This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






T.H.E. Insurance Company,


BJM, Inc.
d/b/a Voyagaire Lodge and Houseboats, et al.,

Duoa Yang, et al.,


Filed December 11, 2007


Klaphake, Judge


St. Louis County District Court

File No. 69VI-CV-06-622


Steven E. Tomsche, Matthew R. Smith, Tomsche, Sonnesyn & Tomsche, PA, 610 Ottawa Avenue North, Minneapolis, MN  55422  (for respondent)


Steven A. Nelson, 210 Fourth Avenue, International Falls, MN  56649; and


Elizabeth K. Russo, Russo Appellate Firm, 6101 Southwest 76th Street, Miami, FL  33143 (for appellants)


            Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Crippen, Judge.* 

U N P U B L I S H E D   O P I N I O N


            Ten people sustained brain damage from carbon monoxide poisoning while on a houseboat that they rented from Voyagaire Lodge and Houseboats (Voyagaire).  The injured parties initiated a negligence action against BJM, Inc., an umbrella corporation that included Voyagaire and other entities and individuals associated with Voyagaire; Voyagaire’s insurer, respondent T.H.E. Insurance Company, intervened.  Respondent filed a declaratory judgment action seeking a determination of policy coverage limits asserting that a $1 million limit applied.  On cross motions for summary judgment, the district court granted summary judgment for respondent.  Because $1 million was the limit of insurance coverage under the plain language of the applicable provisions of the policy, we affirm. 


            On appeal from summary judgment, this court must determine whether genuine issues of material fact remain for trial and whether the district court erred in applying the law.  See Hickman v. SAFECO Ins. Co. of America, 695 N.W.2d 365, 369 (Minn. 2005); Minn. R. Civ. P. 56.03.  The application and interpretation of an insurance policy is subject to de novo review.  Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn. 2003).  When the facts are undisputed, an appellate court “need only review the [district] court’s application of the law in interpreting” insurance policy language.  Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82, 85 (Minn. 1988).   

            The interpretation of insurance contracts is governed by general principles of contract law.  Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn. 2002).  If an insurance policy is unambiguous, “the language used must be given its usual and accepted meaning[,]”  Stewart v. Illinois Farmers Ins. Co., 727 N.W.2d 679, 684 (Minn. App. 2007) (quotation omitted), and courts should “guard against invitations to find ambiguity where none exists.”  Metro. Prop. & Cas. Ins. Co. v. Jablonske, 722 N.W.2d 319, 324 (Minn. App. 2006) (quotation omitted).  If a policy does not omit legally required coverage or “violate applicable statutes, the extent of the insurer’s liability is governed by the contract entered into.”  Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn. 1998) (quotation omitted). 

            Here, respondent’s general liability policy contains several distinct types of coverage, including premises bodily injury and damage, marina operators’ bodily injury and property damage, personal advertising injury, and medical expenses, among others.   The parties agree that only coverage pertaining to marina operators is at issue.  The Marina Program Supplemental Declarations provides in pertinent part as follows:



General Aggregate Limit:                            $2,000,000.00

Coverage A Premises Limit:                       $1,000,000.00

Coverage B Marina Operators Limit:        $1,000,000.00

Coverage C Personal Injury Limit:            $1,000,000.00

Coverage D Medical Payments Limit:      NOT COVERED


The policy section pertaining to limits of insurance further provides:


1.                  The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of:

a.                  Insureds;

b.                  Claims made or “suits” brought; or

c.                  Persons or organizations making claims or bringing “suits”.

2.                  The General Aggregate Limit is the most we will pay for the sum of :

a.                  Medical expenses under Coverage D;

b.                  Damages under Coverage A, B, and C.

3.                  Subject to 2. above, the Personal and Advertising Injury limit is the most we will pay under Coverage C for the sum of all damages because of all “personal injury” and all “advertising injury” sustained by any one person or organization.

4.                  Subject to 2. or 3. above, whichever applies, the Each Occurrence Limit is the most we will pay for the sum of :

a.                  Damages under Coverage A, B and C; and

b.                  Medical expenses under Coverage D because of all “bodily injury” and “property damage” arising out of any one “occurrence.”


            The district court found that the policy limits coverage to the $1 million provided for in the marina operators’ coverage.  In its memorandum of law, the district court stated its rationale for concluding that the policy coverage and limitations are effective and unambiguous, as follows: 

It is unambiguous that when these provisions are read together the $1,000,000.00 limit on Coverage B is effective.  Section one of the Limitations of Insurance expressly states that policy limits on the Declaration page are effective.  Sections two and four of the Limitations of Insurance provision apply only to the sum of damages where different coverages are combined.  Finally, when the Declarations page is consider[ed] separately it clearly and expressly indicates that the limit of Marina Operators insurance that will be paid will be $1,000,000.00.  Additionally, it is unambiguous that the Aggregate Limit indicates that no combination of the smaller $1,000,000.00 limits may exceed $2,000,000.00.  This interpretation is reasonable, gives each provision of the policy meaning.  To interpret it otherwise, would render the Coverage B limit meaningless, as well as the definition of “aggregate limit”, as the only real limit for Coverage B would be the aggregate amount of $2,000,000.00.  Thus the $1,000,000.00 limitation on Marina Operators coverage as shown on the Declaration page of the policy is controlling.


            The district court’s interpretation of the policy language and provisions at issue is in accordance with the plain language of the policy and gives effect to each section of the policy, as well as giving effect to the sections in relation to each other.  See Stewart, 727 N.W.2d at 684.  The declarations provisions of the policy contain a $1 million limit for marina operators, which provides the only coverage for injuries that arose out of appellants’ use of the houseboat.  Because the limitations section of the policy further provides that the limits contained in the declarations section apply regardless of the number of insureds, claims made, or persons or organizations making claims, $1 million is the coverage limit under the terms of the policy.  Further, because the occurrence implicates only one coverage section of the contract, the aggregate limit is inapplicable because no other coverage provisions are invoked; therefore, no reason for multiple coverage exists.

            Appellants contrast the applicable marina operators’ coverage provisions to other sections of the policy that apply to different commercial aspects of the Voyagaire business.  The other sections contain standard Insurance Services Organization or “ISO” provisions that are uniform and contain a specific “each occurrence limit” that is not included in the section applicable here.  Appellants argue that because the marina operators’ coverage does not include occurrence limitation language that is present in other coverage sections of their policy, there should be no occurrence limits for accidents covered under the marina operators’ provisions.  But because the provisions that are included in the marina operators’ coverage are clear as written and do not allow aggregation without claiming more than one type of coverage, we conclude that this argument lacks merit.  Appellants characterize the district court’s interpretation as an improper rewriting of the contract, but the court relied on the existing language of the marina operators’ coverage in interpreting the contract, and this language was sufficient to establish the limitations of the policy.                                

            Appellants also claim that because a provision of the marina operators’ coverage refers to an “Each Occurrence Limit” that is present in other sections of the policy but is not included in the marina operators’ coverage section, the marina operators’ coverage provisions are vague.  Appellants then urge this court to interpret the policy so that the reference to the each occurrence limit “render[s] the policy ambiguous on the subject of whether the stated General Aggregate Limit or an unwritten and unknown ‘Each Occurrence Limit’ would apply.” 

            The reference to “the Each Occurrence Limit” is contained in a provision that is inapplicable to the facts of this case, however.  This language is included in a specific provision of the “Limits of Insurance” that states:

4.         Subject to 2. or 3. above, whichever applies, the Each Occurrence Limit is the most we will pay for the sum of:

            a.         Damages under Coverage A, B and C; and

            b.         Medical expenses under Coverage D[.]


This language applies only under a fact scenario where there are multiple coverage issues, because “2” and “3” both refer to claims for multiple coverage and “a” requires damages under a multiple coverage claim.  Because only one coverage provision is at issue here, this paragraph is irrelevant to appellants’ claim.  See State Farm Fire & Cas. Co., 598 N.W.2d 709, 711 n.4 (Minn. App. 1999) (noting that when the difference between certain tort coverage and exclusion provisions contained in an insurance policy created an ambiguity, that ambiguity was “irrelevant” if it bore no relation to the tort at issue before the court), review denied (Minn. Nov. 17, 1999). 

            For these reasons, we affirm the district court’s grant of summary judgment to respondent.





* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.