Northern States Power Company d/b/a Xcel Energy, Respondent, vs. Joseph Ellsworth, Defendant, Scott Anderson, Appellant, Michael Epsky, Defendant, Jeffrey Gonszy, Respondent, Carolyn O'Gara, et al., Defendants, and Scott Anderson, Appellant, vs. Employers Insurance of Wausau, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-503

 

 

Northern States Power Company

d/b/a Xcel Energy,

Respondent,

 

vs.

 

Joseph Ellsworth,

Defendant,

Scott Anderson,

Appellant,

Michael Epsky,

Defendant,

Jeffrey Gonszy,

Respondent,

Carolyn O'Gara, et al.,

Defendants,

and

Scott Anderson,

Appellant,

 

vs.

 

Employers Insurance of Wausau,

Respondent.

 

Filed November 23, 2004

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. C3-02-008677

   

 

Robert E. Kuderer, Johnson & Condon, P.A., 7401 Metro Boulevard, Suite 600, Minneapolis, MN 55439-3034 (for respondent Northern State Power Co. d/b/a Xcel Energy)

 

Sharon L. Van Dyck, Schwebel Goetz & Sieben, 5120 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402-2246 (for appellant)

 

Gay B. Urness, Liberty Mutual, 2550 University Avenue West, Suite 220, St. Paul, MN 55114 (for respondent Employers Insurance of Wausau)

 

William A. Erhart, Erhart & Associates, L.L.C., 316 East Main Street, Suite 110, Anoka, MN 55303 (for respondent Jeffrey Gonszy)

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant Scott Anderson, who was injured in a car accident involving a former Northern States Power (NSP) employee's vehicle, argues that the former NSP employee was covered by NSP's group automobile insurance policy with respondent Employers Insurance of Wausau (Wausau).  Because the policy unambiguously covers only employees and not former employees of NSP, we affirm the district court's grant of summary judgment to NSP and Wausau.

FACTS

 

On May 8, 2000, Anderson was injured while a passenger in Joseph Ellsworth's vehicle, which was being driven by Jonathan Forward.  Pursuing damages for his injuries, Anderson alleges that Ellsworth and his vehicle were covered by an automobile insurance policy through Ellsworth's former employer, Northern States Power.

Until early February 2000, Ellsworth was an NSP employee.  Because he drove his own vehicle for the job, he applied for auto insurance coverage through NSP's vehicle reimbursement program.  To enroll, he completed and signed a form entitled "Reimbursed Vehicle Application," which stated:  "I hereby agree to use the above specified car under the terms and conditions of the NSP Company Employee Vehicle Program Manual.  I understand that if I retire or terminate employment the insurance stops immediately."  The application also stated:

NSP will provide insurance on reimbursed vehicles with coverages and limits at least equal to state requirements.  Collision and comprehensive coverage will be provided only if you elect to purchase this coverage and complete a payroll deduction authorization form.  You are responsible to pay any deductibles.  You will receive insurance ID cards and full information on coverages when this application is processed and annually thereafter.

 

For the year beginning February 1, 2000, NSP had automobile insurance through respondent Employers Insurance of Wausau for coverage of three "fleets" of vehicles:  (1) share the car; (2) executive car; and (3) reimbursed vehicle.  A change endorsement to the definitions section of the policy added the definitions of these fleets and stated that:  reimbursed vehicles are "autos . . . owned or leased by the individual employees of Northern States Power.  The employees are reimbursed for the use of their private vehicles."   The policy also provides "auto designation symbols" to further describe the types of autos covered by the policy.  A "change endorsement" amending these symbols added "symbol 12" accompanied by the same description of the reimbursed vehicle program as was used in the definitions section.  "Symbol 13" was described as providing coverage "on company-owned and employee-owned vehicles, where employees have elected to be part of the ‘executive fleet' or ‘reimbursed vehicle' programs."

NSP was the named insured on the business auto policy with Wausau.  It was a "fronted" policy, meaning that Wausau would make the initial claim payment and then be reimbursed by NSP for that payment, together with a claim for a servicing fee.   Ellsworth and his vehicle were not named in the "policy" itself, but appeared on a spreadsheet list of employees prepared by NSP and provided to Wausau.  When Ellsworth phoned the designated agent after the accident and inquired whether he was covered, the agent looked at the list and told Ellsworth he was covered.  In a second phone conversation, the agent clarified that as a "former employee," Ellsworth would not be covered under the policy.

NSP and Wausau denied coverage.  NSP initiated this action, seeking a judicial declaration that the policy did not cover its former employee, Ellsworth, on the date of the accident.  After discovery, NSP moved for summary judgment, which the district court granted.  Anderson appeals.

ANALYSIS

Coverage issues and the construction and interpretation of a policy are questions of law.  Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn. 1997).  This court reviews those issues de novo and is not bound by, and need not defer to, the district court's determinations.  State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn. 1992).          An insurance policy is a contract and, absent statutory laws to the contrary, general principles of contract law apply.  Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917, 926 (Minn. 1983).  When examining an insurance policy, a court's function is to "determine what the agreement was and enforce it."  Fillmore v. Iowa Nat'l Mut. Ins. Co., 344 N.W.2d 875, 877 (Minn. App. 1984).  In order to effectuate the parties' intent, "unambiguous language must be accorded its plain and ordinary meaning."  SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn. 1995).

Neither party argues that the NSP policy with Wausau is ambiguous.  Accordingly, we focus exclusively on the policy to determine whether the parties intended to cover former employees.  We need not consider extrinsic evidence, including the NSP reimbursed vehicle application and plan.  Cf. Pedersen v. United Servs, Auto. Ass'n, 383 N.W.2d 427, 430 (Minn. App. 1986) (noting that extrinsic evidence is admissible only where policy is ambiguous).

It is generally accepted that the ordinary principles of personal insurance apply to the construction of group contracts.  1 Eric M. Holmes, Holmes's Appleman on Insurance, 2d § 2.5, at 239 (1996).  In a group policy, "one must come within the definition of a member of the group to qualify for coverage." See also Hedlund v. Monumental Gen. Ins. Co., 404 N.W.2d 371, 373 (Minn. App. 1987).  Eligibility is the threshold issue.  Id.

Here, the Wausau policy does not have an "eligibility" provision specifically defining the individuals or vehicles insured.  The definitions and statements of coverage within the policy, however, clearly indicate that the policy covers NSP's "reimbursed vehicle program," if elected by the "employee."  The policy consistently refers to NSP "employees" and "employees' . . . private vehicles."  There are no policy provisions for variations on the term "employee" specifically, there are no provisions to include former employees.  The policy language leads to the inescapable conclusion that only current NSP employees are eligible for insurance coverage under the Wausau policy. 

Anderson argues that a spreadsheet containing Ellsworth's name was part of the policy and determined coverage on the day of the accident.  For the spreadsheet to be the governing document on eligibility and coverage, however, there must be policy language to that effect.  There is no evidence showing that the parties intended that the spreadsheet be determinative of coverage.  Anderson cites to only one reference in the entire policy to "a list on file with the company."  That reference, however, relates to the "drive other car" endorsement, which provides "non-owned vehicle" liability coverage and does not apply to employee-owned vehicle coverage, as is the case here.  There is neither reference to, nor incorporation of, a "list on file with the company" anywhere in the various policy provisions delineating covered autos or programs. Because noneligibility of a former employee is clear from the policy itself, the spreadsheet does not create a genuine issue of material fact.

Affirmed.