American Family v. Amy E. Van Gerpen ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3133
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American Family Mutual Insurance *
Company, *
* Appeal from the United States
Plaintiff - Appellee, * District Court for the
* Western District of Missouri.
v. *
*
Amy Elizabeth Van Gerpen, *
*
Defendant - Appellant. *
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Submitted: May 13, 1998
Filed: August 12, 1998
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Before BOWMAN, Chief Judge, and HEANEY and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
Amy Elizabeth Van Gerpen (Van Gerpen) appeals from the district court's1 grant
of American Family Insurance Company's (American Family) motion for summary
judgment in this diversity action. Van Gerpen argues that the homeowner's policy
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
Richard Mohr purchased from American Family provides liability coverage for claims
arising out of Chase Van Gerpen's death. We affirm.
I.
Richard Mohr owns a 35-acre parcel of land in Clay County, Missouri, outside the
city limits of Kearney. On the parcel is a 30' x 40' metal building in which Mohr keeps
a tractor, building materials, and various other items. Mohr uses the tractor exclusively
to maintain the 35-acre property. The property is serviced by electrical utilities and has
a gravel driveway. Mohr's intention is to one day build a residence on the property.
On January 5, 1996, Mohr invited several people to the property for a bonfire. A
number of children were in attendance, and Mohr took the tractor out of the building and
bladed down the snow to improve the sledding conditions. After blading the snow, Mohr
gave several of the children a ride on the tractor. During the course of this ride, Van
Gerpen's four-year-old son Chase was thrown from the tractor and killed. Van Gerpen
sued Mohr, and the two eventually entered into a consent judgment for $300,000.
At issue in this case is a homeowner's insurance policy which Mohr purchased from
American Family with respect to his residence, a rented duplex at 1412 Laurel in Kearney,
Missouri. The policy included liability coverage for bodily injury including death "caused
by an occurrence covered by this policy." (Jt. App. at 204). American Family filed an
action in federal district court, seeking a declaratory judgment that the policy it had issued
to Mohr provided no coverage for the accident that resulted in Chase Van Gerpen's death.
The district court granted American Family's motion for summary judgment, holding that
the plain meaning of the policy made clear that the 35-acre parcel was not an insured
premises and that in any case the accident fell within the
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policy's motor vehicle exclusion. Van Gerpen appeals, alleging that the accident occurred
on an insured premises and that the automobile exception was not applicable.2
II.
As a general matter, we review grants of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and affirming only if there is no
genuine issue as to any material fact, such that the moving party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). In the case at hand, the material facts are not in dispute, and the parties
agree that Missouri law governs the contract. Our inquiry is therefore limited to whether
the district court properly applied Missouri law to the undisputed facts.
Under Missouri law, we must give terms in an insurance contract their plain
meaning "unless it plainly appears that a technical meaning was intended." Farmland
Indus., Inc. v. Republic Ins. Co., 941 S.W.2d 505, 508 (Mo. 1997) (en banc). To
determine the plain, layman's meaning of a word, we look to standard English language
dictionaries. Id. If a term in an insurance contract has no plain meaning but is
"reasonably open to different constructions," the term is ambiguous, and we must construe
it against the insurer. American Motorists Ins. Co. v. Moore, No. 73871, 1998 WL
327853, at *3 (Mo. App. June 23, 1998) (internal quotations omitted). However, we may
not create ambiguity "in order to distort the language of an unambiguous policy, or, in
order to enforce a particular construction which [we] might feel is more
2
Van Gerpen pressed two additional arguments in her opening brief. However,
Van Gerpen's counsel conceded at oral argument that Van Gerpen's case is "down to"
the arguments discussed supra in text. We do not address the additional arguments in
Van Gerpen's brief except to hold that they are without merit. See 8th Cir. Rule 47B.
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appropriate." Rodriguez v. General Accident Ins. Co., 808 S.W.2d 379, 382 (Mo. 1991)
(en banc).
The district court held against Van Gerpen in two key respects: It held that the
property on which the accident occurred was not an insured premises, and it held that the
accident was specifically excluded from coverage because it involved a motor vehicle.
(Appellant's Adden. at 7-9). Each of these holdings was, by itself, sufficient to support
the district court's entry of summary judgment for American Family. Accordingly, we
reverse only if both of these holdings were erroneous.
The policy issued by American Family to Mohr contained the following exclusion
regarding the policy's personal liability coverage:
We will not cover bodily injury . . . arising out of the ownership,
supervision, entrustment, maintenance, operation, use, loading or unloading
of any type of motor vehicle, motorized land conveyance, or trailer, except:
We will provide specific coverage on only the following types owned or
operated by or rented or loaned to any insured:
(1) a motor vehicle or motorized land conveyance which is not
subject to motor vehicle registration and is:
(a) used for the service of the insured residence;
(b) designed to assist the handicapped; or
(c) kept in dead storage on the insured premises.
(App. at 206).
Van Gerpen first argues that the tractor was "used for the service of the insured
residence." Although "insured residence" is not defined by the policy, the term
"residence" commonly refers to the place in which an individual resides, see Webster's
New World Dictionary 1209 (2d College Ed. 1970), and it follows that the term
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"insured residence" plainly refers to the place in which the insured resides. Van Gerpen
does not contest the fact that the tractor has never been used to service Mohr's residence,
which is located in Kearney, Missouri. Nor does Van Gerpen allege that Mohr ever
resided on the land in Clay County on which the accident occurred. Rather, Van Gerpen
relies on Mohr's use of the property for hunting and sledding, Mohr's storage of wood in
the building, and Mohr's intent to one day build a house on the property. (Appellant's Br.
at 37-38). Because we do not believe that any reasonable layman would understand the
definition of "residence" to encompass parcels of land which are devoid both of residents
and of residential structures, we disagree.
Alternatively, Van Gerpen argues that Mohr's tractor was in dead storage at the
time of the accident. Again, we disagree. While "dead storage" is not defined in the
contract or in standard dictionaries, common sense compels the conclusion that the tractor
was not in "dead storage" at the time of the accident. Regardless of the precise
connotations the term may convey, dead storage is clearly a type of storage, and the state
of being in storage is inconsistent with the state of being in use. The "dead" in "dead
storage" suggests, at the least, that the engine would not be running. Reasonable minds
might differ as to whether dead storage requires disconnecting the battery, draining the
radiator, emptying the gas tank, or placing the tractor up on blocks, but it is unreasonable
to suggest that a tractor is in "dead storage" when the engine is operating, the wheels are
turning, and several people are riding around on it.
In short, we hold that the tractor was neither in dead storage nor used for the
service of Mohr's insured residence at the time of the accident. It follows that the accident
involving the tractor was excluded from coverage under the plain language of Mohr's
American Family policy. In light of this holding, we need not address whether the land
on which the accident occurred constituted "vacant land" and thus was an insured
premises or whether it rather constituted "farm land" and thus was not an insured
premises.
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III.
Accordingly, we affirm the district court's entry of summary judgment in favor of
American Family.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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