Franz v. State Farm Fire & Cas. Co.

• Decision Date: 27 August 2001
• Docket Number: No. 45A03-0102-CV-39.,45A03-0102-CV-39.
• Citation: 754 N.E.2d 978
• Parties: Kermalynn FRANZ, individually, and as the parent, natural guardian, and next friend of Glenn Charles Taylor, a minor, and Liberty Baptist Church, a/k/a Liberty Baptist Church and School a/k/a Liberty Baptist Church of Glen Park, Inc., Appellants-Defendants, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee-Plaintiff.
• Court: Indiana Appellate Court

754 N.E.2d 978

Kermalynn FRANZ, individually, and as the parent, natural guardian, and next friend of Glenn Charles Taylor, a minor, and Liberty Baptist Church, a/k/a Liberty Baptist Church and School a/k/a Liberty Baptist Church of Glen Park, Inc., Appellants-Defendants, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee-Plaintiff.

No. 45A03-0102-CV-39.

Court of Appeals of Indiana.

August 27, 2001.

Mitchell A. Peters, Gouveia & Miller, Merrillville, IN, Robert P. Harper, Harper & Rogers, Valparaiso, IN, Attorneys for Appellant Kermalynn Franz. Robert F. Parker, Beckman, Kelly & Smith, Hammond, IN, Bryan Truitt, Tsoutsouris & Bertig, Valparaiso, IN, Attorney for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Kermalynn Franz, individually, and as the next friend of Gene Charles Taylor, appeals the trial court's summary judgment in favor of appellee-plaintiff State Farm Fire & Casualty Company. Specifically, Franz contends that Taylor's injuries fall outside an exclusion, as set forth in a comprehensive liability policy, for injuries caused by use or operation of a vehicle.

FACTS

The facts most favorable to Franz are that on October 19, 1997, Liberty Baptist Church of Glen Park, Inc., (Liberty Baptist) sponsored a recreational "bus pull." The "bus pull" involved a contest between four teams, each made up of children and adults, to propel a bus across the finish line first. On each team, some members pushed the bus from behind while others pulled the bus with ropes tied to the front. Taylor, then thirteen years old, was one of the children pulling the rope for his team's bus. During the course of the race, Taylor slipped and the driver's side front wheel of the bus rolled over him, causing him severe and permanent injuries.

William Cronk, a regular bus driver for Liberty Baptist, was sitting in the driver's seat of the bus involved in the accident. As instructed before the race began, he left the bus in neutral. Though Cronk saw Taylor fall, he was unable to apply the brakes in time to avoid the accident. While the engines of the buses taking part in the race were not running at the time, the buses are regularly used to transport passengers to Liberty Baptist's school and church activities.

Franz brought a negligence action against Liberty Baptist, which suit is still pending. State Farm brought a declaratory action, asking the trial court to determine that State Farm had no obligation to defend Liberty Baptist or indemnify it in the event of an adverse judgment. State Farm argued that the policy's auto-use exclusion negated coverage of Taylor's injuries. After receiving Franz's and Liberty Baptist's separate answers, State Farm moved for summary judgment. The trial court granted State Farm's summary judgment and Franz¹ now appeals.

DISCUSSION AND DECISION

I. Standard of Review

A grant of summary judgment requires that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. T.R. 56(C). On appeal from summary judgment, the reviewing court faces the same issues that were before the trial court and analyzes them in the same way. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). We view the pleadings, depositions, answers to interrogatories, and affidavits in the light most favorable to the nonmoving party. Id. Where the case turns on a written document, the court must find that the document's provisions are unambiguous. B & R Farm Servs., Inc. v. Farm Bureau Mut. Ins. Co., 483 N.E.2d 1076, 1077 (Ind.1985). Where terms are unambiguous they should be given their plain and ordinary meaning. Meridian Mut. Ins. Co. v. Auto-Owners Ins. Co., 698 N.E.2d 770, 773 (Ind.1998). Failure to define a term in an insurance policy does not necessarily make it ambiguous. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997). Although the nonmovant has the burden of demonstrating the grant of summary judgment was erroneous, we carefully assess the trial court's decision² to ensure that the nonmovant was not improperly denied his day in court. B & R Farm, 483 N.E.2d at 1077.

II. Exclusion for Auto Use

The sole issue for our consideration is whether State Farm's insurance policy³ excludes coverage for Taylor's accident and injuries under an auto-use exception. State Farm issued Liberty Baptist a comprehensive liability policy with the following exclusion:

[T]his insurance policy does not apply:

. . . .

to bodily injury or property damage arising out of the ownership, maintenance, use or entrustment to others of any aircraft, auto or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and loading or unloading.

Supplemental Record at 268-268A (emphases in original). The policy defines "auto" as "a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment." Supp. R. at 273A. Franz does not dispute that the bus is a land motor vehicle as defined by the policy.

Franz's main contention is that the bus was not in "use" during the bus pull and, therefore, Taylor's injuries should not be excluded from coverage. Franz distinguishes between use of a vehicle and use as a vehicle, arguing that, while the participants were using the bus, they were not using it as a bus. In a case involving insurance coverage for accidents arising out of the use of an automobile, our supreme court held that an employee's injuries in delivering a water softener did not arise out of the use of the truck. Indiana Lumbermens Mut. Ins. Co. v. Statesman Ins. Co., 260 Ind. 32, 291 N.E.2d 897, 898 (1973). The employee was "transporting the softener down the basement stairs" when the stairs collapsed. Id. The Lumbermens court explained, "Since the efficient and predominating cause of the accident did not arise from the use of the truck, there can be no recovery based on the user clause" of the insurance policy. Id. at 899. This court, construing "use" in a policy excluding loss caused by one employed in the "automobile business," determined that "use" was synonymous with "drive" or "operate." Am. Family Mut. Ins. Co. v. Nat'l Ins. Ass'n, 577 N.E.2d 969, 971-72 (Ind.Ct.App.1991) (finding that the intent of the policy "was to exclude coverage of risks occurring while a vehicle is being driven or used as a means of transportation").

Franz claims that the bus was not in use during the bus pull and analogizes the facts here to other Indiana cases finding non-use. See Allstate Ins. Co. v. Cincinnati Ins., 670 N.E.2d 119, 122 (Ind.Ct.App. 1996) (holding that vehicle was not in use "when it was unoccupied, on a lift, and undergoing repairs for a fee"); Shelter Mut. Ins. Co. v. Barron, 615 N.E.2d 503, 506 (Ind.Ct.App.1993) (holding that unoccupied truck parked on the side of the street was not in use when plaintiff was pulled off the hood of the truck and thrown onto the ground). In Franz's view, the bus "was acting as a large-scale version of a child's pull toy." Appellant's brief at 14. No one would argue, Franz...