This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-602

Paul Ersted, as Trustee for the Heirs
and Next of Kin of Daniel Huna,
Appellant,

vs.

Mutual Service Casualty Insurance Company,
Respondent.

Filed December 7, 1999
Reversed
Amundson, Judge

Stevens County District Court
File No. CX-97-77

Amy Jo Doll, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267; and

Michael R. Fargione, Hauer, Fargione & Love, P.A., 1660 South Highway 100, 526 Parkdale Plaza, Minneapolis, MN 55416 (for appellant)

Frank J. Rajkowski, Rajkowski Hansmeier, Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for respondent)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Estate of insured brought action against insurer to recover UIM benefits. Respondent insurer brought motion for summary judgment on the basis that the "family owned vehicle exclusion" in its policy precluded an award of benefits. Because we conclude that the exclusion is unenforceable as a matter of law, we reverse.

FACTS

On April 10, 1995, Daniel Huna (Huna) a passenger in a 1987 Buick LeSabre (the Buick) being driven by his son, Todd Huna, was killed, when a semi-truck owned by Covenant Transport struck them. At the time of the accident, the Buickís title listed Gloria Peterson as the owner, and she was the named insured under a State Farm insurance policy. Peterson, Hunaís sister-in-law, died on February 12, 1995. Huna and his wife took possession of the Buick after Petersonís death. On April 6, 1995, Avis Seeger, personal representative for the estate of Gloria Peterson, mailed the certificate of title for the Buick to the Hunas. The Hunas received the certificate on April 10, 1995, the same day as the accident. At the time of the accident, the Hunas had taken no affirmative steps to transfer or insure the vehicle.

Appellant-trustee, Paul Erstad, sought liability and underinsured motorist coverage from Hunaís insurance company, Mutual Service Casualty Insurance Company (MSI). MSI denied liability coverage and underinsured motorist coverage based on its the family-owned vehicle exclusion that provides in pertinent part:

However, neither an uninsured motor vehicle nor an underinsured motor vehicle includes any vehicle:
1. Insured under the Liability Coverage of this policy;
2. Owned by or furnished or available for the regular use of you or any relative.

* * *

We do not provide Uninsured Motorist Coverage or Underinsured Motorist Coverage:

* * *

2. For bodily injury to an insured while occupying, or when struck by, a motor vehicle or motorcycle owned by you or any relative if it is not insured for this coverage under this policy.

(Emphasis added). Additionally MSI argues that Huna was an insured under the State Farm policy and thus, their exclusion is enforceable as a matter of law. The district court granted insurerís summary judgment motion and insuredís estate appeals from the order for summary judgment, claiming that the family owned vehicle exclusion is invalid.

D E C I S I O N

On an appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted, Fabio v. Bellamo, 504 N.W.2d 758, 761 (Minn. 1993), but is not bound by nor need give deference to the district courtís application of the law. Frost-Benco Elec. Assín v. Minnesota Pub. Utils. Commín, 358 N.W.2d 639, 642 (Minn. 1984). When the facts are undisputed, an insurance coverage issue is a question of law, which we review de novo." Vue v. State Farm Ins. Co., 568 N.W.2d 527, 529 (Minn. App. 1997), affíd 582 N.W.2d 264 (Minn. 1998). "The interpretation and construction of an insurance contract is a question of law for the court, as are issues involving statutory construction." LaFave v. State Farm Mut. Auto. Ins. Co., 510 N.W.2d 16, 18 (Minn. App. 1993). The only fact in dispute is whether Huna owned the Buick at the time of the accident. However, this fact is not material to our analysis of whether the family owned vehicle exclusion contained in the MSI policy is enforceable. Therefore, de novo review is proper.

Appellant contends that MSIís family owned vehicle exclusion is unenforceable as a matter of law.

Where the claimant seeks uninsured or underinsured motorist benefits as well as liability benefits from the same insurance policy, the family owned vehicle exclusion is enforceable. See Myers v. State Farm Mut. Auto Ins. Co., 336 N.W.2d 288, 291 (Minn. 1983) (collecting under both liability and underinsured coverage under same insurerís policy unenforceable).

Similarly, exclusions that preclude recovery of both types of coverage from the same insured, regardless of whether coverage is sought under different policies, are also valid. Linder by Linder v. State Farm Mut. Auto. Ins. Co., 364 N.W.2d 481, 483 (Minn. App. 1985), review denied (Minn. May 1, 1985). In Linder, a minor was struck and injured by a pick-up truck driven by her brother and owned by her father. Id. at 482. The minor, Linder, recovered liability benefits under the policy her father carried on his pick-up truck. Id. Linder then sought, but was denied underinsured motorist benefits under two other policies her father carried on two other vehicles. Id.

Here, MSI argues that appellant is seeking both liability and underinsured motorist coverage from the same insured because they contend Huna was an "insured" under both the State Farm and MSI policies. Appellant contends that Peterson, not Huna, was the insured under the State Farm policy, and therefore, he is not barred from recovery under both policies.

The critical issue in determining whether MSIís family owned vehicle exclusion is enforceable, is whether Huna was occupying a motor vehicle of which he was "an insured" at the time of the accident. MSI argues Huna was an "insured" under the State Farm Policy because State Farm had acquiesced in the Huna family's use of the Buick and treated them as insureds, as evidenced by the fact that Todd Huna was provided with liability coverage by State Farm, as well as the fact that the Huna family received no-fault benefits from State Farm because of Dan Hunaís death. Furthermore, MSI alleges that Huna owned the vehicle and this makes him an insured under the State Farm policy.

But Huna is not an "insured" within the statutory definition set out at Minn. Stat. ß 65B.43, subd. 5 (1998). See Burgraff v. Aetna Life & Cas. Co., 346 N.W.2d 627, 628 (Minn. 1984) (applying definition of "insured" contained in the No-Fault Act to uninsured and underinsured motorist coverage). Minn. Stat. ß 65B.43, subd. 5, provides in pertinent part:

"[i]nsured" means an insured under a plan of reparation security as provided by sections 65B.41 to 65B.71, including the named insured and the following persons not identified by name as an insured while (a) residing in the same household with the named insured and (b) not identified by name in any other contract for a plan of reparation security complying with sections 65B.41 to 65B.71 as an insured:
(1) a spouse,
(2) other relative of a named insured or
(3) a minor in the custody of a named insured or of a relative residing in the same household with a name insured.

Because Huna was identified under MSIís insurance policy, but was not identified by name in the State Farm policy and did not reside in the same household with Gloria Peterson, the named insured on the State Farm policy, he does not meet the statutory definition of "an insured" for purposes of the State Farm policy. Huna, while a "covered" person under the State Farm policy, does not constitute an "insured." See Myers, 336 N.W.2d at 290 ("a covered person * * * includes the named insured and any person occupying the covered vehicle.").

Thus, MSIís family owned vehicle exclusion is unenforceable as appellant sought liability and underinsured motorist benefits (1) under different policies; and (2) from different insureds (Gloria Peterson constituting the insured for the State Farm policy and Daniel Huna as the insured under the MSI policy). Accordingly, we reverse the district courtís grant of summary judgment to MSI. Because we conclude that the family owned vehicle exclusion in unenforceable as a matter of law, we need not address whether the policy, by its plain meaning, excluded Huna.

Reversed.