This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Auto-Owners Insurance Company,



AutoTraac, Inc., et al.,


Robert Estes, et al.,


Filed November 10, 1997


Thoreen, Judge**

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

Hennepin County District Court

File No. 96-3222

Richard D. Snyder, Laurie J. Miller, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for appellants)

Timothy P. Tobin, Elliot L. Olson, Gislason, Dosland, Hunter & Malecki, P.L.L.P., P.O. Box 5297, Minnetonka, MN 55343-2297 (for respondent)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Thoreen, Judge.



The district court granted respondent insurer's motion for summary judgment, concluding that respondent had no duty to defend appellants against a lawsuit involving an automobile that appellants had failed to insure under its policies with respondent. We affirm.


Appellant AutoTraac, Inc. is an automobile repair shop owned by appellants John Bulicz and David Greenwood. Occasionally, appellants take inoperable automobiles from customers as payment for their services. Appellants then repair the inoperable automobiles at cost.

In late 1994, a customer traded an inoperable Plymouth Voyager for work on another automobile. Appellants gradually repaired the Voyager, which became "street worthy" in late September or early October 1995. After that time, Greenwood drove the Voyager on two test runs and used it twice for transporting customers and automobile parts. Although appellants had three insurance policies with respondent Auto-Owners Insurance Company, they did not notify Auto-Owners that the Voyager should be insured under any of the policies.

One evening, Greenwood went to the shop, intending to drive his own Pontiac LeMans to a customer's home. Because the LeMans would not start and the shop's "loaner" was in use, Greenwood drove the Voyager to the customer's home. While driving home in the Voyager, he was involved in an automobile accident. Auto-Owners denied coverage for the accident.


On appeal from a summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).

An insurer's duty to defend an insured arises when any part of the claim against the insured is "arguably" within the scope of the policy's coverage. Brown v. State Auto & Cas. Underwriters, 293 N.W.2d 822, 825 (Minn. 1980). Coverage issues and the construction and interpretaton of policy language are questions of law. Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn. 1997); Haarstad v. Graff, 517 N.W.2d 582, 584 (Minn. 1994).

1. Automobile liability policy coverage.

Appellants argue that they understood, based on representations by their Auto-Owners agent, that they did not need to list or declare any particular vehicles on their automobile liability policy, other than vehicles that were in constant daily use, such as their "loaner." But appellants have not cited any specific representations by the agent that would support this understanding. In fact, the declaration pages of the policy listed a vehicle that was "occasionally used" by appellants. Auto-Owners' agent submitted an affidavit stating that he had advised appellants that their automobile liability policy would only cover vehicles that were specifically listed on the policy.

The Voyager was not covered as a "temporary substitute" for the LeMans because the LeMans was not listed on the automobile liability policy. The Voyager was also not covered as a "newly acquired vehicle," because appellants did not report their acquisition of the Voyager to Auto-Owners, pay any extra premium, or insure all of their vehicles with Auto-Owners.

2. Garage liability coverage.

The declaration page of appellants' tailored protection policy with Auto-Owners stated that appellants were covered by the "attached" garage liability coverage. The attached garage liability declarations page stated: "Garage liability - Division 2."

The garage liability coverage form stated that Auto-Owners would cover damages "arising out of the hazards defined in Section II of this coverage form." Section II contained two divisions. Division 1 covered the premises and all necessary operations, including "the ownership, maintenance or use of any automobile." Division 2 covered the premises and all necessary operations, including "any automobile not hired, registered or owned" by appellants.

We agree with the district court that the garage liability policy was unambiguously limited to providing Division 2 coverage. See Republic Nat'l Life Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn. 1979) (stating that contract language is ambiguous if it is susceptible to more than one construction). The limitation to Division 2 coverage, specifically stated on the declarations page, was not a "hidden exclusion" that should be unenforceable pursuant to the "reasonable expectations doctrine." See Atwater Creamery Co. v. Western Nat'l Mut. Ins. Co., 366 N.W.2d 271, 278-79 (Minn. 1985) (holding that if application of policy language would run contrary to objectively reasonable expectations of insured, policy should be interpreted according to those expectations); Steele v. Great W. Cas. Co., 540 N.W.2d 886, 888 (Minn. App. 1995) (stating that court must consider declarations pages when analyzing scope of policy coverage), review denied (Minn. Feb. 9, 1996).

Bulicz testified in his deposition that he believed from conversations with his Auto-Owners agent that appellants were covered for all vehicles that they used for shop business. But neither Bulicz nor Greenwood cited any specific statement to support this belief. In contrast, the Auto-Owners agent stated in an affidavit that appellants had requested garage liability coverage similar to their Division 2 coverage under a prior insurance policy, and that he had specifically advised appellants that vehicles owned by themselves or the business would not be covered under the garage liability policy.

Appellants argue that language in their separate commercial umbrella policy created an ambiguity whether appellants had purchased both Division 1 and Division 2 coverage. Appellants cite the declarations page of the commercial umbrella policy, which indicated that the underlying garage liability policy covered both "all owned autos" and "non-ownership and hired cars."

In construing a contract, a court may look at other writings executed at the same time, by the same parties, and relating to the same transaction, even if the documents do not refer to one another. Farrell v. Johnson, 442 N.W.2d 805, 806 (Minn. App. 1989); Knut. Co. v. Knutson Constr. Co., 433 N.W.2d 149, 151 (Minn. App. 1988), aff'd, 449 N.W.2d 143 (Minn. 1989). Simultaneously-executed documents that are considered, in effect, one contract or instrument, may be read together even absent a finding of internal ambiguity. Farrell, 442 N.W.2d at 807. The garage liability policy and the umbrella policy covered identical periods and may be construed together, because they were executed by the same parties.

We conclude, however, that the reference in the umbrella policy to coverage for "all owned autos" did not render the underlying garage liability policy ambiguous. The umbrella policy by its own terms could not add different coverage to that provided by the underlying policy; an endorsement to the umbrella policy specifically provided that the policy did not cover liability for damages due to automobiles "except to the extent that coverage is provided * * * in the scheduled underlying insurance." On its face, the declarations page for the underlying garage liability policy specifically indicated that appellants had purchased only Division 2 coverage.

Appellants finally argue that the language of Division 2 "including" the use of any unowned automobile should not be construed to exclude coverage for owned automobiles. We disagree. An "express enumeration of one instance of many belonging to the same class impliedly excludes the others." Egner v. States Realty Co., 223 Minn. 305, 318, 26 N.W.2d 464, 473 (1947). Division 2 was clearly intended to provide coverage for unowned automobiles but not owned automobiles. This conclusion is supported by the fact that Division 1 was titled "Premises-Operations-Automobiles," whereas Division 2 was titled "Premises-Operations-Automobiles Not Owned Or Hired."