MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                         FILED
this Memorandum Decision shall not be
                                                          May 17 2017, 6:06 am
regarded as precedent or cited before any
court except for the purpose of establishing                   CLERK
                                                           Indiana Supreme Court
the defense of res judicata, collateral                       Court of Appeals
                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                 ATTORNEYS FOR APPELLEE
Michael E. Simmons                                      John C. Trimble
Hume Smith Geddes Green &                               Lewis S. Wooton
Simmons, LLP                                            Michael R. Giordano
Indianapolis, Indiana                                   Lewis Wagner, LLP
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ladd Warner, A Minor, By His                            May 17, 2017
Next Friend and Natural Parent,                         Court of Appeals Case No.
Richard Warner, and Richard                             23A04-1607-CC-1495
Warner, Individually,                                   Appeal from the Fountain Circuit
Appellants-Defendants,                                  Court
                                                        The Honorable Susan Orr
and                                                     Henderson, Judge
                                                        Trial Court Cause No.
David Helms, Leah Helms,                                23C01-1110-CC-332
Hayden Helms, and Holden
Helms,
Defendants,

        v.




Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 1 of 12
      United Farm Family Mutual
      Insurance Company,
      Appellee-Plaintiff.




      Robb, Judge.



                                Case Summary and Issue
[1]   Ladd Warner sustained injuries while driving a Polaris Ranger ATV (“Ranger

      ATV”) owned by David Helms. Thereafter, Ladd, by his next friend and

      father, Richard Warner, and Richard Warner, individually (collectively, “the

      Warners”), filed a lawsuit against David Helms, Leah Helms, Hayden Helms,

      and Holden Helms (collectively, “the Helmses”), alleging the Helmses were

      liable for Ladd’s injuries. At the time of the accident, the Helmses held a

      homeowner’s insurance policy issued by United Farm Family Mutual

      Insurance Company (“United Farm”). United Farm filed a complaint seeking

      a declaratory judgment that it was not obligated to defend and indemnify the

      Helmses for Ladd’s injuries and sought summary judgment on that issue. The

      trial court granted United Farm’s motion for summary judgment and denied a

      counter-motion for summary judgment filed by the Warners, finding United

      Farm had no duty under the homeowner’s insurance policy to defend or

      indemnify the Helmses. The Warners now appeal, raising the sole issue of

      whether the trial court erred in granting summary judgment in favor of United

      Farm. Concluding the trial court did not err in its determination there is no

      Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 2 of 12
      insurance coverage available to the Helmses for claims of personal injury

      suffered by the Warners, we affirm.



                            Facts and Procedural History
[2]   David Helms purchased the Ranger ATV in December of 2010 and it was

      delivered to their home on December 22, 2010. That evening, the Helmses

      drove the Ranger ATV around their yard for about an hour and a half. The

      next morning, David gave his son, Hayden, permission to drive the Ranger

      ATV. Hayden drove through the fields and onto the roadways surrounding his

      house for a few hours. When he returned home, his brother, Holden, and their

      cousin Ladd, told Hayden that David wanted him to take Ladd back to his

      house. Hayden agreed, and Hayden, Holden, and Ladd got into the Ranger

      ATV to take Ladd home. After a few minutes of driving, Ladd asked Hayden if

      he could drive, and Hayden agreed. Ladd drove the Ranger ATV onto the

      roadway and across Highway 41. Shortly thereafter, Ladd tried to turn down a

      gravel road and hit a patch of ice, causing the Ranger ATV to tip over. Ladd

      sustained injuries from the accident.


[3]   On March 28, 2011, the Warners filed a lawsuit alleging the Helmses were

      responsible for Ladd’s injuries under theories of negligence, negligent

      entrustment, and negligent supervision. On the date of the accident, the

      Helmses held a homeowner’s insurance policy with United Farm. The policy

      states, in relevant part:



      Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 3 of 12
                                       DEFINITIONS

        ***

        3.      “Insured” means you and residents of your household
                who are:

                         a.      Your relatives . . . .

        ***

                     SECTION II – LIABILITY COVERAGES

        ***

        COVERAGE E – Personal Liability

        If a claim is made or a suit is brought against an “insured” for
        damages because of “bodily injury” or “property damage”
        caused by an “occurrence” to which this coverage applies, we
        will:

                1.       Pay up to our limit of liability for the damages for
                         which the “insured” is legally liable.

        ***

        COVERAGE F – Medical Payments to Others

        We will pay the necessary medical expenses that are incurred or
        medically ascertained within three years from the date of an
        accident causing “bodily injury.” . . . As to others, the coverage
        applies only:

                2.       To a person off the “insured location,” if the “bodily
                         injury” . . . is caused by the activities of an
                         “insured” . . . .




Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 4 of 12
Appellants’ Appendix, Volume II at 69, 83. The policy also contains exclusions

to the medical payments to others provision, as well as exceptions to those

exclusions.


                               SECTION II – EXCLUSIONS

        1. Coverage E – Personal Liability and Coverage F – Medical
        Payments to Others do not apply to “bodily injury” or “property
        damage”:

        ***
                f. Arising out of:

                         (1)     The ownership, maintenance, use, loading or
                                 unloading of motor vehicles or all other
                                 motorized land conveyances, including
                                 trailers, owned or operated by or rented or
                                 loaned to an “insured”;

                         (2)     The entrustment by an “insured” of a motor
                                 vehicle or any other motorized land
                                 conveyance to any person; or

                         (3)     Vicarious liability, whether or not statutorily
                                 imposed, for the actions of a child or minor
                                 using a conveyance in paragraph (1) or (2)
                                 above.

        This exclusion does not apply to:

        ***
                         (2)     A motorized land conveyance designed for
                                 recreational use off public roads, not subject
                                 to motor vehicle registration and:

                                 (a)     Not owned by an “insured”; or

                                 (b)     Owned by an “insured” and on an
                                         “insured location” . . . .


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              ***

                               (4)     A vehicle or conveyance not subject to motor
                                       vehicle registration which is:

                                       (a)     Used to service an “insured’s”
                                               residence . . . .


      Id. at 84 (hereinafter referred to as “Exception (2)(a),” “Exception (2)(b),” and

      “Exception (4)(a)”).


[4]   On October 24, 2011, United Farm filed a complaint for declaratory judgment

      alleging it is not obligated to defend or indemnify the Helmses of any liability

      for Ladd’s injuries. On March 8, 2016, United Farm filed a motion for

      summary judgment relying on Exclusion f of the insurance policy. On April 8,

      2016, the Warners, on behalf of themselves and the Helmses, filed a motion in

      opposition to United Farm’s motion and filed a counter-motion for summary

      judgment. The trial court issued its order on June 6, 2016, granting summary

      judgment in favor of United Farm and denying the Warners’ counter-motion

      for summary judgment. The Warners now appeal.



                                Discussion and Decision
[5]   Our standard of review on summary judgment is well established:

              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter shows that there
              is no genuine issue as to any material fact and that the moving

      Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 6 of 12
              party is entitled to judgment as a matter of law.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
              fact is ‘material’ if its resolution would affect the outcome of the
              case, and an issue is ‘genuine’ if a trier of fact is required to
              resolve the parties’ differing accounts of the truth, or if the
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[6]   Moreover, “[t]he construction of a contract is particularly well-suited for de

      novo appellate review, because it generally presents questions purely of law.”

      Holiday Hosp. Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind.

      2013). When reviewing an insurance policy, we use the same rules of

      interpretation that are applied to other contracts. Justice v. Am. Family Mut. Ins.

      Co., 4 N.E.3d 1171, 1175 (Ind. 2014). Prominent among these rules is that clear

      and unambiguous language is given its ordinary meaning. Holiday Hosp.

      Franchising, Inc., 983 N.E.2d at 577. An insurance policy is ambiguous where a

      provision is susceptible to more than one interpretation and reasonable persons

      would differ as to its meaning. Justice, 4 N.E.3d at 1176. The mere fact that

      parties favor different interpretations does not necessarily mean that the

      language in question is ambiguous. Id. “Additionally, the power to interpret

      contracts does not extend to changing their terms, and we will not give

      insurance policies an unreasonable construction to provide added coverage.”

      Liberty Mut. Ins. Co. v. Mich. Mut. Ins. Co., 891 N.E.2d 99, 101-02 (Ind. Ct. App.

      2008) (citation omitted).



      Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 7 of 12
[7]   According to the Helmses’ homeowner’s policy, United Farm will not make

      medical payments to others for bodily injury or property damage arising out of:


              (1)     The ownership, maintenance, use, loading or unloading of
                      motor vehicles or all other motorized land conveyances,
                      including trailers, owned or operated by or rented or
                      loaned to an “insured”;

              (2)     The entrustment by an “insured” of a motor vehicle or any
                      other motorized land conveyance to any person; or

              (3)     Vicarious liability, whether or not statutorily imposed, for
                      the actions of a child or minor using a conveyance in
                      paragraph (1) or (2) above.


      Appellants’ App., Vol. II at 84. However, these exclusions do not apply to:


              (2)     A motorized land conveyance designed for recreational
                      use off public roads, not subject to motor vehicle
                      registration and:

                      (a)      Not owned by an “insured” . . . .

                      (b)      Owned by an “insured” and on an “insured
                               location” . . . .

              ***

              (4)     A vehicle or conveyance not subject to motor vehicle
                      registration which is:

                      (a)      Used to service an “insured’s” residence . . . .


      Id. The Warners assert they have satisfied Exception (2)(a) and (4)(a);

      therefore, they argue the exclusion provision does not apply and United Farm is

      obligated to defend and indemnify the Helmses for the Warners’ personal

      injuries.
      Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 8 of 12
[8]   As to Exception (2)(a), the Warners argue because the undisputed evidence

      demonstrates the Ranger ATV was owned solely by David, and not Leah,

      Hayden, or Holden, the exception is satisfied because the Ranger ATV was not

      owned by “an insured.” See Appellants’ Brief at 14-15. The Warners state if

      United Farm wished for Exception 2(a) to apply if just one insured is the owner

      of the motorized land conveyance, “United Farm should have written the

      language to state that the ATV is excluded if it is ‘owned by any insured’ . . . .”

      Id. at 15 (emphasis added).


[9]   Notwithstanding the Warners’ argument of what United Farm should have

      written, we think “an insured” clearly and unambiguously refers to any and all

      insureds under the policy. Other jurisdictions interpreting “an insured” or

      similar language in similar policy exclusions have concluded the same. See

      Allstate Ins. Co. v. Smiley, 659 N.E.2d 1345, 1352 (Ill. App. Ct. 1995) (noting

      “use of the phrase ‘an insured’ in an exclusionary clause unambiguously means

      ‘any insured’”), appeal denied; Catholic Diocese of Dodge City v. Raymer, 825 P.2d

      1144, 1148 (Kan. Ct. App. 1992) (“an insured” exclusion is the equivalent of an

      “any insured” exclusion); Travelers Ins. Co. v. Blanchard, 431 So.2d 913, 914-15

      (La. Ct. App. 1983) (“an insured person” clearly and unambiguously refers to

      all policy insureds, not just particular insured sought to be held liable); Jaramillo

      v. Mercury Ins. Co., 494 N.W.2d 335, 341-42 (Neb. 1993) (“an insured”

      exclusion is the equivalent of an “any insured” exclusion), abrogated on other

      grounds by Powell v. Am. Charter Fed. Sav. and Loan Ass’n, 514 N.W.2d 326 (Neb.

      1994); Farmers Ins. Co. of Wash. v. Hembree, 773 P.2d 105, 108 (Wash. Ct. App.

      Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 9 of 12
       1989) (“an insured” includes anyone insured under the policy), review denied.

       Therefore, by the plain and ordinary meaning of the language, if any one of the

       insureds owns the Ranger ATV, Exception (2)(a) does not apply. Because

       David owned the Ranger ATV and was an insured under the homeowner’s

       policy, Exception (2)(a) does not apply.


[10]   The Warners also argue Exception (4)(a) is satisfied because David purchased

       the Ranger ATV with the intent to use it to “service . . . the residence.”

       Appellants’ Br. at 18. The word “service” is not defined by the policy;

       therefore, we must give the term its ordinary and generally accepted meaning.

       See Seeber v. Gen. Fire and Cas. Co., 19 N.E.3d 402, 411 (Ind. Ct. App. 2014),

       trans. denied. Black’s Law Dictionary defines “service” as “[l]abor performed in

       the interest or under the direction of others . . . [or] “the performance of some

       useful act or series of acts for the benefit of another . . . .” Service, Black’s Law

       Dictionary (10th ed. 2014). Thus, a reasonable interpretation of the

       homeowner’s policy requires labor or some useful act to be performed by or

       with the Ranger ATV for the benefit of the Helmses’ residence or premises.

       The designated evidence submitted by the parties does not demonstrate the

       Helmses, in the short period before the accident, ever used the Ranger ATV for

       anything other than recreational driving through fields and on country roads.

       We can reasonably imagine numerous activities that may have been performed

       by such a vehicle which could create a genuine issue of material fact for

       whether the Ranger ATV was used to service the residence; however, no such

       evidence is before us in the record.


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[11]   The Warners attempt to circumvent this flaw by alleging the Helmses intended

       to use to the Ranger ATV to service the residence, and point to David’s

       deposition in which he testified he purchased the Ranger ATV to help with

       chores and yard work. See Appellants’ App., Vol. II at 178-79.


[12]   In Am. Family Mut. Ins. Co. v. Ginther, 803 N.E.2d 224 (Ind. Ct. App. 2004),

       trans. denied, the parties disputed whether the Ginthers’ truck, which they had

       purchased on the day of the accident, was used in “any business or

       occupation.” Id. at 233. If the truck was not used for a business or occupation,

       it would have been covered under the policy; conversely, if it was used for a

       business or occupation, it was not covered. American Family asserted because

       the Ginthers indicated they purchased the truck with the intent of restoring it

       for use in their construction business, it was not covered under the policy. This

       court held the proper determination of whether the Ginthers used the truck in a

       business or occupation is “at the time of the accident.” Id. At the time of the

       accident, the Ginthers had only used the pickup truck for personal

       transportation and their construction business had not yet been formed. Id. at

       233-34. Consequently, this court held the Ginthers had not used the truck in a

       business or occupation and the truck was covered under the policy. Id. at 234.


[13]   Likewise, at the time of this accident, the Ranger ATV was off the insured

       premises and the Helmses had never used the Ranger ATV to service the

       property. The Ranger ATV was delivered to their home on December 22, 2010,

       and the accident occurred on December 23. In the short time in which they

       possessed the Ranger ATV, it was only used for recreational driving through

       Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017   Page 11 of 12
       fields and country roads. Therefore, we conclude no genuine issue of material

       fact exists regarding whether the Helmses used the Ranger ATV to service their

       residence. The trial court did not err in granting summary judgment in favor of

       United Farm.1



                                                   Conclusion
[14]   Based on the foregoing, we conclude the trial court did not err in granting

       summary judgment in favor of United Farm. The judgment of the trial court is

       affirmed.


[15]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       1
         In a brief paragraph, the Warnes also argue Exception (2)(b) is satisfied because the alleged negligent
       entrustment of the Ranger ATV occurred “on [the] insured location.” Appellants’ App., Vol. II at 84. It is
       clear from the insurance contract that liability coverage may only be invoked at the point of an accident
       causing bodily injury. Exception (2)(b) may only be invoked if two conditions are met: (1) the vehicle must
       be owned by an insured; and (2) the vehicle must be on an insured location. It cannot reasonably be disputed
       the vehicle must be owned by the insured at the time of the accident giving rise to the claim for Exception (2)(b)
       to apply. Likewise, it seems clear and unambiguous the vehicle must also be on an insured location at the
       time of the accident. Here, Ladd, Hayden, and Holden were clearly not on an insured location at the time of
       the accident.

       Court of Appeals of Indiana | Memorandum Decision 23A04-1607-CC-1495| May 17, 2017                  Page 12 of 12
