may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Brian Wacholz and Wanda Wacholz,
individually and on behalf of Matthew R.
Wacholz, a minor, judgment creditors,
State Farm Fire and Casualty
Insurance Company, garnishee,
Filed April 1, 1996
Concurring Specially, Davies, Judge
Freeborn County District Court
File No. C6-95-1025
Chester D. Swenson, Swenson Law Office, 206 South Washington, P.O. Box 426, Albert Lea, MN 56007 (for appellants)
R. D. Blanchard, Joseph W. E. Schmitt, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Davies, Presiding Judge, Kalitowski, Judge, and Mansur, Judge.
Appellants Brian and Wanda Wacholz, individually and on behalf of their son Matthew, appeal from a summary judgment in favor of respondent insurance company. The judgment was based on a determination that respondent's homeowner's insurance policy with its insured, Barbara Hoeve, did not cover injuries to Matthew that occurred while Hoeve was providing day care services at her home. We affirm.
Judgment was entered against Hoeve pursuant to the parties' agreement, and the Wacholzes commenced the present garnishment action against State Farm. The district court granted State Farm's motion for summary judgment on the basis that its homeowner's policy did not provide coverage for an accident that occurred while Hoeve was providing day care services.
Hoeve's homeowner's policy with State Farm specifically provided that its liability coverage would not apply to
i. any claim made or suit brought against any insured by:
(1) any person who is in the care of any insured because of child care services provided by or at the direction of:
(a) any insured;
* * * *
(2) any person who makes a claim because of bodily injury to any person who is in the care of any insured because of child care services provided by or at the direction of:
(a) any insured * * *.
Appellants argue that this language is ambiguous solely because of the distance between the language that coverage would "not apply to" and the specific exclusionary language in subsection i.
Whether policy language is ambiguous is a question of law. Minnesota Mut. Fire & Cas. Ins. Co. v. Manderfeld, 482 N.W.2d 521, 524 (Minn. App. 1992), review denied in part & dismissed in part (Minn. June 10, 1992). A reviewing court "may not read an ambiguity into the plain language in order to provide coverage." Id.
Language in an insurance policy is "ambiguous" if it is susceptible to more than one reasonable interpretation. Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 34 (Minn. 1979). "If it is not reasonably subject to more than one interpretation, there is no ambiguity." Id. Contrary to appellants' arguments, the language in subsection i of the policy is clear and unambiguous; it expressly excludes coverage for claims against Hoeve because of bodily injury to anyone in her care because of child care services provided by her. The location of the language in the policy does not make it susceptible to more than one reasonable interpretation. See Farmers Home Mut. Ins. Co. v. Lill, 332 N.W.2d 635, 638 (Minn. 1983) ("the fact that a policy must be read with some care does not alone make it ambiguous").
Appellants argue that even if the child care exclusion is unambiguous, the exclusion is actually intended to exclude a business pursuit and therefore should be examined in light of the reasons for "business pursuits" exclusions in homeowner's policies.
Appellants argue that the rationale for the business pursuits exclusion, and also the child care exclusion, is that a business operated out of a home will result in an increased risk, which should not be borne by a homeowner's carrier. Appellants claim that this rationale is not applicable here, because Hoeve's lawn mowing, rather than her child care, resulted in the injuries to Matthew.
The increased risk excluded by the child care exclusion is the risk that when an insured provides day care services, there will be more children around, thereby increasing the risk of accident or injury. A child care provider may insure against this increased risk by obtaining a day care policy, which is intended to cover injury to a child in the provider's home. See American Family Ins. v. National Cas. Co., 515 N.W.2d 741, 744 (Minn. App. 1994) (acknowledging attendant risks with in-home day care, due in part to "all the activities that may occur in conjunction with daycare, and all the activities that may be completely independent of daycare and yet somehow affect the daycare service"). By providing day care services in her home, Hoeve increased the risk of injury that could result from her activities, including maintenance of the surrounding lawn.
Appellants argue that the child care exclusion should be examined in light of the criteria relied upon by the Minnesota Supreme Court when reviewing the business pursuits exclusion in insurance policies. Milwaukee Mut. Ins. Co. v. City of Minneapolis, 307 Minn. 301, 308-09, 239 N.W.2d 472, 476 (1976). This argument might be persuasive, were we simply reviewing the business pursuits exclusion contained in Hoeve's policy with State Farm. But Hoeve's policy also contained the more explicit child care exclusion, which unambiguously excludes coverage for the injuries in this case. See Nordby v. Atlantic Mut. Ins. Co., 329 N.W.2d 820, 822-23 (Minn. 1983) (concluding that clear exclusion of coverage prevailed over more general endorsement that appeared to grant coverage); Cement, Sand & Gravel Co. v. Agricultural Ins. Co. of Watertown, N.Y., 225 Minn. 211, 221, 30 N.W.2d 341, 348 (1947) (if there is a conflict between general and particular language in an insurance contract, the particular language controls).
DAVIES, Judge (concurring specially).
I concur with the court, but write separately to add this single observation.
Barbara Hoeve's involvement in day care, in my view, gave her notice of the likelihood of special policy provisions relating to the increased risks arising from that activity. Purchasers of insurance whose activities create greater risks than those of the ordinary purchasers of homeowner's insurance should be charged with the responsibility of reading their policies more carefully to see how the risks of those activities might be affected by exclusions in the policy. This observation thoroughly justifies appellant's failure to assert the doctrine of reasonable expectations.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.