This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-1400

 

Northfield Insurance Company,
Appellant,

vs.

Tim Turri, d/b/a Turri Crane Service, Inc.,

Respondent,
John Opfer, et al.,
Respondents.

 

Filed March 20, 2001

Reversed and remanded

Stoneburner, Judge

 

Olmsted County District Court

File No. C9993160

 

William L. Moran, Paul E. D. Darsow, Murnane, Conlin, White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)

 

Ken D. Schueler, Dunlap & Seeger, P.A., Suite 505, 206 South Broadway, Box 549, Rochester, MN 55903 (for respondent Turri)

 

James P. Ryan, Jr., Ryan & Grinde, LTD., 407 Fourteenth Street NW, Box 6667, Rochester, MN 55903 (for respondents Opfer)

 

 

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

In this declaratory judgment action, Northfield Insurance Company appeals from the district court’s grant of summary judgment in favor of respondents Tim Turri d/b/a Turri Crane Service, Inc., John Opfer, and Eunice Opfer.  Because we conclude that the district court erred in its application of law, we reverse and remand for entry of judgment in favor of Northfield.

FACTS

            Respondent Tim Turri owns and operates a crane rental business called Turri Crane Service, Inc.  Operating a crane is considered a dangerous profession for insurance purposes.  Appellant Northfield Insurance Company (Northfield), a surplus lines carrier, insured Turri under a commercial general-liability-insurance policy (the policy) from July 1, 1998 to July 1, 1999.[1]  The policy includes a  “Voluntary Labor Exclusion” that provides:

This insurance does not apply to “bodily injury” or “personal injury” to, or medical expense for, any person loaned to or volunteering services to you arising out of or in the course of work performed on your behalf.

Turri never read the policy.

Respondent John Opfer (Opfer) hired Turri in September 1998, to lift grain tubes and an electric motor onto a grain leg and storage bin complex on Opfer’s farm. When Turri arrived with his crane, Opfer explained what Turri needed to do.  Opfer told Turri: “If there’s anything we can do to help, let us know.”  Without being asked, Opfer directed Turri in backing up the crane to a suitable location for lifting the tubes and motor.  Opfer and a hired hand also helped Turri place pads on the crane’s outriggers.  After the crane was positioned and leveled, Turri needed to attach a jib extension to the crane.  He said to Opfer,  “If you really wanted to help this is where I could use you.”  Turri testified that he can put on the jib by himself and that doing so “takes probably about a half hour on and off.”

Opfer and Turri climbed onto the crane’s deck.  Opfer held the jib while Turri removed two safety pins.  A tether cable that usually allowed the boom to swing out only a few feet, broke.  The boom swung out freely, knocking Opfer off the crane and causing him to injure his right leg.

Turri reported Opfer’s injury to Northfield.  Northfield agreed to defend Turri under a reservation of rights but denied an obligation to indemnify based on the policy’s voluntary-labor exclusion.  Northfield brought this declaratory judgment action, seeking a declaration that the exclusion is valid and enforceable.  Northfield moved for summary judgment.  Turri and Opfer filed cross-motions for summary judgment.  The district court granted Turri’s motion for summary judgment and denied Northfield’s motion, concluding that Opfer was not “volunteering services” at the time of the accident.  This appeal followed.

D E C I S I O N

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  Northfield admits that there are no genuine issues of material fact, and so we assume the facts as presented by respondents and independently review the district court’s interpretation of the insurance policy.  See Zimmerman v. Safeco Ins. Co. of Am., 605 N.W.2d 727, 729 (Minn. 2000) (“Where material facts are not in dispute and the sole issue is a question of insurance policy interpretation, our review is de novo.”).  Language of an insurance exclusion clause is strictly interpreted against the drafter of the policy.  Home Mut. Ins. Co. v. Snyder, 356 N.W.2d 780, 783 (Minn. App. 1984).

            The district court incorrectly concluded that the policy is ambiguous because “volunteer” is not defined in the policy.  The district court correctly noted, however, that where “the terms of an insurance policy are not specifically defined, they must be given their plain, ordinary, or popular meaning.”  Smith v. St. Paul Fire & Marine Ins. Co.,  353 N.W.2d 130, 132 (Minn. 1984) (citation omitted).

Northfield argued the definition of “volunteer” as “a person who enters or offers to enter into any service of his own free will,” citing Webster’s New Universal Unabridged Dictionary 2049 (2ded. 1984).  Respondents argued for a definition of “volunteer” from Black’s Law Dictionary:

A person who gives his services without any express or implied promise of remuneration * * * one who, without the assent of the master and without justification arising from a legitimate personal interest, unnecessarily assists a servant in the performance of the master’s business.

 

Black’s Law Dictionary 1747-48 (rev. 4th ed. 1968).  The district court concluded that the ordinary usage of “volunteer” most closely resembles the definition from Black’s, and that the Webster’s definition “encompasses too broad a spectrum.”  We disagree. “Volunteer” is not exclusively a legal term, and the plain, ordinary, or popular meaning of that term is more correctly stated in the non-legal dictionary.[2]

“Volunteering,” the actual term used in the policy, is defined in the American Heritage Dictionary as “[t]o perform or offer to perform a service of one’s own free will,” or “[t]o do charitable or helpful work without pay.”  See The American Heritage Dictionary 1929 (4th ed. 2000) (defining “volunteering”).  On the undisputed facts of this case, Opfer exercised his free will to offer assistance.  He was not under any contractual obligation to assist and did not expect any payment from Turri as a result.  Under the plain meaning of the word, Opfer was volunteering services at the time of his injury.[3]

The district court concluded that even if Opfer was a “volunteer,” Northfield would have to prove that Opfer’s actions in moving the jib were performed on “behalf” of Turri, which the district court determined meant that Northfield had to prove that Turri somehow “benefited” from Opfer’s actions.  The district court found that Turri could have done the job more efficiently alone and did not benefit from Opfer’s “volunteering,” and therefore concluded that the work was not performed on Turri’s behalf.  Such reasoning results from an erroneous reading of the policy’s voluntary-labor exclusion.  The policy excludes coverage for bodily injury arising out of or in the course of work performed on Turri’s behalf but does not require that the services actually benefit Turri.  Opfer’s injuries clearly arose out of the work he was voluntarily performing on Turri’s behalf.  The district court erred by denying Northfield’s motion for summary judgment and granting respondents’ motion for summary judgment.  We reverse and remand for entry of judgment in favor of Northfield.

            Reversed and remanded.

 



[1] The policy was issued pursuant to Minn. Stat. §§ 60A.195-.209 (1998), the Minnesota Surplus Lines Insurance Act.  Policies written under this section are generally for high-risk operations that could not otherwise qualify for standard lines insurance in Minnesota.  See St. Michael v. Burns & Wilcox, Ltd., 433 N.W.2d 130, 132-33 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989).

[2] Respondents also offer the definition of “volunteer” set forth in Kelly v. Tyra, 103 Minn. 176, 179, 114 N.W. 750, 752 (1908) (“A volunteer is one who intrudes himself into matters which do not concern him, or does or undertakes to do something which he is not legally nor morally bound to do, and which is not in pursuance or protection of any interest.”).  In Kelly, the issue was whether the servants of different masters, who are “not usually regarded as fellow servants, and are not held to have assumed the risk of the negligence of the servant of another master by which they may have been injured,” became fellow servants when the servant of one master undertook to assist the servant of another master at the latter servant’s request.  Id. at 178-79, 114 N.W. at 751-52.  The definition set forth in Kelly, like the second part of the definition of “volunteer” set forth in Black’s, is limited to the employment context and thus not applicable here.

[3] Respondents assert that Opfer had a financial incentive to have Turri set up the crane quickly because Opfer was paying Turri by the hour.  But such an incentive does not make Opfer’s actions any less voluntary.