Haag v. Castro

RILEY, Judge,

dissenting with separate opinion.

I respectfully dissent from the majority's decision affirming the trial court's grant of summary judgment in favor of Virginia Surety. Based on the designated evidence before me, I would reverse the trial court because coach Castro was clearly acting in the business of the IYSA to promote soccer for Indiana soccer teams when he drove the Carmel Commotion to the white water rafting activity and this team building activity does not fall within the confines of the exclusionary clause of Virginia Surety's policy.

In its decision, the majority concludes that Castro's use of the van to go white water rafting was not a use "in the business of the Named Insured" because the TYSA did not have the right to control the team building activity, as interpreted within the confines of the Liberty Mutual decision. I disagree.

I agree that a review of the TYSA's Articles of Incorporation together with its Playing Rules clarifies that the IYSA not only promotes soccer for youth residing in Indiana but also encourages participation in out-of-state tournaments. Although the majority in its determination of the business of the IYSA relies on TYSA's Playing Rule 3.6(C), it fails to give any credence to the Rule's very specific statement that:

Permission to travel-Traveling with this permit guarantees the host state that the players are properly registered, are the appropriate age group, are covered by insurance, and that the team or its players are not under any disciplinary sanctions.

{Appellants' App. p. 835) (emphasis added). In other words, the issuance of a permission to travel by the IYSA also serves as a strong indicator that the Team Members are covered by insurance for the out-of-state tournament. Nothing in the designated evidence curtails this broad statement of IYSA's potential coverage, nor is this statement in the Rules limited by the language of Virginia Surety's insurance. The majority appears to implicitly acknowledge this by its statement that "[t]he organizational documents establish specific rules that member participants must follow prior to being allowed to travel out-of-state and being covered by insurance." Op. p. 195. Carmel Commotion followed all these rules, and therefore, without any other limitations placed on insurance coverage, should have been entitled to assume that they were covered for the duration of the trip, regardless of the activities scheduled.

Furthermore, the TYSA clearly had the right to control Carmel Commotion's out-of-state participation and the time spent while partaking in the tournament. Not only was Carmel Commotion required to receive IYSA's permission prior to attending, but it also had to pay fees and the Team Members were required to carry certain documents with them. Regardless of its awareness of Carmel Commotion's team building activity on June 12, 2004, the IYSA was in control of the trip because the IYSA could have withheld the permit to travel, as was its right; however, by issuing the permit they implicitly and without any limitations assured that the Team Members were insured during the duration of the trip. Moreover, partic*197ipation in the Colorado soccer tournament benefitted the IYSA as it reflected positively upon Indiana's soccer playing youth and the white water rafting activity equally advanced the TYSA's purpose as it built the players' team-playing skills, and as such, white water rafting is undisputedly related to soccer and the tournament.

Although I conclude that coach Castro was an insured and used the rental car in the business of the IYSA when transporting the team to the white water rafting activity, I also need to analyze if the policy's exclusion language applies to the facts before us; specifically, whether the white water rafting activity can be characterized as an "athletic game or athletic event, including but not limited to practices, exhibitions, post season and scheduled events," for which coverage is excluded under Virginia Surety's policy. (Appellants' App. p. 101).

Exclusion clauses do not grant or enlarge coverage; rather, they are limitations or restrictions on the insuring clause. Indiana Ins. Co. v. DeZutti, 408 N.E.2d 1275, 1278 (Ind.1980). Thus, when interpreting an exclusionary clause of an insurance policy, the clause must clearly and unmistakably include within its scope the particular act or omission that will bring the exclusion into play in order to exclude coverage. Great Lakes Chemical Corp. v. Int'l Surplus Lines Ins. Co., 638 N.E.2d 847, 850 (Ind.App.1994). Just as an ambiguous insurance policy is not to be construed to remove from coverage a risk against which an insured intended to protect himself, so too, an exclusionary clause is not to be read so loosely that it would effectively exclude coverage of all operations. Id.

Here, the policy's exclusion is clearly limited to "athletie games" or "athletic events." Although the policy attempts to clarify these two terms with referencing examples such as "practices, exhibitions, post season and scheduled events," by inserting the phrase "including but not limited to," these identified examples reflect what all can be considered an "athletic game" or "athletic event" but do not expand the original exclusionary language. Therefore, in order to be excluded from coverage, the disputed activity must first fall within the confines of an "athletic game" or "athletic event."

As with the coverage issue, the definition section of the Business Auto Coverage does not define the terms "athletic game" or "athletic event." Therefore, the words must be given their plain or ordinary meaning. Briles, 858 N.E.2d at 213. When determining the plain and ordinary meaning of a term, we may use language dictionaries, as well as consider the relationship with other words and phrases. State v. D.M.Z., 674 N.E.2d 585, 588 (Ind.Ct.App.1996), trans. denied.

According to Websters Third New International Dictionary (1993), "athletic" is defined as "having the characteristics of or befitting an athlete: strong, muscular, robust, vigorous, agile, active." "Game" is explained by the same dictionary as "a physical or mental competition conducted according to rules in which the participants play in direct opposition to each other, each side striving to win and to keep the other side from doing so" and "event" is an "occurrence" or "any one of the contests in a program of sports."

At noon on the day of the accident, Carmel Commotion had completed all its soccer games and other related events for the day. The team had returned to the hotel and all the players had showered and changed. The itinerary included a preplanned time for an unspecified "[tleam activity" on the afternoon of Saturday, June 12, 2004. (Appellants' App. p. 644). Accordingly, after lunch, the decision was *198made to go on a white water rafting trip as a team building activity. I find that this activity was neither an "athletic game" nor an "athletic event."

Although white water rafting could be characterized as athletic, it falls outside the definitions of game or event. The decision to go white water rafting was a spur-of-the-moment choice and served as an activity to bring the team together. It did not include soccer or any other contest that required an incentive to win. Even if the controlling requirement of "athletic game" or "athletic event" could be ignored and I apply the examples given in the policy independently as Virginia Surety urges us to do, I still reach the same conclusion. The white water rafting trip was not a "practice, exhibition, post season [or] scheduled event." Carmel Commotion was not travelling to a soccer practice or exhibition, and its soccer season was still ongoing. Furthermore, the rafting trip was not scheduled as the itinerary simply stated "Afternoon-Team Activity." (Appellants' App. p. 644).

In sum, I conclude that coach Castro was acting in the business of the IYSA to promote soccer for Indiana soccer teams when he drove the Carmel Commotion to the white water rafting activity and this team building activity does not fall within the confines of the exclusionary clause of Virginia Surety's policy.