                                   Cite as 2016 Ark. App. 168


                  ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. CV-15-55


INDIA BISHOP                                     Opinion        March 9, 2016
                              APPELLANT
                                                 APPEAL FROM THE PULASKI
V.                                               COUNTY CIRCUIT COURT,
                                                 THIRD DIVISION
                                                 [NO. 60-CV-14-38]
FARM BUREAU MUTUAL
INSURANCE COMPANY OF                            HONORABLE CATHLEEN V.
ARKANSAS, INC.                                  COMPTON, JUDGE
                   APPELLEE                     SUBSTITUTED OPINION ON THE
                                                GRANT OF REHEARING.



                              BART F. VIRDEN, Judge

      India Bishop appeals the Pulaski County Circuit Court order awarding summary

judgment to Farm Bureau Insurance Company of Arkansas, Inc. We reverse and remand

for the entry of judgment consistent with this opinion.

                                          I. Facts

      On March 11, 2011, Ronnie Wardlaw decided to burn the grass in a ditch located

near the northwest corner of the 175-acre property owned by his ex-wife, India Bishop.

Wardlaw lost control of the fire, and it spread onto neighboring property owned by

Charlotte Hardin. The fire destroyed Bishop’s commercial property, which Bishop rented

to a tenant who operated a business (Lavender Bar) in the building. The fire also destroyed
                                      Cite as 2016 Ark. App. 168

a building owned by Hardin and rented by Troy Guthrey for his business, American Tire

& Truck. 1 At the time of the fire, India Bishop held a current homeowner’s insurance

policy issued by Farm Bureau Mutual Insurance Company of Arkansas, Inc. (“Farm

Bureau”). The declaration page of the policy listed 310 Lavender Lane in Pine Bluff,

Bishop’s home, as the insured property.

       Hardin and Guthrey filed a negligence suit against Bishop and Wardlaw. Farm

Bureau subsequently filed a complaint for declaratory judgment against Bishop, Hardin,

Guthrey, and Wardlaw. In the declaratory action, Farm Bureau stated that the policy did

not cover damage stemming from any incident that occurred away from Bishop’s

residence premises, and that the policy’s personal-liability coverage was specifically limited

to incidents occurring within five acres of the residence premises listed on the declarations

page; therefore, Farm Bureau requested that the circuit court declare that it owed no duty

under the insurance policy to defend or indemnify Bishop or Wardlaw for any losses

claimed by Hardin or Guthrey.

       Bishop filed a separate answer in which she requested that the declaratory action be

dismissed. In her answer Bishop stated that the policy contained ambiguous terms, and the

ambiguity precluded Farm Bureau from denying coverage. Farm Bureau followed up its

declaratory action by filing a motion for summary judgment against Bishop on July 30,

2014. Bishop filed her response to the motion for summary judgment on August 19, 2014.



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           Wardlaw also lived on the property in a trailer home owned by Bishop.

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       A hearing on the matter was held on October 16, 2014. At the hearing, Farm

Bureau argued that the policy did not cover the fire damage because the fire began at a

location on Bishop’s property that was not covered by the policy. Farm Bureau also

argued that even if the property where the fire started was covered by the policy, the fire

began as the result of a business pursuit and therefore was excluded from coverage.

       In response, Bishop argued that the policy coverage was transitory, meaning that

the policy covered incidents that occurred away from the insured property. Bishop also

argued that the method of determining the parameters of the five-acre restriction was

undefined; therefore the policy contained an ambiguous term, and the clause should be

construed in her favor.     Bishop also argued that the business pursuits exception was

another source of ambiguity within the policy and should also be construed in her favor.

       In an order dated October 21, 2014, the circuit court granted summary judgment

to Farm Bureau. In its order the circuit court found that Farm Bureau owed no duty to

defend or indemnify Bishop or Wardlaw for damage to Hardin and Guthrey’s property.

Bishop filed a timely notice of appeal. Hardin and Guthrey also filed a notice of appeal;

however, on January 28, 2015, Hardin’s attorneys requested to be removed as the

attorneys of record, and the request was granted.       Neither Hardin nor Guthrey has

pursued an appeal related to this case.

       On appeal, Bishop argues that genuine issues of material fact existed concerning

Farm Bureau’s duty to indemnify and/or defend Bishop against suit. Bishop also argues




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that the ambiguous terms in the policy should be construed in her favor; thus, the circuit

court erred when it awarded summary judgment to Farm Bureau.

       We hold that the circuit court did not err in determining that summary judgment

was appropriate; however, we also hold that the terms “residential premises” and “business

exception” are ambiguous and that the ambiguity in the insurance policy should have been

resolved in favor of Bishop; therefore, the circuit court erred in awarding summary

judgment in favor of Farm Bureau. We hold that the circuit court erred as a matter of law

when it found that Farm Bureau owed no duty to defend or indemnify Bishop for the

damage caused to Hardin and Guthrey’s property, and we reverse and remand for further

consideration in light of this opinion.

                           II. Standard of Review and Applicable Law

                                   A. Summary Judgment

       The law is well settled that summary judgment is to be granted by a circuit court

only when it is clear that there are no genuine issues of material fact to be litigated, and

the party is entitled to judgment as a matter of law. Harrisburg Sch. Dist. No. 6 v. Neal,

2011 Ark. 233, 381 S.W.3d 811. Once the moving party has established a prima facie

entitlement to summary judgment, the opposing party must meet proof with proof and

demonstrate the existence of a material issue of fact. Id.

       On appellate review, we determine if summary judgment was appropriate based on

whether the evidentiary items presented by the moving party in support of the motion

leave a material fact unanswered. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381


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S.W.3d 21. We view the evidence in the light most favorable to the party against whom

the motion was filed, resolving all doubts and inferences against the moving party. Id. Our

review focuses not only on the pleadings, but also on the affidavits and documents filed by

the parties. Cent.Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 400 S.W.3d

701.

       We agree with the circuit court’s determination that neither party demonstrated a

genuine issue of material facts. Both parties agree that Wardlaw started the fire on Bishop’s

property, and they agree as to the location of where the fire began. Farm Bureau and

Bishop agree that Wardlaw started the fire as a means of clearing a ditch on Bishop’s land.

Both parties attest to the fact that Wardlaw was a tenant of Bishop. With the underlying

facts relating to the case undisputed, the circuit court did not err in finding that summary

judgment was proper; however, because of the ambiguous terms in the insurance policy,

we hold that the circuit court erred in finding that summary judgment should be awarded

in favor of Farm Bureau.

                                   B. Ambiguous Terms

       The fact that a term is not defined in a policy does not automatically render it

ambiguous. Zulpo v. Farm Bureau Mut. Ins. Co. of Arkansas, 98 Ark. App. 320, 323, 255

S.W.3d 494, 497 (2007). Language is ambiguous if there is doubt or uncertainty as to its

meaning, and it is fairly susceptible to more than one equally reasonable interpretation. Id.

Ordinarily, the question of whether the language of an insurance policy is ambiguous is

one of law to be resolved by the court. Id. The construction and legal effect of written

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contracts are matters to be determined by the court, not by the jury, except when the

meaning of the language depends upon disputed extrinsic evidence. Id. Thus, where the

issue of ambiguity may be resolved by reviewing the language of the contract itself, it is

the circuit court’s duty to make such a determination as a matter of law. Id. Provisions of

an insurance policy are construed most strongly against the insurance company, which

prepared it. Id. If the language of the policy is susceptible to two interpretations-one

favorable to the insured and one favorable to the insurer, then the interpretation most

favorable to the insured must be adopted. Id.

                                   1. “Residential premises”

       Section II of the policy, which covers personal liability, defines “residential

premises” as: “Any premises shown on the Declaration page as an insured premises. This

includes vacant land, not to exceed five acres.”

        The policy describes Bishop’s personal liability coverage:

       [W]e will pay all sums . . . arising out of any loss which you become legally
       obligated to pay as damages because of . . . property damage covered by this policy.
       If a claim is made or suit is brought against you for damages because of . . . property
       damage covered by this policy, we will defend you at our expense, using lawyers of
       our choice.
The exclusions to Bishop’s personal liability coverage are also described in the policy:

       [C]ertain types of losses are not covered by your policy. Under Personal Liability
       Coverage, . . . we do not cover: . . . 3. . . . property damage arising out of your
       business pursuits. 4. . . . property damage arising out of any residence premises
       owned, rented or controlled by you which is not an insured residence premises
       specified on your policy Declaration.




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       Though the definition of “residence premises” specifies that five acres of vacant

land is to be included in the policy coverage, the policy does not direct how the five acres

is to be measured. Thus, there is an ambiguity inherent in the personal-liability coverage

provision concerning whether or not the fire started within five acres of the residence

premises covered in Bishop’s policy. We follow the general rule that because the policy

language is ambiguous, and thus susceptible to more than one reasonable interpretation,

we will construe the policy liberally in favor of the insured and strictly against the insurer.

See Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). No disputed

extrinsic evidence was offered in connection with the motion for summary judgment in

the present case. Applying the general rule, and construing the ambiguous term in

Bishop’s favor, we conclude that the circuit court erred in granting Farm Bureau’s motion

for summary judgment in their favor on this issue.

                                    2. “Business pursuits”

       Once it is determined that coverage exists, it then must be determined whether the

exclusionary language within the policy eliminates coverage. McGrew v. Farm Bureau Mut.

Ins. Co. of Ark., 371 Ark. 567, 570-71, 268 S.W.3d 890, 895 (2007). Bishop’s policy

provides that Farm Bureau will not pay for property damage that arises out of “business

pursuits.” Exclusionary endorsements such as this must adhere to the same general

requirements that the insurance terms must be expressed in clear and unambiguous

language. Id. If a provision is unambiguous, and only one reasonable interpretation is

possible, this court will give effect to the plain language of the policy without resorting to

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the rules of construction. Id. If, however, the policy language is ambiguous, and thus

susceptible to more than one reasonable interpretation, we will construe the policy

liberally in favor of the insured and strictly against the insurer. Id.

       Bishop’s policy provides that Farm Bureau will not pay for property damage that

arises out of “business pursuits.” The compound term “business pursuits” is not defined by

the policy. The policy defines “business” as “a trade or professor or occupation, including

farming whether full or part-time. It does not include part-time or seasonal activities that

are performed by minors.” Landlord-tenant agreements are not specifically identified

within this definition. Moreover, the term “pursuit” is not defined within the policy. For

the plain meaning of the word “pursuit”, we look to Webster’s Third International

Dictionary, at (2002), which defines it as “an activity that one engages in as a vocation,

profession, or avocation[.]”

       Thus, in order for Bishop’s activities to be excluded from coverage, her activities

must have constituted a business pursuit. It is undisputed that Wardlaw engaged in burning

vegetation on Bishop’s land. This court must consider whether these undisputed facts fall

within the exclusionary language; put more simply does Bishop’s landlord-tenant status

constitute a business pursuit within the policy language, and were Wardlaw’s actions of

burning vegetation on Bishop’s land pursuant to Bishop’s profession, trade or occupation?

We cannot discern from the definition presented in the policy whether property rental is

an activity to be included in the definition of business. Neither can we discern whether




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Wardlaw’s burning of vegetation was related to or undertaken in the pursuit of any

landlord-tenant relationship.

                                      III. Conclusion

       Because the definition of the terms “residential premises” and “business” are so

vague as to render the policy ambiguous, we reverse and remand for further consideration

in light of this opinion.

       Reversed and remanded.

       GLADWIN, C.J., ABRAMSON, HARRISON, KINARD, and WHITEAKER, JJ., agree.

       Barber Law Firm PLLC, by: Michael L. Alexander, for appellant.

       Turner Law Firm, P.A., by: Andy L. Turner and Ben C. Hall, for appellee.




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