Chrystal Grams, Individually and as Next Friend to Ashlynn Grams v. Imt Insurance Company, and Christina Tegtmeier

• Court: Court of Appeals of Iowa
• Decided: February 5, 2014
• Docket: 3-1103 / 13-0434
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 3-1103 / 13-0434 Filed February 5, 2014

CHRYSTAL GRAMS, Individually and as Next Friend to ASHLYNN GRAMS, Plaintiff-Appellant,

vs.

IMT INSURANCE COMPANY, and CHRISTINA TEGTMEIER, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Fayette County, Richard D. Stochl,

Judge.

A plaintiff contends the court erred in concluding a business exclusion

contained within a daycare provider’s homeowner’s policy was applicable in this

case in connection with injuries her daughter received when she was bitten by

her daycare provider’s dog. AFFIRMED.

John W. Hoffmeyer III, Oelwein, for appellant.

Brian L. Yung and T. Cody Farrens of Klass Law Firm, L.L.P., Sioux City,

for appellees.

Heard by Danilson, C.J., and Vaitheswaran and Mullins, JJ., but decided

by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

VAITHESWARAN, P.J.

Christina Tegtmeier operated a daycare business in her home. One day,

her dog bit a child under her care, leaving a scar on the child’s face.1

The child’s mother filed suit against Tegtmeier’s insurer, IMT Insurance,

seeking a declaration that the policy covered the injury. Both sides filed motions

for summary judgment. The district court granted IMT’s motion after concluding

that a “business exclusion” precluded coverage. The mother appealed.

The relevant policy provision states coverage does not apply to:

“Bodily injury” or “property damage” arising out of or in connection with a “business” conducted from an “insured location” or engaged in by an “insured”, whether or not the “business is owned or operated by an “insured” or employs an “insured”.

The policy continues:

This Exclusion E.2. applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the “business”.

There is no question that Tegtmeier’s daycare operation was a business; an

endorsement to the policy confirmed that fact, stating, “If an ‘insured’ regularly

provides home day care services to a person or persons other than ‘insureds’ as

their trade, profession or occupation, that service is a ‘business.’” The only

question is whether the child’s injury arose “out of or in connection with” the

business. The child’s mother argues the language “excludes only liability arising

out of business activities” and “[t]he ownership of a dog is not a business

1 While the parties agree for the purposes of this summary judgment record that the child sustained injuries when she was bitten by the dog, there is some disagreement as to the cause of any injuries to the child. 3

activity.” IMT counters that “this loss would not have occurred but for the

operation of the daycare on the premises.”

“Arising out of” has been construed to mean “originating from, having its

origins in, growing out of, or flowing from.” Farm Bureau Life Ins. Co. v. Holmes

Murphy & Assocs., Inc., 831 N.W.2d 129, 134 (Iowa 2013) (quotation marks and

citation omitted); see also Keppler v. Am. Family Mut. Ins. Co., 588 N.W.2d 105,

106 (Iowa 1999) (“[T]he term ‘arising out of’ required some causal connection,

less than proximate cause, between the injury and the vehicle.”). “In connection

with” is commonly defined as “related to, linked to, or associated with,” and is

broader than the phrase “arising out of.” See State ex rel. Miller v. Cutty’s Des

Moines Camping Club, Inc., 694 N.W.2d 518, 526 (Iowa 2005) (quotation marks

and citation omitted).

The child’s injury flowed from her presence at Tegtmeier’s daycare center,

and the injury was associated with that center. Accordingly, we conclude as a

matter of law that the business exclusion applied. See Iowa R. Civ. P. 1.981(3)

(stating summary judgment is appropriate when there are “no genuine issues as

to any material fact and that the moving party is entitled to a judgment as a

matter of law”).

In reaching this conclusion, we have considered the mother’s assertion

that a dog-bite statute militates in favor of reversal. See Iowa Code § 351.28

(2011). The pertinent provision states:

The owner of a dog shall be liable to an injured party for all damages done by the dog, when the dog is caught in the action of worrying, maiming, or killing a domestic animal, or the dog is attacking or attempting to bite a person, except when the party damaged is doing an unlawful act, directly contributing to the injury. 4

Id. This provision addresses the liability of dog owners. It has no bearing on the

liability of an insurer, which is governed by the policy language.

Also inapposite are two opinions cited by the mother. See Keppler., 588

N.W.2d at 106; Moncivais v. Farm Bureau Mut. Ins. Co., 430 N.W.2d 438, 439

(Iowa 1988). In Moncivais, the insurance policy contained an exception to the

business exclusion for activities “which are ordinarily incident to non-business

pursuits.” 430 N.W.2d at 439. That language is not present in IMT’s policy. In

Keppler, a child was bitten by a dog in a car. 588 N.W.2d at 106. The court

concluded a policy that provided coverage for injuries “due to the use of a car”

did not provide coverage for the dog bite because the “van had nothing to do with

the biting of the child, beyond providing the site where it happened.” Id.

Tegtmeier’s home had everything to do with the biting of the child; the child

would not have been at the home absent Tegtmeier’s operation of a daycare

business, a business that was expressly excluded from the coverage provisions

of the policy.

We affirm the district court’s grant of summary judgment in favor of IMT

Insurance.

AFFIRMED.