Cookson v. Liberty Mut. Fire Ins. Co.

• Court: Superior Court of Maine
• Decided: March 22, 2011
• Docket: YORcv-09-370
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. CV-09-370

MARK COOKSON,

Plaintiff

v. ORDER

LIBERTY MUTUAL FIRE INSURANCE COMPANY,

Defendant

Plaintiff Mark Cookson brought this action seeking a declaration that his

homeowner's insurance policies provide coverage for the full replacement price of a

Case 590M tractor that he lost in a fire. Defendant Liberty Mutual Fire Insurance

Company now moves for summary judgment. Following hearing, the Defendant's

Motion will be Granted.

BACKGROUND Mr. Cookson owns a home at 457 Libby Road in West Newfield, Maine, and

property at 743 Sanborn Road in Acton, Maine. (Pl.'s Add'l S.M.F.

purchased the home at 457 Libby Road in 2004, and it was his primary residence at all

times relevant to this action. (Pl.'s Add'l S.M.F.

Sanborn Road as a gift in 2005, and he began to construct a home on it in 2006. (Pl.'s

Add'l S.M.F.

both properties under policies that are identical in all ways material to this action.

(Supp. S.M.F.

S.M.F.

backhoe attachment. (Pl.'s Add'l S.M.F.

m.p.h. and had one seat for the operator. (Pl.'s Add'l S.M.F.

tractor to dig holes, move earth, and plow snow on his own properties. (Pl.'s Add'l

S.M.F.

property. (Pl.'s Add'l S.M.F.

transport the tractor itself from one property to another several times by driving it

along the public roads. (Supp. S.M.F.

attempted to register the tractor or have it inspected, Mr. Cookson also drove it to his

father's house in Acton for repair. (Supp. S.M.F.

a fire there on December 22,2007. (Supp. S.NLF.

Mr. Cookson submitted a timely claim for the loss under both policies on

December 24, 2007. (Pl.'s Add'l S.M.F.

Cunningham Lindsay U.s., Inc., to:

a) inspect the insured's tractor and verify if repairable; b) if not repairable, provide replacement cost; c) investigate facts of loss, registration of tractor, business use; d) provide photographs.

(Supp. S.M.F.

S.M.F.

S.M.F.

$27,825. (Pl.'s Add'l S.M.F.

In February 2008, Liberty Mutual denied Mr. Cookson's claim. (Pl.'s Add'l S.M.F.

his Acton property, which was not considered a "residence." (Pl.'s Add'l S.M.F.

After further investigation, Liberty Mutual reconsidered the claim but denied it on

2 alternate grounds. (Pl.'s Add'l S.M.F. 9[43; Pl.'s Ex. G.) It wrote that the tractor was a

"motorized land conveyance" that had been driven on public roads between West

Newfield and Acton, and as such was subject to state vehicle registration requirements.

(Pl.'s Add'l S.M.F. 9[43; Pl.'s Ex. G.) The insurance policies only covered vehicles or

conveyances not subject to motor vehicle registration that were used to service the

insured's residence, and since the tractor was subject to registration requirements it fell

out of coverage. (Pl.'s Add'l S.M.F. 9[9[14,43; Pl.'s Ex. B.)

Mr. Cookson filed his four-count complaint against Liberty Mutual on December

18, 2008. Count I requests a declaration that the loss of his tractor is covered under both

his West Newfield and Acton insurance policies. Counts II and III assert unfair claims

settlement and breach of contract, respectively. Count IV asserts that Liberty Mutual is

estopped from denying coverage under the Acton policy because it knew that the

building was under construction before it issued the policy identifying the property as

Mr. Cookson's residence address. Liberty Mutual now moves for summary judgment

declaring that Mr. Cookson's loss is not covered under the language of the policies.

DISCUSSION

The meaning of language in an insurance policy is a question of law. Jipson v.

Liberty Mutual Fire Ins. Co., 2008 ME 57, 9[10, 942 A.2d 1213, 1216. There are no disputes

of material fact, making summary judgment appropriate if either party is entitled to

judgment as a matter of law. M.R.Civ.P. 56(c). At issue in this case is whether Mr.

Cookson's tractor falls within the motor vehicle exclusion in his homeowner's insurance

policies. The policies read in pertinent part:

PROPERTY NOT COVERED

3. Motor vehicles or all other motorized land conveyances....

3 We do cover vehicles or conveyances not subject to motor vehicle registration which are:

a. Used to service an "insured's" residence ....

To resolve the defendant's motion, the court must first determine if Mr.

Cookson's tractor is a "motor vehicle or ... motorized land conveyance" subject to the

exclusion. If so, the court must then ascertain whether the tractor is a "vehicle or

conveyance[] not subject to motor vehicle registration" within the exception to the

exclusion.

The term "vehicle" does not appear to be defined in Mr. Cookson's policies.

Generally, a vehicle is any "device, as a motor vehicle or a piece of mechanized

equipment, for transporting passengers, goods, or apparatus." Webster's II New

College Dictionary 1223 (2001). In addressing whether his tractor is subject to motor

vehicle registration, Mr. Cookson notes that Liberty Mutual has admitted that his Case

S90M tractor was not designed primarily for the transport of persons or objects. He also

directs the court to the case of N.A. Burkitt Inc. v. Champion Road Machinery Ltd., 2000 ME

209, 763 A.2d 106.

In Burkitt, the Law Court was required "to interpret the term 'motor vehicle'

under the Motor Vehicle Dealers Act." Id. errS, 763 A.2d at 107. The issue in contention

was whether a motor-driven grader was a "motor vehicle" subject to the statute. Id.

errerr2-S, A.2d at 107. The Act specifically defined a "motor vehicle" as: "Any motor

driven vehicle, except motorcycles, required to be registered under Title 29-A, ch. 5."

Id. err7, 763 A.2d at 107 (quoting 10 M.R.S.A. §1l71(1l)). The Court looked to the

definition of "vehicle" contained in title 29-A, which states: "Vehicle means any device

for conveyance of persons or property on a way." Id. err8, 763 A.2d at 108 (quoting 29-A

4 M.R.S.A. §101(91)). A "way" is "the entire width between boundary lines of a road,

highway, parkway, street or bridge used for vehicular traffic, whether public or

private." [d. 9IS n.4, 763 A.2d at lOS n.4 (quoting 29-A M.R.S.A. §101(92)). The Court

noted that vehicles are only required to be registered "if they are operated or placed on a

public way." [d. 9I9, 763 A.2d at lOS (citing 29-A M.R.S.A. §351.)

Putting the above definitions together, the Court defined the term "motor

vehicle" for the purpose of the Dealers Act to mean:

Any motor driven device for conveyance of persons or property on a road, highway, parkway, street or bridge used for vehicular traffic, whether public or private, that is operated or remains on a public way.

[d. 9I10, 763 A.2d at lOS. The Court then concluded that the grader was not a motor

vehicle under the Act because it was "more akin to tools or equipments that are used for

certain tasks or projects," and that any carriage of persons or property was incidental to

its primary function. [d. 9Ill, 763 A.2d at 10S-09. The grader fit more appropriately in a

class of "special mobile equipment," defined under title 29-A as "a self-propelled device

operated over the highways that is not designed or used primarily for the

transportation of persons or property ...." [d. 9I12 n.S, 763 A.2d at 109 n.S (quoting 29­

A M.R.S.A. §513.)

Mr. Cookson argues that his tractor, with its bucket and backhoe attachments, is

like the grader in that it was "generally used in limited areas or at a particularized site,

e.g. a construction site," and not used primarily for transportation. [d. 9I12, 763 A.2d at

109. Like the grader, it should not be considered a "motor vehicle" because it is simply

not a device "for the conveyance of persons or property on a public way, except

incidentally as part of road construction, snow plowing, or maintenance work." [d. 9I12,

763, A.2d at 109.

5 The weakness in Mr. Cookson's position is that the Court in Burkitt expressly

limited its discussion to the Dealers Act and noted that the definition of a "motor

vehicle" under that Act was narrower than the definition used in Maine's Motor Vehicle

Statutes under title 29-A. Id. <[11 n.7, 763 A.2d at 108 n.7. Title 29-A defines the term

broadly, and "a grader could be a 'motor vehicle' for the purposes of title 29-A, but not

a 'motor vehicle' for purposes of the Motor Vehicle Dealers Act." Id.

Insofar as the definitions contained in title 29-A are relevant, they expressly

include graders under the definition of "special mobile equipment." 29-A M.R.S.A.

§101(70). Other examples of "special mobile equipment" consist of heavy industrial

machinery including "road construction or maintenance machinery, ditch-digging

apparatus, stone crushers, air compressors, power shovels, cranes, ... rollers, trucks

used only to plow snow and to carry sand for ballast, well drillers and wood-sawing

equipment used for hire or similar types of equipment." Id. Furthermore, while the

definition of "special mobile equipment" does not include the word "vehicle," the terms

are not mutually exclusive. Vehicles used to convey hand tools or parts used in

operation of equipment, or to transport earth on a highway under construction, are

included within the definition of "special mobile equipment." 29-A M.R.S.A. §513(1).

Title 29-A defines a tractor separately as "a motor vehicle used primarily off the

highway for farming, forestry or other similar types of activities." 29-A M.R.S.A.

§513(82).

More generally, numerous cases have found that heavy machinery fall within the

definition of a "vehicle" as the term is used in insurance policies. See H.R. Weissberg

Corp. v. N. Y. Underwriters Ins. Co., 272 A.2d 366, 372 (Md. 1971) (self-propelled crane);

Golding-Keene Co. v. Fidelity-Phenix Fire Ins. Co., 69 A.2d 856, 859 (N.H. 1949) (bulldozer

and tractors generally). One case in particular found that a tractor with a backhoe

6 attachment was a motor vehicle, even while actively in the process of digging a hole.

North River Ins. Co. v. Pomerantz, 492 S.W.2d 312,315-16 (Tex. Civ. App. 1973).

There is no question that Mr. Cookson's tractor was motorized, self-propelled,

and capable of traveling along public and private ways. From the above, the court

determines that the term "vehicle" as used in Mr. Cookson's insurance policies easily

encompasses his Case 590M tractor as a matter of law. The court therefore finds that the

tractor is, as the parties appear to concede, a motor vehicle or conveyance within the

policy exclusion.

Finding that the tractor is excluded from coverage, the court must next

determine whether the tractor falls within the exception to the exclusion. Despite being

a motor vehicle, the tractor will be covered by the policy if it was "not subject to motor

vehicle registration." Maine addressed this question directly in the case of Kimball v.

New England Guaranty Insurance Co., 642 A.2d 1347 (Me. 1994). In Kimball, an old truck

owned by the insureds rolled into the street and collided with a passing car. Id. at 1348.

The injured motorist brought a reach and apply action to recover under the insureds'

homeowner's insurance policy, which contained a motor vehicle exclusion and

exception materially identical to the one at issue in this case. Id.

"[A]t the time of the accident, the pickup truck was unregistered and unfit for

inspection, and ... the [insureds] hoped to use the truck to plow their driveway." Id.

The fact that the insureds did not intend to ever use truck on a public way was,

however, irrelevant. The Law Court determined that "the phrase 'subject to motor

vehicle registration'" was unambiguous, and that the exclusion was "not concerned

with fact-specific analyses of whether a particular vehicle will or will not be registered."

Id. at 1348-49. The exclusion was instead concerned with types of vehicles. A pickup

truck was a type of vehicle that could be registered for road use "under the provisions

7 for motor vehicles." Id. at 1349. As such, it was objectively "subject to motor vehicle

registration" and therefore excluded from coverage.

This objective test makes the parties' discussion about the frequency of Mr.

Cookson's trips between his properties irrelevant. What matters is that Maine's Motor

Vehicle Statutes provide for the registration of both tractors and special mobile

equipment.! 29-A M.R.S.A. §§509, 513. Mr. Cookson's Case 590M tractor was thus

subject to motor vehicle registration, and does not fit the exception to his policy

CONCLUSION

The court concludes that Mr. Cookson's tractor was a vehicle subject tq motor

vehicle registration not covered by his homeowner's insurance policies. The court

therefore Grants the defendant's motion for summary judgment.

Dated: March~2.,. 2011

.~- Justice, Superior Court

ATTORNEY FOR PLAINTIFF: ATTORNEY FOR DEFENDANT: THOMAS G. VAN HOUTEN, ESQ. JOHN WHITMAN, ESQ. LAW OFFICE OF THOMAS VAN HOUTEN RICHARDSON WHITMAN LARGE & BADGER 469 MAIN ST., SUITE 101 PO BOX 9545 SPRINGVALE ME 04083 PORTLAND ME 04112-9545

The Motor Vehicle Statutes also provide for the registration and permitting of "self­ propelled golf carts, lawn mowers, ATV's and other similar vehicles" for limited highway use. 29-A M.R.S.A. §50l(8).