Nationwide Insurance Company, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0085

Nationwide Insurance Company,
Appellant,

vs.

Wadena Insurance Company, et al.,
Respondents,

Matthew J. Fee,
Respondent,

Luke A. Buck,
Respondent,

John Patrick Gillen,
Respondent.

Filed June 20, 2023
Affirmed
Connolly, Judge

Washington County District Court
File No. 82-CV-22-620

Sylvia Ivey Zinn, Brendel and Zinn, Ltd., St. Paul, Minnesota (for appellant)

Kevin J. Kennedy, Amanda G. Sperow, Borgelt, Powell, Peterson & Frauen, S.C., Oakdale,
Minnesota (for respondent Wadena Insurance Company)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal in this declaratory-judgment action, appe llant-insurer challenges the
district court’s grant of summary judgment in favor of respondent- insurer. Appellant
argues that the district court erred in determining that appellant’s policy was primary
because there is no coverage under appellant’s homeow ner’s insurance policy for
respondent-insured’s operation of a golf cart he does not own. We affirm.
FACTS
On June 16, 2019, respondents Matthew Fee, Luke Buck, and John Gillen played
golf at respondent Tanners Brook Golf Course (Tanners Brook). During the game, Fee
was allegedly injured when he was thrown from a golf cart operated by Gillen that struck
a golf cart operated by Buck.
The golf carts were owned by Tanners Brook, and respondent Wadena Insurance
Company (Wadena) provided businessowners insurance to Tanners Brook at the time of
the incident. The relevant provisions in Wadena’s insurance policy provide that an insured
is “[a]ny person using or legally responsible for the use of golf carts loaned or rented to
others by you or any of your concessionaires, but only with respect to their liability arising
out of the use of the golf carts.” But the policy contains an “Other Insurance” provision,
which states, in relevant part, as follows:
1. If there is other insurance covering the same loss or
damage, we will pay only for the amount of covered loss or
damage in excess of the amount due from that other
insurance, whether you can collect on it or not. . . .

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2. Business Liability Coverage is excess over:

a. Any other insurance that insures for direct physical loss
or damage; or

b. Any other primary insurance available to you covering
liability for damages arising out of the premises or
operations for which you have been added as an
additional insured.

3. When this insurance is excess, we will have n o duty under
Business Liability Coverage to defend any claim or “suit”
that any other insurer has a duty to defend.

Appellant Nationwide Insurance Company (Nationwide) provided homeowner’s
insurance to Buck during the relevant time period. Nationwide’s policy contains the
following provision related to coverage for personal liability:
If a claim is made or a suit is brought against an
“insured” for damages because of “bodily injury” or “property
damage” caused by an “occurrence” to which this coverage
applies, we will:

1. Pay up to our limit of liability for the damages for which an
“insured” is legally liable. . . .

2. Provide a defense at our expense by counsel of our choice,
even if the suit is groundless, false or fraudulent. We may
investigate and settle any claim or suit that we decide is
appropriate. Our duty to settle or defend ends when the
amount we pay for damages resulting from the
“occurrence” has been exhausted by payment of a judgment
or settlement.

Nationwide’s policy also contains a “Motor Vehicle Liability” exclusion, which
states in relevant part:
1. Coverages E and F do not apply to any “motor vehicle
liability” if, at the time and place of an “occurrence”:

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. . . .

b. The involved “motor vehicle” is being:

. . . .

4) Used for any “business” purpose except for a
motorized golf cart while on a golfing facility.

2. If Exclusion A.1. does not apply, there is still no
coverage for “motor vehicle liability” unless the “motor
vehicle” is:

. . . .

d. Designed for recreational use off public roads
and:

1) Not owned by an “insured”; or

. . . .

e. A motorized golf car t that is owned by an
“insured,” designed to carry up to 4 persons, not
built or modified after manufacture to exceed a
speed of 25 miles per hour on level ground and,
at the time of an “occurrence,” is within the legal
boundaries of:

1) A golfing facility and is parked or stored
there, or being used by an “insured” to:

a) Play the game of golf or for other
recreational or leisure activity allowed
by the facility;

b) Travel to or from an area where
“motor vehicle” or golf carts are
parked or stored; or

c) Cross public roads at designated
points to access other parts of the
golfing facility.
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Fee commenced a lawsuit against Buck for injuries sustained in the golf-cart
collision. Nationwide later commenced this declaratory-judgment action seeking an order
requiring Wadena to defend and indemnify Buck in Fee’s personal-injury action.
Nationwide argued that the claims asserted in Fee’s personal-injury action triggered
coverage under Wadena’s insurance policy, and that those claims are excluded from
coverage under Nationwide’s policy. Wadena responded, claiming that Nationwide’s
policy provides primary coverage, and that Wadena’s policy only provides excess coverage
over any other insurance. Nationwide and Wadena subsequently filed cross motions for
summary judgment on the insurance-coverage issue.
The district court found that Nationwide is obligated to provide insurance coverage
under two exceptions to its motor vehicle liability exclusions: (1) vehicles designed for
recreational use off public roads that are not owned by Buck; and (2) golf carts owned by
Buck and used in a certain manner. The district court also found that, although the phrase
“vehicle designed for recreational use off public roads” is not defined in Nationwide’s
policy, both parties contend that Nationwide’s policy is unambiguous, and the “Court
agrees.” The district court then determined that the “golf cart was designed for recreational
purposes” and “[n]othing in the record supports the conclusion that the golf cart in this case
was designed for primary use on public roads.” Therefore, the district court concluded that
the exception to Nationwide’s motor vehicle liability exclusion “applies to Buck’s
operation of the golf cart because the golf cart is a vehicle designed for recreational use off
public roads and the golf cart was not owned by Buck.”
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The district court also determined that “the ‘other insurance’ clause of the Wadena
policy, which provides that the Wadena policy provides excess coverage over other
insurance, does not conflict with the Nationwide policy.” The district court concluded that,
as a result, “the Nationwide policy provides coverage, and the Wadena policy provides
excess coverage.” (Footnote omitted.) Thus , the district court granted Wadena’s motion
for summary judgment and denied Nationwide’s motion for the same. Nationwide appeals.
DECISION
Summary judgment is appropriate if the moving party shows that “there is no
genuine issue as to any material fact” and that the moving party is “entitled to judgment as
a matter of law.” Minn. R. Civ. P. 56.01. This court reviews “a grant of summary judgment
de novo.” Henson v. Uptown Drink, LLC, 922 N.W.2d 185, 190 (Minn. 2019). Similarly,
our review is de novo where, as here, the sole issue involves the district court’s
interpretation of an insurance policy and whether the policy affords coverage for a
particular situation. Depositors Ins. Co. v. Dollansky, 919 N.W.2d 684, 687 (Minn. 2018).
Insurance policies are interpreted according to general contract principles.
Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn. 2002). In general, when
interpreting an insurance contract, the “policy must be read as a whole, and unambiguous
language must be given its plain and ordinary meaning.” Com. Bank v. W. Bend Mut. Ins.
Co., 870 N.W.2d 770, 773 (Minn. 2015). Moreover, “[p]rovisions in a policy must be read
in context with all other relevant provisions.” Id. If the language is “clear and
unambiguous,” we “enforce the agreement of the parties as expressed” in the contract.
Storms, Inc. v. Mathy Constr. Co., 883 N.W.2d 772, 776 (Minn. 2016) (quotation
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omitted). In other words, we do not “rewrite, modify, or limit” the effect of an
unambiguous provision “by a strained construction.” Id. (quotation omitted).
Exclusions in an insurance policy “are as much a part of the contract as other parts
thereof and must be given the same consideration in determining what is the coverage.
Exclusions are ambiguous only when they are reasonably subject to more than one
interpretation.” Pepper v. State Farm Mut. Auto Ins. Co., 813 N.W.2d 921, 927 (Minn.
2012) (quotations and citations omitted). But when an exclusion’s “language is clear and
unambiguous,” we will interpret the exclusion “‘according to plain, ordinary sense so as to
effectuate the intention of the parties.”’ Carlson v. Allstate Ins. Co. , 749 N.W.2d 41, 45
(Minn. 2008) (quoting Canadian Universal Ins. Co. v. Fire Watch, Inc., 258 N.W.2d 570,
572 (Minn. 1977)).
Here, in granting summary judgment to Wadena, the district court referred to the
definitions of “recreational vehicle” contained in Minn. Stat. § 168.002, subd. 27 (2022),
and Minn. Stat. § 84.90, subd. 1(1) (2022). The district court then found that the golf cart
in this case “was designed for recreational purposes” and is consistent with the definition
of “recreational motor vehicle.” Although the district court “recognize[d] that a golf cart
is not a ‘motor vehicle’ under Minnesota’s No-Fault Automobile Insurance Act,” the court
concluded that Nationwide’s motor vehicle liability exclusion applies in this case because
the golf cart operated by Buck “is a vehicle designed for recreational use off public roads
and the golf cart was not owed by Buck.”
Nationwide challenges the district court’s decision, arguing first that the district
court “committed reversible error in concluding that a golf cart is a vehicle.” But it is well
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settled that a party may not raise a new issue on appeal, “[n]or may a party obtain review
by raising the same general issue litigated below but under a different theory.” Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988). Here, as Wadena points out, the “issue of
whether a golf cart qualifies as a ‘vehicle’” is not properly before this court because
Nationwide failed to raise it in district court. Rather, Nationwide’s position below was that
no coverage was available under its policy because (1) Buck did not own the golf cart, and
(2) the golf cart is not a recreational vehicle. Therefore, because Nationwide is arguing a
new theory on appeal, its argument related to a golf cart not being a motor vehicle is not
properly before us.
1
Nationwide also argues that the district court erred in concluding that Buck is
entitled to coverage under Nationwide’s homeowner’s policy for liability arising from the
operation of a golf cart that Buck does not own. To support its position, Nationwide refers
to the plain language of the motor vehicle liability exclusion contained in its homeowner’s
policy, which Nationwide asserts “does not provide coverage for motor vehicle liability.”
Nationwide acknowledges, however, that the Motor Vehicle Liability exclusion “contains
several exceptions, one dealing specifically with golf carts.” Nationwide contends that this

1 Wadena also asserts that Nationwide’s addendum includes excerpts from Nationwide’s
insurance policy that we should not consider because they are not part of the district court
record. Indeed, the appellate record consists of “documents filed in the [district] court, the
exhibits, and the transcript of the proceedings,” Minn. R. Civ. App. P. 110.01, and “[a]n
appellate court may not base its decision on matters outside the record on appeal, and may
not consider matters not produced and received in evidence below,” Thiele, 425 N.W.2d at
582-83. Nationwide acknowledges that it “provided the entire certified homeowner’s
policy,” and concedes “that only the portions in the [district] court file should be
considered.” We, therefore, considered only that portion of the insurance policy that were
before the district court below.
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“very limited” golf-cart exception “restores liability coverage to occurrences involving a
motorized golf cart only when Buck owns the golf cart.” Nationwide argues that, because
Buck does not own the golf cart, the golf-cart exception does not apply. In other words,
Nationwide argues that, because the golf-cart exception “is the limited exception regarding
golf carts in the motor vehicle exclusion,” and that “exception does not apply to the facts
[in this case], coverage is not restored and the [motor vehicle liability] exclusion applies.”
We are not persuaded. Despite Nationwide’s argument that the only applicable
exception to the motor vehicle liability exclusion is the golf-cart exception since it is the
only exception explicitly relating to golf carts, the plain language of Nationwide’s policy
is not so limiting. There is nothing in the golf-cart exception stating that it is the only
exception applicable to occurrences involving golf carts. Moreover, the exceptions to the
motor vehicle liability exclusion contained in Nationwide’s policy are separated by the
word “or.” “Or” is a disjunctive, meaning that if one exception does not apply, another
exception might apply. See Aberle v. Faribault Fire Dep’t Relief Ass’n, 41 N.W.2d 813,
817 (Minn. 1950) (“The word ‘or’ is a disjunctive and ordinarily refers to different things
as alternatives.”). As such, the plain language of Nationwide’s policy indicates that, if the
golf-cart exception does not apply, coverage may still be restored under another exception
to the motor vehicle liability exclusion.
Wadena agrees that the golf-cart exception does not apply in this case because Buck
does not own the golf cart. But Wadena contends that the district court correctly found
that Nationwide’s policy provides coverage under the recreational-vehicle exception. We
agree.
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As stated above, Nati onwide’s policy states that “there is still no coverage for
‘motor vehicle liability’ [under Nationwide’s policy] unless the ‘motor vehicle’ is . . .
[d]esigned for recreational use off public roads” and is “[n]ot owned by an ‘insured.’” The
parties agree that “recreational vehicle” is not defined by Nationwide’s policy, nor does
the policy define the phrase “designed for recreational use.” But the parties also agree that
the policy is unambiguous. When interpreting an insurance contract , the “policy must be
read as a whole, and unambiguous language must be given its plain and ordinary meaning.”
Com. Bank, 870 N.W.2d at 773; see Carlson, 749 N.W.2d at 45 (stating that when an
exclusion’s “language is clear and unambiguous,” this court will interpret the exclusion
“according to plain, ordinary sense so as to effectuate the intention of the parties”
(quotation omitted)).
Here, common sense dictates that a golf cart is a vehicle designed for recreational
use off public roads. Golf carts are primarily used for transportation while playing golf,
and golf is generally considered a recreational activity. See The American Heritage
Dictionary of the English Language 1470 (5th ed. 2018) (defining “recreation” as
“[r]efreshment of one’s mind or body after work through activity that amuses or stimulates
play. . . . An activity that provides such refreshment”). Moreover, because golf carts are
primarily used for transportation while playing golf, they are generally designed for use off
public roads. In fact, the district court found, and Nationwide does not dispute, that
“[n]othing in the record supports the conclusion that the golf cart in this case was designed
for primary use on public roads.”
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In addition to the plain and ordinary interpretation of the phrase “[d]esigned for
recreational use off public roads,” the definition of “recreational vehicle” contained in the
Minnesota Statutes supports the determination that a golf cart is a vehicle designed for
recreational use. For example, chapter 168 of the Minnesota Statutes, which applies to
vehicle registration, defines “[r]ecreational vehicle,” in relevant part, as “a vehicle that:
(1) is not used as the residence of the owner or occupant; (2) is used while engaged in
recreational or vacation activities; and (3) is either self-propelled or towed on the highways
incidental to the recreational or vacation activities.” Minn. Stat. § 168.002, subd. 27(b).
As noted above, a golf cart is a vehicle “used while engaged in recreational activities.” See
id.
Similarly, chapter 84 of the Minnesota Statutes, which applies to the Department of
Natural Resources (DNR), defines “[r]ecreational motor vehicle” as “any self-propelled
vehicle and any vehicle propelled or drawn by a self-propelled vehicle used for recreational
purposes, including but not limited to snowmobile, trail bike or other all-terrain vehicle,
hovercraft, or motor vehicle licensed for highway operation which is being used for off-
road recreational purposes.” Minn. Stat. § 84.90, subd. 1(1). Again, a golf cart is a “self-
propelled vehicle used for recreational purposes,” that purpose being transportation during
the game of golf. Although the statute lists several types of vehicles, none of which are
golf carts, the statute specifically states that recreational vehicles are “not limited to” the
vehicles described in the statute. Id.
Finally, the district court’s conclusion that coverage is restored under Nationwide’s
policy is supported by the persuasive analysis in Metro. Prop. & Cas. Ins. Co. v. Marti, 162
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F. Supp. 3d 868 (D. Minn. 2016). In that case, a passenger was injured during a social
event at a winery while riding on the back of six wheeled John Deere Gator that was owned
by the winery. Marti, 162 F. Supp. 3d at 870-71. A declaratory-judgment action was later
commenced by the insurer of the Gator’s driver to determine whether there was coverage
under the driver’s homeowner’s insurance policy. Id. at 874. The driver’s homeowner’s
policy excluded coverage for “motorized land vehicles,” and the parties agreed that the
Gator was a motorized land vehicle. Id. at 876. But the policy contained an exception
from the exclusion for a motorized land vehicle not owned by the driver and “principally
designed for recreational use off public roads,” and “not subject to motor vehicle
registration.” Id. at 876-77 (emphasis added).
The court found that the recreational-use exception is not ambiguous and that the
ordinary meaning of “recreation means refreshment of strength and spirits after work or a
means of refreshment or diversion: hobby.” Id. at 878-79 (quotations omitted). As such,
the court concluded that “‘recreational use’ refers to activities of leisure or diversion, as
opposed to work purposes.” Id. at 879. The court then found that the operator’s manual
stated that the Gator is a “‘utility vehicle, not a recreation vehicle’” and the winery owners
testified that the Gator was used for agricultural purposes. Id. at 879-80. Relying on that
evidence, the court concluded that the Gator’s principal use was as a utility vehicle and,
pursuant to the driver’s insurance policy, the Gator was not a vehicle “principally designed
for recreational use.” Id. at 879-80. The court further noted that the statutory definition of
“recreational motor vehicle” contained in section 84.90, subdivision 1(1) did not apply to
the Gator because the statute limited the definition of recreational motor vehicle to those
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used for recreational purposes. Id. at 880. Therefore, the court concluded that the plain
and unambiguous language of the recreational-use exception to the motorized-vehicle
exclusion contained in the driver’s policy did not apply to the Gator because the Gator did
not fall within the exception’s limited application to vehicles that are principally produced
with special intentional adaptation for leisure or diversion off public roads. Id. at 880-81.
Here, as the parties agree, the Gator at issue in Marti is not akin to the golf cart at
issue in this case. But the policy language in Marti is very similar to the policy language
at issue here. In interpreting the phrase “principally designed for recreational use off public
roads,” the court in Marti focused on the principal use of the Gator. Id. at 879-880.
Applying that reasoning here, the focus is on whether a golf cart is “[d]esigned for
recreational use.” As discussed above, a golf cart, unlike t he Gator in Marti , is designed
for recreational use.
In sum, based on the plain and ordinary meaning of the phrase “designed for
recreational use off public roads,” as well as other authority defining “recreational vehicle,”
we conclude that a golf cart is a vehicle “designed for recreational use off public roads.”
Therefore, coverage is restored under Nationwide’s policy, and the district court did not
err in granting summary judgment to Wadena.2
Affirmed.

2 We note that we have not been asked to determine which policy applies based on a
closeness-to-the-risk analysis. See Visser v. State Farm Mut. Auto. Ins. Co., 938 N.W.2d
830, 833 n.2 (Minn. 2020) (noting that the closeness -to-the-risk concept prioritizes
“coverage when at least two policies insured the same risk, but those policies did not
specify how to apportion liability”).