This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Ronnie Wheetley, as father and guardian

of Brittnay Michelle Wheetley,





Allianz Life Insurance Company of North America,



Filed October 5, 2004


Peterson, Judge


Hennepin County District Court

File No. CT 02-22010


Cortney S. LeNeave, Richard L. Carlson, Hunegs, Stone, LeNeave, Kvas & Thornton, P.A., 1650 International Centre, 900 Second Avenue South, Minneapolis, MN  55402 (for appellant)


John M. Sheran, Brian W. Thomson, Leonard, Street & Deinard P.A., 150 South Fifth Street, Suite 2300, Minneapolis, MN  55402 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from summary judgment in favor of respondent insurer, appellant argues that the criminal-activity exclusion in an accidental-death-and-dismemberment policy does not apply to exclude coverage when the insured was killed in a car crash while driving with an alcohol concentration above the legal limit.  We affirm.


            Angela Wheetley, the insured, was killed in Indiana when the car that she was driving left the road, traveled 453 feet, and hit a TV antenna and then a house.  A toxicology report conducted as part of the autopsy indicated that Wheetley had a blood-alcohol concentration of .283 and a urine-alcohol concentration of .320.

            At the time of the accident, Wheetley was insured under a $250,000 accidental-death-and-dismemberment policy.  The policy excludes coverage for a loss that “is caused by or results from [the insured’s] own . . . engaging in any illegal or criminal enterprise or activity.”

            The beneficiary, Angela Wheetley’s daughter, sought payment of benefits under the policy through appellant Ronnie Wheetley, her father and guardian.  Respondent Allianz Life Insurance Company of North America denied payment of benefits based on the criminal-activity exclusion.  Appellant sued, and the district court granted summary judgment to respondent based on the criminal-activity exclusion.  This appeal followed.


            In reviewing a summary judgment, this court will address “whether there is any issue of material fact and whether the lower court erred in applying the law.”  Zimmerman v. Safeco Ins. Co. of Am., 605 N.W.2d 727, 729 (Minn. 2000).  When, as in this case, the “material facts are not in dispute and the sole issue is a question of insurance policy interpretation, our review is de novo.”  Id.

            The policy states that it is governed by the law of the state of delivery, which, in this case, is Indiana.  Parties to a contract “may agree that the law of another state shall govern their agreement.”  Milliken & Co. v. Eagle Packaging Co., 295 N.W.2d 377, 380 n.1 (Minn. 1980).  The parties agree that Indiana law applies, and the district court applied Indiana law.

            “Under Indiana law, a contract for insurance is subject to the same rules of interpretation as are other contracts.”  USA Life One Ins. Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 537-38 (Ind. 1997).  This primarily presents a question of law for the courts.  Id. at 538.  “If the language in the insurance policy is clear and unambiguous, then it should be given its plain and ordinary meaning.”  Id.  When the contract language is ambiguous, the court may interpret it according to the rules of construction.  Id.  An ambiguity is strictly construed against the insurer.  Id.

            “Generally, insurers are free to limit liability in any manner not inconsistent with public policy, and an unambiguous exclusionary clause is ordinarily entitled to enforcement.”  Am. Family Life Assurance Co. v. Russell, 700 N.E.2d 1174, 1177 (Ind. App. 1998), transfer denied, 714 N.E.2d 168 (Ind. 1999).  “The exclusionary clause must clearly and unmistakably bring within its scope the particular act or omission that will bring the exclusion into play, and any doubts to the coverage under the policy shall be construed against the insurer to further the policy’s basic purpose of indemnity.”  Id.

            The policy at issue in this case excludes coverage for a loss that “is caused by or results from [the insured’s] own . . . engaging in any illegal or criminal enterprise or activity.”  (Emphasis added).  The district court ruled that this exclusion applied because Wheetley was driving while intoxicated in violation of the criminal DWI law, DWI was clearly defined as a crime in Indiana and the common person understood that it was a crime, and it was undisputed that Wheetley’s intoxication caused her death.

            Citing the Indiana Supreme Court decision in Masonic Accident Ins. Co. v. Jackson, 164 N.E. 628, 631-32 (1929), appellant argues that the district court erred as a matter of law because under Indiana law, liability under an insurance policy will not be destroyed by language of exception unless the exception is clear and free from reasonable doubt, and when any reasonable construction can be placed on a policy that will prevent the defeat of the insured’s indemnification for a loss covered by general language, that construction will be given.  Appellant contends that the Masonic court recognized a reasonable construction of the phrase “engaged in” that can be placed on the exception in Wheetley’s policy to prevent the exception from applying to appellant’s claim. 

            In Masonic, a man who was killed in an airplane crash was insured under an accidental-death policy that excluded indemnity for any death caused “while engaged in aviation.”  Id. at 629.   The man was a passenger in the plane.  Id.  The Masonic court concluded that a reasonable construction of the phrase “engaged in aviation” is that it means engaged in aviation as an occupation and, therefore, the phrase “denotes and suggests permanency, or continuity, or frequency of action, and does not aptly describe a single isolated act of riding in an aeroplane as a passenger.”  Id. at 631. 

            Appellant argues that the same reasoning should apply in the present case, and, therefore, because there was no evidence that Wheetley participated in the regular and continued behavior of driving while intoxicated, the exclusion does not apply.  But the language of the exclusion in Wheetley’s policy cannot reasonably be construed to apply only to regular and continued illegal behavior.  The exclusion states that the policy will not cover any loss that “is caused by or results from [the insured’s] own . . . engaging in any illegal or criminal enterprise or activity.”  (Emphasis added).  Whether an illegal act is a single, isolated event or part of a regular and continued course of illegal conduct, it is illegal activity.  Therefore, the phrase “any illegal . . . activity” cannot reasonably be construed to mean only regular and continued illegal activity.

            Appellant also argues that the phrase “illegal or criminal . . . activity” is ambiguous because it can reasonably be interpreted to mean offenses such as burglary, armed robbery, or murder, and not drunk driving.  See, e.g., Am. Family Life Assurance Co. v. Bilyeu, 921 F.2d 87, 89 (6th Cir. 1990).  But Indiana law defines crime as a felony or misdemeanor.  Ind. Code Ann.  § 35-41-1-6 (Michie 1998).  And in Indiana, a person who operates a motor vehicle with an alcohol concentration of at least .10 commits a misdemeanor.  Id., § 9-30-5-1 (Michie Supp. 2004).  Also, Indiana courts have recognized that driving with an alcohol concentration in excess of the legal limit is a crime in Indiana.  See, e.g., In re Quinn, 696 N.E.2d 863, 864 (Ind. 1998) (discussing “criminal offenses such as driving while intoxicated” in context of attorney-discipline proceeding).  Furthermore, the Indiana Supreme Court recently stated that “[d]riving after consuming too much alcohol is a violation of the law” that is “known to one and all.”  Sales v. State, 723 N.E.2d 416, 422 (Ind. 2000) (holding that although reference to “percent” in DWI law is arcane, statute prohibiting operating motor vehicle above .10 percentage alcohol content did not unfairly surprise drivers convicted of violation).  Therefore, under Indiana law, the phrase “illegal or criminal . . . activity” cannot reasonably be interpreted as not including driving while intoxicated.