Opinion
NO. 2019-CA-001059-MR
05-22-2020
Natasha MARSHALL, Individually, as Administratrix of the Estate of Stephen M. Marshall, and as a Parent and Next Friend of Marisa Grace Marshall, a Minor, and of Mia Elise Marshall, a Minor; and Jacob Zachary Horch, Appellants v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee
BRIEF FOR APPELLANT: J. Richard Reid, Rebekah J. Rice, Maysville, Kentucky. BRIEF FOR APPELLEE: Farrah W. Ingram, Rebecca Graham McCoy, Mount Sterling, Kentucky.
BRIEF FOR APPELLANT: J. Richard Reid, Rebekah J. Rice, Maysville, Kentucky.
BRIEF FOR APPELLEE: Farrah W. Ingram, Rebecca Graham McCoy, Mount Sterling, Kentucky.
BEFORE: COMBS AND JONES, JUDGES; BUCKINGHAM, SPECIAL JUDGE.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
OPINION
BUCKINGHAM, SPECIAL JUDGE:
Natasha Marshall, individually and as administratrix of the estate of Stephen M. Marshall, and as parent and next friend of Marisa Grace Marshall, a minor, and Mia Elise Marshall, a minor, appeals from an order of the Mason Circuit Court awarding summary judgment in favor of Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau) in a case involving coverage under a Farm Bureau homeowner's insurance policy in a case involving a fatal ATV accident. We affirm.
FACTS
On March 23, 2016, Jacob Zachary Horch and Stephen M. Marshall, Horch's neighbor, had been riding Horch's Polaris Ranger ATV around the neighborhood with their children. Later, Horch and Marshall stayed up drinking and decided to ride the ATV to the Hendrickson farm, a farm on which Horch had permission to hunt. Horch drove, and Marshall was a passenger. They left the Horch residence at approximately 10:30 p.m. or later, and the accident occurred as they were on their way back and were crossing a farm owned by Basil Mattingly. Horch claimed that he hit a bump, causing the ATV to overturn and Marshall to be ejected from the vehicle. Marshall died from the injuries he suffered in the accident.
Natasha Marshall (hereinafter Marshall), the appellant herein, was the wife of Stephen M. Marshall, and the mother of Marisa Grace Marshall and Mia Elise Marshall. She is also the executrix of the estate of Stephen M. Marshall. In her individual capacity as well as in her capacities as executrix of the estate and next friend of her daughters, Marshall filed a wrongful death suit in the Mason Circuit Court seeking damages against Horch. At the time of the accident, Horch was insured under a homeowner's insurance policy issued by Farm Bureau that covered his residence. Horch had a landscaping business that was insured by a separate commercial policy with a different company.
Thereafter, Farm Bureau filed a petition for declaration of rights action in the Mason Circuit Court, seeking a determination of whether the Horch homeowner's policy provided insurance coverage in connection with the accident and required Farm Bureau to defend claims brought against Horch by Marshall.
The policy at issue provided liability coverage for claims for bodily injury arising out of an occurrence as defined by the policy, and there was coverage for occurrences off the location so long as the bodily injury was caused by the activities of the insured. The coverage was, however, subject to certain exclusions. The policy specifically excluded coverage for the use of "motorized land conveyances," which included ATVs.
Nevertheless, there were enumerated exceptions to the exclusion of coverage for motorized land conveyances. One of the exceptions to the exclusion from coverage was for a vehicle or conveyance not subject to motor vehicle registration which is "used to service an insured's residence[.]" There is no dispute that Horch's ATV was a motorized land conveyance. Also, there is no dispute that the ATV was not subject to motor vehicle registration. Therefore, there is no coverage for the accident unless the ATV was "used to service an insured's residence." The interpretation of that provision in the policy is the subject of this litigation.
Horch testified to his ownership and use of the ATV. He testified that he purchased it two to three weeks before the accident and that prior to the accident he never used it to perform yard work or other tasks in connection with his residence. He also testified that he never used the ATV to perform any tasks related to his residence after the accident, although he had purchased it to replace an ATV he had previously used to perform jobs at the residence. He stated that he planned to use it for work, for hunting, and for tasks around his house, including carrying mulch.
Further, Horch testified that the ATV was stored primarily at his residence. Also, he used the ATV on one occasion for his landscaping business, which was located at an address different from the address of his residence. He stated he also used it a few times to give rides to the children around their neighborhood.
As for insurance on the ATV, Horch testified that he called his commercial insurance company "and had it listed with them." He stated that he never called Farm Bureau to insure it because he believed he would look to his commercial insurer regarding coverage.
On March 29, 2019, the trial court entered an order granting Farm Bureau's motion for summary judgment and denying Marshall's motion for summary judgment. The court held that the policy language was not ambiguous and further held as follows:
The Court believes that under the circumstances of this case, it could not be fairly construed that at the time of the accident the Polaris was "used to service an ‘Insured's residence.’ " Not only was the Polaris not at the time being used to service the residence, according to Horch it has never been, since it was purchased, used to service the residence. It had only been used for recreation and for business purposes, neither of which
qualified for the policy's exception to the exclusion.
This appeal by Marshall followed.
ANALYSIS
The interpretation of an insurance contract is a matter of law to be reviewed de novo. Davis v. Kentucky Farm Bureau Mut. Ins. Co. , 495 S.W.3d 159, 161 (Ky. App. 2016). "We review questions of law de novo and, thus, without deference to the interpretation afforded by the circuit court." Cinelli v. Ward , 997 S.W.2d 474, 476 (Ky. App. 1998) (citation omitted). As noted by Marshall in her brief, however, while the meaning of words in an insurance contract is a question of law, whether the conduct of the policyholder meets the definition of those words is a question of fact for the jury. Anderson v. National Sec. Fire and Cas. Co. , 870 S.W.2d 432, 435 (Ky. App. 1993). Further, if there is evidence from which different inferences may be drawn, then the inference to be drawn is for the jury to determine. Id.
Marshall's first argument is that the trial court erred in determining that the phrase "used to service an insured's residence" is unambiguous. Marshall notes that the phrase is not defined in the policy and that there is no legal or technical definition of "service" in the insurance industry. She asserts that whether the phrase is ambiguous is a matter of first impression in Kentucky and that the term "service" is open to multiple interpretations. She claims that, as such, the definition most favorable to Horch must be used. In that regard, Marshall states that while the trial court found the term "service" unambiguous, it did not define the term other than to state the term is given its "ordinary meaning."
Marshall's second argument is that the explicit terms of the policy do not require that the ATV be used to service the residence at the time of the accident. She notes that the trial court stated in its order that "it could not be fairly construed that at the time of the accident the Polaris was ‘used to service an Insured's residence.’ " Marshall points to language in the policy that states the loss does not have to occur on the insured's property. We agree with Marshall that there was no requirement that the ATV be used to service the insured's property at the time of the accident in order for there to have been coverage. The extent to which the trial court may have been incorrect in this regard is of no consequence, however, since our review is de novo.
Marshall's last argument is that even if the language in the policy is not ambiguous, whether coverage exists is a question of fact for the jury. She states that the trial court erred when it held the ATV "had only been used for recreation and for business purposes, neither of which qualified for the policy's exception to the exclusion." Citing Anderson , 870 S.W.2d 432, she argues that the question of whether the conduct of the policyholder meets the definition of those words is a fact issue that must be determined by a jury.
In response to Marshall's arguments, Farm Bureau first contends that the trial court correctly determined that the policy language at issue is unambiguous. Because the term "service" is not defined in the policy, "we must afford it its ordinary meaning, if that meaning is not ambiguous." Cincinnati Ins. Co. v. Motorists Mut. Ins. Co. , 306 S.W.3d 69, 73 (Ky. 2010) (citation omitted). "A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations." Cantrell Supply, Inc. v. Liberty Mutual Ins. Co. , 94 S.W.3d 381, 385 (Ky. App. 2002) (citations omitted).
The word "service" is defined in Black's Law Dictionary as "the performance of some useful act or series of acts for the benefit of another[.]" Service , BLACK'S LAW DICTIONARY (11th ed. 2019). The Merriam-Webster Dictionary defines the verb "service" as "to perform services for: such as, to repair or provide maintenance for." While Marshall contends that there are several definitions of the word "service," terms should be interpreted "in light of the usage and understanding of the average person." Stone v. Kentucky Farm Bureau Mut. Ins. Co. , 34 S.W.3d 809, 811 (Ky. App. 2000) (citing Fryman for Fryman v. Pilot Life Ins. Co. , 704 S.W.2d 205 (Ky. 1986) ). We conclude the word "service" as used in the phrase "used to service an insured's residence" is not ambiguous. The usage and understanding of the phrase by the average person would be consistent with the definitions set forth above.
Merriam-Webster , https://www.merriam-webster.com/dictionary/service (last visited May 6, 2020).
The last issue for our consideration is whether, even if the term is unambiguous, there is an issue of fact that should have been left for a jury's consideration. Marshall has correctly cited Anderson for the proposition that whether a set of facts meets the definition of words in an insurance policy is a fact issue. 870 S.W.2d at 435.
The question is whether the ATV was "used to service an insured's residence." As noted above, Horch testified that he never used the vehicle, either before or after the accident, to perform yard work or other tasks for his residence. He testified that he used it to give rides to children around the neighborhood, to hunt, and in connection with his landscaping business on one occasion. There is no indication that it was ever used to service his residence. As the trial court stated, "[n]ot only was the Polaris not at the time being used to service the residence, according to Horch it has never been, since it was purchased, used to service the residence." We agree with the trial court that summary judgment was appropriate as there were no genuine issues of any material fact and Farm Bureau was entitled to judgment as a matter of law. CR 56.03.
Kentucky Rules of Civil Procedure.
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CONCLUSION
The summary judgment of the Mason Circuit Court in favor of Farm Bureau is affirmed.
ALL CONCUR.