Gottus v. Job Service North Dakota
2011 ND 204
| N.D. | 2011Background
- Chase Wisness, a passenger who was injured in a June 1, 2007 automobile accident, became a paraplegic.
- At the time, Milo Wisness held a Nodak auto policy with underinsured motorist limits of $500,000 and a Nodak Farm and Ranch Excess Liability Policy.
- Wisness settled under the auto policy UM limits and reserved a claim under the excess liability policy.
- Wisness sued Nodak and Mogen in 2010 for denial of the excess policy claim, alleged bad faith, and negligent counseling by Mogen.
- The district court granted Nodak summary judgment, concluding the excess policy did not provide underinsured motorist coverage and dismissed Wisness’s claim.
- The North Dakota Supreme Court affirmed, upholding that the excess policy provides only third-party coverage and does not include UM coverage for Wisness’s first-party claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the excess policy provide underinsured motorist coverage? | Wisness seeks UM coverage under the excess policy. | Policy provides only third-party coverage; no UM coverage via the insuring agreement. | No; excess policy does not provide underinsured motorist coverage. |
| Does Exclusion 2d(2) create ambiguity that requires coverage? | Exclusion 2d(2) is ambiguous and may require coverage. | Exclusion 2d(2) is unambiguous and bars UM coverage. | Exclusion 2d(2) is unambiguous and does not create coverage. |
| Can an endorsement or the 2007 policy alter the result? | Endorsement or later policy could provide UM coverage if it adds coverage. | We do not rely on outside endorsements; analysis focuses on the policy language at issue. | Endorsements or later policy terms do not create coverage absent an applicable provision. |
Key Cases Cited
- Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50 (ND) (interpretation of exclusions must be clear and construe against insurer)
- Nationwide Mut. Ins. Cos. v. Lagodinski, 2004 ND 147 (ND) (interpret policy as a whole; give effect to all provisions)
- Nodak Mut. Ins. Co. v. Heim, 1997 ND 36 (ND) (endorsement controls if uncertainty between policy and endorsement)
- Jaderborg ex rel. Bye v. Am. Family Mut. Ins. Co., 620 N.W.2d 468 (Wis. Ct. App. 2000) (underinsured-motorist exclusion can preclude coverage absent endorsement)
- Muehlenbein v. West Bend Mut. Ins. Co., 499 N.W.2d 233 (Wis. Ct. App. 1993) (endorsement vs. exclusion; exclusions cannot create coverage)
- Kief Farmers Co-op. Elevator Co. v. Farmland Mut. Ins. Co., 534 N.W.2d 28 (ND) (third-party liability concept and coverage framework)
- Grinnell Mut. Reinsurance Co. v. Thies, 2008 ND 164 (ND) (interpretation of insurance contracts; give meaning to each clause)
- Kromer v. Reliance Ins. Co., 677 A.2d 1224 (Pa. Super. Ct. 1996) (third-party coverage evidenced by 'pay on behalf of' language)