NANCY BROWN V FARM BUREAU INS GENERAL INS CO
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
FOR PUBLICATION
January 18, 2007
9:05 a.m.
NANCY BROWN,
Plaintiff,
and
NATIONSRENT,
Intervening Plaintiff,
and
JOSEPH BURLINGAME III,
Intervening Plaintiff-Appellant,
No. 271520
Macomb Circuit Court
LC No. 2005-001970-CK
v
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
Defendant-Appellee.
NANCY BROWN,
Plaintiff,
and
NATIONSRENT,
Intervening Plaintiff-Appellant,
and
JOSEPH BURLINGAME III,
Intervening Plaintiff,
-1-
v
No. 271521
Macomb Circuit Court
LC No. 2005-001970-CK
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
Defendant-Appellee.
Official Reported Version
Before: Saad, P.J., and Cavanagh and Schuette, JJ.
SAAD, P.J.
Plaintiff, Nancy Brown, filed this declaratory action to determine whether defendant,
Farm Bureau General Insurance Company of Michigan, was obligated to defend and indemnify
her under a homeowner's insurance policy in an underlying action brought by Joseph Burlingame
III, who was severely injured in a forklift accident on plaintiff's property. In these consolidated
appeals, intervening plaintiffs NationsRent and Burlingame each appeal the trial court's order
that granted Farm Bureau's motion for summary disposition and denied NationsRent's crossmotion for summary disposition. We affirm.
I. Facts
While living in Macomb County, plaintiff rented a forklift from NationsRent to move
materials for a new barn on her property in Sanilac County. Plaintiff 's son, Jason Brown,
operated the forklift, with the assistance of Burlingame. After the materials were moved, Jason
and Burlingame continued to operate the forklift on the property until it became stuck in mud.
While he attempted to free the forklift from the mud, Jason lowered the forklift boom onto
Burlingame. Burlingame sustained severe injuries and was paralyzed. He filed a lawsuit against
plaintiff, Jason Brown, and NationsRent.
Plaintiff filed this declaratory action after Farm Bureau refused to defend and indemnify
her in the underlying action brought by Burlingame, and the trial court permitted NationsRent
and Burlingame to intervene. The trial court ruled that coverage for Burlingame's injuries is
excluded under the terms of the policy and granted Farm Bureau's motion for summary
disposition.
II. Analysis
This Court reviews de novo a trial court's summary disposition decision. Spiek v Dep't of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Though the trial court did not state
the subrule under which it granted summary disposition, it is clear that it granted Farm Bureau's
motion under MCR 2.116(C)(10), because it considered evidence outside the parties' pleadings.
A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence.
MCR 2.116(G)(5). Summary disposition should be granted if, except with regard to the amount
of damages, there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
-2-
We also review de novo an issue involving the proper interpretation of an insurance contract.
Allstate Ins Co v McCarn (After Remand), 471 Mich 283, 288; 683 NW2d 656 (2004); Allstate
Ins Co v JJM, 254 Mich App 418, 421; 657 NW2d 181 (2002).
The Farm Bureau policy contains the following exclusion:
1. Coverage E - Personal Liability and Coverage F - Medical
Payments to Others do not apply to:
* * *
f. bodily injury or property damage arising out of:
(1) the ownership, maintenance, use, loading, or unloading of motor
vehicles or all other motorized land conveyances, including mopeds and trailers[.]
[Emphasis added.]
It is undisputed that Burlingame's injuries arose from the use of a forklift. The controlling issue
is whether the forklift constitutes a "motorized land conveyance" within the meaning of Farm
Bureau's policy.
In Century Surety Co v Charron, 230 Mich App 79, 83; 583 NW2d 486 (1998), this
Court summarized the guidelines for the interpretation of exclusionary clauses:
Exclusionary clauses in insurance policies are strictly construed in favor of
the insured. Coverage under a policy is lost if any exclusion in the policy applies
to an insured's particular claims. Clear and specific exclusions must be given
effect because an insurance company cannot be liable for a risk it did not assume.
When reviewing an exclusionary clause, this Court must read the policy as a whole to effectuate
the overall intent of the parties. Pacific Employers Ins Co v Michigan Mut Ins Co, 452 Mich
218, 224; 549 NW2d 872 (1996). If the language is clear and unambiguous, the insurance policy
must be enforced as written. Century Surety Co, supra at 82-83.
Defendant's policy does not define the term "conveyance." Accordingly, we give the
word its "commonly understood meaning." Twichel v MIC Gen Ins Corp, 469 Mich 524, 534;
676 NW2d 616 (2004). This can be accomplished by referring to its dictionary definition. Id.
Random House Webster's College Dictionary (1997) defines "conveyance" as follows: "1. the
act of conveying. 2. a means of transporting [especially], a vehicle. 3. a. the transfer of
property from one person to another. b. the document accomplishing this." Under these
definitions, the plain meaning of the term "motorized land conveyance" includes any form of
motorized transportation. Moreover, in the policy, the term "motorized land conveyances" is
preceded by the phrase "all other," which indicates Farm Bureau's intent to broaden the scope of
the term. See Paquin v Harnischfeger Corp, 113 Mich App 43, 50; 317 NW2d 279 (1982);
Pritts v J I Case Co, 108 Mich App 22, 30; 310 NW2d 261 (1981) (there can be no broader
classification than the word "all," which leaves no room for exceptions).
-3-
Though this Court has not specifically addressed this precise definitional issue, other
jurisdictions have held that, under similar exclusions, forklifts are "motorized land conveyances."
See Olson v United States Fidelity & Guaranty Co, 549 NW2d 199, 200-202 (SD, 1996), and
Daus v Marble, 270 NJ Super 241, 250-251; 636 A2d 1091, 1096-1097 (1994). Also,
NationsRent's argument that the phrase "motorized land conveyances" does not encompass
equipment has been rejected by other courts. See Varda v Acuity, 284 Wis 2d 552, 561-565; 702
NW2d 65, 70-71 (Wis App, 2005); Gracey v Heritage Mut Ins Co, 518 NW2d 372, 374 (Iowa,
1994) (riding lawn mowers are "motorized land conveyances").
We agree with the reasoning in Daus, supra at 251, in which the Superior Court of New
Jersey explained:
It is clear to us from the commonly accepted definitions of forklift that it is
a motorized land conveyance under the terms of the insurance contract. The
forklift is a motorized means of transporting cargo, while at the same time
transporting the forklift operator. We find no difficulty in concluding that the
average policy holder should expect that a motorized vehicle designed to transport
cargo driven by a human operator would be considered a motorized land
conveyance.
We also find persuasive the analysis of the Supreme Court of South Dakota in Olson, supra at
201-202, in which the court concluded that a forklift is a motorized land conveyance:
First, the forklift is motorized. It has a gasoline or diesel engine and a sixspeed automatic transmission. It is equipped with four-wheel drive, outboard
industrial disc brakes, and a steering wheel. A mechanical arm attached to the
forklift can raise and place objects up to thirty-five feet above the ground.
Second, the forklift is designed for use on land. . . . Finally, the forklift is clearly
a conveyance or vehicle. Conveyance denotes "a means of carrying or
transporting something (as persons or passengers): VEHICLE." Gracey, [supra]
at 374 [citing Webster's Third New International Dictionary 499 (1993)].
Similarly, we hold that the disputed forklift, a "Gradall Motorized Sky Tracker," is a
motorized land conveyance. It is designed to move materials from one point to another. It
operates with a diesel engine and is equipped with a seat belt. It operates in both forward and
reverse directions, and it can reach a speed of up to 19.5 miles an hour. It has multiple steering
functions, brakes, and two mirrors. The forklift also has four-wheel drive, making it capable of
traversing construction sites. It is equipped with a horn and roll-over protection, and can hold 38
gallons of fuel. It is also designed to carry the operator. Clearly, under the commonly
understood meaning of the phrase, a forklift is a motorized land conveyance.
NationsRent asserts that, because the exclusion states that it applies to "all other
motorized land conveyances, including mopeds and trailers," it should be narrowly interpreted
under the doctrine of ejusdem generis. "Under the statutory construction doctrine known as
ejusdem generis, where a general term follows a series of specific terms, the general term is
interpreted 'to include only things of the same kind, class, character, or nature as those
specifically enumerated.'" Neal v Wilkes, 470 Mich 661, 669; 685 NW2d 648 (2004), quoting
-4-
Huggett v Dep't of Natural Resources, 464 Mich 711, 718-719; 629 NW2d 915 (2001). Here,
the exclusion lists "motor vehicles or all other motorized land conveyances, including mopeds
and trailers." The general phrase "all other motorized land conveyances" precedes the more
specific terms. Accordingly, the ejusdem generis doctrine does not apply to limit the meaning of
the more general term "all other motorized land conveyances."
We also reject NationsRent's argument that the exclusion does not apply to forklifts
because forklifts are specifically excluded from the definition of "motor vehicle" in the Michigan
Vehicle Code. MCL 257.33. The forklift is excluded from coverage not because it is a motor
vehicle, but because it is a "motorized land conveyance," which encompasses a broader range of
motorized vehicles than those typically considered "motor vehicles."1
For these reasons, the trial court properly concluded that coverage for Burlingame's
injuries was excluded under the "motorized land conveyance" exclusion and, in its well-reasoned
opinion, the court correctly granted summary disposition to Farm Bureau.2
Affirmed.
/s/ Henry William Saad
/s/ Mark J. Cavanagh
/s/ Bill Schuette
1
Furthermore, there is no merit to NationsRent's argument that this exclusion does not apply
because coverage for a forklift is generally not available under an automobile policy and the
intent behind the exclusion is to eliminate coverage when coverage would be available under
another policy. Under the plain language of the exclusion, it is immaterial whether other
coverage is available.
2
In light of our decision, we need not address the remaining issues on appeal.
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.