MOORE, Judge:
Neighborhood Investments, LLC ("Neighborhood"), leased a house located at 403 N. 42nd Street in Louisville to Kenneth McCormick. During the term of the lease, McCormick was arrested for manufacturing methamphetamine in the house. Also, it was determined that the byproducts of McCormick's methamphetamine production had contaminated the house and rendered it uninhabitable. Accordingly, the authorities have prohibited Neighborhood from re-leasing the house to any other tenant until the premises have been decontaminated.
Neighborhood filed a breach of contract and declaratory action in Jefferson Circuit Court against Kentucky Farm Bureau Mutual Insurance Company ("Farm Bureau") for a determination of whether the terms of an insurance policy it had purchased from Farm Bureau covered these substantial decontamination expenses; Farm Bureau argued that the policy unambiguously excluded such coverage. The circuit court granted summary judgment in favor of Farm Bureau. Neighborhood now appeals. We affirm.
Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). Summary judgment "is proper where the movant shows that the adverse party cannot prevail under any circumstances." Id. at 479 (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)).
On appeal, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of
As indicated, the circuit court found that an exclusion within the Farm Bureau policy disposed of Neighborhood's claim of coverage. In relevant part, the exclusion provides:
In insurance parlance, this type of provision is generally known as a "criminal acts" exclusion. From a plain reading, three requirements must be met in order to trigger this exclusion: 1) a loss 2) caused by a dishonest or criminal act and 3) committed by "anyone" Neighborhood "entrust[ed]" with "the property for any purpose." Neighborhood does not contest the validity of this provision; moreover, the parties agree that the Farm Bureau policy would define the contamination caused by McCormick's methamphetamine production as a "loss," and that McCormick's methamphetamine production constituted a "criminal act." The only issue in this matter is whether McCormick qualified as "anyone" Neighborhood "entrust[ed]" with "the property for any purpose."
In this regard, the sole argument Neighborhood offered at the circuit court level, as it appeared in its response to Farm Bureau's motion for summary judgment, was the following:
Stated differently, Neighborhood contended below that the word "lease," used as a legal term of art, is not synonymous with the word "entrust."
Notably absent from Neighborhood's argument or the Farm Bureau policy itself, however, is any attempt to define the word "entrust." Neighborhood's argument also overlooked that words used in contracts are not given legal or technical meaning; rather, they are defined by the contract itself, or, absent that, by the usage of the average man and as they would be read and understood by him. Kentucky Ass'n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 630 (Ky.2005). Therefore, Neighborhood's argument misconstrued the central issue presented in this case, i.e., whether Neighborhood "entrusted" McCormick with its property within the common and ordinary meaning of that word.
The parties have not cited any Kentucky case law on this subject, and we have found none. However, the common and ordinary meaning of "entrust" found in MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed.2005), page 417, is "to confer a trust on" or "to commit to another with confidence." BLACK'S LAW DICTIONARY (7th ed.1999), page 554, defines "entrust" as "To give (a person) the responsibility for something, usu. after establishing a confidential relationship." And, utilizing these definitions (or comparable definitions from a variety of other dictionaries), several courts from varying jurisdictions have interpreted what "entrust" means as used within the context of criminal acts exclusions substantially similar to the one at bar. Their interpretations are in harmony with the following language from Imperial Ins. Co. v. Ellington, 498 S.W.2d 368, 372 (Tex.Civ.App.1973):
Id. at 372 (internal citations omitted).
We adopt the meaning of "entrusted" stated above. With that in mind, Neighborhood certainly delivered and surrendered possession of its house located at 403 N. 42nd Street in Louisville to McCormick. Neighborhood acknowledged in its argument below (and in the terms of its written lease agreement with McCormick) that in doing so it expected McCormick would not use the house for any kind of criminal enterprise, much less any kind of criminal enterprise that would render the house uninhabitable. Therefore, we conclude that within the common and ordinary meaning of the word, Neighborhood "entrusted" its house to McCormick. Our conclusion is further bolstered by Vision Financial Group, Inc. v. Midwest Family Mut. Ins. Co., 355 F.3d 640, 643 (7th Cir. 2004), which examined exactly the same criminal acts exclusion noted above and determined that the word "entrusted" clearly encompasses a lessee-lessor relationship.
Neighborhood raises two additional arguments on appeal: 1) by operation of the doctrine of ejusdem generis, the term "anyone," as used in the language of the criminal acts exclusion, should not be interpreted to encompass McCormick; and 2) the word "entrust," when used in a criminal acts exclusion, applies to personal property rather than something along the lines of a house.
Because Neighborhood did not raise either of these arguments below, it cannot serve as a basis for reversing the circuit court's judgment. Healthwise of Kentucky, Ltd. v. Anglin, 956 S.W.2d 213, 217 (Ky.1997).
Furthermore, both of these arguments are meritless. As to Neighborhood's first argument, the doctrine of ejusdem generis provides that broad and comprehensive expressions in a writing, "such as, `and all others,' or `any others,' are usually to be restricted to persons or things of the same kind or class with those specifically named in the preceding words." City of Lexington v. Edgerton, 289 Ky. 815, 159 S.W.2d 1015, 1017 (1941). However, ejusdem generis is a rule of construction, not of substantive law, and it is not to be applied if the intention from the writing is clear. Id. Here, Neighborhood does not cite any authority holding that broad use of the word "anyone" is ambiguous because it fails to specify each and every person to whom it could apply. This is unsurprising because so holding would defeat the purpose and accepted practice of drafting exclusions in broad terms. Contrary to what Neighborhood contends, we find no ambiguity surrounding the word "anyone." As a consequence, the doctrine of ejusdem generis is inapplicable.
In short, Neighborhood has not identified any error that would warrant reversing the Jefferson Circuit Court's judgment in favor of Farm Bureau. Therefore, we affirm.
ALL CONCUR.
Van Sumner, Inc. v. Pennsylvania Nat. Mut. Cas. Ins. Co., 74 N.C. App. 654, 659, 329 S.E.2d 701, 704-05 (1985):