                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2933
                         ___________________________

                      Grinnell Mutual Reinsurance Company

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Annamarie Martinez Villanueva, as Trustee for the next of kin of Alyssa Marie Zamarron

                              lllllllllllllllllllll Defendant

                   Kelly Stuart Schmidt; Jerome Allan Schmidt

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                               Submitted: June 9, 2015
                               Filed: August 11, 2015
                                   ____________

Before LOKEN, BYE, and KELLY, Circuit Judges.
                           ____________

BYE, Circuit Judge.
      Grinnell Mutual Reinsurance Company (Grinnell) appeals the district court's1
grant of summary judgment in favor of Jerome and Kelly Schmidt in this insurance
coverage dispute. The district court determined a farm policy issued to the Schmidts
provided coverage for an accident involving an all-terrain vehicle (ATV) which
occurred on the Schmidts' farm. We affirm.

                                          I

       Jerome and Kelly Schmidt, father and son, operate a farm together in
Worthington, Minnesota. Kelly has a daughter named Madison. In May 2012,
Madison hosted a sleepover party at her father's and grandfather's farm to celebrate
her twelfth birthday. One of Madison's guests was her ten-year old friend, Alyssa
Zamarron. The day after the sleepover, Madison and Alyssa took turns driving the
Schmidts' ATV around the property. This occurred over several hours, during which
time both Kelly and Jerome were working outside. Kelly and Jerome saw both girls
operating the ATV and did not stop the girls from doing so. At one point, Jerome
told his granddaughter that both girls needed to slow down while driving the ATV.

       That evening, while Alyssa was driving the ATV with Madison as a passenger,
the ATV struck a tree. Alyssa died as a result of the accident. A trustee acting on
behalf of her next of kin filed a wrongful death action against the Schmidts alleging
the death was caused by the Schmidts' negligent supervision. The Schmidts tendered
defense of the action to Grinnell under their farm policy, which provided $300,000
in coverage. Although Grinnell initially informed the Schmidts the policy "appears
to provide [them] with coverage for this loss," Grinnell ultimately reserved its right
to dispute coverage, filed this declaratory judgment action, and contended the policy



      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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did not provide coverage for Alyssa's death. The wrongful death action ultimately
settled for $462,500.

       In this declaratory judgment action, the parties brought cross motions for
summary judgment. Both parties agree the coverage dispute turns on whether Jerome
or Kelly – the named insureds – gave Alyssa "express permission" to operate the
ATV within the meaning of an exclusion contained in the Select Recreational Vehicle
Limited Liability Coverage endorsement of the policy. In relevant part, the exclusion
states the policy does not cover "bodily injury" to any "insured." The exclusion goes
on to define an "insured" as "any person operating [an ATV] with 'your' express
permission."

       Because the policy did not define the term "express permission," the district
court gave the phrase its plain and ordinary meaning. In doing so, the district court
distinguished between situations where permission is expressly stated, and situations
where permission is implied by conduct or otherwise. The district court looked to
Minnesota cases applying the phrase "express or implied permission" in automobile
policies, which distinguish between the two types of permission "based on the
presence or absence of a verbal statement." Grinnell Mut. Reinsurance Co. v.
Villaneuva, 37 F. Supp. 3d 1043, 1050-51 (D. Minn. 2014) (citing Jones v.
Fleischhacker, 325 N.W.2d 633, 635 (Minn. 1982)). The district court ultimately
concluded the facts involved in this case "would certainly be more than enough to
demonstrate that Alyssa was operating the ATV with the tacit or implied permission
of the Schmidts [but] . . . insufficient to show that Alyssa was operating the ATV with
the Schmidts' express permission." Id. at 1052. The district court therefore
determined the policy provided coverage for the accident which resulted in Alyssa's
death and granted summary judgment in favor of the Schmidts.

      Grinnell filed a timely appeal.



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                                          II

      We review the district court's grant of summary judgment de novo. Occidental
Fire & Cas. Co. v. Soczynski, 765 F.3d 931, 935 (8th Cir. 2014).

      Grinnell contends the district court erred when it determined Alyssa did not
have express permission from either Jerome or Kelly to operate the ATV. We
disagree.

       Under Minnesota law, the initial burden of establishing coverage rests with the
insured. Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 636 (Minn.
2013). Grinnell does not dispute that the Schmidts met their burden of establishing
a prima facie case of coverage. Instead, the dispute in this case turns on the
applicability of an exclusion in the policy. When an insured establishes coverage, the
burden shifts to the insurer to prove the applicability of an exclusion. See id. In
addition, exclusions in an insurance policy are construed narrowly and strictly against
the insurer. Travelers Indem. Co. v. Bloomington Steel & Supply Co., 718 N.W.2d
888, 894 (Minn. 2006). Finally, "if undefined terms are reasonably susceptible to
more than one interpretation, the terms must be interpreted liberally in favor of
finding coverage." Gen. Ca. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572,
575 (Minn. 2009).

       In this case, the farm policy Grinnell issued to the Schmidts did not define the
phrase "express permission." When a term is undefined, it is given its plain and
ordinary meaning. Travelers, 718 N.W.2d at 894. It is generally well-accepted that
the plain and ordinary meaning of the term "express" means directly stated or written,
and is meant to distinguish situations where a message is implied or left to inference.
See, e.g., State Farm Fire & Cas. Co. v. Ricks, 902 S.W.2d 323, 324 (Mo. Ct. App.
1995) ("To be express, permission must be of an affirmative character, directly and
distinctly stated, clear and outspoken, and not merely implied or left to inference."

                                         -4-
(internal citations and quotations omitted)); Richard v. Brasseaux, 50 So. 3d 282, 286
(La. Ct. App. 2010) ("Implied permission arises when the named insured acquiesces
in or does not object to the use of the vehicle").

       The facts of this case present a classic example of the difference between
express and implied permission. Both Jerome and Kelly tacitly approved of or
acquiesced to Alyssa's use of the ATV, because both saw her using the ATV and
neither objected. But Alyssa never directly asked either Jerome or Kelly if she could
operate the ATV, and neither of the named insureds expressly told Alyssa she could
do so. Thus, Alyssa did not operate the ATV with the express permission of a named
insured, which is what the policy's exclusion required. As the district court aptly
noted:

      Grinnell drafted the policy language at issue here, and in so doing could
      have specified in the endorsement that "express or implied permission"
      would suffice. Grinnell also could have simply required that any kind
      of "permission," without qualification, have been given – as it did in
      [another provision of the policy].

      But Grinnell did not take either of those avenues. "Express" modifies
      "permission" in the endorsement, and it must therefore be given its plain
      and ordinary meaning.

Grinnell, 37 F. Supp. 3d at 1050.

      We agree. Grinnell's arguments suggesting the district court erred "are the
complaints of a poor draftsman, and we are as unsympathetic as we expect the
[Minnesota courts] would be." George K. Baum & Co. v. Twin City Fire Ins. Co.,
760 F.3d 795, 803 (8th Cir. 2014).

      [I]t is not our role to rescue an insurer from its own drafting decisions.
      While this rule produces harsh results in some cases, it also, by

                                         -5-
      encouraging insurers to eliminate ambiguities, leads to clear and
      comprehensible insurance contracts. Only the insurer, after all, has the
      power to alter the language in the insurance contracts it sells.

Id. (internal citation and quotation marks omitted).

                                         III

      We affirm the judgment of the district court.
                      ______________________________




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