Progressive Cas. Ins. Co. v. Metcalf, No. C6-93-4

• Decision Date: 22 June 1993
• Docket Number: No. C6-93-4
• Citation: 501 N.W.2d 690
• Parties: PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent, v. Allen METCALF, et al., Defendants, Northland Insurance Companies, Appellant, Cheetah Pizza, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 690

501 N.W.2d 690

PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent, v. Allen METCALF, et al., Defendants, Northland Insurance Companies, Appellant, Cheetah Pizza, et al., Respondents.

No. C6-93-4.

Court of Appeals of Minnesota.

June 22, 1993.

Syllabus by the Court

A policy exclusion barring coverage when the insured is transporting persons or property for a fee, as applied to the facts of this case, is ambiguous and is construed against the insurer to result in coverage for the insured.

Scott A. Brehm, St. Louis Park, for Progressive Cas. Ins. Co.

Louise Ann Dovre, Eric J. Magnuson, Brian A. Wood, Sarah E. Carlson, Rider, Bennett, Egan & Arundel, Minneapolis, for Northland Ins. Companies.

Robert E. Kuderer, Chadwick, Johnson & Condon, Minneapolis, for Cheetah Pizza, et al.

Considered and decided by HUSPENI, P.J., and DAVIES and HARTEN, JJ.

OPINION

HUSPENI, Presiding Judge.

Progressive Casualty Insurance Company commenced this declaratory judgment action seeking a determination that James Watroba was insured under a personal automobile policy issued by Northland Insurance Companies and a commercial auto policy issued by Granite State Insurance Company. Northland moved for summary judgment, contending Watroba was "carrying property for a fee" and, therefore, coverage was excluded. Granite State and its insured, Cheetah Pizza, Inc., brought a cross-motion for summary judgment, asserting the exclusion was ambiguous and inapplicable. The trial court determined the exclusion was ambiguous and granted the summary judgment motion of Granite State and Cheetah Pizza. Northland has appealed. We affirm.

FACTS

The facts are not disputed. Cynthia Kinler was injured in an automobile accident while she was a passenger in a car owned by Allen Metcalf and driven by Kelly Jo Metcalf. The Metcalf vehicle collided with an automobile owned and driven by James Watroba, an employee of Cheetah Pizza, who was making a pizza delivery at the time of the accident.

Watroba was paid by Cheetah on an hourly basis. In addition to his duties delivering pizzas, Watroba was expected to do preparation work, such as folding boxes, preparing plate and napkin packages, attaching coupons to pizza boxes and cleaning. Watroba received the same hourly wage whether he was delivering pizzas or performing other duties, but Watroba received tips from customers 70% to 75% of the time. Cheetah reimbursed Watroba .18cents per mile for the use of his car for delivering pizzas. Cheetah did not charge for delivery. Under the employment agreement between Watroba and Cheetah Pizza, Watroba was responsible for maintaining liability insurance coverage on his car.

Watroba had a liability insurance policy with Northland Insurance Companies. Granite State Insurance Company insured Cheetah under a commercial auto policy. The Metcalf vehicle was insured by Progressive Casualty Insurance Company.

Kinler brought suit against Watroba, who sought coverage from Northland. Northland denied coverage based on the following exclusion:

We do not provide Liability Coverage for any person: * * * [f]or that person's liability arising out of the ownership or operation of a vehicle while it is being used to carry persons or property for a fee.

Based on Northland's denial of coverage, Kinler made a claim for uninsured motorist benefits under the Progressive Casualty policy covering the Metcalf vehicle. Progressive Casualty then commenced the present declaratory judgment action. While this action was pending, Progressive Casualty settled Kinler's claim for $25,000.

On cross-motions brought by Northland, Cheetah, Granite State and Progressive for summary judgment, the trial court determined the Northland policy exclusion was ambiguous. The trial court granted summary judgment to Cheetah, Granite State and Progressive. Northland appeals.

ISSUE

Did the trial court err in determining the exclusion in the Northland policy is ambiguous?

ANALYSIS

Summary judgment is appropriate when there is no genuine issue as to any material fact and a party is entitled to a judgment as a matter of law. Minn.R.Civ.P. 56.03. The trial court granted summary judgment based on its determination that the exclusion contained in the Northland policy was ambiguous. Whether an insurance policy provision is ambiguous is a question of law. Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 34 (Minn.1979). On appeal, this court must determine whether the trial court was correct in finding the policy language ambiguous. Id. This court need not defer to the trial court's determination on an issue of law. Frost-Benco Elec. Assoc. v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).

An insurance policy's language will be deemed ambiguous if it is reasonably subject to more than one interpretation. ICC Leasing Corp. v. Midwestern Mach. Co., 257 N.W.2d 551, 554 (Minn.1977). A policy may also be ambiguous when there is an irreconcilable conflict between terms or provisions within the policy. Morris v. Weiss, 414 N.W.2d 485, 487 (Minn.App.1987) (citing Rusthoven v. Commercial Standard Ins. Co., 387 N.W.2d 642, 644 (Minn.1986)). If the language of the policy is not ambiguous, the language used must be given its usual and accepted meaning. Bobich v. Oja, 258 Minn. 287, 294, 104 N.W.2d 19, 24 (1960). A court must not create an ambiguity where none exists in order to afford coverage to the insured. Farkas v. Hartford Accident & Indem. Co., 285 Minn. 324, 327, 173 N.W.2d 21, 24 (1969).

The trial court concluded that the exclusionary clause of the policy, when applied in the context of the facts of this case, is ambiguous. We agree. While Minnesota courts have not addressed the ambiguity of the exclusion at issue here, ¹ courts in other states that have considered the exclusion at issue have focused on the difficulty in defining the term "fee." While these cases are not controlling, they are persuasive.

The term "fee" could refer to a per trip charge, as the Louisiana courts noted in RPM Pizza, Inc. v. Automotive Cas. Ins. Co., 601 So.2d 1366, 1370 (La.1992) and McPherson v. Viola, 593 So.2d 1370, 1371 (La.App.1992). There was no such charge in this case.

The term "fee" could also refer to the wages paid to an employee for driving. In this case, however, Watroba received the same wage whether he was driving his car or performing other duties. Therefore, Watroba's wages cannot be considered a "fee" within the meaning of the exclusion. The mileage reimbursement Watroba received also is not determinative. See United States v. Milwaukee Guardian Ins. Co., 966 F.2d 1246, 1247 n. 3 (8th Cir.1992).

The Tennessee Court of Appeals has held that an exclusion similar to that involved in this case did not preclude coverage for an employee of a pizzeria who used the employer's car to deliver pizza. United Servs. Auto. Ass'n v. Couch, 643 S.W.2d 668, 672 (Tenn.App.1982). In Couch, the court noted that although a delivery charge was added to the price of some delivered pizzas, the delivery charge went to the employer, not the driver. Id. The court stated:

It is not considered that a delivery charge added to the price of the article delivered amounted to using the vehicle for transportation of property for a fee.

Id. The Arkansas Court of Appeals has also determined that the word "fee," when used in this exclusion, is ambiguous. Pizza Hut of America, Inc. v. West General Ins. Co., 36 Ark.App. 16, 816 S.W.2d 638, 641 (Ark.App.1991).

Given the various possible meanings of the word, we conclude that the term "fee," as used in the exclusion at issue, is reasonably subject to more than one interpretation and, therefore, must be deemed ambiguous. Given this ambiguity, we construe the exclusion against the insurer and find coverage for Watroba in this case. See Caledonia Community Hosp. v. St. Paul Fire & Marine Ins. Co., 307 Minn. 352, 354, 239 N.W.2d 768, 770 (1976) ("ambiguities are to be resolved against the insurer and in...