*1 HAAG, Cathy Haag Sarah Gordon Molly
Haag; Kruger, Kruger, William
III, Kruger; and Katherine F. Angie
Muir, Lynn Muir; Edward Muir and Welch,
Julie M. Brian W. Welch and Welch; Pinnick,
Susan A. Susan M.
Patrick Pinnick; Pinnick and Jane
Megan Reinhardt, Craig Reinhardt Reinhardt; Stout,
and Pamala Jamie Stout;
Mark Crystal Stout and Carol Denny
Wright, Wright and Fina
Wright, Appellants-Plaintiffs, CASTRO,
Mark The Indiana Youth Soc Association,
cer Virginia Surety Com
pany, Inc., Hartford Life and Accident Company,
Insurance and K & K Insur Group
ance K & K Insurance d/b/a Inc.,
Agency, Appellees-Defendants.
No. 29A04-1001-CT-10. Appeals
Court of of Indiana.
Sept. *2 Elward, Mulvaney, Karl L. A.
Pаtrick LLP, Quay-Smith, Bingham McHale Nana Scopelitis Garvin Langford, B. Michael IN, Feary, Indianapolis, Hanson & Light Small, Small, Foley & South D. Douglas IN, Bend, Attorneys Appellants. Gerth, Gray, & Kightlinger Mark D. IN, Ap- LLP, Attorney for Indianapolis, pellees.
OPINION Judge. MATHIAS, (collective et al. Haag, Sarah Appellants Members"), the trial appeal ly "the Team in fa summary judgment grant court's Co., Inc. Appellee vor of Members The Team ("Virginia Surety").1 We Indianapolis, Indiana. Courtroom in argument cause on on this 1. We heard oral advocacy. 12, 2010, for thеir thank counsel Appeals Court of July at the Indiana itinerary an to all leaving, Castro issues, which we consolidate raise four itinerary following issue: Whether the Team Members. The includ as the restate determining that pre-planned unspecified court erred ed a time for the trial *3 accident sustained a rollover injuries activity" on the afternoon of Satur "[t]eam 12, App. of the Carmel Commotion 2004. Team Members' by day, June by were not covered the Vir- Team p. Soccer 644. to the issued
ginia arrival Upon Carmel Commotion's ("the Youth Soccer Association Indiana Colorado, passenger a van Castro rented TYSA"). during use the soccer tour- for the team's properly that the trial court Concluding 12, 2004, nament. At noon on June Car- summary in favor of judgment entered all completed mel Commotion had Virginia Surety, we affirm. Appellee related events for games and tournament hotel, History day. The team returned to the Facts and Procedural lunch, and after the decision was made to Members, all During the Team a team rafting trip on a white water as women,2 were members of the Car young activity. travelling While to the building ("Carmel mel Commotion Soccer rafting activity, the van had rented Castro Commotion"). Carmel Commotion driving and was with another vehi- collided by one of a number of soccer teams fielded injured cle. The Team Members were Club, which in the Carmel United Soccer a result of this collision. good member in turn was affiliated TheIYSA is an standing of IYSA. 7, 2006, On June the Team Mеmbers a not-for-profit corporation Complaint Declaratory filed their for Re soccer, charged governing body youth for IYSA, Castro, against lief developing promoting youth soc K & K Surety, Group,3 Insurance conjunction cer in the State of Indiana seeking a Sure declaration Youth Soccer Asso with the United States ty's policy, through which was secured ciation, the States Soccer Federa United IYSA, the Team provided coverage for tion, Olympic and the States Com United them to the Members while Castro drove activities, mittee. In order to insure its rafting activity. building team acquired the IYSA an insurance policy provided for busi Specifically, through Virginia Surety. coverage coverage, auto and extended ness conditions, liability certain aris under ap-
In June of Carmel Commotion ing out of the use of an automobile. The plied permit to the TYSA to receive a Symbol En Designation Auto Covered participate travel to Colorado to (CA 7/97) 9954 attaсhed to the dorsement trip soccer tournament there. Col- business automobile defines organized by orado was Mark Castro those autos covered as follows: ("Castro"), the Carmel Commotion's coach respect employ- Soccer to hired Auto and employee Carmel United With non-ownership liability, the insured was also certified ers Club. Castro receiving a soccer coach. After Insured, TYSA as as- means the Named member in the approval compete teams, the TYSA's clubs, leagues, and its sociations volunteers, employees, executive offi- prior soccer tournament and Colorado lawsuit, and K & K Insurance purposes this the Team 3. Defendants IYSA 2. For Group, have been dismissed from this cause represented by parents. Members are through stipulations of dismissals. shareholders, directors, cers, therein but in deciding standards whether to affirm or only being summary while the automobile is used judgment. reverse First Farm business the Named Insured. in the ers Bank & v. Whorley, Trust Co. on Cоverage is not behalf of (Ind.Ct.App.2008), N.E.2d trams. coaches, managers, um- parents, Thus, denied. appeal, on we must deter officials, referees, of the insured mine genuine pires, whether there is a issue of using "per- or volunteers automobile material fact and whether the trial court leased, owned, sonally borrowed or em- correctly applied has the law. Id. at 607- ployer-furnished" transportation so, In doing all consider *4 adult participants or to or designated evidencе in the fa light most events, or games athletic athletic vorable to the non-moving party. Id. at from including practices, but not limited to exhibitions, post-season and scheduled party appealing summary events. judgment has the persuading burden of App. p. (emphasis this court that the trial ruling court's added). improper. Id. When the defendant is the 26, 2009, Virginia Surety On June filed moving party, the defendant must show summary judgment
its motion for evi- undisputed that the negate facts at least dentiary designation denying coverage to оne element plaintiff's of the cause of ac injuries Team Members for the sus- tion or that the defendant has a factually 30, 2009, tained in the collision. On June unchallenged affirmative defense that bars the Team Members filed their eross-mo- the plaintiff's claim. Accordingly, Id. summary judgment against tion for Virgi- granted summary judgment must be re Surety along nia with a designation of if versed the record discloses an incorrect parties evidence. The each responded to application of the law tо the facts. Id. summary other's motion for judgment. 24, 2009, On November the trial court Discussion and Decision hearing conducted a on the cross-motions policies Insurance governed are summary for judgment. On December by the same rules of construction as other 2009, the trial court summarily granted contracts. v. Briles Wausau Ins. Compa Virginia Surety's motion summary nies, 858 N.E.2d 213 (Ind.Ct.App. judgment while it denied the Team Mem- 2006). contracts, As with other the inter summary bers' motion for judgment. The pretation anof insurance policy ques is a appeal. now Members Additional tion of law. Id. When interpreting an will provided facts be necessary. policy, insurance our goal is to ascertain Standard of Review parties' and enforce the intent as mani This ecause comes before this fested the insurance contract. Id. We court appeal as an a granted from motion construe the insurance as a whole for summary judgment. Summary judg and consider all of provisions ment appropriate is only when there just words, contract and not the individual genuine no issues of phrases, material fact and the paragraphs. Id. If the lan moving party judgment is entitled to a guage as a is clear unambiguous, give 56(C). the language plain ordinary mean matter of law. Trial Ind. Rule In reviewing a trial ruling court's on sum ing. ambiguity Id. An exists where the mary judgment, this court provision stands susceptible to more than one court, shoes of the applying interpretation trial the same persons and reasonable would differ as to its meaning. licensing requirements. result, Id. How- aAs Cas- ever, an not ambiguity merely does exist clearly tro falls within the initial insured parties proffer differing because the inter- classifications listed the insurance poli- pretations policy language. Id. We cy. The question then becomes whether accept interpretation must of the con- Castro's use of the van to transport language tract that harmonizes the provi- Team Members was "being used in the sions, than supports rather one that con- business of the Named Insured" at the flicting versions of the provisions. Id. time of the accident. Additionally, the power interpret con- briefs, In their parties cite to Liber tracts not changing does extend to ty Mutual Insurance Co. Connecticut terms and we will give poli- not insurance Co., (7th Indemnity 55 F.3d cles an unreasonable pro- construction to Cir.1995), in which the Seventh Circuit vide additional coverage. Id. of Appeals Court construed Indiana law The Virginia Surety policy issued to the interpreting an policy's use of TYSA for business auto *5 the phrase "while used the business of." as follows: Id. at that, 1335. The court found al respect With employ- hired Auto and though the interpretation of the term was ers non-ownership liability, the insured question a of interpretation, contractual Insured, means the Named member as- addressing cases the doctrine of clubs, teams, leagues, sociations and its respondeat superior are persuasive to volunteers, employees, executive offi- evaluate the issue to the extent thаt they cers, directors, shareholders, therein but provide an indication as to what sort of only being while the automobile is used activities Indiana typically courts believe in the business the Named Insured. of contemplated are by the words "in the Coverage is not on behalf of such, business of." Id. As the Liberty parents, coaches, the managers, um- Mutual court Miller, relied on Gibbs v. officials, pires, referees, of the insured 152 Ind.App. 283 N.E.2d 594-95 or volunteers using any automobile "per- (1972), where we stated that general "[the owned, leased, sonally borrowed or em- test determining the existence of a mas ployer-furnished" transportation ter-servant relationship right is the to di youth or adult participants to or rect and control the conduct alleged games events, athletic or athletic from servant at the time the negligent act oc including but not practices, limited to Moreover, curred." the Gibbs court em exhibitions, post-season and scheduled phasized that the test only refers to the еvents. right control, to control not actual especial
Team Members' App. p. 101 (emphasis ly where the work does not require great added). deal of supervision. Id. at 595. In addi
To resolve the issue before control, us we tion to right the the Liberty required are to interpret phrase the "used Mutual court noted two other ap factors in the business of" the desig IYSA. The (1) plied by Indiana courts: whether nated evidence reflects that Carmel Com activities of the servant confer a bеnefit to motion is fielded the Carmel United (2) the master whether the servant Club, Soceer which in turn anwas affiliat inwas the service of the master. 55 F.3d ed member in good standing of the IYSA. at n. (quoting Konradi v. United Castro is an employee States, (7th Carmel Commo 919 P.2d 1212-13 Cir. 1990)). tion and a certified coach under IYSA's all other 6. To do SECTION contend that Members
The Team in the fur- necessary or desirable promotion acts IYSA's business foregoing purposes mission, therance of and, of this furtherance soccer good Carmеl Commotion's for the of Youth soccer. approved the IYSA soccer in the out-of-state participation Thus, the p. 815. App. attending at were they tournament specifically Incorporation-and Articles of such, the Team As the accident. time of that the TYSA's mis- 5-indicate Section Commotion's claim that Carmel Members encompasses organiza- sion business part [were] team activities "related soccer teams and competitive tion of soccer thе IYSAL.]" business of parcel soccer tournaments. Br. at Members' Team ambiguous as to the Articles Whereas hand, Surety ar- the other On limited geographically Section 5 is whether the IYSA sanctioned Car- that while gues can be read to the State of Indiana or competi- attendance and mel Commotion's tournaments, include out-of-state tournament, did not the IYSA tion at contem- Playing explicitly Rules IYSA's tourna- the out-of-state regulate or control partic- for travel to and plate opportunities of the Team Mem- activities ment or the in out-of-state tournaments. ipation attending the tournament. bers while parties dispute do not before Therefore, Surety maintains that is allowed to attend Carmel Commotion use of the van to Members' tournament, the team out-of-state not a use "in the rafting was *6 from the permission needs to receive under the of the Named Insured" business Playing of the IYSA's IYSA. Rule 2.6 policy. agree. We states, pertinent part: Rules in Incorporation of The IYSA's Articles PLAY RULE 2.6 OUT-OF-STATE organization purpose state the 3-B) (USYSA RULE SECTION and develop, promote 1. To SECTION among of soccer game register administer with A resident of Indiana must residing years age of Youth under eligible play in to in IYSA order to be within the State of Indiana. associa- another U.S. Youth Soccer state Players through insured encourage 2. To and assist tion. are also SECTION regis- development growth and of com- the state of residence. Failure to in the place player in will in ter assoсiations, organiza- munity leagues, tions, that and teams so soc- inval- programs standing bad with the USYSA and available to more Indiana coverage. cer is made player's idate the competition. in all levels residents re App. p. Team Members' 829. With develop To and encour- SECTION travel, spect permission Playing to the to playing profi- and age sportsmanship in proseribe following, perti Rule 3.6 in- ciency by players persons all and part: nent of Indiana. volved in soccer Stаte Out-of-state tournaments: Teams A} SECTION 4. To affiliate USYSA States tourna- participating United encourage registration and to of all of Indiana must ments outside state Indiana Youth teams with the USYSA. been make sure the tournament has SECTION 5. To conduct tournaments by their National State sanctioned [] competition and to sance- Youth team and Association USYSA. participate tion to enter and said teams * * * in said tournaments. which out-of-state sance- right to control travel-Traveling to Permissiоn C} traveling teams tournaments the host tioned guarantees permit with this 2) in, guarantee to the properly reg- are players participate state that the Indiana's age group, tournament istered, appropriate out-of-state are insurance, players eligible that the team's are traveling covered are Moreover, as any registered not under with the TYSA. players team or its brief, onee Surety observes in its disciplinary sanctions. * issued, Travel the IYSA the Permit (14) days than fourteen No later traveling further involvement has no date, a departure in advance in the out-of-state team's (must Travel be Permit to completed tournament. faxes) must be submitted original-no along with the approval TYSA for that at the time of the undisputed It is An fee fee. additional appropriate and Carmel Commotion accident Castro to IYSA for an may payable be made traveling to an team members were not four- less than application submitted tournament. relatеd to event in advance. days teen fact, completed In the team had all soccer * approved of the IYSA copy A day related events for the be- tournament presented Travel shall be Permit to the accident occurred. The fore by the the host tournament director engaged travelling were coach traveling team. activity, rafting, to a leisure p. 835. App. the coach characterized as a team which Furthermore, the deci- building exercise. Incorpo-
Reading the IYSA's Articles rafting in a water participate sion to white Rules clar- Playing with its together ration after the team arrived in activity was made only promotes the IYSA not soc- ifies that for the tournament. IYSA Colorado also residing Indiana but cer for knowledge of or authorize the did not have partic- teams' encourages Indiana's soccer rafting activity. water *7 white The in out-of-state tournaments. ipation specific establish organizational documents does designated Because the evidence participants must fol- rules that member right that the IYSA had the not establish to travel out-of- prior being allowed low activities to control Carmel Commotion's by being covered insurance. state attending while the out-of-state soccer However, do playing tournament, IYSA's rules the that was we conclude Castro itinerary require not the team to submit using rented van "in the business not the transporting he for a Permit to Travel. of" the TYSA when was applicatiоn with its rafting activity a water in rules from the team to white nothing playing There is the tourna unrelated to the out-of-state soccer conclude that the TYSA's we could which per received the TIYSA's grants to Travel ment the team requirement of a Permit to attend. the terms of the traveling soccer mission Under right it the to control the itinerary during Virginia team's activities contrary, us, To the out-of-state travel. cireumstances before we hold facts and use of the van was not cov requiring a Permit to that Castro's purpose IYSA's 1) policy.4 Accordingly, the IYSA the ered under simply grant Travel is remaining argu- the accident is dress the we conclude that 4. Because concerning terms of Sure- exclusion and not covered under the ments policy, we do not need to ad- ty's insurance insurance, summary judgment by the trial court's ered affirm and that the team or Surety. in favor any disciplin- of not under ary sanctions. Affirmed. 835) added). {Appellants' App. p. (emphasis BRADFORD, J., concurs. words, In other the issuance a permis- by sion to travel the IYSA also serves as a RILEY, J., with opinion. dissents strong indicator that the Team Members RILEY, dissenting Judge, separate by are covered insurance for the out-of- opinion. state Nothing desig- tournament. I respectfully majori- dissent from the nated evidence curtails this broad state- ty's affirming decision the trial court's potential ment of IYSA's coverage, nor is summary grant judgment favor of this by statement the Rules limited Virginia Surety. designated Based on the language Virginia Surety's insurance. me, evidence before I would reverse majority appears implicitly ac- trial court because coach Castro was clear- knowledge by this its statement that "[t]he ly acting in the business of the IYSA to organizational specific documents establish promote Indiana soccer teams rules that member participants must fol- when he drove Carmel Commotion to low prior being allowed to travel out-of- rafting activity the white water and this state and being covered insurance." activity team building does not fall within Op. p. 195. Carmel Commotion followed the exclusionary confines of clause of rules, therefore, all these without Virginia Surety's policy. other placed limitations on insurance cov- decision,
In its the majority erage, concludes should have been entitled to assume that Castro's use of the van to they white were covered for the duration of rafting water not a use "in the the trip, regardless busi- of the activities sched- ness of the Named Insured" because the uled.
TYSA have right did nоt to control the Furthermore, the TYSA clearly had the team building activity, as interpreted with- right to control Carmel out- Commotion's Liberty confines of the Mutual deci- of-state and the spent time sion. I disagree. while partaking in the tournament. Not agree I that a review of the only TYSA's Arti- was Carmel Commotion required to cles of Incorporation together with its receive IYSA's permission prior to attend- Playing Rules clarifies that the IYSA not ing, but it pay also had to fees and the *8 only promotes youth soccer for residing Team Members were required carry encourages Indiana but also certain documents with them. Regardless in out-of-state tournaments. Although the of its awareness of Carmel Commotion's majority in its determination of the busi- 12, team building activity 2004, on June ness of the IYSA relies on Playing TYSA's the IYSA was in control trip be- 3.6(C), Rule give any it fails to credence to cause the IYSA could have withheld the the very specific Rule's statement that: travel, permit however, as was its right;
Permission to travel-Traveling by issuing permit they implicitly the this permit guarantees the host state without limitations assured that the the are properly registered, during Members were insured the Moreover, duration of the trip. partic- appropriate the age group, are cov- whether the exclusion renders the cov- erage illusory.
197
ipation
examples
exhibitions,
Colorado soccer tournament
"practices,
such as
posi-
events,"
benefitted the IYSA as it reflected
post season and
scheduled
in-
tivеly upon
Indiana's soccer playing
serting
phrase
the
"including but not limit-
to,"
rafting activity equal-
and the white water
ed
these
examples
identified
reflect
ly
purpose
advanced the TYSA's
as it built what all can be considered an "athletic
skills,
players'
the
team-playing
and as game" or "athletic event" but do not ex-
such, white water rafting
undisputedly
pand
original
exclusionary language.
related to soccer
tournament.
Therefore,
in order
to be excluded from
coverage,
disрuted
activity must first
Although I conclude that coach Castro
fall within the confines of an "athletic
was an insured and used the rental car in
game" or "athletic event."
the business of the IYSA when transport-
ing the team to the white water rafting
issue,
As with
the defini
activity, I
analyze
also need to
if
poli-
tion section of the Business Auto Coverage
cy's exclusion language applies to the facts
does not define the
game"
terms "athletic
us; specifically,
before
whether the white
Therefore,
"аthletic event."
the words
water rafting activity can be characterized must
given
plain
be
or ordinary
event,
as an
game
Briles,
"athletic
or athletic
meaning.
Exclusion grant clauses do not or en rather, large coverage; they are limita According to Websters Third New In Dictionary tions or restrictions on insuring clause. (1993), ternational "athletic" is DeZutti, defined "having the characteristics of or v. Ins. Co. 408 N.E.2d (Ind.1980). Thus, when inter befitting muscular, an strong, athlete: ro preting exclusionary bust, clause of an vigorous, insur agile, active." "Game" is ance policy, the clause clearly must explained by the same dictionary as "a unmistakably include within scope physical or mental competition conducted particular act or omission that bring will according to rules which the partici play exclusion into in order to pants exclude play direct opposition to each coverage. other, Great Lakes Corp. Chemical each side striving to win and to keep Co., other doing Surplus side from so" and "event" Int'l Lines Ins. 638 N.E.2d (Ind.App.1994). Just as an am is an "any "occurrence" or one of the biguous is not to be con contests a рrogram sports." strued to remove from coverage a risk At accident, noon on the day of the against which an pro insured intended to Carmel Commotion completed had all its *9 himself, too, tect exclusionary so an clause soccer games and other related events for is not to be loosely read so that it would day. The team had returned to the effectively exclude of all opera hotel and all had showered and tions. Id. changed. itinerary The included a рre-
Here, policy's clearly exclusion is planned time for an unspecified "[tleam limited to "athletie games" or activity" "athletic on the afternoon of Saturday, events." Although attempts 644). to June 2004. (Appellants' App. p. clarify these two lunch, terms with referencing Accordingly, after the decision was as rafting trip white water aon go to
made NEUKAM, Appellant- Anthony E. that this I find activity. building a team Defendant, nor game" "athletic an neither activity was event." "athletic an Indiana, Appеllee-Plaintiff. rafting could be water STATE
Although white athletic, outside it falls as characterized 16A01-1002-CR-50. No. The or event. game the definitions of Indiana. Appeals Court rafting was water white decision as and served choice spur-of-the-moment Sept. It together. team bring the activity to an any other contest or not include did Even if to win. incentive required of "athletic requirement controlling ignored could be event" or "athletic
game" examples given apply I independently do, reach the same I still us
urges rafting trip
conclusion. exhibition, post season "practice,
was not a Commotion event." Carmel scheduled
[or] practice a soccer travelling to
was not
exhibition, season was still and its soccer Furthermore, rafting trip
ongoing. itinerary simply as the
was not scheduled Activity." (Ap- "Afternoon-Team
stated 644). p.
pellants' App. sum, that coach Castro I conclude
In of the IYSA in the business acting teams for Indiana soccer
promote soccer Commotion
when he drove Carmel activity and this rafting
the white water within activity does not fall building
team exclusionary clause of
the confines of the Surety's policy.