NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

VIKING INSURANCE COMPANY OF WISCONSIN, 

Plaintiff/Appellant, 

v.

MARVIN LINK and CAROLE LINK, et al., Defendants/Appellees. 

No. 1 CA-CV 16-0646 

Appeal from the Superior Court in Mohave County

No. S8015CV201100599 

The Honorable Lee Frank Jantzen, Judge

VACATED; REMANDED

COUNSEL

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Michael W. Halvorson, Jennifer B. Anderson

Counsel for Plaintiff/Appellant

The Sutherland Law Firm, Kingman

By Douglas D. Sutherland

Counsel for Defendant/Appellee Herbert Walton

FILED 9-27-2018
VIKING v. LINK, et al.

Decision of the Court

2 

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in 

which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.

P E R K I N S, Judge:

¶1 An insurance carrier brought this action seeking declaratory 

relief that its policy did not cover damages to a tractor towed behind the 

insured’s vehicle. For the following reasons, we vacate the trial court’s

judgment and remand for entry of judgment in favor of insurance carrier. 

FACTUAL AND PROCEDURAL HISTORY

¶2 The relevant facts are undisputed. Marvin Link insured his

Silverado pickup truck through Viking Insurance Company of Wisconsin 

(“Viking”). Link originally had the vehicle insured when he bought it in 

2009; because Link had previously insured two other trucks through 

Viking, the salesperson at the dealership contacted Link’s insurance broker

and arranged for the insurance policy. Link had no direct contact with any 

representative of Viking at that time, although the salesperson at the car 

dealership relayed to Link that he had “full coverage” on the truck. Within 

two weeks, Viking sent Link a copy of the insurance policy, which Link 

never read other than to confirm that the policy related to and listed the 

Silverado pickup truck. 

¶3 In 2010, Link borrowed a tractor from Herbert Walton; once 

finished with it, Link rented a utility trailer from a commercial rental 

company to return the tractor to Walton. The rental company hooked the 

trailer onto Link’s truck, then Link returned to his property and loaded the 

tractor onto the trailer. While towing the tractor from his property back to 

Walton’s, the trailer detached from Link’s truck and, although the safety 

chains remained attached, the trailer drifted into the median and rolled 

over with the tractor, causing substantial damage. A passenger in the truck 

was also injured and Viking asserts it covered Link’s liability as to the 

passenger’s injuries; that coverage is not at issue here. 

¶4 Walton filed suit in trial court against Link and the rental 

company for the damages to the tractor. Viking provided Walton a defense 

for this civil action, reserved its rights to deny coverage for Walton’s 
VIKING v. LINK, et al.

Decision of the Court

3 

claimed damages, and brought the instant suit for declaratory relief against 

Link and Walton. Viking’s complaint asked the court to construe its policy 

with Link and hold that it did not cover the damages to the tractor. Viking 

later voluntarily dismissed its claim against the rental company with 

prejudice. Viking moved for summary judgment, which the court denied. 

Thereafter, Walton and Link settled the underlying suit pursuant to United 

Services Auto. Ass’n v. Morris, 154 Ariz. 113, 121 (1987). 

¶5 Under the Morris agreement, Link consented to a judgment 

awarding $75,000 to Walton for damages of “destruction of property; loss 

of use; mental anguish; depression; and pain and suffering,” all related to

the damaged tractor. Under the agreement, in return for a covenant not to 

execute on the judgment, Link also assigned to Walton any claims Link had 

against Viking arising out Viking’s issuance and subsequent denial of 

insurance coverage. Walton then filed a counterclaim against Viking in this 

case for breach of the insurance contract, negligence, and consumer fraud. 

Walton alleged that Viking had represented to Link that it provided “a 

comprehensive insurance policy which would cover the Links for all types 

of accidents which could happen while operating” the pickup truck. Viking 

later renewed its motion for summary judgment, and, following oral 

argument, the court denied the motion. 

¶6 At the next status conference, the parties discussed the court’s 

intended meaning of certain language in the order denying Viking’s motion 

and whether the court had ruled in favor of Walton. The court clarified that 

its intent had been to rule for Walton on the merits of Walton’s counterclaim 

and ordered his counsel to draft a judgment. The court entered its judgment 

on September 30, 2016, then amended the judgment on October 25 to 

conform with Arizona Rule of Civil Procedure 54(c).

¶7 In the judgment, the trial court held that none of the contract’s 

exclusions limited coverage for damage to the towed tractor. The court 

explained that, although the policy defined the term “property damage,” it 

did not define the term “damage to property,” and that, because the policy 

used the term “damage to property” in the exclusion upon which Viking 

relied, neither “property damage” nor “loss of use” were part of the 

exclusion. The court further held that the policy contained no exclusion for 

claims regarding “mental anguish, depression and emotional distress 

damages.” The court went on to hold that, in any event, “Link reasonably 

believed that he would be covered for all of his negligent acts in operating 

his vehicle while pulling a trailer.” The court reasoned that pulling a trailer 

is an intended use of a pickup truck and that Link could reasonably expect 
VIKING v. LINK, et al.

Decision of the Court

4 

that the Viking policy would cover all damages arising out of an intended 

use.

¶8 Viking timely appealed from the final judgment, but we 

stayed the appeal after Viking filed a motion with the trial court “for new 

trial or in the alternative to alter or amend the judgment.” The court denied 

the motion as to a new trial, but granted the motion to amend the judgment 

to allocate damages to the categories identified in the $75,000 Morris

agreement and subsequent judgment. The trial court again ordered Walton 

to prepare a judgment, and signed its final judgment on October 23, 2017. 

¶9 In the final judgment, the trial court again denied Viking’s 

request for a new trial and apportioned damages in the amounts of $29,000 

for the tractor, $36,000 for Walton’s loss of use of the tractor, and $10,000 

“for pain and suffering, emotional distress and mental anguish damages, 

for Walton not having” the tractor. Viking timely filed an amended notice 

of appeal from that judgment and we reinstated the appeal. 

DISCUSSION

¶10 As an initial matter, the parties dispute the standard of 

review. On appeal, Viking now argues that no trial took place and the court 

entered a sua sponte summary judgment pursuant to Arizona Rule of Civil 

Procedure 56(h)(1) (now 56(f)(1)). Walton argues that the court converted 

the final status conference into a bench trial, and thus the applicable 

standard of review should be abuse of discretion for factual matters. 

¶11 The parties do not dispute any facts, however. The only 

disputes presented in the briefs involve contract interpretation and the 

reasonable expectations doctrine, each of which we review de novo. Am.

Power Prod., Inc. v. CSK Auto, Inc., 242 Ariz. 364, 367, ¶ 12 (2017) (contract 

interpretation); Harrington v. Pulte Home Corp., 211 Ariz. 241, 246–47, ¶ 16 

(App. 2005) (“reasonable-expectations claims may present questions of 

both fact and law,” and we will apply the clear-error standard to review 

factual findings, but “[w]e will review the trial court’s conclusions of law 

. . . de novo.”). Because the parties have not argued that any errors arose 

from either the court’s factual findings or procedural foibles, our review is 

de novo. 
VIKING v. LINK, et al.

Decision of the Court

5 

I. Contract Interpretation

¶12 In interpreting a contract, our goal is “to determine and 

enforce the parties’ intent.” Dunn v. FastMed Urgent Care PC, 793 Ariz. Adv. 

Rep. 20, *2, ¶ 10 (App. Jun 19, 2018). To do so, we begin with the plain 

meaning of the words, taken in the context of the entire contract. Grosvenor 

Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9 (App. 2009). “Where the 

intent of the parties is expressed in clear and unambiguous language, there 

is no need or room for construction or interpretation and a court may not 

resort thereto.” Mining Inv. Grp., LLC v. Roberts, 217 Ariz. 635, 639, ¶ 16 

(App. 2008) (quoting Goodman v. Newzona Inv. Co., 101 Ariz. 470, 472 (1966)). 

A term of an insurance policy is ambiguous if it “is subject to conflicting 

reasonable interpretations.” Teufel v. Am. Family Mut. Ins. Co., 244 Ariz. 383, 

385, ¶ 10 (2018) (quotation omitted). 

¶13 The policy insured Link’s truck “subject to the terms and 

conditions of this policy . . . up to the limits of liability.” The terms and 

conditions included several exclusions, including an exclusion for 

“[d]amage to property owned by, rented to, or being transported by, used 

by, or in the charge of an insured person, except damage to a private 

residence or garage you rent.” Furthermore, the policy states: “’Property 

damage’ means damage to or destruction of tangible property, including 

loss of its use.” The policy also defines “insured person” as “[y]ou” or 

“[a]ny person using your insured car.”

¶14 By the plain meaning of the contract, the tractor was tangible 

property that was damaged while an insured person transported it. Link, 

the insured person, put the tractor onto the trailer to transport it back to 

Walton’s property. The tractor was damaged during this trip. Under these 

circumstances, the policy does not cover the physical damage to the tractor.

¶15 Nevertheless, Walton argues that the “loss of use” damages 

do not fall under the exclusion because the exclusion uses the term “damage 

to property” whereas the policy defines only the term “property damage.” 

Because the policy fails to define “damage to property” as including “loss 

of use,” Walton argues, loss of use damages do not fall within the exception. 

We disagree.

¶16 Arizona courts view insurance contract language from the 

“standpoint of the average layman who is untrained in the law or 

insurance.” Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 469, ¶ 17 (App. 

2010) (quoting Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 537 (1982)). 
VIKING v. LINK, et al.

Decision of the Court

6 

“Common sense is as much a part of contract interpretation as the 

dictionary or the arsenal of canons.” Allstate Prop. & Cas. Ins. Co. v. Watts 

Water Tech., Inc., 244 Ariz. 253, 257, ¶ 12 (App. 2018) (quotation omitted). 

We simply cannot say that a layman employing his common sense would 

understand “property damage” and “damage to property” to mean two 

separate concepts, particularly in light of the fact that the contract expressly 

defines “property damage” to mean “damage to . . . property, including loss 

of its use.” See Assoc. Aviation Underwriters v. Wood, 209 Ariz. 137, 179, ¶ 147 

(App. 2004) (“Arizona courts disfavor hypertechnical arguments”) 

(quotation omitted). Accordingly, we hold that under this contract “loss of 

use damages” to the tractor are plainly one and the same with “property 

damage” and “damage to property” and are thus excluded from coverage. 

¶17 Walton also argues that loss of use damages are “separate and 

distinct” from property damages. This is true in a certain sense, as a tort 

plaintiff must prove loss of use damages separately from the damages that 

caused the property to be in an unusable condition in the first place. See 

Max of Switz., Inc. v. Allright Corp. of Del., 187 Ariz. 496, 499 (App. 1997). In 

this case, however, we need not consider the definitions of terms employed 

in case law because the policy itself defines property damage as including 

loss of use damages. See Am. Power Prod., Inc v. CSK Auto, Inc., 242 Ariz. 364, 

370, ¶ 22 (2017) (parties can define terms “in whatever way they see fit” so 

long as the contract is “legal and enforceable”).

¶18 Finally, in the final amended judgment the trial court

awarded “$10,000.00 for pain and suffering, emotional distress and mental 

anguish damages, for Walton not having his . . . tractor.” None of these 

damages are available here. On appeal, Walton admits that he has never 

asserted “that he incurred pain and suffering type damages. There is no 

question that Walton was not physically hurt as a result of the subject 

accident.” Furthermore, Walton argues the emotional distress damages 

arise from the fact that he relied upon the tractor “to assist and treat his 

symptoms of Post-Traumatic Stress Disorder.” The emotional distress 

damages thus arise only from the use of the tractor and loss of use damages 

are excluded under the contract. See supra ¶¶ 15–16. Finally, mental anguish 

is an element of the separate tort of negligent infliction of emotional 

distress, which has not been alleged here. See Monaco v. HealthPartners of S. 

Ariz., 196 Ariz. 299, 302, ¶ 7 (App. 1999) (quoting Keck v. Jackson, 122 Ariz. 

114, 115–16 (1979)). The insurance contract excludes from coverage all of 

the damages described in the Morris agreement.
VIKING v. LINK, et al.

Decision of the Court

7 

II. Reasonable Expectations 

¶19 The trial court held that Link reasonably expected that the 

Viking policy would cover the damages to the tractor because it provided 

coverage for utility trailers and because “[p]art of the intended function of 

Link’s pick-up truck was to a pull a utility trailer.”

¶20 “Arizona courts will not enforce even unambiguous 

boilerplate terms in standardized insurance contracts in a limited variety of 

situations.” Gordinier v. Aetna Cas. & Sur. Co., 154 Ariz. 266, 272 (1987) 

(emphasis in original). First, where an insurance term, “although not 

ambiguous to the court, cannot be understood by the reasonably intelligent 

consumer who might check on his or her rights,” we will interpret it in light 

of the insured’s reasonable expectations. Id. at 272–73 (citation omitted). 

Second is where the insured did not receive adequate notice of the term 

“and the provision is either unusual or unexpected, or one that emasculates 

apparent coverage.” Id. at 273 (citation omitted). Third is where “some 

activity which can be reasonably attributed to the insurer would create an 

objective impression of coverage in the mind of a reasonable insured.” Id.

(citation omitted). Fourth is where an activity reasonably attributed to the 

insurer “induced a particular insured reasonably to believe that he has 

coverage,” even though the policy “expressly and unambiguously” 

disclaims such coverage. Id. (citation omitted).

¶21 Here, the exclusion can be understood by a reasonably 

intelligent consumer who checks on his or her rights. “Damage to property 

. . . transported by . . . an insured person” is not a difficult concept for a 

reasonably intelligent person to understand. Furthermore, after reading the 

exclusion, Link himself stated that the damage to the tractor fell within it. 

¶22 Moreover, Link admits he received the policy well before the 

accident, and Arizona law expressly allows for this type of exclusion, so we 

cannot say the exclusion is unusual or unexpected. A.R.S. § 28-4009(C)(4)(c); 

Farmer Ins. Co. of Ariz. v. Voss, 188 Ariz. 297, 298 (App. 1996) (“When the 

term at issue is one specifically authorized by statute, it cannot be 

characterized as unusual or unexpected.”). 

¶23 Finally, the record does not contain the necessary factual 

predicate for the third and fourth factors. The only activity Link identified 

that created his impression of coverage was that the salesperson who sold 

him the car told him that he had “full coverage.” Link knew at the time that 

the salesperson was not employed by Viking, and there is no indication that 

the salesperson was qualified as an insurance agent. After purchasing the 
VIKING v. LINK, et al.

Decision of the Court

8 

policy, Viking sent a copy to Link, but Link never read the policy or 

attempted to speak to a Viking representative about the policy’s coverage. 

See Voss, 188 Ariz. at 298 (“The insured stated that he never read the policies 

and just assumed that he had . . . coverage. That is insufficient.”). 

¶24 Under these facts, we cannot say that Link’s belief that the 

policy covered damage to the tractor was anything “more than the fervent 

hope usually engendered by loss.” Darner Motor Sales, Inc v. Universal 

Underwriters Ins. Co., 140 Ariz. 383, 390 (1984). Accordingly, we hold that it 

was not within Link’s reasonable expectations for the policy to cover the 

damages to the tractor.

CONCLUSION

¶25 For the foregoing reasons, we hold that the damages to the 

tractor, including its loss of use, were properly excluded from the policy’s 

coverage by plain, unambiguous language and that under the undisputed 

facts of the case it was not reasonable for Link to expect the policy to cover 

damages to towed property. We therefore vacate the trial court’s judgment 

and remand for entry of judgment in favor of Viking. Viking did not request 

fees or costs on appeal.