Jung v. General Cas. Co. of Wisconsin
2011 U.S. App. LEXIS 16361
| 8th Cir. | 2011Background
- John and Janice Jung were seriously injured in a car accident on November 30, 2006 caused by Richard Martin, who owned and operated the vehicle involved.
- The Jung's vehicle was insured by General Casualty with a $1,000,000 underinsured motorist (UIM) endorsement, while Martin's vehicle was insured by Nodak Mutual with a $250,000 liability limit and an additional $1,000,000 excess policy that covered the at-fault vehicle.
- A settlement on July 30, 2008 paid the Jungs $1,250,000, consisting of $250,000 from Martin's liability policy and $1,000,000 from Martin's excess policy.
- General Casualty denied UIM coverage, contending Martin's truck was not underinsured because of the excess liability policy’s coverage.
- The district court granted summary judgment for General Casualty, and the Jungs appealed, arguing under North Dakota law that Martin's excess policy should count toward satisfying UIM requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Martin's excess policy counts as a bodily injury policy covering the vehicle | Jung: excess policy not counted under 26.1-40-15.1. | General Casualty: excess policy does not cover the vehicle for UIM purposes. | Yes; excess policy counts, so Martin's vehicle is not underinsured. |
| Does Rask control whether a personal excess policy counts | Rask excludes personal excess policies as unrelated to the vehicle. | Rask narrowly distinguished; here there is a direct link between the vehicle and the excess policy. | Distinguishable from Rask; Martin's excess policy is relevant under 26.1-40-15.1. |
| Is the district court's denial of certification of a state-law question to the North Dakota Supreme Court an abuse of discretion | Certification appropriate to resolve unsettled state-law question. | Delay and federal forum weigh against certification; no abuse. | No abuse; court did not err in denying certification. |
| What governs the underinsured analysis in this diversity case | North Dakota statute governs whether vehicle is underinsured. | Statutory framework is controlling and inclusive of relevant policies. | Under North Dakota law, Martin's excess policy is relevant; therefore not underinsured. |
Key Cases Cited
- Rask v. Nodak Mut. Ins. Co., 626 N.W.2d 693 (N.D.2001) (limits consideration to vehicle-linked policies, but distinguished here)
- Farmers Union Mut. Ins. Co. v. Assoc. Elec. and Gas Ins. Servs. Ltd., 737 N.W.2d 253 (N.D.2007) (interpretation of no-fault/related policy language)
- Penn. Gen. Ins. Co. v. Morris, 599 A.2d 1042 (R.I.1991) (excess policies owned by the vehicle owner count in gap method)
- Murphy v. Safety Ins. Co., 429 Mass. 517 (Mass. 1999) (excess liability policies counted in underinsurance analysis)
- State Farm Fire & Cas. Ins. Co. v. Sayles, 289 F.3d 181 (2d Cir.2002) (Connecticut law application of gap method)
- DeCoteau v. Nodak Mut. Ins. Co., 603 N.W.2d 906 (N.D.2000) (N.D. choice of law on UIM underinsured analysis)