This opinion will be unpublished and

may not be cited except as provided by

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





Grinnell Mutual Reinsurance Company,



Dominick M. Bunne, et al.,

Defendants (C3-97-2270),

Appellants (C1-97-2283),

Huntting Elevator, et al.,


Marty Stier d/b/a Marty Stier Trucking, et al.,

Appellants (C3-97-2270),

Defendants (C1-97-2283),


Marty Stier d/b/a Marty Stier Trucking, et al., third-party plaintiffs,

Appellants (C3-97-2270),

Third-Party Plaintiffs (C1-97-2283),


Terry Stier d/b/a Stier Insurance Services of Grand Meadow, et al.,

Third-Party Defendants,

Grinnell Mutual Reinsurance Company, third-party defendant,

Respondent (C3-97-2270).

Filed June 9, 1998


Short, Judge

Mower County District Court

File No. CX97395

Theodore J. Smetak, Paul A. Banker, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402-3214 (for respondent Grinnell Mutual Reinsurance Company)

Kreg A. Kauffman, Kauffman Law Firm, 202 Ironwood Square, P.O. Box, 338, Rochester, MN 55903-0338 (for appellants Dominick M. Bunne, et al.)

Joseph F. Chase, O'Brien, Ehrick, Wolf, Deaner & Maus, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903-0968 (for appellants Marty Stier, d/b/a Marty Stier Trucking, et al.)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Holtan, 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.


SHORT, Judge

This declaratory judgment action arises out of a farm accident where Dominick M. Bunne was injured attempting to adjust the sweep auger inside a grain bin. Dan Hendrickson, an employee of Marty Stier Trucking, negligently switched on the auger while Bunne was inside the grain bin. When Bunne sued, Hendrickson and his employer (insureds) made a claim under their commercial automobile liability policy with Grinnell Mutual Reinsurance Company (insurer). On cross-motions for summary judgment, the trial court concluded Bunne's injury did not fall within the scope of coverage and granted judgment in the insurer's favor. On appeal, Bunne and the insureds argue the trial court erred as a matter of law. We affirm.


On appeal from a grant of summary judgment, we determine whether there are genuine issues of material fact and whether the trial court correctly applied the law. Minn. R. Civ. P. 56.03; Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The construction of an insurance policy presents a question of law that the trial court can determine on summary judgment, and which we may review de novo. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn. 1978). We are asked to decide whether Bunne's injuries were arguably within the scope of the commercial automotive liability policy coverage. See Prahm v. Rupp Constr. Co., 277 N.W.2d 389, 390 (Minn. 1979) (concluding if any part of cause of action is arguably within scope of insurance coverage, then insurer must defend).

The policy provides:

We will pay damages for which any insured is legally liable because of bodily injury and property damage arising out of the ownership, maintenance, or use of your insured vehicle.

Bunne and the insureds argue the insurer has a duty to defend because the underlying claim happened during the loading of Stier's grain truck and thus, is arguably within the scope of the "use of your insured vehicle" provision. However, the undisputed facts show: (1) Bunne's injury was caused by auger machinery, which was not attached to or powered by Stier's truck, but was located inside the grain bin; (2) the auger was activated when Hendrickson hit the switch by the door of the grain bin; and (3) at the time of the accident, neither Bunne nor Hendrickson was occupying, entering into, or alighting from Stier's truck. After carefully examining the complaint and the policy's insuring clause, we conclude Bunne's claims are not covered by the insurer's commercial automobile liability policy. See Minn. Stat. § 65B.43, subd. 3 (1996) (defining "maintenance or use" of motor vehicle as maintenance or use of vehicle as a vehicle, and in case of loading and unloading vehicle, conduct that occurs while occupying, entering into, or alighting from it); see also Himle v. American Family Mut. Ins. Co., 445 N.W.2d 587, 591-92 (Minn. App. 1989) (concluding definition of "maintenance or use of a motor vehicle" as found in Minnesota No-Fault Automobile Act applies to all automobile insurance policies issued pursuant to Act), review denied (Minn. Nov. 22, 1989).

Bunne and the insureds also argue the policy provides broader coverage than that required by the no-fault statute. See Minn. Stat. § 65B.49, subd. 1 (1996) (providing Minnesota No-Fault Automobile Act does not prevent insurer from offering other benefits or coverage in addition to those required to be offered under statute). However, the policy fails to define "ownership, maintenance, or use" and further, provides:

[W]hen we certify this policy as proof under any financial responsibility law, it will comply with the law to the extent of the required coverage.

In the absence of explicit language offering coverage beyond that required by statute, we conclude the Minnesota No-Fault Automobile Act is controlling. See Geiser v. Home Indem. Co., 484 N.W.2d 256, 257 (Minn. App. 1992) (concluding insurance policy may provide broader definition of insured than in statute where definition does not conflict with statute); see also Himle, 445 N.W.2d at 589-90 (concluding liability policy issued to meet statute requiring motor vehicle insurance must be construed in connection with that statute and inserting statutory definition of "maintenance or use" into policy); see, e.g., Krupenny v. West Bend Mut. Ins. Co., 310 N.W.2d 133, 134-35 (Minn. 1981) (holding statutory definition of "maintenance and use," with loading and unloading clause, controlling in action to recover no-fault benefits under Minnesota No-Fault Act). Under these circumstances, the trial court properly granted judgment in favor of the insurer as a matter of law.