This opinion will be unpublished and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

C5-01-1062

 

Donald Juntunen, as Trustee for Next of Kin of Mavis Juntunen,
Appellant,

vs.

Employers Mutual Casualty Company,
Respondent.

 

Filed January 29, 2002

Affirmed

Peterson, Judge

 

Carlton County District Court

File No. C100179

 

Thomas M. Skare, Newby, Lindgren, Skare & Westermann, Ltd., 1219 14th Street, P.O. Box 760, Cloquet, MN  55720 (for appellant)

 

Steven L. Reyelts, Steven W. Schneider, Downs Reyelts Leighton Bateman & Hylden, Ltd., 700 Providence Building, Duluth, MN  55802-1801; and

 

Eric J. Magnuson, Diane B. Bratvold, Rider Bennett Egan & Arundel, L.L.P., 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Appellant brought this action seeking a determination that decedent was entitled to recover uninsured-motorist benefits under her employer’s insurance policy issued by respondent.  While on a business trip using a recreational vehicle owned by decedent and appellant, decedent was struck and killed by a motor vehicle as she walked across a highway.  The district court held that decedent was not an insured under respondent’s policy.  Appellant contends that the evidence requires reversal as a matter of law based on ambiguity in the employer’s insurance policy and on the reasonable-expectations doctrine.  We affirm.

FACTS

            Accident

            While walking across a highway, Mavis Juntunen was struck and killed by a motor vehicle.  The driver of the vehicle that struck and killed decedent was uninsured.  Decedent’s husband, appellant Donald Juntunen, brought this action for uninsured-motorist benefits against respondent Employers Mutual Casualty Company (EMC), the insurer of Juntunen Oil, a business owned by appellant and decedent.

The parties stipulated to the facts regarding the accident.  The accident happened on April 4, 1998, in Indiana while appellant and decedent were on a trip for Juntunen Oil.  On the trip, appellant and decedent were traveling in a recreational vehicle (RV), personally owned by them and not owned by Juntunen Oil.  When the accident occurred, the RV had been parked for the night, and decedent was not occupying the vehicle or entering the vehicle, but rather was walking back to the RV from a local restaurant.  The RV was insured by State Farm, and not by respondent.  For purposes of the coverage issue at trial, the parties agreed that decedent was a Juntunen Oil employee at the time of the accident.

            Policy

            Juntunen Oil operated a fuel-oil-delivery business, a furnace-and-air-conditioning-service business, an interstate-trucking business transporting chemicals, and a garage business that serviced its vehicles.  Appellant was responsible for obtaining insurance to cover Juntunen Oil’s operations.  When the accident occurred, except for the trucks used in the interstate-transport business, Juntunen Oil was covered by a policy issued by respondent.  Appellant’s and decedent’s personal vehicles were insured with State Farm.

            Except for interstate transport, appellant obtained his business insurance through Ted Micke, an independent insurance agent and appellant’s agent for 24 years.  Every year, appellant met with Micke to review his coverage.  Appellant testified that the two of them would discuss the coverages appellant wanted.

            Appellant testified as follows about the types of coverage he told Micke that he wanted for his business:

We had two shifts in our garage and so we’d go over naturally the garage liability because we did work for other people.  Through our bulk plants, I had car washes, office liability.  Anything to do with the stations he’d quote me on and our buildings.

 

* * * *

 

* * * [Coverage for employees] was a concern of mine * * * let’s say we had an employee that lived in Cloquet, Minnesota.  While he’d be coming to work -- Well, we owned a store in Cloquet.  He’d stop at that store, pick up all the paperwork from the day before and the deposits and so forth and bring them to Barnum where home office was.  So it was situations like that that arose that I was always concerned about coverage for my employees.

 

* * * *

 

* * * I wanted to be covered so our company was covered in case of accidents or if [employees] are on a business type trip for us doing work are they covered.

 

* * * *

 

* * * Well, I was told that we were covered as long as [employees] were on a business trip.

 

On cross-examination, appellant testified that the reason he was interested in an employees-as-insureds endorsement was because sometimes employees used their personal vehicles on company business and gave the example of an employee using a personal vehicle when going on a furnace or delivery call.

            Appellant testified that when Ted Micke delivered the policy to him, Micke went over the policy headings and summarized the coverages.  Appellant testified that Micke indicated to him that both Juntunen Oil and its employees were covered under the uninsured and underinsured-motorist provisions.  Appellant testified that he explained Juntunen Oil’s need for full coverage to Ted Micke and that he understood that Juntunen Oil had full coverage under the policy issued by respondent.  Appellant testified that based on discussions with Micke, he understood that he and decedent were covered when they traveled on business trips.

            The insurance policy covering Juntunen Oil consisted of several separate endorsements or forms that were combined to form a single policy.  The endorsements included:  endorsement for motor-carrier policies of insurance for public liability (motor-carrier-coverage form); garage-coverage form; employees-as-insureds endorsement; and Minnesota uninsured and underinsured-motorist (UM/UIM) coverage form.  Juntunen Oil was the named insured on the policy.

            The motor-carrier-coverage form is a public-liability coverage that Juntunen is required to carry for its interstate-hauling business.  Motor-carrier coverage applies to “liability for bodily injury, property damage, and environmental restoration.”  Motor-carrier coverage does not apply to Juntunen Oil employees.  The endorsement specifically states that “[s]uch insurance as is afforded for public liability does not apply to injury to or death of the insured’s employees while engaged in the course of their employment.”

            The garage-coverage form provided liability coverage for Juntunen Oil’s vehicle servicing operations, including coverage for employees involved in an accident while using a vehicle not owned by Juntunen Oil.  The garage-coverage form also described several categories of covered autos for purposes of other policy endorsements.  The only category relevant to this case is number 26, the category covered under the UM/UIM coverage form:

OWNED “AUTOS” SUBJECT TO A COMPULSORY UNINSURED MOTORISTS LAW.  Only those “autos” you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage.  This includes those “autos” you acquire ownership of after the policy begins provided they are subject to the same state uninsured motorists requirement.

 

The garage-coverage form defined “you” as the named insured.

            The employees-as-insureds endorsement provided:

This endorsement modifies insurance provided under the following:

 

BUSINESS AUTO COVERAGE FORM

GARAGE COVERAGE FORM

MOTOR CARRIER COVERAGE FORM

TRUCKERS COVERAGE FORM

 

With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement.

 

The following is added to the LIABILITY COVERAGE WHO IS AN INSURED provision:

 

Any employee of yours is an “insured” while using a covered “auto” you don’t own, hire or borrow in your business or your personal affairs.

 

Steven Micke, who took over Ted Micke’s business when Ted Micke retired, testified that the employees-as-insureds endorsement removes a policy exclusion and makes employees named insureds under liability provisions.

The policy issued to Juntunen Oil did not include a business-auto-coverage form.  Steven Micke testified that because of the nature of Juntunen Oil’s business, the policy provided to it included the garage-liability-coverage form but not the business-auto-coverage form.  Steven Micke’s testimony indicated that both the garage-liability and the business-auto coverages provided liability coverage for automobiles but that the garage-liability coverage also provided additional coverage needed by Juntunen Oil’s garage operation.

            The UM/UIM coverage provided:

A.  COVERAGE

 

1.  We will pay all sums the “insured” is legally entitled to recover as compensatory damages from the owner or driver of an “uninsured motor vehicle” or “underinsured motor vehicle”.  * * *

 

* * * *

 

B.  WHO IS AN INSURED

 

1.  You.

 

2.  If you are an individual, any “family member”.

 

3.  Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”.  The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.

 

4.  Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured.”

 

The UM/UIM coverage expressly applied to the business auto, garage, motor-carrier, and truckers coverages.

            The case was tried to the court.  Based on its conclusions that decedent was not a named insured and that the RV was not covered under the UM/UIM endorsement, the district court granted judgment in favor of respondent.

D E C I S I O N

1.            Appellant argues that the district court erred by interpreting the insurance policy to exclude coverage for decedent.  The interpretation of an insurance policy is a question of law subject to de novo review.  Metropolitan Prop. & Cas. Ins. Co. v. Miller, 589 N.W.2d 297, 299 (Minn. 1999).  Determining whether a policy is ambiguous is also a question of law.  Hammer v. Investors Life Ins. Co., 511 N.W.2d 6, 8 (Minn. 1994).  Unambiguous coverage language in an insurance policy must be given its plain and ordinary meaning.  Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn. 1998).

Ambiguous terms in an insurance contract are to be resolved against the insurer and in accordance with the reasonable expectations of the insured.  Ambiguity exists if the language of the policy is reasonably subject to more than one interpretation.

 

Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn. 1997) (citations omitted).

            Appellant argues that the references in Juntunen Oil’s insurance policy to business-auto coverage (a coverage not included in the policy), particularly when considered in light of the employees-as-insureds endorsement, create an ambiguity and that the ambiguity must be interpreted to provide the coverage he seeks.  Even if we accept appellant’s argument that the references to business-auto coverage create an ambiguity, the existence of an ambiguity does not automatically result in the interpretation urged by the insured.  Although ambiguities are to be resolved in favor of the insured, an insured’s interpretation of policy language must be reasonable for it to be adopted.  Farmers Home Mut. Ins. Co. v. Lill, 332 N.W.2d 635, 637-38 (Minn. 1983); see also Employers Mut. Liab. Ins. Co. v. Eagles Lodge, 282 Minn. 477, 480, 165 N.W.2d 554, 556 (1969) (although this court “cannot construe a policy so strictly in favor of the insurer as to virtually absolve it of all liability,” it similarly cannot “construe it so strictly against the insurer as to create a new contract imposing additional liability on it”).

The record contains no evidence that business-auto coverage would have provided coverage for decedent’s fatal injury.  No language in the policy and no evidence in the record indicates that the business-auto coverage provided broader coverage than any of the coverages included in Juntunen Oil’s insurance policy.  Absent any such evidence, it is not reasonable to conclude that business-auto coverage would have extended uninsured-motorist benefits to an employee using a personal vehicle on a long-distance business trip.  Nor does the employees-as-insureds endorsement support appellant’s interpretation.  That endorsement applies to liability coverages and does not apply to UM/UIM coverage.

If coverage exists, it must be based on the language of the UM/UIM endorsement included in Juntunen Oil’s policy.  Of the coverages to which the UM/UIM endorsement applied, two were included in Juntunen Oil’s policy, motor-carrier coverage and garage coverage.  Motor-carrier coverage applies to motor vehicles, the definition of which includes semitrailer trucks and similar vehicles used on a highway for transporting property.  Appellant makes no claim that the RV he and decedent were traveling in was a motor vehicle for purposes of motor-carrier coverage.  Thus, if UM/UIM coverage applies, it must apply under garage coverage.

For purposes of UM/UIM coverage, Juntunen Oil’s insurance policy defined insured as follows:

1.  You.

 

2.  If you are an individual, any “family member.”

 

3.  Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto”.  The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.

 

4.  Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another insured.

 

            The garage-coverage endorsement defined “you” as the named insured, and Juntunen Oil was the named insured.  Decedent, thus, did not fall within category one.  See Kaysen v. Federal Ins. Co., 268 N.W.2d 920, 921 (Minn. 1978) (decedents, both pedestrians, were not “insureds” within the meaning of that term contained in the uninsured-motorist provision of an insurance policy insuring a company-owned automobile, since that provision extended coverage only to the corporate entity, as the named insured, and to any other person occupying the vehicle).

Category two does not apply because Juntunen Oil is not an individual.

            Regarding category three, covered autos are defined as “[o]nly those ‘autos’ you own that because of the law in the state where they are licensed or principally garaged are required to have and cannot reject Uninsured Motorists Coverage.”  The RV was not owned by Juntunen Oil.  Appellant and decedent used the RV for the business trip because Juntunen Oil did not own any suitable vehicles, not as a replacement for an out-of-service company vehicle.

            Respondent also argues that category three is inapplicable because decedent was not occupying the RV.  Although the district court did not specifically address this issue, we note that it can be determined as a matter of law based on the stipulated facts.  The uninsured-motorist endorsement defines “occupying” as “in, upon, getting in, on, out or off.”  Decedent’s conduct of walking across a highway does not fall within that definition.  See Allied Mut. Ins. Co. v. Western Nat’l Mut. Ins. Co., 552 N.W.2d 561, 563 (Minn. 1996) (in construing identical policy language, the supreme court held that an automobile passenger who was struck by another vehicle as she stood outside the automobile waiting for the driver to try to unlock the door was not occupying the vehicle).

            Category four does not apply because decedent was not an insured as defined in the policy for purposes of UM/UIM coverage.

            The district court did not err in interpreting Juntunen Oil’s insurance policy to exclude coverage for decedent’s accident.

2.            Appellant argues that he is entitled to coverage under the reasonable-expectations doctrine.  Because of the unequal bargaining power between insurer and insured, courts recognize the doctrine of reasonable expectations.  Atwater Creamery Co. v. Western Nat’l Mut. Ins. Co., 366 N.W.2d 271, 277 (Minn. 1985) (recognizing that a layperson may not be able to read and understand insurance policies).  Reasonable expectation of coverage is a question of law to be decided by the court.  Sicoli v. State Farm Mut. Auto. Ins. Co., 464 N.W.2d 300, 303 (Minn. App. 1990).  The four factors to be considered in determining reasonable expectation are (1) the presence of ambiguity, (2) language operating as a hidden major exclusion, (3) whether the insurer communicated “important, but obscure, conditions or exclusions,” and (4) whether the general public knows of the particular provisions at issue in the contract.  Atwater Creamery Co., 366 N.W.2d at 278; see also Hubred v. Control Data Corp., 442 N.W.2d 308, 311 (Minn. 1989) (restating the four factors outlined in Atwater).  The doctrine does not remove from the insured the responsibility to read the policy.  National Indem. Co. of Minn. v. Ness, 457 N.W.2d 755, 757 (Minn. App. 1990), review denied (Minn. Sept. 14, 1990).

            Appellant relies on the employees-as-insureds endorsement and the absence of the business-auto-coverage endorsement to support his argument on reasonable expectations.  As we have already discussed, it is unreasonable to ascribe meaning to unknown language absent any evidence supporting a particular interpretation.  Regarding the employees-as-insureds endorsement, the endorsement applies only to liability coverage, and nothing in the record indicates that any representative of respondent represented otherwise to appellant.  Appellant is not entitled to coverage under the reasonable expectations doctrine.

            Affirmed.