Wisness v. Nodak Mutual Insurance Co.
806 N.W.2d 146
| N.D. | 2011Background
- Wisness, a June 1, 2007 automobile accident passenger, was injured and became a paraplegic.
- Milo Wisness owned a Nodak auto insurance policy with underinsured motorist limits of $500,000 and a Nodak Farm and Ranch Excess Liability Policy.
- Wisness settled with Nodak on the underlying auto policy and reserved the right to pursue a claim under the excess policy.
- In 2010 Wisness sued Nodak alleging denial of the excess policy claim, bad faith, and negligent advice by Mogen.
- The district court granted Nodak summary judgment in October 2010, holding the excess policy did not provide coverage; Wisness appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the excess policy provides underinsured motorist coverage | Wisness argues the excess policy includes UIM coverage. | Nodak contends the excess policy provides only third-party liability and excludes UIM. | No UIM coverage under the excess policy. |
| Whether Exclusion 2d(2) creates ambiguity that requires coverage | Wisness contends the exclusion is ambiguous and should provide coverage for UIM. | Nodak asserts the exclusion is clear and unambiguous, eliminating UIM coverage. | Exclusion 2d(2) is unambiguous; it does not create coverage. |
| Whether the 2007 endorsement/endorsement EL-76 or the 2007 policy affects coverage | Wisness argues endorsements could provide UIM coverage despite the base policy. | Nodak maintains endorsements do not create coverage where the insuring agreement excludes it. | Endorsements do not create coverage; the policy language controls. |
Key Cases Cited
- Grinnell Mut. Reinsurance Co. v. Thies, 755 N.W.2d 852 (ND 2008) (interpretation of insurance contracts and effect of exclusions)
- Nationwide Mut. Ins. Cos. v. Lagodinski, 683 N.W.2d 903 (ND 2004) (policy language first; exclusions later; ambiguity strict against insurer)
- Kief Farmers Co-op. Elevator Co. v. Farmland Mut. Ins. Co., 534 N.W.2d 28 (ND 1995) (third-party liability concept and insured’s liability to others)
- Muehlenbein v. West Bend Mut. Ins. Co., 499 N.W.2d 233 (Wis. Ct. App. 1993) (endorsement vs. exclusion; exclusions cannot create coverage)
- Jaderborg ex rel. Bye v. Am. Family Mut. Ins. Co., 620 N.W.2d 468 (Wis. Ct. App. 2000) (underinsured motorist exclusion and necessary endorsements)