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Volk v Ace American Insurance Company

Case No. 13-1525 (C.A. 8, Apr. 10, 2014)

Andrew J. Johnson, through his guardian Linda Volk, sought recovery from an insurance policy of ACE American Insurance Company. The district court granted summary judgment to ACE, finding Johnson’s claim excluded from the policy’s general-liability coverage. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Johnson, developmentally disabled, requires a personal care assistant. In November 2005, while supervised by an assistant from North Country Home Care, Inc., he was blinded in his left eye by a BB gun given to him by the assistant.

At the time of the injury, North Country had coverage through ACE for both general liability and professional liability. The policy was in effect until June 2006 (when North Country ceased operations). Johnson reported his claim to North Country’s last president and then to ACE.

ACE denied coverage in August 2009, determining that the profession-alliability coverage covered only claims made before the policy’s termination. (Johnson no longer seeks recovery for professional-liability.) ACE also denied general-liability coverage, citing the exclusion for: “Any loss, cost or expense arising out of ‘bodily injury’ to your patients.”


Judge(s): William D. Benton
Jurisdiction: U.S. Court of Appeals, Eighth Circuit
Related Categories: Construction , Contracts , Health Care , Insurance
Circuit Court Judge(s)
Arlen Beam
William Benton
Lavenski Smith

Trial Court Judge(s)
David Doty



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Click the maroon box above for a formatted PDF of the decision.
is ambiguous if it is “reasonably subject to more than one interpretation.” columbia parks, 205 n.w.2d at 124 (“[w]ords, phrases, and sentences are assigned a meaning ______________________________ process of synthesis in which the words and phrases are given a meaning in interpretation of an insurance policy is a question of law. american family no. 13-1525 lllllllllllllllllllll defendant - appellee was the recipient of personal care services from north country. he was a patient of are construed against the drafter and in favor of the insured. id. at 880. language e.g., minn. stat. §§ 144.291(2)(g), 144.651(2), 148a.01(4) (2005), 246.71(3). he ____________ general-liability coverage. having jurisdiction under 28 u.s.c. § 1291, this court andrew j. johnson, through his guardian linda volk, sought recovery from an ____________ genuine issue of material fact and that the moving party is entitled to judgment as a johnson focuses on the definition of “patient” in several minnesota statutes. the company. johnson claims that he was a “customer” or “client”—not a “patient.” general cas. co. of wis. v. wozniak travel, inc., 762 n.w.2d 572, 577-79 (minn. at the time of the injury, north country had coverage through ace for both policy using general principles of contract construction, giving effect to the intent of to render ‘healthcare professional services,’” which are “services performed by an (when north country ceased operations). johnson reported his claim to north johnson argues that his injury is within the general-liability coverage because he received a judgment for $2,695,758.27. he then sued ace in state court. ace benton, circuit judge. summary judgment to ace, finding johnson’s claim excluded from the policy’s out of ‘bodily injury’ to your patients.” accordance with the obvious purpose of the . . . contract as a whole.”); metro office general-liabilitycoverage, citing the exclusion for: “any loss, cost or expense arising submitted: february 12, 2014 from the insurance policy. the claimant releases the insured from personal liability ace american insurance company knowledge about underwriting practices . . . to determine the parties’ intent.” since affirms. johnson, developmentally disabled, requires a personal care assistant. in licensed and (for purposes of summary judgment) did not provide medical care or -3- -4- miller v. shugart, 316 n.w.2d 729 (minn. 1982). insurance policy of ace american insurance company. the district court granted1 unambiguous termsare given theirplain and ordinarymeaning, and ambiguous terms appeal from united states district court control data corp., 205 n.w.2d 121, 124 (minn. 1973). “patient” appears in both ___________________________ the district court concluded, “even if the term ‘patients’ is ambiguous . . . corn plus co-op. v. cont’l cas. co., 516 f.3d 674, 677 n.2 (8th cir. 2008), citing filed: april 10, 2014 removed the case to federal court. the district court granted summary judgment to in accordance with the apparent purpose of the agreement as a whole.”). courts rely on dictionaries for the plain and ordinary meaning of an undefined term. the term “patient” is unambiguous, this court need not address the district court’s use ____________ country’s last president and then to ace. linda volk, as guardian of andrew john johnson —just as in the general-liability exclusion—“patient” refers to those north country united states court of appeals personal services.” webster’s third new int’l dictionary 1655 (1981). johnson serves. see gammon v. auto-owners ins. co., 454 n.w.2d 434, 436 (minn. ct. extrinsic evidence conclusively resolves the question of whether the incident fell v. heights motors, inc. v. allstate ins. co., 275 n.w.2d 32, 34 (minn. 1979). attacks this conclusion, arguing the district court erred in using “ace’s secret general liability and professional liability. the policy was in effect until june 2006 for the eighth circuit * * * * * * * johnson sued north country in state court. after a miller-shugart settlement,2 of rochester, 643 f.3d 1031, 1042 (8th cir. 2011) (en banc). the question is statutes in any way, and the statutes do not purport to define generally the word ____________ -5- within the general liability coverage.” volk, 2013 wl 440210, at *3. johnson the parties. thommes v. milwaukee ins. co., 641 n.w.2d 877, 879 (minn. 2002). “in a miller-shugart settlement, an insured . . . who has been denied coverage2 inc., he was blinded in his left eye by a bb gun given to him by the assistant. the general-liability exclusion and the professional-liability provisions. the the use of “patient” in the context of the policy as a whole confirms that it is ace, based on the patient exclusion. volk v. ace am. ins. co., no. 12-1065, 2013 the dictionary definition of “patient” also includes a “client” or “customer.” id. medication. lllllllllllllllllllll plaintiff - appellant and insureds.” his focus is misplaced. the policy here does not incorporate the the term consistently throughout the entire contract. see metro office parks co. v. matter of law. id. this court reviews de novo a grant of summary judgment. torgerson v. city of extrinsic evidence. 2009). the dictionary definition of “patient” is “the recipient of any of various the district court correctly found that “patient” is unambiguous. minnesota argues,withoutauthority,thatthesestatutes “informtherelationship between insurers for a claim agrees with the claimant . . . on a judgement for an amount collectible (johnson no longer seeks recovery for professional-liability.) ace also denied “patient” is not defined in the policy. according to johnson, “patient” means the honorable david s. doty, united states district judge for the district of1 liability coverage covered only claims made before the policy’s termination. incident.” professional incidents are “any act or omission in the rendering or failure minnesota. ins. co. v. walker,628 n.w.2d 605, 609 (minn. 2001). courts interpret an insurance “patient.” someone receiving licensed medical care. the assistant supervising johnson was not whether the record, viewed most favorably to the non-moving party, shows no ace denied coverage in august 2009, determining that the professional- he was not a “patient” within the meaning of the patient exclusion. the term the judgment is affirmed. before smith, beam, and benton, circuit judges. professional-liability coverage applies if the injury is caused by a “professional app. 1990) (“courts must determine the intent of the contracting parties . . . from the unambiguous. when a term is used multiple times in a contract, the court should read ___________________________ -2- november 2005, while supervised by an assistant from north country home care, ‘insured’ to care for or assist your patients.” in the professional-liability provision and the claimant’s recovery is limited to the amount obtained from the insurers.” for the district of minnesota - minneapolis wl 440210, *3 (d. minn. feb. 5, 2013). johnson appeals.

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