Linda Volk v. Ace American Insurance Company

Filing

OPINION FILED - THE COURT: Lavenski R. Smith, C. Arlen Beam and Duane Benton AUTHORING JUDGE:Duane Benton (PUBLISHED) [4142558] [13-1525]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1525
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Linda Volk, as guardian of Andrew John Johnson
lllllllllllllllllllll Plaintiff - Appellant
v.
Ace American Insurance Company
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: February 12, 2014
Filed: April 10, 2014
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Before SMITH, BEAM, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Andrew J. Johnson, through his guardian Linda Volk, sought recovery from an
insurance policy of ACE American Insurance Company. The district court1 granted

1

The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

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summary judgment to ACE, finding Johnson’s claim excluded from the policy’s
general-liability coverage. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
Johnson, developmentally disabled, requires a personal care assistant. In
November 2005, while supervised by an assistant from North Country Home Care,
Inc., he was blinded in his left eye by a BB gun given to him by the assistant.
At the time of the injury, North Country had coverage through ACE for both
general liability and professional liability. The policy was in effect until June 2006
(when North Country ceased operations). Johnson reported his claim to North
Country’s last president and then to ACE.
ACE denied coverage in August 2009, determining that the professionalliability coverage covered only claims made before the policy’s termination.
(Johnson no longer seeks recovery for professional-liability.) ACE also denied
general-liability coverage, citing the exclusion for: “Any loss, cost or expense arising
out of ‘bodily injury’ to your patients.”
Johnson sued North Country in state court. After a Miller-Shugart settlement,2
he received a judgment for $2,695,758.27. He then sued ACE in state court. ACE
removed the case to federal court. The district court granted summary judgment to
ACE, based on the patient exclusion. Volk v. ACE Am. Ins. Co., No. 12-1065, 2013
WL 440210, *3 (D. Minn. Feb. 5, 2013). Johnson appeals.
2

“In a Miller-Shugart settlement, an insured . . . who has been denied coverage
for a claim agrees with the claimant . . . on a judgement for an amount collectible
from the insurance policy. The claimant releases the insured from personal liability
and the claimant’s recovery is limited to the amount obtained from the insurers.”
Corn Plus Co-op. v. Cont’l Cas. Co., 516 F.3d 674, 677 n.2 (8th Cir. 2008), citing
Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982).
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This court reviews de novo a grant of summary judgment. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). The question is
whether the record, viewed most favorably to the non-moving party, shows no
genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law. Id.
Johnson argues that his injury is within the general-liability coverage because
he was not a “patient” within the meaning of the patient exclusion. The term
“patient” is not defined in the policy. According to Johnson, “patient” means
someone receiving licensed medical care. The assistant supervising Johnson was not
licensed and (for purposes of summary judgment) did not provide medical care or
medication.
Interpretation of an insurance policy is a question of law. American Family
Ins. Co. v. Walker, 628 N.W.2d 605, 609 (Minn. 2001). Courts interpret an insurance
policy using general principles of contract construction, giving effect to the intent of
the parties. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn. 2002).
Unambiguous terms are given their plain and ordinary meaning, and ambiguous terms
are construed against the drafter and in favor of the insured. Id. at 880. Language
is ambiguous if it is “reasonably subject to more than one interpretation.” Columbia
Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 34 (Minn. 1979).
The district court correctly found that “patient” is unambiguous. Minnesota
courts rely on dictionaries for the plain and ordinary meaning of an undefined term.
General Cas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 577-79 (Minn.
2009). The dictionary definition of “patient” is “the recipient of any of various
personal services.” Webster’s Third New Int’l Dictionary 1655 (1981). Johnson
was the recipient of personal care services from North Country. He was a patient of
the company. Johnson claims that he was a “customer” or “client”—not a “patient.”
The dictionary definition of “patient” also includes a “client” or “customer.” Id.
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The use of “patient” in the context of the policy as a whole confirms that it is
unambiguous. When a term is used multiple times in a contract, the court should read
the term consistently throughout the entire contract. See Metro Office Parks Co. v.
Control Data Corp., 205 N.W.2d 121, 124 (Minn. 1973). “Patient” appears in both
the general-liability exclusion and the professional-liability provisions. The
professional-liability coverage applies if the injury is caused by a “professional
incident.” Professional incidents are “any act or omission in the rendering or failure
to render ‘healthcare professional services,’” which are “services performed by an
‘insured’ to care for or assist your patients.” In the professional-liability provision
—just as in the general-liability exclusion—“patient” refers to those North Country
serves. See Gammon v. Auto-Owners Ins. Co., 454 N.W.2d 434, 436 (Minn. Ct.
App. 1990) (“Courts must determine the intent of the contracting parties . . . from the
process of synthesis in which the words and phrases are given a meaning in
accordance with the obvious purpose of the . . . contract as a whole.”); Metro Office
Parks, 205 N.W.2d at 124 (“[W]ords, phrases, and sentences are assigned a meaning
in accordance with the apparent purpose of the agreement as a whole.”).
Johnson focuses on the definition of “patient” in several Minnesota statutes.
E.g., Minn. Stat. §§ 144.291(2)(g), 144.651(2), 148A.01(4) (2005), 246.71(3). He
argues, without authority, that these statutes “inform the relationship between insurers
and insureds.” His focus is misplaced. The policy here does not incorporate the
statutes in any way, and the statutes do not purport to define generally the word
“patient.”
The district court concluded, “Even if the term ‘patients’ is ambiguous . . .
extrinsic evidence conclusively resolves the question of whether the incident fell
within the general liability coverage.” Volk, 2013 WL 440210, at *3. Johnson
attacks this conclusion, arguing the district court erred in using “ACE’s secret
knowledge about underwriting practices . . . to determine the parties’ intent.” Since

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the term “patient” is unambiguous, this court need not address the district court’s use
of extrinsic evidence.
*******
The judgment is affirmed.
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