Insurance companies are fighting policyholders rather than plaintiffs in the recreational industry field.
Posted: August 28, 2023 Filed under: Activity / Sport / Recreation, Insurance, Minnesota | Tags: Conditions Precedent, Cowboy Softball, exclusions, Insurance, insurance coverage, Meech Bucking Bull Ranch in Sebeka, Meeches, Minnesota, Scottsdale Insurance Leave a commentInsurance companies are attempting to avoid liability in OR cases by denying coverage. I’ve seen 4 in the past year in outdoor recreation.
Scottsdale Ins. Co. v. Meech (D. Minn. 2023)
State: Minnesota, United States District Court, D. Minnesota
Plaintiff: Scottsdale Insurance Company
Defendant: Troy Meech; Peggy Meech; and Scott Sellers
Plaintiff Claims: Whether there is coverage for an underlying claim under the policy
Defendant Defenses: There is coverage
Holding: For the Plaintiff Insurance Company
Year: 2023
Summary
Insurance company asked court for judgement saying there was no coverage under the policy for the claim. The coverage was denied because the exclusions in the policy were clear. The ranch owner is going to pay the claim out of their own pocket.
Facts
Scott Sellers is the plaintiff in the state court lawsuit against the defendant Meeches, Troy & Peggy. In this case, the plaintiff, the party starting the lawsuit is Scottsdale Insurance, the insurance company that issued a policy to the Meeches. The defendants are all three of the parties in the state court case, Meeches & Seller, the defendants and the plaintiff.
The defendants owned a ranch and purchased an insurance policy from Scottsdale. There is a state court case filed by Sellers for his injuries in the softball game. During the lawsuit in state court, the insurance company filed this action in federal court asking a court to determine if the insurance company had to defend and pay any claim based on the lawsuit in the state court.
The Meeches own and operate a ranch at which they host an annual event called the “Nimrod Bull Bash.” One of the activities during the event is a game of “Cowboy Softball,” during which participants play softball while bulls are present on the field. Defendant Scott Sellers is pursuing a state-court action against the Meeches for personal injuries that he suffered during a Cowboy Softball game in September 2021.
The insurance policy that Scottsdale issued to the Meeches contains two exclusions relevant to this case: an exclusion for “Athletic or Sports Participants” and a “Special Event Participant Exclusion.” The Meeches do not dispute that these exclusions preclude coverage for any injuries suffered by a participant in the Cowboy Softball game. The Meeches likewise do not dispute that Sellers in fact participated in the game. Instead, the Meeches contend that Sellers cannot be considered a participant because he was not authorized to play. The Meeches require all participants to register in advance and sign a waiver. Sellers did neither; instead, according to the Meeches, he entered the field without consent from the Meeches or any agent of the Meeches.
Once this case was filed in the Federal District Court of Minnesota, the insurance company filed a motion for summary judgement. The court then had to interpret the contract, the insurance policy and found there was no coverage.
Analysis: making sense of the law based on these facts.
This is a simple decision with one paragraph explaining there is no coverage.
There were two exclusions in the policy that the court found denied coverage. The Athletic or Sports Participants exclusion and the Special Event Participant exclusion.
The Athletic or Sports Participants exclusion stated there was no coverage for injuries sustained on the property for any person practicing or participating in sports, athletic contest, or exhibition. The name Cowboy Softball ended any argument about whether or not it was a sports event.
The athletic contest exclusion was again covered by the name and the activity. Playing softball. Coverage would have been excluded whether or not there were bulls on the field.
Unfortunately for the Meeches, however, coverage is precluded regardless of whether Sellers’s participation in the softball game was authorized. The language of the “Athletic or Sports Participants” exclusion precludes coverage for “‘bodily injury’ to any person arising out of practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” Similarly, the “Special Event Participant Exclusion” precludes coverage for “‘bodily injury . . . arising out of . . . [t]he practicing for or participation in any athletic event, contest, [or] game . . . covered by this policy.” The former exclusion does not define “participant”; the latter includes a broad definition of “participant,” which includes performers, volunteers, and “any other person taking part” in the activities covered by the exclusion. The language of these exclusions plainly covers any person who actually participated in the Cowboy Softball game regardless of whether the person was authorized to do so; there is no language that distinguishes between authorized and unauthorized participants.
So Now What?
Read your policy.
Confirm what you believe is covered under your policy with the insurance agent or broker that sold you the policy.
If you have a doubt about coverage, whether something is covered, IN ADVANCE confirm coverage with an email or letter. A PHONE CALL is worthless now days, unless you are legally allowed to record the phone call. (Even if your state allows you to record phone calls, if the call is to someone out of your state, which does not allow you to record phone calls, your recorded call is worthless.) Get it in writing
Understand your Exclusions in your policies. Exclusions are specific events, fact patterns or risks your policy will not provide defense or coverage for.
Understand your Prerequisites or condition’s precedent in your policy. Condition’s precedent are specific requirements you must meet before any coverage is available. In OR cases a condition precedent found in many policies is the requirement you have a release signed. No release, no coverage.
Whether you are right or wrong, insurance pays to prove you are right or pay if you are wrong. Make sure you have a good policy that covers what you do.
For more articles like this see:
To Review Case Law concerning this issue see:
Atain Specialty Ins Co v Adventure Facility Concepts Mgmt ND Ill 2023
MidContinent Excess Surplus Ins Co v Experiential Sys ND Ohio 2022
Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447
I’m currently involved in two cases that I cannot write about yet.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
Copyright 2022 Recreation Law (720) 334 8529
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By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC
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Scottsdale Ins. Co. v. Meech (D. Minn. 2023)
Posted: August 28, 2023 Filed under: Activity / Sport / Recreation, Insurance, Minnesota | Tags: Conditions Precedent, Cowboy Softball, exclusions, Insurance, insurance coverage, Meech Bucking Bull Ranch in Sebeka, Meeches, Minnesota, Scottsdale Insurance Leave a commentScottsdale Ins. Co. v. Meech (D. Minn. 2023)
SCOTTSDALE INSURANCE COMPANY, Plaintiff,
v.
TROY MEECH; PEGGY MEECH; and SCOTT SELLERS, Defendants.
No. 22-CV-0454 (PJS/LIB)
United States District Court, D. Minnesota
April 25, 2023
Alexander V. Tibor and Kurt M. Zitzer, MEAGHER & GEER, P.L.L.P., for plaintiff.
Troy Meech and Peggy Meech, defendants pro se.
ORDER
PATRICK J. SCHILTZ, CHIEF JUDGE
Plaintiff Scottsdale Insurance Company (“Scottsdale”) brought this action seeking a declaration that it owes no duty to defend or indemnify its insureds, Troy and Peggy Meech, in a pending state-court personal-injury action. This matter is before the Court on Scottsdale’s motion for summary judgment. For the reasons stated on the record at the April 24, 2023, hearing, and briefly outlined below, Scottsdale’s motion is granted.[1]
The Meeches own and operate a ranch at which they host an annual event called the “Nimrod Bull Bash.” ECF No. 43 at 2. One of the activities during the event is a game of “Cowboy Softball,” id., during which participants play softball while bulls are present on the field. Defendant Scott Sellers is pursuing a state-court action against the Meeches for personal injuries that he suffered during a Cowboy Softball game in September 2021. See ECF No. 1-1 (state-court complaint).
The insurance policy that Scottsdale issued to the Meeches contains two exclusions relevant to this case: an exclusion for “Athletic or Sports Participants” and a “Special Event Participant Exclusion.” ECF No. 1-2 at 39, 69. The Meeches do not dispute that these exclusions preclude coverage for any injuries suffered by a participant in the Cowboy Softball game. The Meeches likewise do not dispute that Sellers in fact participated in the game. Instead, the Meeches contend that Sellers cannot be considered a participant because he was not authorized to play. The Meeches require all participants to register in advance and sign a waiver. ECF No. 43 at 1. Sellers did neither; instead, according to the Meeches, he entered the field without consent from the Meeches or any agent of the Meeches.
Unfortunately for the Meeches, however, coverage is precluded regardless of whether Sellers’s participation in the softball game was authorized. The language of the “Athletic or Sports Participants” exclusion precludes coverage for “‘bodily injury’ to any person arising out of practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” ECF No. 1-2 at 39. Similarly, the “Special Event Participant Exclusion” precludes coverage for “‘bodily injury . . . arising out of . . . [t]he practicing for or participation in any athletic event, contest, [or] game . . . covered by this policy.” ECF No. 1-2 at 69. The former exclusion does not define “participant”; the latter includes a broad definition of “participant,” which includes performers, volunteers, and “any other person taking part” in the activities covered by the exclusion. ECF No. 1-2 at 69. The language of these exclusions plainly covers any person who actually participated in the Cowboy Softball game regardless of whether the person was authorized to do so; there is no language that distinguishes between authorized and unauthorized participants. Accordingly, the Court grants Scottsdale’s motion for summary judgment.
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Plaintiff’s motion for summary judgment [ECF No. 38] is GRANTED.
2. The Court DECLARES that, under Policy Number CPS7431908, effective from August 27, 2021 to August 27, 2022, plaintiff Scottsdale Insurance Company owes no duty to defend or indemnify defendants Scott Meech and Peggy Meech with respect to claims asserted against them by defendant Scott Sellers in Wadena County Case No. 80-CV-22-905.
4
LET JUDGMENT BE ENTERED ACCORDINGLY.
———
Notes:
[1]Defendant Scott Sellers did not respond to Scottsdale’s motion and did not appear at the hearing.
———
What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire, you have no coverage.
Posted: July 17, 2017 Filed under: Climbing Wall, Insurance, New Hampshire, Release (pre-injury contract not to sue) | Tags: absurd, Ambiguity, Ambiguous, burden of proving, clear meaning, Climbing, Climbing Gym, construe, contracting parties, contractually, coverage, endorsement, Gym, Gymnastics, insurance coverage, Insurance policy, insured, insurer, linguistic, matter of law, objectively, ordinary meaning, policy language, policyholder, purported, question of law, reasonable expectations of coverage, Reasonable person, Release, Summary judgment, unambiguous, words used 1 CommentYou either have to create an absolutely fool proof system or take your release
online. If they don’t sign they don’t climb!
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: Colony Insurance Company
Defendant: Dover Indoor Climbing Gym& a.
Plaintiff Claims: There was no insurance coverage because the insured did not get a release signed by the injured claimant
Defendant Defenses: The insurance policy endorsement requiring a release to be signed was ambiguous
Holding: For the Plaintiff Insurance Company
Year: 2009
This is a scary case, yet the outcome is correct. The plaintiff insurance company issued a policy to the defendant climbing gym. An endorsement (an added amendment to the contract) to the policy said there would only be coverage if the gym all customers sign a release.
An endorsement to the policy stated: “All ‘participants’ shall be required to sign a waiver or release of liability in
your favor prior to engaging in any ‘climbing activity.’ “It further stated: “Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”
A climber came to the gym with a group of friends. The gym asked everyone if they had a release on file, and no one said no. (Yes really stupid procedures!) Bigelow was part of the group and did not have a release on file and had not signed a release. While climbing Bigelow fell and was injured.
Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner’s affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed; however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries.
The defendant climbing gym put the plaintiff insurance company on notice of the claim. When the insurance company found out no release was signed, the insurance company filed a declaratory judgment motion. A declaratory judgment is a way to go into a court and say there is no coverage under this policy because there was no release. It is an attempt to be a quick interpretation of the contract so the bigger issue can be resolved quickly.
The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym’s failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.
Both parties filed motions for summary judgment. The trial court granted the climbing gym’s motion for summary judgment saying the endorsement requiring the signed release was ambiguous. The ambiguity was created because the insurance company had not provided the gym with a sample waiver to use.
The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony’s motion for summary judgment, and granted the defendants’ cross-motion for summary judgment.
This analysis by the court was absurd. Releases need to be written for the gym, for the gym’s clients and for the state law of the state where it is to be used. A “sample” release is a guaranteed loser in most cases. However, I suspect the court was looking for anyway it could find to provide coverage for the gym.
The trial court’s ruling meant the plaintiff insurance company had to provide coverage to the defendant for any claims made by the injured climber Bigelow.
The insurance company appealed the decision. New Hampshire does not have an intermediary appellate court system so the appeal went to the New Hampshire Supreme Court.
Analysis: making sense of the law based on these facts.
Insurance policies are contracts and are interpreted as such. However, because have been written in a specific way and are always offered on a take it or leave it basis, as well as the fact the insurance company has all the cards (money) insurance policies have additional legal interpretations in addition to contract law.
The New Hampshire Supreme Court started its analysis by looking at how insurance policies are interpreted. That means the policy is read as a whole objectively. Terms are given their natural meaning, meaning there is no special interpretation of any term, and if the policy is clear and unambiguous is it enforced. No special reading of the policy is allowed based on any party to the policy’s expectations.
We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. We need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, our search for the parties’ intent is limited to the words of the policy.
The burden of proving that no insurance coverage exists as defined by the policy rests on the insurance company. That means coverage exists under the policy unless the insurance company can prove no coverage was written.
If an insurance company wants to limit its coverage, it is allowed to do so. However, that limitation must be clear and unambiguous. An ambiguity exists if a reasonable disagreement exists between the insurance company and the policyholder and that disagreement could lead to two or more, interpretations.
Although an insurer has a right to contractually limit the extent of its liability, it must do so “through clear and unambiguous policy language. Ambiguity exists if “reasonable disagreement between contracting parties” leads to at least two interpretations of the language.
Ambiguities will be examined in the appropriate context and the words construed in their plain, ordinary and popular meaning. If the interpretation of the ambiguity favors the policyholder, then the coverage will favor the insured.
In determining whether an ambiguity exists, we will look to the claimed ambiguity, consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer.
If, however, the language in the policy is clear, the court will not bend over backward or as written in this case “perform amazing feats of linguistic gymnastics” to find an ambiguity and create coverage.
Where, however, the policy language is clear, this court “will not perform amazing feats of linguistic gymnastics to find a purported ambiguity” simply to construe the policy against the insurer and create coverage where it is clear that none was intended.
The court then looked at the determination of the trial court which found an ambiguity because the insurance company did not provide a sample insurance policy. The Supreme Court found that was an incorrect interpretation of the policy. Even the defendant climbing gym agreed with the court on this
issue.
Even the gym, however, contends that the trial court “reached the correct result for the wrong reasons.” Thus, the gym does not argue that the endorsement creates an ambiguity by its failure to provide the insured with a sample waiver form, but, rather, that the exclusionary language is ambiguous because it states that participants shall “be required” to sign waivers as opposed to mandating that the gym obtain signed waivers.
The court then applied to the law of New Hampshire in interpreting insurance policies to the facts of this case. The court found the language requiring a release was clear and that a reasonable person could only read it.
The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants. The gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. The gym’s interpretation is unreasonably narrow, and is therefore not the type of alternative interpretation that renders policy language ambiguous.
Simply put the policy requires the defendant climbing gym to have everyone sign a release. If no release is signed, there was no coverage for the gym. The trial court was overturned, and the climbing gym faced the claims of the injured climber without insurance coverage.
So Now What?
One of the first cases I was involved with was very similar. A Montana stable was insured by an insurance company with an endorsement just as this one; all riders were required to sign a release. In Montana all guides, including horseback guides had to be licensed by the state. A state employee was checking out the
stable and found the releases. In Montana, you cannot use a release. (See States that do not Support the Use of a Release andMontana Statute Prohibits Use of a Release)
The state employee had the stable quit using the release, or they would lose their license to operate in Montana. A rider was injured and sued the stable, and the insurance company denied coverage. I was contacted by the law firm representing the insurance company and was floored by the facts and how the insurance company could deny coverage when it violated state regulations.
However, in that situation as well as this one, there is not much you can do to get around the situation if the policy clearly states you must have a release signed. In the Montana case, the stable owner should have immediately contacted his insurance company when he was told he could not use a release and pay to have the endorsement removed or found another insurance company to write him a policy.
In this case, a proper procedure should have been put in place to confirm signed releases rather than relying on the honesty of someone walking through the doors to the gym.
When you purchase insurance make sure you and your insurance agent are speaking clearly to each other, and you both understand what you are looking for. When the policy arrives, read the policy or pay a professional to read the policy for you looking for the coverage’s you need as well as looking for problems with the coverage.
If you ask the agent or broker to clarify the coverage you are wanting, to make sure you get that clarification in writing (or an email), so you can take that to court if necessary.
Most importantly create a system to make sure that everyone who comes to your facility, activity or business when you use a release, signs a release.
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Author: Outdoor Recreation Insurance, Risk Management and Law
Copyright 2017 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Colony Insurance Company v. Dover Indoor Climbing Gym, 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51
Posted: June 23, 2017 Filed under: Climbing Wall, Legal Case, New Hampshire, Release (pre-injury contract not to sue) | Tags: absurd, Ambiguity, Ambiguous, burden of proving, clear meaning, Climbing, Climbing Gym, construe, contracting parties, contractually, coverage, endorsement, Gym, Gymnastics, insurance coverage, Insurance policy, insured, insurer, linguistic, matter of law, objectively, ordinary meaning, policy language, policyholder, purported, question of law, reasonable expectations of coverage, Reasonable person, Release, Summary judgment, unambiguous, words used Leave a commentColony Insurance Company v. Dover Indoor Climbing Gym & a., 158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51
Colony Insurance Company v. Dover Indoor Climbing Gym & a.
No. 2008-759
SUPREME COURT OF NEW HAMPSHIRE
158 N.H. 628; 974 A.2d 399; 2009 N.H. LEXIS 51
March 18, 2009, Argued
April 24, 2009, Opinion Issued
HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES
1. Insurance–Policies–Construction The interpretation of insurance policy language is a question of law for the court to decide. The court construes the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading of the policy as a whole. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, the court accords the language its natural and ordinary meaning. The court need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, the court’s search for the parties’ intent is limited to the words of the policy.
2. Insurance–Proceedings–Burden of Proof The burden of proving that no insurance coverage exists rests squarely with the insurer.
3. Insurance–Policies–Ambiguities Although an insurer has a right to contractually limit the extent of its liability, it must do so through clear and unambiguous policy language. Ambiguity exists if reasonable disagreement between contracting parties leads to at least two interpretations of the language. In determining whether an ambiguity exists, the court will look to the claimed ambiguity, consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Where, however, the policy language is clear, the court will not perform amazing feats of linguistic gymnastics to find a purported ambiguity simply to construe the policy against the insurer and create coverage where it is clear that none was intended.
4. Insurance–Policies–Construction When a climbing gym’s insurance policy stated, “All participants shall be required to sign a waiver or release of liability in your favor prior to engaging in any climbing activity,” the clear meaning of the policy language was that the gym was required to actually obtain waivers from climbing participants. The gym’s interpretation that a reasonable person would believe that coverage existed so long as the gym had a policy of requiring waivers regardless of whether it actually obtained waivers would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. Because the policy required the gym to obtain waivers from all participants, the failure to do so in the case of an injured climber rendered coverage under the policy inapplicable to his claims.
COUNSEL: Wiggin & Nourie, P.A., of Manchester (Doreen F. Connor on the brief and orally), for the plaintiff.
Mallory & Friedman, PLLC, of Concord (Mark L. Mallory on the brief and orally), for defendant, Dover Indoor Climbing Gym.
Shaheen & Gordon, P.A., of Dover, for defendant, Richard Bigelow, filed no brief.
JUDGES: DUGGAN, J. BRODERICK, C.J., and DALIANIS, J., concurred.
OPINION BY: DUGGAN
OPINION
[**400] [*629] Duggan, J. The plaintiff, Colony Insurance Company (Colony), appeals an order of the Superior Court (McHugh, J.) denying its motion for summary judgment and granting that of the defendants, Dover Indoor Climbing Gym (the gym) and Richard Bigelow. We reverse and remand.
The trial court found, or the record supports, the following facts. Colony issued a commercial general liability insurance policy to the gym, which was in effect from January 5, 2007, to January 5, 2008. An endorsement to the policy stated: “All ‘participants’ shall be required to sign a waiver or release of liability in your favor prior to engaging in any ‘climbing activity.’ ” It further stated: “Failure to conform to this warranty will render this policy null and void as [sic] those claims brought against you.”
On August 14, 2007, [***2] Bigelow accompanied friends to the climbing gym, but did not sign a waiver. He testified that he was never asked to sign a waiver; the gym owner’s affidavit stated that the owner asked the group of climbers if they had waivers on file and received no negative answers. It is undisputed, however, that Bigelow did not sign a waiver or release. While climbing, Bigelow fell and sustained serious injuries. The gym then put Colony on notice to defend and pay any verdict obtained by Bigelow. In response, Colony filed a petition for declaratory judgment, arguing that the gym’s failure to obtain a release from Bigelow absolved Colony of any duty to defend or indemnify the gym.
Both Colony and the defendants filed motions for summary judgment, which the trial court addressed in a written order. The trial court found that Colony’s failure to provide the gym with a sample waiver rendered the endorsement provision ambiguous. The trial court therefore denied Colony’s motion for summary judgment, and granted the defendants’ cross-motion [**401] for summary judgment. This appeal followed.
[*630] On appeal, Colony argues that the trial court erred in finding that the endorsement was ambiguous, and contends that the [***3] gym’s failure to obtain a waiver from Bigelow renders the policy inapplicable as to his claims. Alternatively, Colony argues that even if the endorsement is ambiguous, the gym is not entitled to coverage because it had actual knowledge of the policy’s waiver requirement.
[HN1] In reviewing the trial court’s grant or denial of summary judgment, we consider the evidence, and all inferences properly drawn from it, in the light most favorable to the non-moving party. Everitt v. Gen. Elec. Co., 156 N.H. 202, 208, 932 A.2d 831 (2007); Sintros v. Hamon, 148 N.H. 478, 480, 810 A.2d 553 (2002). If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment is proper. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480. We review the trial court’s application of the law to the facts de novo. Everitt, 156 N.H. at 209; Sintros, 148 N.H. at 480.
[1] [HN2] The interpretation of insurance policy language is a question of law for this court to decide. Godbout v. Lloyd’s Ins. Syndicates, 150 N.H. 103, 105, 834 A.2d 360 (2003). We construe the language of an insurance policy as would a reasonable person in the position of the insured based upon a more than casual reading [***4] of the policy as a whole. Id. Policy terms are construed objectively, and where the terms of a policy are clear and unambiguous, we accord the language its natural and ordinary meaning. Id. We need not examine the parties’ reasonable expectations of coverage when a policy is clear and unambiguous; absent ambiguity, our search for the parties’ intent is limited to the words of the policy. Id.
[2, 3] In this case, the gym argues that the policy is ambiguous and Colony maintains that it is not. [HN3] The burden of proving that no insurance coverage exists rests squarely with the insurer. Curtis v. Guaranty Trust Life Ins. Co., 132 N.H. 337, 340, 566 A.2d 176 (1989); see RSA 491:22-a (1997). [HN4] Although an insurer has a right to contractually limit the extent of its liability, it must do so “through clear and unambiguous policy language.” Id. (quotation omitted). Ambiguity exists if “reasonable disagreement between contracting parties” leads to at least two interpretations of the language. Int’l Surplus Lines Ins. Co. v. Mfgs. & Merchants Mut. Ins. Co., 140 N.H. 15, 20, 661 A.2d 1192 (1995); Trombly v. Blue Cross/Blue Shield, 120 N.H. 764, 771, 423 A.2d 980 (1980). In determining whether an ambiguity exists, we will look to the claimed ambiguity, [***5] consider it in its appropriate context, and construe the words used according to their plain, ordinary, and popular definitions. Int’l Surplus, 140 N.H. at 20. If one of the reasonable meanings of the language favors the policyholder, the ambiguity will be construed against the insurer. Id. Where, however, the policy language is clear, this court “will not [*631] perform amazing feats of linguistic gymnastics to find a purported ambiguity” simply to construe the policy against the insurer and create coverage where it is clear that none was intended. Hudson v. Farm Family Mut. Ins. Co., 142 N.H. 144, 147, 697 A.2d 501 (1997); Curtis, 132 N.H. at 342.
The trial court found that the endorsement requiring waivers is ambiguous because Colony did not provide the gym with a sample waiver. Even the gym, however, contends that the trial court “reached the [**402] correct result for the wrong reasons.” Thus, the gym does not argue that the endorsement creates an ambiguity by its failure to provide the insured with a sample waiver form, but, rather, that the exclusionary language is ambiguous because it states that participants shall “be required” to sign waivers as opposed to mandating that the gym obtain signed waivers. [***6] Under this interpretation, the gym argues, a reasonable person would believe that coverage exists so long as the gym has a policy of requiring waivers regardless of whether it actually obtained waivers from climbing participants. Colony argues that the policy language is unambiguous. We agree with Colony.
[4] The clear meaning of the policy language is that the gym is required to actually obtain waivers from climbing participants. The gym’s interpretation would lead to the absurd result of requiring coverage even if the gym never actually enforced its waiver policy. A reasonable person reading the policy would not understand that coverage existed in such circumstances. The gym’s interpretation is unreasonably narrow, and is therefore not the type of alternative interpretation that renders policy language ambiguous. See Curtis, 132 N.H. at 342 ( [HN5] refusing to find ambiguity when alternate interpretations would “inevitably lead to absurd results”). To construe the exclusion against the insurer here would create coverage where it is clear that none was intended. We therefore conclude that the policy language is unambiguous and that a reasonable insured would understand that the exclusion would [***7] apply in this case.
Because the policy requires the gym to obtain waivers from all participants, the failure to do so in the case of Bigelow renders coverage under the policy inapplicable to his claims. In light of our holding, we need not address Colony’s remaining argument. We therefore reverse the order of the trial court granting the defendants’ motion for summary judgment, and hold that Colony is entitled to summary judgment as a matter of law.
Reversed and remanded.
Broderick, C.J., and Dalianis, J., concurred.
Recreation Law 