Moore v. Columbia Mutual Casualty Insurance

821 S.W.2d 59, 36 Ark. App. 226, 1991 Ark. App. LEXIS 746

• Court: Court of Appeals of Arkansas
• Decided: December 26, 1991
• Docket: CA 91-36
• Status: Published

Opinions

John E. Jennings, Judge.

Bill Moore is an owner of a business known as Moore Brothers Feed and Seed, in Black Rock, Arkansas. In February 1989, Moore sold a four-wheeler to Joy Hively. The vehicle was financed through First National Bank of Lawrence County and Moore retained a lien on the vehicle.

At the time of sale, Moore also sold Hively an insurance policy issued by Columbia Mutual Casualty Insurance Company. Moore told Hively that the policy was a theft policy and that for the four-wheeler to be covered it would have to be chained to a tree or something that would hold it.

In May of 1989, the four-wheeler was stolen. Hively had chained it to her mobile home and thieves had cut the chain.

Moore paid the balance of the note to the bank and he and Hively then sued Columbia Mutual on the policy. The policy provided coverage for: “Burglary from within a building or room. There must be evidence of visible entry.” The trial judge granted Columbia Mutual’s motion for summary judgment and Moore and Hively have now appealed.

The sole contention on appeal is that the policy provision was ambiguous and therefore it was error for the trial court to grant summary judgment. We affirm.

On deposition Moore testified that he had been told by Paul Morefield, an employee of Columbia Mutual, that for the vehicle to be covered, it would have to be “inside a shed or chained to a tree or chained to something that showed forcible entry.” In his deposition, Paul Morefield testified that he was a territory manager for Columbia Mutual. Morefield testified that the policy covers “theft.” His opinion was based on conversations with someone in the company’s research and development department who had told him that burglary and theft were synonymous.

Summary judgment is an extreme remedy which should only be granted when it is clear that there is no genuine issue of material fact to be litigated. See Ferguson v. Order of United Travelers, 35 Ark. App. 100, 811 S.W.2d 768 (1991) (supplemental opinion on denial of rehearing). The moving party has the burden of demonstrating that there is no genuine issue of fact for trial and any evidence submitted in support of the motion must be viewed most favorably to the party against whom the relief is sought. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). On motion for summary judgment, the court is authorized to ascertain the plain and ordinary meaning of a written instrument “after any doubts are resolved in favor of the party moved against,” and if there is any doubt about the meaning, there is an issue of fact to be litigated. Brooks v. Renner & Co., 243 Ark. 226, 419 S.W.2d 305 (1967); Ferguson, cited above. Furthermore, provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it is the duty of the court to do so. Home Indem. Co. v. City of Marianna, 297 Ark. 268, 761 S.W.2d 171 (1988).

On the other hand, summary judgment should be granted when the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c). When a contract is unambiguous, its construction is a question of law for the court. Floyd v. Otter Creek Homeowners Ass’n, 23 Ark. App. 31, 742 S.W.2d 120 (1988). The initial determination of whether or not a contract is ambiguous rests with the court. C. & A. Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974).

Appellants contend, and we agree for the sake of argument, that the term “burglary” as used in the policy is ambiguous. It may well be that under the circumstances of this case the policy could be construed to cover “theft.” There is, however, no ambiguity in the policy language requiring that the property be taken “from within a building or room.” Because that prerequisite for coverage was not met, the trial court was right in granting summary judgment. The situation is similar to that presented in Ray v. Shelby Mutual Ins. Co., 14 Ark. App. 265, 687 S.W.2d 526 (1985). In Ray we said:

The appellant argues that the agent who sold him the policy represented to him that the policy in question would cover such a loss as occurred here. Even if that allegation is true, at most it would give rise to a cause of action against the agent, but would not serve to provide coverage for losses which were specifically excluded by the unambiguous language of the policy.

Ray, 14 Ark. App. at 267; see also Batesville Ins. & Fin. Co. v. Butler, 248 Ark. 776, 453 S.W.2d 709 (1970). For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

Mayfield, J., dissents.