STATE OF MINNESOTA
IN COURT OF APPEALS
C8-01-18

Brookdale Pontiac-GMC,
Appellant,

vs.

Federated Insurance,
Respondent.

Filed June 12, 2001
Affirmed
Lindberg, Judge
*


Hennepin County District Court
File No. CT00673

 

Mark D. Luther, Firstar Bank Building, 8800 Highway 7, Suite 408, St. Louis Park, MN 55426 (for appellant)

Gary Hoch, Richard L. Pemberton, Jr., Erica Gutmann Strohl, Meagher & Greer, P.L.L.P., 4200 Multifoods Tower, Minneapolis, MN 55402 (for respondent)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Lindberg, Judge.

S Y L L A B U S

1. Insurance-coverage issues are questions of law for the court and thus, review on appeal is de novo.

2. A contract term will be read to have its natural and most obvious meaning, and a tenet of plain meaning is that ordinary rules of grammar apply.

3. An insured is not entitled to recover attorney fees incurred in maintaining or defending an action for declaratory judgment to determine the question of insurance coverage unless the insurer has breached the insurance contract.

O P I N I O N

LINDBERG, Judge

An individual purchased an automobile from appellant dealer by a contract co-signed with a signature that was later determined to be forged. The contract had been financed by a bank. When the buyer defaulted, the bank reassigned the contract to appellant pursuant to a master-dealer agreement, and appellant paid the balance due. Appellant then sought to recover from respondent insurance company under forgery provisions. The district court determined that coverage was excluded and granted summary judgment in respondent’s favor. Appellant contends that coverage exists under several provisions and asserts it was entitled to attorney fees pursuant to the policy.

FACTS

Appellant Brookdale Pontiac-GMC (Brookdale) is an automobile dealership and insured under a "garage general liability policy" through respondent Federated Insurance (Federated). Brookdale also purchased from Federated a supplemental insurance policy, which contains a provision to cover losses caused by

a credit application, rental agreement or lease agreement on which the name, social security number or signature of the applicant, rentee or lessee is false or forged.

An exclusion limits this "false-pretense" provision once the first periodic payment is made. The supplemental policy also contains a "catchall" provision that provides coverage for

any other criminal scheme, criminal trick or criminal devise which induces [Brookdale] to part with evidence of title to or possession of the covered "auto."

Because Brookdale does not directly provide financing for its customers, it has entered into "master-dealer" agreements with several local financial institutions, including Firstar Bank. Under the terms of the master-dealer agreement, Brookdale agrees to pay off a customer’s financing contract if "[a]ny representation, warranty, or covenant, with respect to the Contract made by [Brookdale] is false or breached."

On January 15, 1997, Brookdale sold a vehicle to Steven Early. Early and a man claiming to be his business partner, Horatius Williams, signed a credit application and an application for transfer of title. Brookdale obtained financing through Firstar on Early and Williams’s behalf.

Firstar received five payments made sporadically from March to October 1997. On November 10, 1997, Early wrote a letter to Firstar and stated that due to a miscommunication, he had erroneously included Williams’s name on the applications. Early requested that Williams’s name be disassociated from the loan. On November 13, 1997, Williams sent a letter to Firstar stating that Early had fraudulently used his name to obtain credit. On December 29, 1997, Williams filed a signed and notarized "affidavit of fraudulent transaction."

On May 13, 1998, Brookdale paid the principal of the loan to Firstar pursuant to the master-dealer agreement. Brookdale subsequently resold the vehicle at an auction for a loss.

On May 26, 1998, Brookdale contacted Federated for reimbursement under the supplemental policy. After an investigation, Federated refused to reimburse Brookdale because Federated believed that the loss was not covered by the terms of the supplemental agreement. Specifically, Federated noted that because Early had made payments to Firstar, Brookdale’s claim fell under the supplemental policy’s "first-payment" exclusions, which state that the policy "does not cover any ‘loss’ [under the false-pretense provision] after the first periodic payment is made."

On December 17, 1999, Brookdale brought a declaratory judgment action against Federated. Both parties moved for summary judgment. The court granted Federated’s motion and denied Brookdale’s motion. The court agreed with Federated that because Firstar received several payments, the first-payment exclusion prevents recovery. The court found that the false-pretense provision made no significant distinction among credit applications, rental agreements, or lease agreements. The court also found that because the catchall provision contains the modifier "other," a criminal scheme must somehow differ from criminal acts already contained in other provisions. Since false pretenses were covered by another provision, the court found that Brookdale could not seek recovery under the catchall provision. This appeal follows.

ISSUES

I. Did the district court err in its interpretation of the insurance policy?

II. Is Brookdale entitled to attorney fees under the insurance policy?

 

ANALYSIS

I.

Summary judgment is properly granted when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; see also Peterson v. BASF Corp., 618 N.W.2d 821, 823 (Minn. App. 2000). Because there are no disputed facts, we review the district court’s interpretation of the insurance policy de novo. See Zimmerman v. Safeco Ins. Co. of Am., 593 N.W.2d 248, 249 (Minn. App. 1999), aff’d, 605 N.W.2d 727 (Minn. Feb. 17, 2000) (interpretation of insurance policy is a question of law).

"[A]n insurer has the burden of proving that a policy exclusion applies," and courts read such exclusions "narrowly against the insurer." State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn. 1992) (citations omitted). Ambiguities in a policy are generally resolved in favor of the insured. Nathe Bros., Inc. v. American Nat’l Fire Ins. Co., 615 N.W.2d 341, 344 (Minn. 2000).

The relevant portions of the supplemental policy are as follows:

We will pay for "loss" to a covered "auto" under this coverage that results from you voluntarily parting with the covered "auto" because of:

* * * *

(3) a credit application, rental agreement or lease agreement on which the name, social security number or signature of the applicant, rentee or lessee is false or forged.

(4) any other criminal scheme, criminal trick or criminal devise which induces you, at that time, to part with evidence of title to or possession of the covered "auto".

* * * *

After First Periodic Payment. This policy does not cover any "loss" under coverage * * * (3) above, after the first periodic payment is made.

Brookdale first contends that the court incorrectly interpreted the false-pretense provision. Because "credit application" is separated by a comma from the words "rental agreement or lease agreement," Brookdale argues that the policy’s drafter intended credit applications to be treated differently. Further, Brookdale contends that a credit application differs from the other types of enumerated agreements because one does not make payments on an application; rather, one is merely attempting to obtain credit. Therefore, Brookdale argues the first-payment exclusion only applies to rental or lease agreements.

But looking at the contract as a whole, we find that the terms "credit application," "rental agreement," and "lease agreement" must be construed as a list of similar terms. Medica, Inc. v. Atlantic Mut. Ins. Co., 566 N.W.2d 74, 77 (Minn. 1997) ("The policy must be construed as a whole, and unambiguous language must be given its plain and ordinary meaning."). Here, in each of the three lists within this provisio