NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
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                                          2017 VT 23

                                          No. 2016-269

Wilbur L. Shriner                                              Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Chittenden Unit,
                                                               Civil Division

Amica Mutual Insurance Company                                 January Term, 2017


Helen M. Toor, J.

Kevin E. Brown of Langrock Sperry & Wool, LLP, Middlebury, for Plaintiff-Appellant.

Gary R. Kupferer of Webber, Chapman & Kupferer, Ltd., Rutland, for Defendant-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   EATON, J. Wilbur Shriner, the holder of a homeowner’s insurance policy from

Amica Mutual Insurance Company (Amica), appeals the trial court’s grant of summary judgment

to Amica and denial of his cross-motion for summary judgment. We affirm.

        ¶ 2.   This Court reviews a grant of summary judgment de novo and under the same

standard as that applied by the trial court. Co-op. Ins. Cos. v. Woodward, 2012 VT 22, ¶ 8, 191

Vt. 348, 45 A.3d 89. We will uphold the decision of the trial court if there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter of law. Id.; see also

V.R.C.P. 56(a).

        ¶ 3.   The material facts in this case are undisputed. Shriner, a retired physician, owned

a glassblowing studio on Church Street in Burlington until he sold the property in December 2007

and moved the glassblowing equipment to his home in Charlotte. He and his friend, also a
glassblower, eventually set up the equipment in the garage at Shriner’s property and began making

glass in late 2008 or early 2009. From 2009 to 2012, Shriner and his friend “sometimes made

glass for a week or two, and then would shut down for weeks due to lack of money.” During that

three-year period, they made glassware approximately one time per week on average, and

glassmaking was never more than an occasional or part-time activity for him. Throughout those

three years, Shriner earned income from glassblowing, as well as from the redevelopment and

rental of investment properties and from an organic honey and vegetable operation.

       ¶ 4.    Shriner and his friend called their enterprise Church and Maple Glass Studio and

maintained a website from which customers could purchase their glassware. Shriner identified

himself as an “artisan” on his tax forms, and in all years relevant to this case, he filed a Schedule

C form for business profits or losses with the Internal Revenue Services (IRS). He described his

business type as “blown glass manufacturing” on the IRS forms and reported sales ranging from

$4036 in 2013 to $30,350 in 2010. He also reported business expenses for items including

advertising, contract labor, legal and professional services, office space, meals, and entertainment.

       ¶ 5.    On January 12, 2012, the furnace exhaust system in a piece of glassmaking

equipment malfunctioned and caused a fire that destroyed the garage and all of the property and

equipment inside it. At the time, Shriner’s home was covered by his homeowner’s policy with

Amica, which covered losses from fire and provided replacement coverage for buildings and

personal property. The policy carried a $25,000 deductible and contained an exclusion from

coverage for structures from which a business was conducted. Shriner submitted a personal

property inventory for the property destroyed in the fire, with a replacement cost totaling

$88,354.91. Amica accepted Shriner’s fire-loss claim and determined the replacement cost of the

garage to be $42,422.97. Amica applied the policy’s $25,000 deductible and made an actual cash-

value payment of $1460.53 as an advance partial payment to Shriner for the garage. Amica then

changed positions and, asserting that Shriner’s glassblowing activities constituted a “business” for

the purposes of the policy’s exclusion, refused to make any further payments to replace the garage.
                                                  2
Amica paid Shriner $11,613 for nonbusiness property that was destroyed in the garage but capped

its payment for other property in the inventory at $2500, which was the maximum reimbursement

permitted under the policy for “business” personal property. Shriner brought suit to recover the

full amount of his claim, and the court granted summary judgment to Amica. This appeal followed.

       ¶ 6.     An insurance policy is a contract and its interpretation is therefore a question of law

for which this Court’s review is nondeferential and plenary. Fireman’s Fund Ins. Co. v. CNA Ins.

Co., 2004 VT 93, ¶ 8, 177 Vt. 215, 862 A.2d 251. We give effect to the terms in an insurance

policy according to their “plain, ordinary and popular meaning,” and our interpretation of an

insurance policy is guided by a “review [of] the language . . . from the perspective of what a

reasonably prudent person applying for insurance would have understood it to mean.” Woodward,

2012 VT 22, ¶ 9 (quotations omitted). Where policy language is ambiguous we resolve ambiguity

in favor of the insured, “but we will not deprive the insurer of unambiguous terms place in the

contract for its benefit.” Fireman’s Fund, 2004 VT 93, ¶ 9. Additionally, “[i]nsurance policies

and their endorsements must be read together as one document and the words of the policy remain

in full force and effect except as altered by the words of the endorsement.” Id. ¶ 20 (quotation

omitted). The insurer bears the burden of showing that an insured’s claim is excluded by the

policy. N. Sec. Ins. Co. v. Perron, 172 Vt. 204, 209, 777 A.2d 151, 154 (2001).

       ¶ 7.     With those principles in mind, we look to the language of the policy at issue here.

The policy capped recovery for “property, on the residence premises, used primarily for business

purposes” at $2500 and excluded entirely from coverage “structures from which business is

conducted” and “structures used to store business property.” A Vermont-specific amendatory

endorsement attached to the policy deleted the standard-form homeowner’s policy definition of

“business” and replaced it with the following language: “Business includes trade, profession or

occupation.”1


       1
           The standard-form, deleted definition of “business” provided:

                                                  3
       ¶ 8.    Shriner argues that “the Court must read the policy and the amendatory

endorsement together” and that reading the deleted language from the standard insurance provision

and the amended language from the endorsement together creates ambiguity. We cannot accept

this attempted construction of the policy. It is a basic rule of insurance policy construction that if

an endorsement creates or expands an exclusion and the endorsement language is unambiguous,

the insurer has carried its burden and the exclusion applies. See, e.g., Clarendon Am. Ins. Co. v.

Miami River Club, Inc., 417 F. Supp. 2d 1309, 1317-18 (S.D. Fla. 2006) (applying Illinois law);

Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 967 A.2d 1, 28 (Conn. 2009). Language deleted

from a policy by an amendatory endorsement therefore cannot be considered for purposes of

creating an ambiguity within the policy. See Caudill Seed & Warehouse Co., Inc. v. Houston Cas.

Co., 835 F. Supp. 2d 329, 337-38 (W.D. Ky. 2011) (applying Kentucky law); Ryan v. Mountain

States Helicopter, 686 P.2d 95, 98-99 (Idaho 1984). This position is consistent with the general

rule of construction concerning endorsements to insurance policies that “ ‘if an endorsement

extinguishes a policy provision or declares it void and of no effect, such provision cannot be

considered in construing the policy.’ ” Mountain States, 686 P.2d at 99 (quoting 2 R. Long, The

Law of Liability Insurance, § 16.09 (rev. ed. 1983)); see also 4 E. Holmes, Holmes’ Appleman on

Insurance § 20.1, at 155 (2d ed. 2008) (“Such rules are consistent with the precept that provisions

should not be read in isolation but must be considered as a whole with any conflicts being first



                “Business” means: a. A trade, profession or occupation engaged in
               on a full-time, part-time or occasional basis; or b. Any other activity
               engaged in for money or other compensation, except the following:
               (1) One or more activities, not described in (2) through (4) below,
               for which no insured receives more than $2,000 in total
               compensation for the 12 months before the inception date of the
               policy period; (2) Volunteer activities for which no money is
               received other than payment for expenses incurred to perform the
               activity; (3) Providing home day care services for which no
               compensation is received, other than the mutual exchange of such
               services; or (4) The rendering of home day care services to a relative
               of an insured.

                                                  4
resolved by applying the terms of the endorsement. Then if the ambiguity persists, the ambiguity

will be construed against the insurer.” (emphasis added)).

       ¶ 9.    Shriner argues that although his glassblowing was a part-time trade, profession or

occupation, it nevertheless falls outside the policy because the Vermont endorsement “narrowed

the definition of ‘business’ ” by removing “part-time or occasional trade, profession, or occupation

from the definition.” However, the limitation Shriner seeks to apply was never in his insurance

policy; the policy that Shriner purchased always deleted the standard-form definition of “business”

and the “original” definition from the standard-form policy was never operative. The only

definition of “business” that applied to Shriner was that in the Vermont endorsement, and our

analysis therefore requires us to consider only the language of that endorsement. Thus, in

interpreting the insurance policy at issue here, we cannot, as Shriner urges us to do, compare the

language of the endorsement to the language of the standard-form provision unless we conclude

that the endorsement language is facially ambiguous. Rather, our interpretation of the insurance

policy begins with the policy language that is applicable to Shriner—namely, the Vermont-specific

endorsement.

       ¶ 10.   The endorsement provides: “Business includes trade, profession or occupation,”

and Shriner concedes that his glassblowing was at least a part-time trade, profession, or occupation.

In effect, Shriner has conceded that his glassblowing is, at a minimum, a “business” under the

policy definition that applied to him.2 The only question we must answer, then, is whether the

word “business” encompasses only full-time business or if it also includes part-time business.


       2
          We have never specifically interpreted the word “business” in an insurance policy, and
because Shriner concedes that his glassblowing was at least a part-time business, we need not
decide whether the word “business” itself is ambiguous. The issue raised here is not whether
Shriner’s activities were a business, because he concedes that they were at least a part-time
business. However, we note that we have repeatedly drawn the line between what constitutes a
“business pursuit” and a “nonbusiness pursuit” in the context of homeowners’ policies. See, e.g.,
Towns v. N. Sec. Ins. Co., 2008 VT 98, ¶ 10, 184 Vt. 322, 964 A.2d 1150; Lundeau v. Peerless
Ins. Co., 170 Vt. 442, 446-47, 750 A.2d 1031, 1034 (2000). In drawing that distinction, we have
adopted a context-specific inquiry that considers several factors, including whether the activity in
question serves a “business purpose,” whether it contributes to financial advantage by the insured,
                                                 5
        ¶ 11.   Bearing in mind that the policy at issue here was a homeowners’ policy, we cannot

conclude that the language of the endorsement was ambiguous as to the scope of the word

“business”: Shriner’s policy unambiguously excluded from coverage property connected to full-

and part-time business. See Lundeau, 170 Vt. at 448, 750 A.2d at 1035 (explaining that court must

consider nature of homeowners’ policy and nature of risk involved in activity giving rise to

insurance claim because “homeowner’s policy [is] designed to insure primarily within the personal

sphere of the policyholder’s life and to exclude coverage for hazards associated with regular

income-producing activities which involve different legal duties and a greater risk of injury or

property damage” (quotation and alteration omitted)). Shriner and Amica agree that glassblowing

was at least an occasional or part-time trade, profession, or occupation for Shriner. In practice,

that meant that Shriner made glassware approximately once per week on average from 2009 to

2012.   Under Shriner’s interpretation of his policy, any aggregation of income-generating

enterprises, each done less than full-time, would not constitute a “business” and would therefore

be immune from the exclusion. This is not a reasonable interpretation and could not have been

what the parties intended when Shriner purchased a homeowner’s policy from Amica. Although

Shriner identified himself as an artisan on tax forms, he also filed a Schedule C form for business

profits or losses with the IRS for every taxable year since 2003. His tax documents reflect annual

sales from glassmaking ranging from $4036 to $30,350, and he reported various business

expenses. His primary source of income throughout the relevant period was from a combination

of selling glassware, redeveloping and renting investment properties, and selling products from an

organic honey and vegetable operation. Shriner acknowledges that he made glass in his garage,

that he stored his glassmaking equipment in the garage, and that he used his glassmaking

equipment to generate profit.




whether it generates profit for the insured, and the nature of the risk and coverage involved. See
Towns, 2008 VT 98, ¶¶ 10, 12.
                                                  6
       ¶ 12.   Amica argues that these things unambiguously constitute a “business” under the

terms of the policy. According to Shriner, on the other hand, “[m]aking glass is [his] art” and

because it is an expensive hobby or trade, he “need[ed] to create some saleable product . . . to

offset some of the cost of practicing the art form that [he] love[s].” While Shriner may be correct

that glassblowing is an expensive art, his interpretation of the insurance policy is foreclosed by our

precedent: he conceded that he engaged in glassblowing as a trade, profession or occupation, and

glassblowing generated profits for him. See Towns, 2008 VT 98, ¶ 10. His enterprise need not be

exclusive or quotidian to constitute a business. Because the policy unambiguously excluded from

coverage any property connected to a trade, profession, or occupation, Shriner’s garage and

glassblowing equipment were excluded. Thus, we conclude, based on the record of undisputed

material facts before us, that Shriner’s glassblowing was a full- or part-time business and that

coverage for the garage and business property was precluded under the business exclusion. Amica

met its burden and the court below properly granted summary judgment in its favor.

       Affirmed.

                                                FOR THE COURT:



                                                Associate Justice




                                                  7
