J. THOMAS MARTEN, Judge.
Joey Lowe was killed when the motorcycle he was riding struck a cow on Auburn Road in Shawnee County. The cow, which belonged to Shirley Bosworth, had escaped from pasture owned by David Lewis and Michelle Koelling and located in the vicinity of 7750 S.W. 61st Street in Topeka, Kansas. Individually and as the heirs at law of Joey Lowe, Debra Lowe and Kristopher Lowe filed a state court negligence action against Bosworth, Lewis and Koelling.
Plaintiff State Auto Property & Casualty subsequently brought this declaratory judgment action seeking a determination that the homeowners insurance policy issued to Lewis provides no coverage for the accident. The plaintiff has moved for summary judgment (Dkt. 29), which the court grants for the reasons provided herein.
As a preliminary matter, the court notes that it directed the parties to brief the jurisdiction of the court to hear the present action. After the summary judgment motion was filed, the United States Magistrate Judge entered the Pretrial Order indicating a lack of complete diversity, in that both State Auto and defendant Kristopher Lowe were residents of the State of Iowa.
Although the court directed "each party" to make as showing as to the court's jurisdiction (Dkt. 40), only State Auto has complied. (Dkt. 41). In its response, State Auto argues that the court should exercise its inherent authority to dismiss Kristopher Lowe as a party pursuant to Fed.R.Civ.Pr. 41(a)(1)(B). Although submitted as a brief, State Auto's submission is effectively a motion, since it formally requests the dismissal of Lowe. (Dkt. 41, at 9). None of the defendants have filed any response to this request, or otherwise objected to the result.
For good cause shown, the court finds that Kristopher Lowe is not an indispensable party within the meaning of Fed.R.Civ.Pr. 19 and 21. Kristopher Lowe's interests are identically aligned with Debra Lowe, who remains in the action. Under K.S.A. 60-1902, the underlying action on behalf of Joey Lowe can be advanced "by any one of the heirs" at law. Accordingly, dismissal will not directly imperil the substantial interests of any party. In contrast, a failure to dismiss Kristopher Lowe will deprive the court of jurisdiction, and State Auto of an effective forum for resolution of its declaratory judgment action. Finally, dismissal will serve the interests of judicial economy, as the legal issues in the case have been fully briefed and the court is ready to rule.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a
The facts relating to State Auto's summary judgment motion are essentially uncontested. The land from which the Bosworth cow escaped is a 40 acre pasture located at the 7500 block of S.W. 61st Street, and owned by Lewis and Koelling by Warranty Deed. The pasture is improved with a fence and a 16 foot metal gate. Bosworth uses the land as pasture for her cattle.
It is uncontroverted that the pasture is approximately seven miles from defendant Lewis's residence at 3313 S.W. Clarhan Road in Topeka, Kansas. Lewis has lived at that address since 2000.
At the time of the accident, Lewis had a homeowner's "Personal Insurance Policy" from Farmers, Policy No. HKS 0015709. Under the Policy, Farmers agreed to defend Lewis at 3313 S.W. Clarhan Road in Topeka, Kansas. The limit of liability for personal liability is $300,000 each occurrence.
Section 6 of the Policy defines the "Insured location" to mean:
Section 8 of the Policy defines "Residence Premises" to mean:
The Policy also contains an express exclusion for damages arising out of a premise which is owned or rented by the insured, but which "is not an `insured location.'"
According to the Lowes, they bought the pasture as an investment. They allowed Bosworth to continue raising her cattle there without receiving any payments from her.
Two issues are before the court. First, the parties dispute whether the land in question was "vacant land" within the meaning of Section 6(f). If the land was not vacant land, no coverage exists under the Policy. Even if the land was vacant, the Policy does not provide coverage if it was "farm land."
The court first finds that the land was not "vacant land." The court construes the unambiguous language in an insurance policy according to its "plain, ordinary, and popular sense." O'Bryan v. Columbia Ins. Group, 274 Kan. 572, 56 P.3d 789, 792 (2002).
There are no Kansas cases directly addressing the issue. The defendants cite to Speth v. State Farm Fire & Cas. Co., 272 Kan. 751, 35 P.3d 860 (Kan.,2001), in which the court affirmed the decision of the district court that "vacant" as used in an insurance police was not ambiguous, and that policy language therefore excluded coverage for vandalism damages. The defendants argue that the pasture here should be deemed vacant, just as the house in Speth was also deemed vacant.
But Speth is not directly helpful here, because the court addressed different policy language. At issue in Speth was a specific policy exclusion for damage by vandalism to any "dwelling [that] has been vacant for more than 30 consecutive days." 272 Kan. at 753, 35 P.3d 860. Citing other "vacant dwelling" vandalism clause cases, the court held that the term "vacant" unambiguously applied to a house which was unoccupied for seven months. Id. at 756-57, 35 P.3d 860. See also Roullins v. American Reliable Ins., ___ Kan.App.2d ___, 2013 WL 4565417, *4-5 (Kan.App. Aug. 23, 2013) (following Speth and holding that a house which was "full of . . . personal property" but otherwise unoccupied was a vacant dwelling under vandalism clause). What makes a dwelling vacant is not necessarily the same thing as what makes land vacant.
However, Speth may provide some indirect illumination. In the course of its analysis, the court cited with approval to two decisions which go beyond "vacant dwellings" and address the concept of vacancy itself. Thus, the court quoted the observations in Thompson v. Green Garden Mutual Insurance, 261 Ill.App.3d 286, 291, 199 Ill.Dec. 336, 633 N.E.2d 1327 (1994) that "[t]he term `vacant' has been
Consistent with Thompson and Jerry, the Georgia Court of Appeals determined that the term "vacant" was not ambiguous in the context of defining a similar "vacant land" clause. The term, the court stated, is
Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga.App. 376, 377, 441 S.E.2d 788 (1994). See also Metropolitan Prop. & Cas. v. Jablonske, 722 N.W.2d 319, 328 (Minn. App.2006) (using definition of "vacant" in Black's Law Dictionary 1546 (7th ed.1999) as "[e]mpty, unoccupied . . . [a]bsolutely free, unclaimed, and unoccupied").
Applying these principles to the case at hand, it is apparent that the Bosworth pasturage was not "vacant land," since it was not empty, deprived of contents, had substantial utility, and was not in its natural state. The land had been improved by permanent fencing and a steel gate, and was used for pasturing livestock.
The two cases otherwise cited by the defendants, Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex.Civ.App.1975) and DeLisa v. Amica Mut. Ins. Co., 59 A.D.2d 380, 399 N.Y.S.2d 909 (1977), do not support a contrary result. In Garza, the court concluded, without analysis or citation to authority: "The word `vacant' means unoccupied. An isolated irrigation pump sitting on the land in question does not make the land occupied." 527 S.W.2d at 199. The decision does not discuss how the land was otherwise used, or any other circumstances affecting the land, and Garza has been found to be unpersuasive as to how courts should interpret the phrase "vacant land." See American Family Mut. Ins. Co. v. Page, 366 Ill.App.3d 1112, 304 Ill.Dec. 418, 852 N.E.2d 874, 878-79 (Ill.App. 2 Dist.2006).
In DeLisa, the plaintiffs sought coverage for an injury in a cave on land which they owned. The insurer argued that coverage was excluded because the land was not vacant. The court rejected the argument, finding that, in ordinary usage, "vacant land" means land which is "both unoccupied and unused." 399 N.Y.S.2d at 910. The court stressed that facts present in that case:
Thus, in DeLisa, the only significant improvement on the property was a gate, installed without knowledge of the owner, which had rusted to "uselessness" by the time of the accident.
Moreover, the Bosworth pasture was also occupied. In this context, "vacant" does not mean unoccupied by humans. In Tolbert v. Ryder, 345 So.2d 548 (La.App. 3d Cir.1977), the court explicitly found that land was not vacant when it was used for raising cattle. The defendant argued that the land in question fell within the policy pursuant to language similar to that in the present case. Observing that the land was used by numerous cattle and some farm buildings, the court found little merit in the claim, stating "[w]e are not impressed with this argument." Id. at 553.
Of course, it may be objected that the "extensive" cattle operation in Tolbert was much larger than Bosworth's herd. But this would not affect the result here, because the Policy does not include with in its coverage land which is "largely vacant," "mostly vacant," or "pretty much vacant." The policy applies to injuries arising from "vacant" land; the presence of any of cattle, whether four or 400, means the land is occupied, and hence not vacant.
Because the land was used for the production of cattle, and secured and supported
Even if the court were to find the land was vacant, the ultimate result would not alter because the land is "farm land" under the ordinary and plain meaning of that term.
The defendants argue that the pasture cannot be farm land, and thus is excluded from coverage under the Policy, by citing the definitions contained in K.S.A. 2-3203. That statute defines "agricultural activity" as "the growing or raising of horticultural and agricultural crops, hay, poultry and livestock, and livestock, poultry, and dairy products for commercial purposes," while "Farmland" is defined as "land devoted primarily to an agricultural activity." The defendants argue that summary judgment cannot be granted because the evidence does not show that Bosworth's cattle "were being raised for any commercial purposes." (Dkt. 31, at 9).
But there is nothing in K.S.A. 2-3203 which indicates that the Kansas legislature was attempting to create a one-size-fits-all definition of "farmland" or "agricultural activity." To the contrary, the statute is a part of the Protection of Farmland and Agricultural Activities Act, which has a very narrow purpose, namely granting commercial agricultural "protection from nuisance lawsuits." K.S.A. 2-3201. See Finlay v. Finlay, 18 Kan.App.2d 479, 482-83, 856 P.2d 183 (1993) ("Right to Farm" statute is "an effort to keep the agriculture industry from being crowded out by suburban or industrial expansion"). It accomplishes this goal by declaring that agricultural activities are not a nuisance "if consistent with good agricultural practices and established prior to surrounding nonagricultural activities." Nothing in the statute claims to establish a universal definition for "farm land" under Kansas law.
State Auto offers an opposing interpretation of "farm land," also based on statutory construction. Under K.S.A. 79-1476, "land devoted to agricultural use" is defined to
(Emphasis added). Unlike the "Right to Farm" nuisance statute, K.S.A. 79-1476 contains no requirement that the land be commercially used. But like the nuisance statute, 79-1476 is targeted at a very narrow subject, specifically the valuation of lands for taxation.
Words which are not expressly defined in a contract of insurance are to be interpreted according to their plain and ordinary meaning. Marshall v. Kansas Med. Mut. Ins. Co., 276 Kan. 97, 111, 73 P.3d 120 (2003). Accordingly, the highly specialized statutory definitions cited by the parties are not directly helpful in determining the common understanding of the term "farm land."
In understanding the common usage of words, Kansas courts will turn to common dictionary understandings. See, e.g., Lesher v. Carbon Coal, 127 Kan. 34, 272 P. 155 (1928) (finding on the basis of Webster's Dictionary that "in common parlance [there is] not a great deal of difference" between the terms "meadow land" and "pasture land").
This general usage usage is confirmed in prior decisions by the Kansas courts. Although the terms "pasture" and "farm land" are sometimes used in opposition, as if they were antithetical concepts, see Appeal of Moore, 135 Kan. 541, 11 P.2d 742 (1932) ("appellee owned a stock farm of about 80 acres, of which about 15 acres was meadow, about 15 acres farm land, and the balance pasture"), more commonly the usage indicates that a "farm" or "farm land" encompasses and includes "pasture." See Lutz v. Independent Const. Co., 183 Kan. 798, 332 P.2d 269 (1958) (pollution carried "over and onto plaintiffs' farmland and dwelling, making life generally unbearable for them and resulting in various items of damage [including] injury to eight acres of pasture"); Donley v. Amerada Petroleum Corp., 152 Kan. 518, 106 P.2d 652 (1940) ("The farm was particularly suited to and used for stock-raising purposes [with] about 160 acres of pasture land, about 25 acres of timber along the east side, about 45 acres of tillable land, 15 acres of orchard and the remainder was occupied by buildings"); Poole v. Poole, 96 Kan. 84, 150 P. 592 (1915) ("William D. Poole was a widower, and owned 2,400 acres of farmland in Geary county, where he resided, and also owned about 200 head of cattle").
More importantly, turning to their actual holdings, the court has found no Kansas decision, or decision from any other jurisdiction, stating that land used for raising domestic livestock is not farm land. To the contrary, courts have consistently held that the term "farm" is understood to include such activity. See, e.g., Fraenkel v. Trescony, 48 Cal.2d 378, 309 P.2d 819 (1957) ("[a] farm is generally defined `as a tract of land used for raising crops or rearing animals — one devoted to agriculture, stock raising or some allied industry'" (quoting Board of Supervisors v. Cothran, 84 Cal.App.2d 679, 682, 191 P.2d 506 (1948))); In re Clark's Estate, 141 N.E.2d 259, 262 (Ohio Prob.1955), aff'd, 102 Ohio App. 200, 141 N.E.2d 890 (1956) ("In general `Farm,' means any tract of land used for raising crops or rearing animals" (quotation omitted)); Rodgers v. Caldwell, 142 Ill. 434, 32 N.E. 691 (1892) ("A farm is, both by the standards and in common acceptation, defined to be a body of land, usually under one ownership, devoted to agriculture, either to the raising of crops or pasturage or both").
Thus, in Porter v. Yakima County, 77 Wn. 299, 301, 137 P. 466, 467 (1914), the court found that in its common or "generic. . . sense" the term "farm" includes animal husbandry.
Similarly, in Gordon v. Buster, 113 Tex. 382, 257 S.W. 220 (1923), the court noted that historical usage had sometimes distinguished farming and ranching (as exemplified in decisions such as Appeal of Moore, discussed earlier). But the court stressed that the terms were not properly considered to be separate activities. "The noun `farm' in this country prominently means a tract of land chiefly under cultivation," it observed, "yet, as we have seen in its general scope and significance it means any tract of land used for the production of crops or the rearing of animals." 113 Tex. at 386, 257 S.W. 220.
The court explained this historical evolution:
113 Tex. at 386-87, 257 S.W. at 222.
Where courts have held that raising animals is not farming, it was because the animals were not domestic in nature. See Commonwealth v. Proctor, 355 Mass. 504, 246 N.E.2d 454, 456 (1969) (mink ranch was not a farm, since mink are not "domesticated," which "ordinarily carries the meaning of tamed, associated with family life, accustomed to life in or near the habitations of men" (internal quotation omitted)).
Turning to cases defining "farm land" in the context of similar insurance policy language, in Saha v. Aetna Cas. & Sur. Co., 427 So.2d 316, 317 (Fla.App.1983), the court found "entirely correct" the district court's decision that the plaintiff's 22 acre tract used raising "a small herd of cattle" was farm land.
Id. at 316-17. The court reached this holding even though the insured, a practicing
Similarly, in State Farm Fire & Cas. Co. v. Comer, 1996 WL 33370669, *2 (N.D.Miss.1996), the court rejected a similar "farm land" argument, under factual circumstances similar to those presented here.
The court finds that the term "farm land" is not ambiguous, and that in its plain, ordinary and common meaning, the pasturage in the present action is considered farm land within the meaning of Section 6 of the Policy.
IT IS ACCORDINGLY ORDERED this 18th day of March, 2014, that the defendant Kristopher Lowe is hereby dismissed from the action; plaintiff's Motion for Summary Judgment (Dkt. 29) is hereby granted.
