Wilbur L. Shriner v. Amica Mutual Insurance Company , 167 A.3d 326 ( 2017 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2017 VT 23
No. 2016-269
Wilbur L. Shriner Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division
Amica Mutual Insurance Company January Term, 2017
Helen M. Toor, J.
Kevin E. Brown of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiff-Appellant.
Gary R. Kupferer of Webber, Chapman & Kupferer, Ltd., Rutland, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. EATON, J. Wilbur Shriner, the holder of a homeowner’s insurance policy from
Amica Mutual Insurance Company (Amica), appeals the trial court’s grant of summary judgment
to Amica and denial of his cross-motion for summary judgment. We affirm.
¶ 2. This Court reviews a grant of summary judgment de novo and under the same
standard as that applied by the trial court. Co-op. Ins. Cos. v. Woodward, 2012 VT 22, ¶ 8, 191
Vt. 348, 45 A.3d 89. We will uphold the decision of the trial court if there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law. Id.; see also
V.R.C.P. 56(a).
¶ 3. The material facts in this case are undisputed. Shriner, a retired physician, owned
a glassblowing studio on Church Street in Burlington until he sold the property in December 2007
and moved the glassblowing equipment to his home in Charlotte. He and his friend, also a
glassblower, eventually set up the equipment in the garage at Shriner’s property and began making
glass in late 2008 or early 2009. From 2009 to 2012, Shriner and his friend “sometimes made
glass for a week or two, and then would shut down for weeks due to lack of money.” During that
three-year period, they made glassware approximately one time per week on average, and
glassmaking was never more than an occasional or part-time activity for him. Throughout those
three years, Shriner earned income from glassblowing, as well as from the redevelopment and
rental of investment properties and from an organic honey and vegetable operation.
¶ 4. Shriner and his friend called their enterprise Church and Maple Glass Studio and
maintained a website from which customers could purchase their glassware. Shriner identified
himself as an “artisan” on his tax forms, and in all years relevant to this case, he filed a Schedule
C form for business profits or losses with the Internal Revenue Services (IRS). He described his
business type as “blown glass manufacturing” on the IRS forms and reported sales ranging from
$4036 in 2013 to $30,350 in 2010. He also reported business expenses for items including
advertising, contract labor, legal and professional services, office space, meals, and entertainment.
¶ 5. On January 12, 2012, the furnace exhaust system in a piece of glassmaking
equipment malfunctioned and caused a fire that destroyed the garage and all of the property and
equipment inside it. At the time, Shriner’s home was covered by his homeowner’s policy with
Amica, which covered losses from fire and provided replacement coverage for buildings and
personal property. The policy carried a $25,000 deductible and contained an exclusion from
coverage for structures from which a business was conducted. Shriner submitted a personal
property inventory for the property destroyed in the fire, with a replacement cost totaling
$88,354.91. Amica accepted Shriner’s fire-loss claim and determined the replacement cost of the
garage to be $42,422.97. Amica applied the policy’s $25,000 deductible and made an actual cash-
value payment of $1460.53 as an advance partial payment to Shriner for the garage. Amica then
changed positions and, asserting that Shriner’s glassblowing activities constituted a “business” for
the purposes of the policy’s exclusion, refused to make any further payments to replace the garage.
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Amica paid Shriner $11,613 for nonbusiness property that was destroyed in the garage but capped
its payment for other property in the inventory at $2500, which was the maximum reimbursement
permitted under the policy for “business” personal property. Shriner brought suit to recover the
full amount of his claim, and the court granted summary judgment to Amica. This appeal followed.
¶ 6. An insurance policy is a contract and its interpretation is therefore a question of law
for which this Court’s review is nondeferential and plenary. Fireman’s Fund Ins. Co. v. CNA Ins.
Co., 2004 VT 93, ¶ 8, 177 Vt. 215, 862 A.2d 251. We give effect to the terms in an insurance
policy according to their “plain, ordinary and popular meaning,” and our interpretation of an
insurance policy is guided by a “review [of] the language . . . from the perspective of what a
reasonably prudent person applying for insurance would have understood it to mean.” Woodward,
2012 VT 22, ¶ 9 (quotations omitted). Where policy language is ambiguous we resolve ambiguity
in favor of the insured, “but we will not deprive the insurer of unambiguous terms place in the
contract for its benefit.” Fireman’s Fund, 2004 VT 93, ¶ 9. Additionally, “[i]nsurance policies
and their endorsements must be read together as one document and the words of the policy remain
in full force and effect except as altered by the words of the endorsement.” Id. ¶ 20 (quotation
omitted). The insurer bears the burden of showing that an insured’s claim is excluded by the
policy. N. Sec. Ins. Co. v. Perron, 172 Vt. 204, 209, 777 A.2d 151, 154 (2001).
¶ 7. With those principles in mind, we look to the language of the policy at issue here.
The policy capped recovery for “property, on the residence premises, used primarily for business
purposes” at $2500 and excluded entirely from coverage “structures from which business is
conducted” and “structures used to store business property.” A Vermont-specific amendatory
endorsement attached to the policy deleted the standard-form homeowner’s policy definition of
“business” and replaced it with the following language: “Business includes trade, profession or
occupation.”1
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The standard-form, deleted definition of “business” provided:
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¶ 8. Shriner argues that “the Court must read the policy and the amendatory
endorsement together” and that reading the deleted language from the standard insurance provision
and the amended language from the endorsement together creates ambiguity. We cannot accept
this attempted construction of the policy. It is a basic rule of insurance policy construction that if
an endorsement creates or expands an exclusion and the endorsement language is unambiguous,
the insurer has carried its burden and the exclusion applies. See, e.g., Clarendon Am. Ins. Co. v.
Miami River Club, Inc., 417 F. Supp. 2d 1309, 1317-18 (S.D. Fla. 2006) (applying Illinois law);
Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 967 A.2d 1, 28 (Conn. 2009). Language deleted
from a policy by an amendatory endorsement therefore cannot be considered for purposes of
creating an ambiguity within the policy. See Caudill Seed & Warehouse Co., Inc. v. Houston Cas.
Co., 835 F. Supp. 2d 329, 337-38 (W.D. Ky. 2011) (applying Kentucky law); Ryan v. Mountain
States Helicopter, 686 P.2d 95, 98-99 (Idaho 1984). This position is consistent with the general
rule of construction concerning endorsements to insurance policies that “ ‘if an endorsement
extinguishes a policy provision or declares it void and of no effect, such provision cannot be
considered in construing the policy.’ ” Mountain States, 686 P.2d at 99 (quoting 2 R. Long, The
Law of Liability Insurance, § 16.09 (rev. ed. 1983)); see also 4 E. Holmes, Holmes’ Appleman on
Insurance § 20.1, at 155 (2d ed. 2008) (“Such rules are consistent with the precept that provisions
should not be read in isolation but must be considered as a whole with any conflicts being first
“Business” means: a. A trade, profession or occupation engaged in
on a full-time, part-time or occasional basis; or b. Any other activity
engaged in for money or other compensation, except the following:
(1) One or more activities, not described in (2) through (4) below,
for which no insured receives more than $2,000 in total
compensation for the 12 months before the inception date of the
policy period; (2) Volunteer activities for which no money is
received other than payment for expenses incurred to perform the
activity; (3) Providing home day care services for which no
compensation is received, other than the mutual exchange of such
services; or (4) The rendering of home day care services to a relative
of an insured.
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resolved by applying the terms of the endorsement. Then if the ambiguity persists, the ambiguity
will be construed against the insurer.” (emphasis added)).
¶ 9. Shriner argues that although his glassblowing was a part-time trade, profession or
occupation, it nevertheless falls outside the policy because the Vermont endorsement “narrowed
the definition of ‘business’ ” by removing “part-time or occasional trade, profession, or occupation
from the definition.” However, the limitation Shriner seeks to apply was never in his insurance
policy; the policy that Shriner purchased always deleted the standard-form definition of “business”
and the “original” definition from the standard-form policy was never operative. The only
definition of “business” that applied to Shriner was that in the Vermont endorsement, and our
analysis therefore requires us to consider only the language of that endorsement. Thus, in
interpreting the insurance policy at issue here, we cannot, as Shriner urges us to do, compare the
language of the endorsement to the language of the standard-form provision unless we conclude
that the endorsement language is facially ambiguous. Rather, our interpretation of the insurance
policy begins with the policy language that is applicable to Shriner—namely, the Vermont-specific
endorsement.
¶ 10. The endorsement provides: “Business includes trade, profession or occupation,”
and Shriner concedes that his glassblowing was at least a part-time trade, profession, or occupation.
In effect, Shriner has conceded that his glassblowing is, at a minimum, a “business” under the
policy definition that applied to him.2 The only question we must answer, then, is whether the
word “business” encompasses only full-time business or if it also includes part-time business.
2
We have never specifically interpreted the word “business” in an insurance policy, and
because Shriner concedes that his glassblowing was at least a part-time business, we need not
decide whether the word “business” itself is ambiguous. The issue raised here is not whether
Shriner’s activities were a business, because he concedes that they were at least a part-time
business. However, we note that we have repeatedly drawn the line between what constitutes a
“business pursuit” and a “nonbusiness pursuit” in the context of homeowners’ policies. See, e.g.,
Towns v. N. Sec. Ins. Co., 2008 VT 98, ¶ 10, 184 Vt. 322, 964 A.2d 1150; Lundeau v. Peerless
Ins. Co., 170 Vt. 442, 446-47, 750 A.2d 1031, 1034 (2000). In drawing that distinction, we have
adopted a context-specific inquiry that considers several factors, including whether the activity in
question serves a “business purpose,” whether it contributes to financial advantage by the insured,
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¶ 11. Bearing in mind that the policy at issue here was a homeowners’ policy, we cannot
conclude that the language of the endorsement was ambiguous as to the scope of the word
“business”: Shriner’s policy unambiguously excluded from coverage property connected to full-
and part-time business. See Lundeau, 170 Vt. at 448, 750 A.2d at 1035 (explaining that court must
consider nature of homeowners’ policy and nature of risk involved in activity giving rise to
insurance claim because “homeowner’s policy [is] designed to insure primarily within the personal
sphere of the policyholder’s life and to exclude coverage for hazards associated with regular
income-producing activities which involve different legal duties and a greater risk of injury or
property damage” (quotation and alteration omitted)). Shriner and Amica agree that glassblowing
was at least an occasional or part-time trade, profession, or occupation for Shriner. In practice,
that meant that Shriner made glassware approximately once per week on average from 2009 to
2012. Under Shriner’s interpretation of his policy, any aggregation of income-generating
enterprises, each done less than full-time, would not constitute a “business” and would therefore
be immune from the exclusion. This is not a reasonable interpretation and could not have been
what the parties intended when Shriner purchased a homeowner’s policy from Amica. Although
Shriner identified himself as an artisan on tax forms, he also filed a Schedule C form for business
profits or losses with the IRS for every taxable year since 2003. His tax documents reflect annual
sales from glassmaking ranging from $4036 to $30,350, and he reported various business
expenses. His primary source of income throughout the relevant period was from a combination
of selling glassware, redeveloping and renting investment properties, and selling products from an
organic honey and vegetable operation. Shriner acknowledges that he made glass in his garage,
that he stored his glassmaking equipment in the garage, and that he used his glassmaking
equipment to generate profit.
whether it generates profit for the insured, and the nature of the risk and coverage involved. See
Towns, 2008 VT 98, ¶¶ 10, 12.
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¶ 12. Amica argues that these things unambiguously constitute a “business” under the
terms of the policy. According to Shriner, on the other hand, “[m]aking glass is [his] art” and
because it is an expensive hobby or trade, he “need[ed] to create some saleable product . . . to
offset some of the cost of practicing the art form that [he] love[s].” While Shriner may be correct
that glassblowing is an expensive art, his interpretation of the insurance policy is foreclosed by our
precedent: he conceded that he engaged in glassblowing as a trade, profession or occupation, and
glassblowing generated profits for him. See Towns, 2008 VT 98, ¶ 10. His enterprise need not be
exclusive or quotidian to constitute a business. Because the policy unambiguously excluded from
coverage any property connected to a trade, profession, or occupation, Shriner’s garage and
glassblowing equipment were excluded. Thus, we conclude, based on the record of undisputed
material facts before us, that Shriner’s glassblowing was a full- or part-time business and that
coverage for the garage and business property was precluded under the business exclusion. Amica
met its burden and the court below properly granted summary judgment in its favor.
Affirmed.
FOR THE COURT:
Associate Justice
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