James Overbeek v. Fremont Insurance Company

STATE OF MICHIGAN
COURT OF APPEALS
JAMES OVERBEEK and GRETCHEN UNPUBLISHED
OVERBEEK, January 17, 2017
Plaintiffs-Appellees,
v No. 329339
Grand Traverse Circuit Court
FREMONT INSURANCE COMPANY, LC No. 2014-030594-NI
Defendant/Cross-Defendant-
Appellant,
and
JOHN MATSON III, doing business as
MATSON’S RIVER SHARK OUTFITTERS,
Defendant/Cross-Plaintiff,
and
AMCO INSURANCE COMPANY,
Defendant-Appellee,
and
AUTO CLUB INS ASSOC,
Defendant.
Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ.
PER CURIAM.
Defendant Fremont Insurance Company (Fremont) appeals as of right the trial court’s
decision on summary disposition under MCR 2.116(C)(10) that Fremont’s boat-owners’
insurance policy provided coverage to plaintiff James Overbeek, who was injured during a boat
launch accident. We affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Overbeek hired John Matson III, who was doing business as Matson’s River Shark
Outfitters, to be his fishing guide on the Pere Marquette River. On the day of the accident,
Overbeek and Matson arrived at a boat launch site in Matson’s truck, which was towing the boat
on a trailer. Matson backed the truck and trailer up to a ramp on the river bank and turned his
truck off. Matson believed he placed the truck in park, but later investigation indicated that he
left the truck in drive.
As Matson lowered the boat down the ramp using a hand-crack winch on the trailer, the
boat veered from the center of the ramp, and Matson pushed the boat to re-center it. At that
point, the truck began abruptly descending toward the river. Overbeek testified that Matson
yelled for him to “set the break,” and as Overbeek reached into the truck’s open door to grab the
steering wheel, the door hit him and knocked him down the ramp. Overbeek was seriously
injured when his arm became pinned between the truck’s tire and one of the ramp’s concrete
steps.
At the time of the accident, Fremont insured Matson through a marine insurance policy,
which provided a variety of coverage. Specifically, the “Boatowners Liability Endorsement”
(BO-20) provided that Fremont would “pay damages for bodily injury or property damage for
which an insured becomes legally liable resulting from the ownership, maintenance or use of the
boat, boat motor or trailer . . .” (emphasis omitted). However, BO-20 excluded from coverage
“property damage or bodily injury resulting from transporting the insured boat(s) or trailers(s) on
land” (emphasis omitted). A second endorsement, the “River Guide Charter Use Endorsement”
(BO-33) further extended coverage as follows:
B. Coverage is extended to include liability to passengers while they are
engaged in activities ashore that are a normal part of the chartered fishing
trip, including such activities as fishing, shore meals, calls of nature,
sightseeing, and photography. . . .
C. Coverage is extended to include on-shore guide activities that do not
involve use of the insured boat. Loss arising from the ownership,
maintenance or use of any land motor vehicle, whether licensed or not, is
not included in this coverage extension. . . .
Following his accident, Overbeek brought claims against Matson and a variety of
defendant-insurers, including Fremont and defendant-appellee AMCO Insurance. In a motion
for summary disposition under MCR 2.116(C)(10), Fremont argued that the policies precluded
coverage because (1) the boat and trailer were being transported at the time of the accident, and
(2) launching the boat was not an activity ashore or an on-shore guide activity. The trial court
ruled that the policies provided coverage and, subsequently, the parties stipulated to settle the
claims pending Fremont’s right to appeal. Fremont now appeals.
II. STANDARD OF REVIEW
This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Gorman v American Honda Motor Co, Inc, 302 Mich. App. 113, 115; 839 NW2d 223
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(2013). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter
of law.” This Court also reviews de novo “the proper interpretation and application of an
insurance policy[.]” City of Grosse Pointe Park v Mich Muni Liability & Prop Pool, 473 Mich.
188, 196; 702 NW2d 106 (2005).
III. ANALYSIS
“Insurance policies are contracts and, in the absence of an applicable statute, are subject
to the same contract construction principles that apply to any other species of contract.” Titan
Ins Co v Hyten, 491 Mich. 547, 554; 817 NW2d 562 (2012) (quotation marks and citation
omitted). The goal of contractual interpretation is to honor the parties’ intent and to enforce the
contract’s plain terms. Davis v LaFontaine Motors, Inc, 271 Mich. App. 68, 73; 719 NW2d 890
(2006). We discern the parties’ intent from the contract’s language. Id. If the contract’s
language is unambiguous, we interpret the contract as a matter of law. Klapp v United Ins Group
Agency, Inc, 468 Mich. 459, 463; 663 NW2d 447 (2003). A contract is not ambiguous simply
because the parties dispute the meaning of contractual language. Farm Bureau Mut Ins Co of
Mich v Nikkel, 460 Mich. 558, 567; 596 NW2d 915 (1999).
When construing an insurance policy, we must first determine whether the policy
provides coverage and then determine whether an exclusion negates that coverage. Hunt v
Drielick, 496 Mich. 366, 373; 852 NW2d 562 (2014). The insured must prove coverage under
the insurance policy, while the insurer must prove the applicability of an exclusionary clause. Id.
We construe contractual terms in context, according to their commonly used meanings.
Henderson v State Farm Fire & Cas Co, 460 Mich. 348, 354; 596 NW2d 190 (1990). We must
interpret a contract in a way that gives every word, phrase, and clause meaning, and must avoid
interpretations that render parts of the contract surplusage. Klapp, 468 Mich. at 468. We may
consult a dictionary definition to determine the commonly understood meaning of undefined
contractual terms. Auto Owners Ins Co v Seils, 310 Mich. App. 132, 148; 871 NW2d 530 (2015).
Fremont first argues that the policy does not provide coverage because the boat or trailer
was being transported at the time of the accident. We disagree.
Endorsement BO-22 excluded coverage for “property damage or bodily injury resulting
from transporting the insured boat(s) or trailer(s) on land[.]” The policy does not define
“transporting,” so we will consult a dictionary to define this term. The verb “transport” is
commonly defined as “to carry, move, or convey from one place to another.” Random House
Webster’s College Dictionary (1997). This verb is transitive, meaning that it requires a subject
and a direct object—in this instance, someone must have been transporting the boat or trailer
from one place or the other. Additionally, because “transporting” is a present participle form of
the verb, it requires an ongoing action.
In this case, no one was moving the boat or trailer: they began sliding down the ramp as
a result of a failure to properly secure the truck. Additionally, neither the boat nor the trailer
were in the process of being transported because they were not being moved from one place to
another. Transportation is an activity with a beginning and an end, with the action of
“transporting” taking place while the object is in motion. When the boat and trailer arrived at the
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boat launch, transportation ceased. The boat and trailer had arrived at the intended destination.
When the boat and trailer arrived at the boat launch, transportation had ceased, though the truck
would doubtlessly resume transporting the trailer at a later point.1 We conclude that the trial
court properly determined that the policy did not exclude coverage under the circumstances
because Overbeek’s injury did not result from transporting the boat or trailer.
Next, Fremont argues that paragraph 3(C) of the BO-33 endorsement did not provide
coverage. Again, we disagree.
Paragraph 3(C) provides, “Coverage is extended to include on-shore guide activities that
do not involve use of the insured boat. Loss arising from the ownership, maintenance or use of
any land motor vehicle . . . is not included in this coverage extension. . . .” Because BO-22 does
not exclude coverage under the general policy, determining whether the BO-33 endorsement also
provided coverage is unnecessary and we decline to reach this issue. See B P 7 v Bureau of State
Lottery, 231 Mich. App. 356, 359; 586 NW2d 117 (1998) (“As a general rule, an appellate court
will not decide moot issues.”).
We affirm.
/s/ Peter D. O’Connell
/s/ Jane E. Markey
/s/ Christopher M. Murray
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Fremont suggests that the trailer was still being transported because it would be moved at a
later point. Fremont’s analogy of the trailer being like a semi-truck stopped at a traffic light falls
flat. A truck driver would not generally disembark from a truck stopped at a red light, as Matson
disembarked from the truck to launch the boat in this case. The boat and trailer in this case were
more like a semi-truck stopped at a facility to pick up cargo (with the driver engaging in tasks to
accomplish that goal) before starting the next leg of its journey.
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