Progressive Casualty Insurance Co. v. Skin

WINFREE, Justice,

with whom MATTHEWS, Justice, joins, dissenting in part. ' '

I respectfully disagree with the court's conclusion that Joseph Skin is entitled to medical-payments -(med-pay) coverage under his mother's policy. In my view this conclusion is inconsistent and incompatible with our *1104decision that Joseph Skin is not entitled to liability coverage under the policy.

Fundamental to our decision that Joseph Skin had no liability coverage while operating the Nageaks' ATV is the special definition of "vehicle" in the policy's "General Definitions" section:

"Vehicle" means a land motor vehicle:
a. of the private passenger, pickup body, or sedan delivery type;
b. designed for operation principally upon public roads;
c. with at least four (4) wheels; and
with a gross vehicle weight of 10,000 pounds or less;
which is not a rental vehicle.[1] .

Its very obviousness makes it easy to overlook, but to understand the specially defined term "vehicle"-in boldface-one must understand the undefined but easily understood general terms "vehicle" and "motor vehicle." Otherwise it would be impossible to appreciate the difference between a "vehicle" and just another "motor vehicle" or, for specific example, to appreciate that "gross vehicle weight" can be the distinguishing factor between a "vehicle" and just another "motor vehicle."

To determine whether a vehicle is a "vehicle" under the policy, one must start with the larger set of vehicles called "land motor vehicle[s]" and then use the four limiting provisions of (a)-(d) to arrive at the specific subset of vehicles contemplated by the policy. The term "land motor vehicle" is not defined in the policy and therefore must be "construed in accordance with ordinary and customary usage."2 The "land" portion of the term is self-evident. The common definition of "motor vehicle" is broad enough to cover any "automotive vehicle not operated on rails."3 This is consistent with relevant statutory definitions in Title 28 of the Alaska Statutes ("Motor Vehicles") AS 28.90.990(a)(29) defines "vehicle" as a "device" for transporting people or property, and AS 28.90.990(a)(16) defines "motor vehicle" as "a vehicle which is self-propelled."

We had no difficulty understanding the policy definition of "vehicle" or differentiating between a "vehicle" and other examples of "motor vehicle" when concluding that Joseph Skin had no liability coverage while operating the Nageaks' ATV. We stated that: (1) the "boldfaced 'vehicle' definition [in the General Definitions section] unambiguously excludes ATVs"; (2) the policy "definition of 'vehicle' meets the objectively reasonable expectations of consumers"; (8) to conclude otherwise would create "coverage for liability incurred while driving non-owned scooters, golf carts, fork-lifts, tugs, and any other [motor vehicle]"; and (4) an insured may "fairly apply" the policy definition of "vehicle" throughout the policy. In short, we concluded that the Nageaks' ATV is a (land) "motor vehicle" but not a "vehicle" or, more specifically, not a "non-owned vehicle" as defined by the policy, and that this conclusion is within a consumer's reasonable expectations.4

But when the court considers med-pay coverage under the policy, it makes an about-face and concludes that "the term 'vehicle' [is used] in an ambiguous manner" in the med-pay coverage section and "the distinction between the terms 'motor vehicle' and 'vehicle' would be difficult for a policyholder to understand." The court describes as "tortured" Progressive's argument that a reasonable layperson should understand that an ATV *1105qualifies as a "motor vehicle" but not as a "vehicle," although we concluded that very thing with respect to liability coverage.

Relevant policy provisions from Mrs. Skin's med-pay coverage are as follows:

PART II-MEDICAL PAYMENTS COVERAGE
INSURING AGREEMENT
[We will pay medical expenses for injuries]:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance or use of a motor vehicle.
[[Image here]]
ADDITIONAL DEFINITIONS
When used in this Part II:
1. "Insured person" and "insured persons" mean:
a. you while occupying any vehicle or rental vehicle, other than a vehicle owned by you which is not a covered vehicle;
b. a relative while occupying a covered vehicle or non-owned vehicle;
c. you or any relative when struck by a motor vehicle or trailer while not occupying a motor vehicle; and
d. any other person while occupying a covered vehicle.

The court ignores the general grant of coverage for medical expenses "arising out of the . use of a motor vehicle" and focuses only on whether Joseph Skin is an "insured person" for the coverage.

Provision (c) of the "insured person" definition is at issue here, but it is important to consider all of the provisions as a whole and place provision (c) in proper context. First and foremost, provisions (a), (b), and (d) combine to provide med-pay coverage to anyone who occupies Mrs. Skin's car, i.e., the "covered vehicle." Provision (b) also extends med-pay coverage to Mrs. Skin and her family members while they occupy any "non-owned vehicle." -It is thus clear that Joseph was an insured for med-pay coverage under Mrs. Skin's policy anytime he was occupying any "vehicle"-there is no "vehicle" for which Joseph would not be a med-pay insured.5

This leads to provision (c), which adds a very different dimension of med-pay coverage to Mrs. Skin's family members. Provision (c) extends med-pay coverage to Mrs. Skin's family members only when they (1) are struck by any kind of motor vehicle and (2) are not occupying any kind of motor vehicle. This is pedestrian coverage, and although the common situation invoking this coverage would be a pedestrian struck by a car, under the policy it also would apply for pedestrians struck, for example, by ATVs and "seooters, golf carts, fork-lifts, tugs, and any other [motor vehicle]." But it would not apply for persons injured while occupying ATVs or "seooters, golf carts, fork-lifts, tugs, and any other [motor vehicle}," i.e., for non-pedestrians.6

Other courts have applied similar pedestrian coverage provisions. In State Farm Mutual Automobile Insurance Co. v. Green,7 for example, Green was injured in a collision between his motorcycle and another vehicle and sought med-pay coverage under policies insuring his truck and automobile.8 The policies provided med-pay coverage to Green if he were "struck by a highway vehicle while not occupying a land motor vehicle." 9 Green argued that although he was occupying his motorcycle at the time of the accident, "his motorcycle was not a 'land motor vehicle *1106within the meaning of the policy language.10 The Indiana Court of Appeals made short work of this argument: "[Wle do not believe any reasonable person could honestly conclude that a motorcycle is not a 'land motor vehicle' within the plain, ordinary meaning of that term.... [The] phrase is not a term of art; nor is it automatically ambiguous simply because it is not defined within the policy." 11

In Colwell v. State Farm Mutual Automobile Insurance Co.,12 Colwell was driving a minibike when he collided with an automobile and sought med-pay coverage under his father's family automobile policy.13 The policy provided med-pay coverage for Colwell if he were "struck by a Highway vehicle while not Occupying a land motor vehicle." 14 The Arizona Court of Appeals noted that although the term "land motor vehicle" was not defined in the policy, it was not vague or ambiguous (although it "could be more artfully drawn"),15 and concluded that it had "little difficulty in holding that the common sense definition of the term 'land motor vehicle would include such a gasoline-powered motorized two-wheeled vehicle." 16

Jirousek v. Prudential Insurance Co. of America17 yielded a similar result in a different insurance scenario. There, a beneficiary under a life insurance policy sought payment of supplemental benefits after her son died in a motorcycle accident.18 Supplemental benefits were payable if the decedent had been "struck by a motor vehicle while not himself or herself driving or riding in a motor vehi- ... cle." 19 The beneficiary claimed ambiguity in the wording, arguing that a motorcycle was not a motor vehicle under this provision, but the Ohio Supreme Court found no ambiguity: "Each word has its own meaning in every day usage, and the purchaser of insurance . would understand the limited aspects of 'motorcycle,' and the broader meaning of 'motor vehicle'" 20 It went on to conclude that "the term (motor vehicle' has a normal meaning in common usage which includes motorcycle." 21

Following this line of cases and using the ordinary and customary meaning of "motor vehicle," the only reasonable conclusion here is that Joseph Skin was not an "insured person" for med-pay coverage under Mrs. Skin's policy because he was occupying a motor vehicle-the Nageaks' ATV-at the time of his accident. The court avoids this logical interpretation and implementation of the pedestrian coverage under provision (c) by examining that provision without considering: (1) the context of the original definition of "vehicle"; (2) the opening grant of med-pay coverage for an insured in an accident arising from the use of a "motor vehicle"; or (8) the other three provisions defining an insured for med-pay coverage.22 The court then finds ambiguity because the term "motor vehicle" contains the word "vehicle" in plain rather than bold typeface, concluding that "the distinction between the terms 'motor vehicle' and 'vehicle' would be difficult for a policyholder to understand." 23

*1107The court notes but does not distinguish Progressive Express Inswrance Co. v. Boyce,24 a case involving a Progressive policy and refuting the court's analysis. Like Mrs. Skin's policy, the Boyees' automobile policy contained a general definitions section using boldface type for specially defined words, including "vehicle."25 The Boyees sought uninsured motorist coverage benefits under their policy after they collided with an uninsured vehicle while riding their motorcycle.26 The Boyces' uninsured motorist coverage contained an exclusion for injuries incurred while using an owned "motor vehicle" other than a "covered vehicle," and there was no dispute that the motoreycle was not a "covered vehicle" under the policy.27 Just as the court does with respect to Mrs. Skin's policy, the Boyce trial court found that "vehicle" as used in the policy was ambiguous because it was used in boldface form in some places and in non-boldface form in the term "motor vehicle." Construing the policy in favor of the Boyces, the trial court found that a motorcycle was not a "motor vehicle" for purposes of the exclusion for uninsured motorist coverage.28 But the appellate court reversed, finding no ambiguity in the policy's use of the specially defined term "vehicle" and holding that, because "motor vehicle" was not defined in the policy and the statutory definition therefore applied, a motoreyele was a "motor vehicle" for purposes of the coverage exclusion.29 The appellate court in Boyce had the correct analysis and directly contradicts the court's decision in this case.

Towne v. Progressive Insurance Co., an unpublished Ohio appellate decision concerning another Progressive policy, is equally instructive.30 There, holders of an automobile policy sought underinsured motorist coverage under their policy after being involved in an accident while on a motorcycle.31 The policy contained the same boldface definition of "vehicle" as Mrs. Skin's policy,32 and no one disputed that the motorcycle was not a "vehicle" under the policy.33 The policy contained an exclusion in the underinsured motorist coverage for damages incurred "while operating or occupying a motor vehicle" other than an expressly covered vehicle.34 Just as the court does with respect to Mrs. Skin's policy and as the Boyce trial court did with the Boyees' policy, the Towne trial court agreed with the insureds' arguments that (1) because "vehicle" in its non-boldface form was not defined in the policy, the term ,"motor vehicle" was ambiguous, and (2) the exclusion for uninsured motorist coverage therefore must be construed to mean "vehicle" and did not encompass operating or occupying the motoreycle.35 The Ohio Court of Appeals reversed, stating:

The 'General Definitions' section of the policy unambiguously states that terms 'appearing in boldface' type will have the supplied meanings. Because the term 'vehicle' does not appear in boldface type in the exclusion, the policy's definition does not apply. Instead, the ordinary meaning of the word applies.[36]

Like the Boyce appellate court, the Towne appellate court correctly analyzed the policy. *1108That analysis precludes med-pay coverage for Joseph Skin under his mother's policy because he was operating a "motor vehicle" at the time of the accident.

The court instead relies on the Washington appellate court decision Getz v. Progressive Specialty Insurance Co.,37 but the court misreads that decision. Getz raised the very same question as the Towne case, but came to a different result because of differences in the language of the two Progressive policies.

In Getz a longshoreman was operating a tractor-like piece of dock equipment known as a "hustler" when he was struck by another vehicle.38 Getz sought underinsured motorist coverage under his own automobile insurance policy, but his policy had the same exclusion from coverage as in the Towne case: coverage was excluded for damages incurred while operating a "motor vehicle" not expressly covered by the policy.39 But unlike the policy in Towne, Getz's policy had a special definition of "motor vehicle" in its underin-sured motorist coverage section, a definition that specifically excluded equipment designed or modified for use, and actually used, off-road.40 It was undisputed that the "hustler" was not a "motor vehicle" under this definition and that the coverage exclusion was facially inapplicable.41 Progressive nonetheless sought to avoid that result:

Progressive's sole argument rests on its claim that [throughout the policy, capital letters are used to denote defined terms. The term 'motor vehicle' appears in the regular use exception in lower case letters. Progressive therefore argues that 'the ordinary definition of the term, rather than the policy definition, applies." Progressive provides no authority for this premise. Instead, Progressive simply asserts: "This [practice] makes abundant good sense.' [42]

The Washington court correctly rejected Progressive's arguments because, unlike the policy in Towns, Getz's policy contained no notice that emphasized terms had special meaning:

[Progressive's argument] might be [correct] if the policyholder only knew about it. But nothing in the policy signals that the presence or absence of capital letters has any significance at all.
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So, the question in this case is easily answered as a matter of law. An average person purchasing insurance would reasonably have believed the exclusion inapplicable. Therefore, the exclusion does not apply. [43]

Getz does not support the court's decision here.' Mrs. Skin's policy plainly states that boldface terms have specifically defined meanings. The term "motor vehicle" is not defined in the policy and therefore does not have a specially defined meaning,. Progressive is not seeking to avoid a specifically defined term in its policy and replace it with common meaning and usage. Nor is Progressive seeking to avoid the common meaning and usage of the term "motor vehicle" by pointing to a boldface term in some other portion of the policy. Progressive seeks to apply the common meaning and usage of the undefined term "motor vehicle" consistently throughout its policy.

The court's reliance on the New York appellate decision In rg Progressive Insurance Cos. (Nemitz)44 is equally unpersuasive. There, a passenger on an uninsured ATV fell and was injured; she sought uninsured motorist coverage under her own automobile policy.45 The brief two-page decision in*1109cludes a quotation of the policy's general definition of "vehicle," which is similar to that of Mrs. Skin's policy but lacks any boldface type.46 That definition was said to control except as otherwise defined in the policy,47 and there was a separate definition of "uninsured motor vehicle" in the uninsured motorist coverage section of the policy, again without any. boldface type: "'uninsured motor vehicle' means a motor vehicle that, through its ownership, maintenance or use, results in bodily injury to the insured." 48 Noting without further explanation that the lower court had decided-and the insured did not dispute-that an ATV was not a "motor vehicle" under the general definition, the court decided that the definition of "uninsured motor vehicle" had to be read to conform to the general definition. Thus there was no coverage.49

Nemitz provides no real support for Joseph Skin to obtain med-pay coverage under Mrs. Skin's policy. Indeéd, our own holding about the definition of "vehicle" in Mrs. Skin's policy is exactly opposite of the holding in Nemitz. While the Nemitz court concluded that "vehicle" and "motor vehicle" were synonymous terms, our analysis of Mrs. Skin's liability coverage acknowledged that "vehicle" and "motor vehicle" had different meanings in the context of the policy.

The court states that Mrs. Skin's policy contains a definition of "uninsured motor vehicle" just like the policy in Nemitz. It does not. The policy in Nemitz defined the phrase as "a motor vehicle that, through its ownership, maintenance or use, results in bodily injury to the insured." 50 Mrs. Skin's policy defines "uninsured motor vehicle" in significantly more detail:

PART . III-UNINSURED/UNDERIN-SURED MOTORIST COVERAGE
[[Image here]]
ADDITIONAL DEFINITIONS
When used in this Part III:
[[Image here]]
5. "Uninsured/underinsured motor vehicle" means a land motor vehicle or trailer of any type:
a. [which is uninsured];
b. [which is the subject of a denial of coverage or an insolvent insurer};
c. that is a hit-and-run vehicle whose operator and owner cannot be identified and which comes into direct physical contact with:
i. you or a relative;
ii. a vehicle that you or a relative are occupying; or
fii. a covered vehicle;
provided that the insured person, or someone on his or her behalf, reports the accident to the police or civil an-thority within twenty-four (24) hours; or . nC
d. [which is underinsured].[51]

If similarity of language is significant to the court's reliance on Nemitz, this is additional reason to find Nemitz unpersuasive. More importantly, this policy provision helps reveal unintended havoc the court's decision may cause in light of its holding that an insured "is entitled to rely ... on a uniform meaning of 'vehicle' throughout the policy, regardless of typeface."

As with the original definition of "vehicle," an "uninsured/underinsured motor vehicle" is a subset of the larger set "land motor vehicle." The subset is further defined by *1110the conditions of (a)-(d), including the condition involving a "hit-and-run vehicle." There also is an exclusion for damages resulting from accidents with "motorized vehicles" designed for offroad use. Substituting the special definition of "vehicle" 52 for "vehicle" generates confusing circularity about-or perhaps a narrowed definition of-"underin-sured/uninsured vehicle" ("a land motor vehicle or trailer of any type" instead of "a land motor vehicle or trailer of any type"), further limiting that subset ("hit-and-run vehicle" instead of "hit-and-run vehicle"), and an eviscerated coverage exclusion (accident "caused -by any motorized vehicle" instead of "caused by any motorized vehicle"). In short, the court significantly changes the meaning of many provisions of Mrs. Skin's policy, perhaps in as many as fifty-six different places, without giving those provisions any real examination. How those changes actually affect coverage under the policy will be left to future litigation.

With that in mind, a final analysis of the critical elements of the med-pay provision is appropriate:

INSURING AGREEMENT
[We will pay medical expenses for injuries sustained by an insured person, caused by accident]: __
8. arising out of the ownership, maintenance or use of a motor vehicle.
[[Image here]]
ADDITIONAL DEFINITIONS
When used in this Part II:
1. "Insured person" and "insured persons" mean:
[[Image here]]
c. you or any relative when struck by a motor vehicle or trailer while not occupying a motor vehicle; and

In finding coverage for Joseph Skin, the court significantly changed what had been pedestrian coverage under provision (c). Based on the court's ruling, "motor vehicle" in all three places of this provision should now be uniformly read as "vehicle" Although this means that the class of people "not occupying a motor vehicle" has increased from only pedestrians to anyone "not occupying a 'vehicle,/" such as Joseph Skin, it also means that there has been a decrease in the number of "motor vehicles" covered by the other prong of provision (c) "when struck by a motor vehicle" is now "when struck by a It is fortuitous for Joseph Skin that while negligently operating the Nageaks' ATV he struck a pickup truck that qualifies as a "vehicle," instead of another ATV or some other motor vehicle outside the policy definition of "vehicle." But by interpreting Progressive's policy language to find med-pay coverage for Joseph Skin, the court significantly changes the pedestrian coverage Progressive intended to provide.53

Because the court finds ambiguity where there is none and unnecessarily changes coverage throughout the policy, I dissent.

. Progressive assigns distinct definitions to contractual terms in bold versus plain typeface. In the "General Definitions" section, where the definition of "vehicle" is located, the policy states: "Except as otherwise defined in this policy, terms appearing in boldface will have the following meaning:..."

. Allstate Ins. Co. v. Falgoust, 160 P.3d 134, 139 (Alaska 2007).

. Wesster's THirp New Internationa Dictionary 1476 (2002).

. The Nageaks and Skins clearly understand the distinction between a "vehicle" and a "motor vehicle." Their argument for liability coverage for Joseph Skin was that the common meaning and usage of "motor vehicle" should replace the term "vehicle" in the policy definition of "non-owned vehicle" so that the Nageaks' ATV would be included in liability coverage as a "non-owned vehicle." We rejected that argument.

. The superior court found med-pay coverage for Joseph under provision (b), but the court correctly concludes that Joseph could not be an insured for coverage under (b) because the ATV is not a "vehicle" as defined by the policy. The court could not reach this conclusion without expressly acknowledging that the ATV is a "motor vehicle" but not a "vehicle."

. Med-pay coverage is not required by Alaska's mandatory insurance laws. See AS 28.22.101. Progressive is entitled to provide, and to limit, med-pay coverage as it chooses. See AS 28.22.121.

. 474 N.E.2d 1037 (Ind.App.1985).

. Id. at 1037-38.

. Id. at 1038.

. 1d.

. Id.

. 123 Ariz. 447, 600 P.2d 751 (App.1979).

. Id. at 751.

. Id. at 752.

. 1d.

. 1d.

. 27 Ohio St.2d 62, 271 N.E.2d 866 (1971).

. Id. at 867.

. 1d.

. Id. at 868.

. Id. An Ohio appellate court later relied on Jirousek to deny med-pay coverage for an injured motorcycle rider under an automobile policy providing med-pay coverage for any family member "struck by a highway vehicle while not occupying a land motor vehicle," because the motorcycle was a motor vehicle. Katanik v. State Farm Mut. Auto. Ins. Co., 8 Ohio App.3d 76, 455 N.E.2d 1340, 1342-43 (1982) (emphasis in original).

. This is inconsistent with the rule that ambiguity can exist only when the policy, taken as a whole, is reasonably subject to differing interpretations. Dugan v. Atlanta Cas. Cos., 113 P.3d 652, 655 (Alaska 2005).

. The court notes that the superior court found at least fifty-six instances in the policy where the terms "vehicle" or "motor vehicle" are not boldfaced and create confusion. We noted no confu*1107sion or ambiguity in the non-boldface terms "motor vehicle" and "gross vehicle weight" when examining the policy definition of "vehicle" and concluding that an ATV is not a "vehicle." The court similarly noted no confusion or ambiguity in the non-boldface term "motor vehicle" in the grant of med-pay coverage.

. 821 So.2d 445 (Fla.App.2002).

. Id. at 445-46.

. Id.

. Id. at 445.

. Id. at 446.

. Id.

. 2005 WL 3588425, 2005-Ohio-7030 (Ohio App.). Under Ohio's rules, unpublished court of appeals opinions may be cited as legal authority and weighted as deemed appropriate by courts. Oro R. Reprortinc Or 4.

. Towne, 2005 WL 3588425 at *1.

. Id. at *2.

. Id. at *2 n. 2.

. Id. at *2.

. Id. at *1.

. Id. at *3.

. 106 Wash.App. 184, 22 P.3d 835 (2001).

. Id. at 836.

. Id. at 837.

. Id. The definition is as follows:

"MOTOR VEHICLE" means a land motor vehicle or a utility trailer but does not mean a vehicle:
a. or any equipment designed or modified for USE primarily off public roads, while not on public roads....

. Id.

. Id. at 838.

. Id.

. 39 A.D.3d 1121, 834 N.Y.S.2d 394 (2007).

. Id. at 395.

. Id. at 396 n. 1.

. Id. at 396.

. Id.

. Id.

. Id.

. Mrs. Skin's uninsured motorist coverage also contains an exclusion for accidents caused by any motorized vehicle designed mainly for off-road use, along with a number of other exclusions:

EXCLUSIONS-READ THE FOLLOWING EXCLUSIONS CAREFULLY. IF AN EXCLUSION APPLIES, COVERAGE WILL NOT BE AFFORDED UNDER THIS PART III.
Coverage under this Part III is not provided for bodily injury sustained by any person:
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9. In an accident caused by any motorized vehicle or equipment designed mainly for. use off public roads, while not on public roads.

. The general definition of "vehicle" apparently is modified by the court's holding to state that a "vehicle" is a subset of the category "land motor vehicle" but is within the subset only if it has a "gross vehicle weight of 10,000 pounds or less." What this now means is unclear.

. The court suggests that the ambiguity it relies on could not be applied to reduce coverage but only to expand it. It is a dubious proposition that an insured could apply different meanings to the term "motor vehicle" when it is used two times for the same purpose in a single sentence-as in provision (c) of the med-pay coverage.