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Asbury v. Indiana Union Mut. Ins. Co.

Court of Appeals of Indiana, First District

October 26, 1982, Filed

No. 1-282 A 51

Opinion

 [*234]  STATEMENT OF THE CASE

Plaintiffs-appellants Dean Asbury and Paula Asbury (Asburys) appeal an order of the Montgomery Circuit Court granting defendant-appellee Indiana Union Mutual Insurance Company's (IUMI) motion for summary judgment in an insurance contract action for recovery for breach of contract where the trial court determined that the loss was not covered under a business property exclusion provision in the Asburys' homeowners policy.

We reverse.

STATEMENT OF THE FACTS

The material in favor of the non-moving parties, the Asburys, discloses that on May 14, 1980, they applied for a policy of insurance with IUMI to cover their personal property and home; such an insurance contract is commonly [**2]  called a homeowners policy.

Mr. Asbury has been employed as a mill operator at Prowler Industries in Crawfordsville, Indiana, since 1976, and Mrs. Asbury works as a medical assistant. Since he was a child, Mr. Asbury has hunted for sport. He hunts with several trained coon dogs which he owns and keeps for the purpose of hunting. He has participated in many sporting contests, using his coon dogs to hunt raccoons, and he has won several trophies over the years for the performance of his coon dogs.

During the Fall of 1980, Mr. Asbury hunted and killed approximately 117 raccoons and 11 foxes; he skinned the animals and stored the pelts in a deep freeze located in a barn on his premises. Sometime in December of 1980, the locks on the barn and freezer were broken and the animal pelts, having an approximate value of $3,500, were stolen. Subsequently, the Asburys properly filed a claim of loss with IUMI, which rejected their loss, claiming the animal skins were not covered under their homeowners policy because they represented "business property" which was excluded from coverage under the policy. The exclusionary clause reads as follows:

"Property Not Covered. We do not cover:  [**3]  

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441 N.E.2d 232 *; 1982 Ind. App. LEXIS 1443 **

Dean ASBURY and Paula Asbury, Plaintiffs-Appellants, v. INDIANA UNION MUTUAL INSURANCE COMPANY, Defendant-Appellee

Prior History:  [**1]   Appeal from the Montgomery Circuit Court C81-83 The Honorable Thomas K. Milligan, Judge.

Disposition: We reverse and remand for trial.

CORE TERMS

insured, business property, occupation, insurance policy, profession, insurance contract, skins, insurance company, animal, business pursuit, livelihood, trial court, coverage, ambiguous, homeowner's policy, furs, earning, summary judgment, engages, dogs, hunted, stolen, exclusionary provision, exclusion clause, pursuits', regular, hobby, pelts, Dictionary, regularly

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Judicial Officers, Judges, General Overview, Judgments, Opposing Materials, Genuine Disputes, Materiality of Facts, Insurance Law, Contract Formation, Claim, Contract & Practice Issues, Policy Interpretation, Ordinary & Usual Meanings, Plain Language, Contracts Law, Defenses, Public Policy Violations, Ambiguous Terms, Unambiguous Terms, Property Insurance, Homeowners Insurance, Business Pursuits, Exclusions, Construction Against Insurers