Opinion
No. C9-95-2401.
Filed May 14, 1996.
Appeal from the District Court, Blue Earth County, File No. C3-94-1516.
R.D. Blanchard, William M. Hart, Aaron B. Latto, (for respondent)
Phillip R. Reitan, (for appellant Terry L. Pooley)
C. Andrew Johnson, (for appellant Gary Perrine)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994)
Unpublished Opinion
Terry L. Pooley and Gary Perrine challenge the district court's decision granting State Farm Casualty Insurance Company's (State Farm) summary judgment motion. Perrine alleged that while sitting on a forklift he suffered a personal injury when a heavy crane magnet, operated by Pooley, struck the forklift on Mankato Iron and Metal's (MIM) premises. A civil suit against Pooley followed. Pooley tendered the defense of the suit to State Farm. State Farm (1) denied coverage; and (2) commenced a declaratory judgment action to determine coverage. In granting the summary judgment motion, the district court relied on the business pursuits exclusion in State Farm's homeowners insurance policy. We affirm.
Decision
On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). A motion for summary judgment shall be granted when
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.
Minn.R.Civ.P. 56.03. On appeal, a reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
The burden is on the insurer to prove that the loss arose from a cause that is excepted or for which it is not liable or from a clause that limits its liability. Milwaukee Mut. Ins. Co. v. City of Minneapolis, 307 Minn. 301, 307, 239 N.W.2d 472, 475 (Minn. 1976).
There seems almost unanimous accord in the decisions that the location at which an act is performed is not decisive on the question of whether the act constitutes part of an excluded business pursuit. Rather, it is the nature of the particular act involved and its relationship, or lack of relationship, to the business that controls. Personal acts, such as pranks, do not become part of a business pursuit, so as to be outside of the coverage, merely because performed during business hours and on business property. In order for an act to be considered part of a business pursuit it must be an act that contributes to, or furthers the interest of, the business and one that is peculiar to it. It must be an act that the insured would not normally perform but for the business, and must be solely referable to the conduct of the business.
Id. at 476.
Appellants claim that the district court abused its discretion when it determined that the business pursuits exception applies to Perrine's claim. Appellant's arguments are not persuasive.
The record reveals that Pooley was operating a crane and moving large pieces of scrap metal around the scrap metal yard. Such an activity is done to further a purpose "peculiar" to MIM's business interests. Pooley's operation of the crane is distinguishable from Milwaukee Mut. Ins. Co., 239 N.W.2d at 472, where a police officer, while on duty, discharged his firearm injuring a fellow officer. The supreme court held that the business pursuits exclusion did not apply because the act of determining the trigger pull on a revolver was not a business related activity. Pooley's conduct in this case is also distinguishable from Farmers Ins. Exch. v. Sipple, 255 N.W.2d 373 (Minn. 1977), where the court held that a business pursuits exception did not apply because the act of assaulting another was not peculiar to the business interests of the state patrol. In both Milwaukee Mutual and Farmers Ins., the business pursuits exclusion was found to be inapplicable even though the injuries occurred while the insured was on the job. The difference between those cases and this matter is that Pooley was moving the metal around the scrap yard in furtherance of MIM's business interests when the accident causing injury occurred.
In the alternative, Perrine argues that Pooley used the crane as a means to vent anger and frustration. We are not persuaded by this argument. There is something extra curricular about an officer striking a citizen, as in Farmers Ins., and an officer discharging his firearm while satisfying his idle curiosity about its trigger mechanism, as in Milwaukee Mutual. Here, however, Pooley was doing what his job required him to do. In this case, the business pursuit exception applies.
In his pleadings, Perrine alleges that Pooley's actions were grossly negligent at the time of the accident. Because of this alleged gross negligence conduct, Perrine claims that the business pursuits exclusion is inapplicable. For the above stated reasons we conclude that the district court did not abuse its discretion in granting State Farm's motion for summary judgment.