses, filed a motion in
opposition to United Farm’s motion and filed a counter-motion for summary
judgment. The trial court issued its order on June 6, 2016, granting summary
judgment in favor of United Farm and denying the Warners’ counter-motion
for summary judgment. The Warners now appeal.
Discussion and Decision
[5] Our standard of review on summary judgment is well established:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
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party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[6] Moreover, “[t]he construction of a contract is particularly well-suited for de
novo appellate review, because it generally presents questions purely of law.”
Holiday Hosp. Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind.
2013). When reviewing an insurance policy, we use the same rules of
interpretation that are applied to other contracts. Justice v. Am. Family Mut. Ins.
Co., 4 N.E.3d 1171, 1175 (Ind. 2014). Prominent among these rules is that clear
and unambiguous language is given its ordinary meaning. Holiday Hosp.
Franchising, Inc., 983 N.E.2d at 577. An insurance policy is ambiguous where a
provision is susceptible to more than one interpretation and reasonable persons
would differ as to its meaning. Justice, 4 N.E.3d at 1176. The mere fact that
parties favor different interpretations does not necessarily mean that the
language in question is ambiguous. Id. “Additionally, the power to interpret
contracts does not extend to changing their terms, and we will not give
insurance policies an unreasonable construction to provide added coverage.”
Liberty Mut. Ins. Co. v. Mich. Mut. Ins. Co., 891 N.E.2d 99, 101-02 (Ind. Ct. App.
2008) (citation omitted).
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[7] According to the Helmses’ homeowner’s policy, United Farm will not make
medical payments to others for bodily injury or property damage arising out of:
(1) The ownership, maintenance, use, loading or unloading of
motor vehicles or all other motorized land conveyances,
including trailers, owned or operated by or rented or
loaned to an “insured”;
(2) The entrustment by an “insured” of a motor vehicle or any
other motorized land conveyance to any person; or
(3) Vicarious liability, whether or not statutorily imposed, for
the actions of a child or minor using a conveyance in
paragraph (1) or (2) above.
Appellants’ App., Vol. II at 84. However, these exclusions do not apply to:
(2) A motorized land conveyance designed for recreational
use off public roads, not subject to motor vehicle
registration and:
(a) Not owned by an “insured” . . . .
(b) Owned by an “insured” and on an “insured
location” . . . .
***
(4) A vehicle or conveyance not subject to motor vehicle
registration which is:
(a) Used to service an “insured’s” residence . . . .
Id. The Warners assert they have satisfied Exception (2)(a) and (4)(a);
therefore, they argue the exclusion provision does not apply and United Farm is
obligated to defend and indemnify the Helmses for the Warners’ personal
injuries.
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[8] As to Exception (2)(a), the Warners argue because the undisputed evidence
demonstrates the Ranger ATV was owned solely by David, and not Leah,
Hayden, or Holden, the exception is satisfied because the Ranger ATV was not
owned by “an insured.” See Appellants’ Brief at 14-15. The Warners state if
United Farm wished for Exception 2(a) to apply if just one insured is the owner
of the motorized land conveyance, “United Farm should have written the
language to state that the ATV is excluded if it is ‘owned by any insured’ . . . .”
Id. at 15 (emphasis added).
[9] Notwithstanding the Warners’ argument of what United Farm should have
written, we think “an insured” clearly and unambiguously refers to any and all
insureds under the policy. Other jurisdictions interpreting “an insured” or
similar language in similar policy exclusions have concluded the same. See
Allstate Ins. Co. v. Smiley, 659 N.E.2d 1345, 1352 (Ill. App. Ct. 1995) (noting
“use of the phrase ‘an insured’ in an exclusionary clause unambiguously means
‘any insured’”), appeal denied; Catholic Diocese of Dodge City v. Raymer, 825 P.2d
1144, 1148 (Kan. Ct. App. 1992) (“an insured” exclusion is the equivalent of an
“any insured” exclusion); Travelers Ins. Co. v. Blanchard, 431 So. 2d 913, 914-15
(La. Ct. App. 1983) (“an insured person” clearly and unambiguously refers to
all policy insureds, not just particular insured sought to be held liable); Jaramillo
v. Mercury Ins. Co., 494 N.W.2d 335, 341-42 (Neb. 1993) (“an insured”
exclusion is the equivalent of an “any insured” exclusion), abrogated on other
grounds by Powell v. Am. Charter Fed. Sav. and Loan Ass’n, 514 N.W.2d 326 (Neb.
1994); Farmers Ins. Co. of Wash. v. Hembree, 773 P.2d 105, 108 (Wash. Ct. App.
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1989) (“an insured” includes anyone insured under the policy), review denied.
Therefore, by the plain and ordinary meaning of the language, if any one of the
insureds owns the Ranger ATV, Exception (2)(a) does not apply. Because
David owned the Ranger ATV and was an insured under the homeowner’s
policy, Exception (2)(a) does not apply.
[10] The Warners also argue Exception (4)(a) is satisfied because David purchased
the Ranger ATV with the intent to use it to “service . . . the residence.”
Appellants’ Br. at 18. The word “service” is not defined by the policy;
therefore, we must give the term its ordinary and generally accepted meaning.
See Seeber v. Gen. Fire and Cas. Co., 19 N.E.3d 402, 411 (Ind. Ct. App. 2014),
trans. denied. Black’s Law Dictionary defines “service” as “[l]abor performed in
the interest or under the direction of others . . . [or] “the performance of some
useful act or series of acts for the benefit of another . . . .” Service, Black’s Law
Dictionary (10th ed. 2014). Thus, a reasonable interpretation of the
homeowner’s policy requires labor or some useful act to be performed by or
with the Ranger ATV for the benefit of the Helmses’ residence or premises.
The designated evidence submitted by the parties does not demonstrate the
Helmses, in the short period before the accident, ever used the Ranger ATV for
anything other than recreational driving through fields and on country roads.
We can reasonably imagine numerous activities that may have been performed
by such a vehicle which could create a genuine issue of material fact for
whether the Ranger ATV was used to service the residence; however, no such
evidence is before us in the record.
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[11] The Warners attempt to circumvent this flaw by alleging the Helmses intended
to use to the Ranger ATV to service the residence, and point to David’s
deposition in which he testified he purchased the Ranger ATV to help with
chores and yard work. See Appellants’ App., Vol. II at 178-79.
[12] In Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224 (Ind. Ct. App. 2004),
trans. denied, the parties disputed whether the Ginthers’ truck, which they had
purchased on the day of the accident, was used in “any business or
occupation.” Id. at 233. If the truck was not used for a business or occupation,
it would have been covered under the policy; conversely, if it was used for a
business or occupation, it was not covered. American Family asserted because
the Ginthers indicated they purchased the truck with the intent of restoring it
for use in their construction business, it was not covered under the policy. This
court held the proper determination of whether the Ginthers used the truck in a
business or occupation is “at the time of the accident.” Id. At the time of the
accident, the Ginthers had only used the pickup truck for personal
transportation and their construction business had not yet been formed. Id. at
233-34. Consequently, this court held the Ginthers had not used the truck in a
business or occupation and the truck was covered under the policy. Id. at 234.
[13] Likewise, at the time of this accident, the Ranger ATV was off the insured
premises and the Helmses had never used the Ranger ATV to service the
property. The Ranger ATV was delivered to their home on December 22, 2010,
and the accident occurred on December 23. In the short time in which they
possessed the Ranger ATV, it was only used for recreational driving through
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fields and country roads. Therefore, we conclude no genuine issue of material
fact exists regarding whether the Helmses used the Ranger ATV to service their
residence. The trial court did not err in granting summary judgment in favor of
United Farm.1
Conclusion
[14] Based on the foregoing, we conclude the trial court did not err in granting
summary judgment in favor of United Farm. The judgment of the trial court is
affirmed.
[15] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
1
In a brief paragraph, the Warnes also argue Exception (2)(b) is satisfied because the alleged negligent
entrustment of the Ranger ATV occurred “on [the] insured location.” Appellants’ App., Vol. II at 84. It is
clear from the insurance contract that liability coverage may only be invoked at the point of an accident
causing bodily injury. Exception (2)(b) may only be invoked if two conditions are met: (1) the vehicle must
be owned by an insured; and (2) the vehicle must be on an insured location. It cannot reasonably be disputed
the vehicle must be owned by the insured at the time of the accident giving rise to the claim for Exception (2)(b)
to apply. Likewise, it seems clear and unambiguous the vehicle must also be on an insured location at the
time of the accident. Here, Ladd, Hayden, and Holden were clearly not on an insured location at the time of
the accident.
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