Asbury v. Indiana Union Mut. Ins. Co.

• Citation: 441 N.E.2d 232
• Decision Date: 26 October 1982
• Docket Number: No. 1-282A51,1-282A51
• Parties: Dean ASBURY and Paula Asbury, Plaintiffs-Appellants, v. INDIANA UNION MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 232

441 N.E.2d 232

Dean ASBURY and Paula Asbury, Plaintiffs-Appellants, v. INDIANA UNION MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 1-282A51.

Court of Appeals of Indiana,

First District.

Oct. 26, 1982.

Harry A. Siamas, Crawfordsville, for plaintiffs-appellants.

Thomas A. Withrow, Blair R. Vandivier, Henderson, Daily, Withrow, Johnson & Gross, Indianapolis, Richard G. Tulley, Berry, Capper & Tulley, Crawfordsville, for defendant-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiffs-appellants Dean Asbury and Paula Asbury (Asburys) appeal an order of the Montgomery Circuit Court granting defendant-appellee Indiana Union Mutual Insurance Company's (IUMI) motion for summary judgment in an insurance contract action for recovery for breach of contract where the trial court determined that the loss was not covered under a business property exclusion provision in the Asburys' homeowners policy.

We reverse.

STATEMENT OF THE FACTS

The material in favor of the non-moving parties, the Asburys, discloses that on May 14, 1980, they applied for a policy of insurance with IUMI to cover their personal property and home; such an insurance contract is commonly called a homeowners policy.

Mr. Asbury has been employed as a mill operator at Prowler Industries in Crawfordsville, Indiana, since 1976, and Mrs. Asbury works as a medical assistant. Since he was a child, Mr. Asbury has hunted for sport. He hunts with several trained coon dogs which he owns and keeps for the purpose of hunting. He has participated in many sporting contests, using his coon dogs to hunt raccoons, and he has won several trophies over the years for the performance of his coon dogs.

During the Fall of 1980, Mr. Asbury hunted and killed approximately 117 raccoons and 11 foxes; he skinned the animals and stored the pelts in a deep freeze located in a barn on his premises. Sometime in December of 1980, the locks on the barn and freezer were broken and the animal pelts, having an approximate value of $3,500, were stolen. Subsequently, the Asburys properly filed a claim of loss with IUMI, which rejected their loss, claiming the animal skins were not covered under their homeowners policy because they represented "business property" which was excluded from coverage under the policy. The exclusionary clause reads as follows:

"Property Not Covered. We do not cover:

* * *

* * *

9. business property in storage or held as a sample or for sale or delivery after sale[.]"

The policy also defined "business" as follows: "includes trade, profession or occupation."

In 1977, Mr. Asbury received approximately $1,500 from the sale of animal skins from his annual Fall hunt. Similarly, in 1978 and 1979, he received approximately $2,500 and $4,100 respectively from the sale of animal skins. Mr. Asbury never relied on the sale of animal skins to make his living, and he never bought or sold animal skins as a trade, profession or occupation. Furthermore, Mr. Asbury was not a licensed animal fur dealer, and therefore, was required to sell or dispose of his coon and fox skins before a certain date each year.

Under Section 1 of "Coverages," the category "Special Limits of Liability" limited liability to $500 for loss by theft of jewelry, watches, furs, precious and semi-precious stones.

Following IUMI's denial of liability, the Asburys filed their cause of action for breach of an insurance contract on February 20, 1981. IUMI filed a motion to dismiss, asserting that the Asburys' stolen property was business property, and thus was excluded by the terms of the policy. The trial court denied IUMI's motion to dismiss finding that "there is a specific

question of fact to be resolved by the trier of fact as to whether or not the coon and fox skins and furs stolen from plaintiffs' residence were, in fact, business property within the definition of business property in the contract of insurance...." Thereafter, IUMI filed a motion for summary judgment, and, after both sides filed additional memoranda, answers to interrogatories, and affidavits, the trial court granted summary judgment in favor of IUMI. In a lengthy order supporting the judgment, the trial court found, inter alia that: 1) Dean Asbury had received money from the sale of skins in the past; 2) Dean Asbury stored the skins which were stolen in his freezer for sale at a later time; 3) the natural reading of "business" in the insurance contract would include a part-time trade, profession or occupation; 4) Dean Asbury hunted for sport as a hobby, but the use to which he put the skins was business, that is an occupation or employment habitually entered into for livelihood or gain; and 5) the loss suffered by the Asburys was of purely business property in storage and held for sale.

ISSUES

Restated, the Asburys present the following arguments for review:

I. Whether the trial court erred in finding as a matter of law that the insurance contract was not ambiguous and the Asburys were engaged in the profession, occupation and business of selling animal furs; and

II. Whether the trial court erred in granting summary judgment in favor of IUMI as there were material issues of fact.

DISCUSSION AND DECISION

The Asburys contend that the insurance policy was ambiguous in several respects. One, it defined "business" as a trade, profession or occupation, but, in excluding "business property" from coverage, the insurance contract failed to define "business property." The Asburys thought "business property" only referred to property from their employment. Two, the insurance policy, under a special limit on liability, insured against loss of furs by theft to $500. The Asburys argue they reasonably could believe the animal furs were covered under that clause to the extent of $500. For these reasons, the Asburys argue that whether they were engaged in the business of selling animal skins and the stolen skins were "business property" are material issues of fact that a jury must decide. The facts and inferences therefrom must be weighed by the trier of fact and not by the court in a summary disposition.

Summary judgment may be granted only if all the material on file shows that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Carrell v. Ellingwood, (1981) Ind.App., 423 N.E.2d 630. It cannot and should not be used as an abbreviated trial. Podgorny v. Great Central Insurance Company, (1974) 160 Ind.App. 244, 311 N.E.2d 640. The trial judge may not weigh the evidence in a summary judgment proceeding. Even where the facts are undisputed, the ability to draw from them conflicting inferences which alter the outcome, will make summary judgment inappropriate. Carrell, supra. In reviewing the propriety of a summary judgment, the facts alleged by the party opposing the motion must be taken as true. Boswell v. Lyon, (1980) Ind.App., 401 N.E.2d 735. Even if the trial judge believes the proponent of the motion will prevail at trial, or where he believes the likelihood of recovery is improbable, such are not bases for summary judgment. Carrell, supra.

IUMI rejects the Asburys' appeal, contending that it fails to comply with Ind.Rules of Procedure, Trial Rule 59(D)(2) since the Asburys only generally discussed in their motion to correct errors that the insurance policy was ambiguous, rather than specifically setting forth the particular ambiguities, as the rule contemplates. We disagree. In their motion to correct errors the Asburys raised the following specific errors: 1) the jury should decide whether the stolen property was "business property" by the terms of the insurance policy; 3) the trial court has rewritten the insurance contract by supplying its own definition of "business property;" and 4) the special limits of liability section provides coverage of $500.00 on furs, creating another ambiguity in the policy when read with the business property exclusion provision.

Although some of the language in the Asburys' motion to correct errors is generally phrased, they have substantially complied with the rules and have sufficiently raised and discussed the ambiguous terms and provisions in the insurance contract. See, Hudson v. Tyson, (1980) Ind.App., 404 N.E.2d 636; Matter of Geake, (1980) Ind.App., 398 N.E.2d 1375. Thus, the issues have not been waived on appeal.

IUMI also assails the Asburys' brief as deficient for lack of citations of authority as required by Ind.Rules of Procedure, Appellate Rule 8.3(A)(7). Again, we disagree. In addition to setting forth, with supporting authorities, the proper standard for reviewing a summary judgment, the Asburys have cited cases on the interpretation and construction of insurance provisions and any ambiguities attendant thereto. While it is true the Asburys have not provided us with an analysis of the case law and review articles on the key issue, the business property exclusion provision in homeowners policies, they have presented sufficient authority with pertinent argument so as not to waive the issue.

Turning to the issue before us, we first note that an insurance policy is a contract between the insurer and the insured, and, as such, the law of contracts controls their legal relationship. American Economy Insurance Company v. Liggett, (1981) Ind.App., 426 N.E.2d 136. We must ascertain and enforce the parties' intent as manifested in the insurance contract. Stockberger v. Meridian Mutual Insurance Company, (1979) Ind.App., 395 N.E.2d 1272. Words in an insurance policy should be given their plain and ordinary meaning whenever possible. Physicians Mutual Insurance Company v. Savage, (1973) 156 Ind.App. 283, 296 N.E.2d 165. As Judge Staton recited in his concurring opinion in Liggett:

" 'An insurance contract is prepared and drafted solely by the insurance company subject to no real bargaining and, thus, is a contract of adhesion... Therefore, when a court is required to interpret an insurance contract, the ambiguities...