*1 Williston, City N.W.2d 336 of this tion v. court also reflect that applica- tion of such rules clearly must indicate that parties, particularly insured, con- for the support There is the record templated coverage no escape to the con- finding court’s that neither Walle Mu- trial clusion coverage that dictates if there is an Sweeney policy tual nor intended the farm ambiguity. example, For conclusions such pickup. Sweeney cover a testified to that “If interpretation one policy of the lan- poliсy he did not believe the farm covered guage impose liability will on the insurer Larson, pickup. his Duane who sold Swee- not, and the other interpretation will policy, ney the farm testified that he never to the insured adopted” will be favorable suggested Sweeney policy to that the cov- Mesen, v. 261 N.W.2d [Williams pickups, ered and that he had a mental (N.D. 1977) indicate, ], me, at least to that telling applicants habit insurance companies insurance policies whose contain policies farm do not cover licеnsed motor ambiguous provisions concerning coverage policy application The vehicles. made no clearly prove coverage will need to was not to, about, nothing reference and asked parties escape intended their obli- trucks; policy pre- automobiles or the farm gation. I do majority opinion not read the premi- miums were a fraction of the as a posi- deviation this court from that paid Sweeney ums for his automobile insur- tion. The evidence was clear that ance; par- Sweeney and Duane Larson advised contemplate coverage ties did not coverage increase his automobile pickup Casualty. persuaded implement. as a farm General We are not that a mistake has been made. We hold MESCHKE, JJ., GIERKE concur. clearly trial court did not err in finding parties mutually did not
intend that the policy Walle Mutual farm Sweeney’s pickup.4
should cover judgment is affirmed.
ERICKSTAD, C.J., and MESCHKE GIERKE, JJ., concur. CASS COUNTY ELECTRI COOPERATIVE, INC., C WALLE, Justice, concurring VANDE Appellee,
specially. v. opinion I concur in the authored Jus- NORTHERN STATES POWER tice Levine. I she proрerly believe has COMPANY, analyzed the decisions of this court in that opinion. I specially write to note there would be some naivete involved North Dakota Public Service reader were to conclude that this court Commission. complex views a contract of insurance as No. 870163. Civ. simply as it would other contract. Our past Thus, opinions belie that conclusion. Supreme Court of North Dakota. although agree I with Justice Levine’s ob- Feb. 1988. ambiguous servation that we construe an against contract company insurance
only if ambiguity explained cannot be construction,
by other rules of the decisions unnecessary expecta- 4. We of reasonable deem it to review the district contract. The "doctrine tion,” finding Sweeney ambiguous court’s had no reasonable contract which states that expectation pickup that his was covered under interpreted to mean what the weaker must be policy. finding the farm The district court’s reasonably expects contracting party the con- Sweeney that neither Walle Mutual nor ed the farm intend- mean, endorsed has not been tract policy Sweeney’s pickup to cover Agrichemical majority Mills v. of this court. See clarify ambiguous sufficient to definition of Aviation, Inc., implements” "motor vehicle” and "farm *2 be served Cass was Barnes Township,
where South Pointe is located. agree- This ment, however, was abandoned par- ties in and on October Fargo entered into an agreement giving Cass a nonexclusive Brantner, Knutson, Vogel, Kelly, Weir & *3 right-of-way for its facilities in areas Ltd., Bye, Fargo, appellee; argued by for by served Cass and subsequently annexed Kelly. Appearance by Douglas D. John R. by city. Under the agree- terms of this Herman. ment, any by area served Cass which was Wheeler, Wolf, Peterson, Schmitz, Mc- annexed to the city would remain Cass’s Johnson, Bismarck, Donald & and David service area absent objection an by city Lawrence, Div., Legal Northern States or another supplier. electric Co., Minn., Minneapolis, Power appel- for In city 1978 the large annexed a area lant; argued Wheeler, by Ronald W. Bis- by served Cass south of 32nd Avenue Lawrence, Appearance by marck. David South and west of U.S. Highway 81. The Minneapolis. area now known as South part Pointe is of Schloesser, Lynn Lee Public Service this annexed territory. objections No were Com’n, Bismarck, for North Dakota Public lodged to Cass’s claim to serve and appearance. Service No Com’n. new area, customers within the annexed and, prior to October Cass was the ERICKSTAD, Chief Justice. only supplier electricity in the annexed This case dispute involves a territorial territory. Cass included the annexed area County between Cooperative, Cass Electric long-range in its plans and large has made [Cass], Inc. cooperative, rural electric and investments facilities to serve that area. Company [NSP], Northern States Power an Cass has not service to electric utility, over an area known an specific actual customer in the area now as the South Pointe 1st Addition [South designated as South Pointe since 1981. city Fargo. within ap- NSP Pointe] peals judgment During August from a district court developer which reversed a decision of the Public Service South Pointe cоnferred with officials of Commission and remanded for fur- concerning NSP and Cass electric service [PSC] proceedings concerning request subdivision, ther Cass’s for the new which consists of injunctive for relief under the large one commercial lot and 90 residential Act, Integrity Chapter the Territorial 49- developer request lots. The chose to elec- judgment N.D.C.C. We affirm the gas tric service as well as natural the district court. NSP, developer and NSP signed agreement to that effect on Au- provides Cass electric service in Cass gust 28, time, plat- 1986. At this the area County, as well as seven other counties in ted as South Pointe was vacant. Both Cass provides the state. NSP electric and natu- and NSP serve electric account customers gas ral service North Dakota and else- property adjoining on the new subdivision. where. NSP has been authorized PSC, franchise, provide and has had a complaint Cass filed a with the PSC electric service as an electric alleging that NSP’s extension of its electric Fargo for years. more than 50 system lines and into South Pointe would “unreasonably interfere with Cass Elec- many years prior
For Cass and ..services, system facilities and parties tric’s and agree- were to a “territorial designed will result in a wasteful and ment” which was unreasonable avoid “waste- duplication” duplication” ful of its “investment in fa- electric facilities and sought covered areas in and services.” Cass around the cities of cilities-and an or- Fargo restraining Fargo. enjoining West One of the areas der and NSP from agreement designated covered constructing extending its electric lines, incorporation completed facilities into system, and South the time that opinion by municipality. I am of the Pointe. reading. that this is too restrictive of a proceedings, In the administrative Cass true, If the last line in the that were although it has no customers asserted unnecessary in paragraph would be its Pointe, presently serves South which duplication of services. It is reference to extension into the subdivision inter- NSP’s my must look belief that the commission viability the economic feres with availability at the of servicеs in the area developed system Cass has to serve exten- annexed and determine whether in- larger annexed and that this unnecessarily sion of NSP lines would be constitutes a violation of 49- terference §§ provided by duplicating the services 03-01 and N.D.C.C. so, injunction requested Cass. authority to act under that its concluded granted County should be since circumstances was limited these right gener- they have the to serve in the 49-03-01.3, N.D.C.C., provides *4 proceeding. al area involved in this part: pertinent not, and the commission determines that Exclusions limi- “49-03-01.3. from general in of the it is the best interest lines, distribution tations on electric public, the convenience and on extension and service and issuance it, necessity requires then the extension public convenience of certificates of and line of NSP’s should be allowed necessity. Sections 49-03-01 injunction denied. this does 49-03-01.5, through not con- shall be require the commission to exercise its require any such electric strued to interpretation discretion in the of the utility to secure such order or certificate statute and this сase should not be han- for an extension of its electric distribu- dled if it were a matter of law. The corporate limits of tion lines within the liberally must read more than statute any municipality within which it has law- reading presently given fully operations; provided, commenced PSC.” however, such extension or exten- existing sions shall not interfere with appealed has from the district court’s NSP coop- provided by services a rural electric judgment. public utility or another electric erative The issue this case is whether the PSC municipality; within suсh interpreted provisions of the properly is not deemed un- duplication of services 49-03, Act, Integrity Chapter Territorial by the commission.”
reasonable N.D.C.C., determining that it essence presently provid- authority had no to act under the circum Because Cass was not ing presents question This issue a any electric service to customers within stances. subdivision, and, consequently, the determi law PSC’s PSC determined fully on the matter is reviewable under nation Mining this court. Minnesota and Manu electric distribution NSP’s extension of its Conrad, facturing Co. v. existing N.W.2d fаcilities did not “interfere with (N.D.1987). of Cass ... nor unreason- ably duplicate services within South Integrity The Territorial Act was Consequently, the dismissed Pointe.” PSC 1965. See Legislature in by the enacted complaint. Cass’s Ch. 319. It amended 1965 N.D.Sess.Laws The district court reversed and remanded 49-03-05, N.D.C.C., 49-03-01 and which §§ to the for further considera- case public utility, beginning required a before tion, interpreta- concluding that the PSC’s operation public utility or of a construction “too restrictive:” thereof, tion of 49-03-01.3 was system, or an extension from the PSC a certificate of obtain “The commission in this case read See Montana- necessity. convenience and language refers to servic- Johanneson, Co. v. meaning those identifiable Dakota Utilities only es as (N.D.1967). The primary already being served at sites which are keep mini way to a affect in purpose of the Act was its status as a rural capital-inten duplication of mum wasteful area for purposes chapter of this and conflicts between utility sive services chapter 57-33.” electricity. Cty. suppliers of See Cass NSP contends that а “rural area” loses Inc., Coop., Properties, Elec. Inc. v. Wold its status as such under the statute once it 514, 520-521 is annexed municipality. a NSP asserts decided under this Act have thus far cases language change thereafter “[n]o generally involved situations where an elec population of a rural ... re- the. public utility tric seeks to serve customers gardless change, of the reason for such corporate in rural areas outside the limits operate any way shall to affect in its status municipality. a E.g., Tri-County Elec as a rural area ...” was intended to Elkin, Cooperative, Inc. v. 224 N.W. tric 2,500 mean that a with fewer than 2d As the PSC noted inhabitants that is served an electric order, present in its case “is the first cooperative shall remain a “rural area” cooperative in North Dakota has time population subsequently even ex- attempted prevent extension statutory reject ceeds the limit. We NSP’s grounds municipality within a on the interpretation narrow of the statute. the extension interferes with the economic viability cooperativе’s system.” 49-03-01.3, N.D.C.C., implicitly Section recognizes that a rural electric initially asserts that may lawfully provide electric services with prohibited providing electric service in *5 municipality in a which is served an South Pointe after its annexation the public utility. required electric We are to 10-13-04, N.D.C.C., city because under § together relating construe all statutes to Fargo eligible no resident of the of is subject the same matter so as to harmonize membership coopera for in a rural electric them,, possible, give if and full force and provides perti tive. Section 10-13-04 in legislative effect to the intent. Dickinson part: nent Scott, Public School Dist. No. v. coop- Members electric “10-13-04. of We believe persons eratives. All who are not receiv- possible provisions. is to these harmonize ing central reside station service who premised theory assertion is on the NSP’s proposed in rural areas a to be served language change thereafter that'the “[n]o cooperative organized chapter, under this area, populаtion of a rural ... re eligible membership shall in to gardless change of reason for such cooperative. person than No other in comprehensive enough ...” is not to be, become, incorporators shall or remain municipality’s clude a act of annexation cooperative a of such member a unless population of a “rural area” is because person agree shall use or to use electrical changed actually through not annexation. facilities, energy equip- supplies, or the purist is in annexation defined its ment, by cooper- and services furnished a uniting thing sense as the of one to anoth ative. “ (5th Dictionary er. Black’s Law ed. See any not in- ‘Rural area’ means area Thus, 1979). when a “rural area” is an cluded within the of an incor- boundaries by municipality, population nexed a its in porated city having population a in ex- “changes” effect because it has become of twenty-five cess hundred inhabitants municipality united with that of the of corporation cooperative аt the time a or part. which it is now a In view of operate facilities commences to electric specifically contem § energy or to in an furnish electric such plates the possibility of continued electric area, and includes the farm and both by cooperative a within an annexed change population nonfarm thereof. No area,, we conclude that 10-13-04 does not population thereafter a rural § of herein, prohibit providing Cass from regardless as defined of the electric ser change, operate reason for such shall to vice South Pointe. upon relied 49-03-01 49-03- Cass asserts that the PSC was obli §§
01.4, N.D.C.C.,
enjoin
gated
in seeking
enjoin
NSP’s actions under
49-
§§
extending
49-03-01.4, regardless
its facilities into South
03-01 and
provisions
pertinent
disagree.
provide
Pointe. Those statutes
49-03-01.3. We
§
interpretation
In the
part:
construction and
statutes,
special
specific provi
or more
public con-
“49-03-01. Certificate of
prevail
provisions
sion
general
must
over
necessity
venience
—Secured
matter,
relating
subject
to the same
absent
public utility.
pub-
electric
electric
—No
legislative
manifestation
intent to the
utility
begin
lic
henceforth shall
con-
contrary.
Real
Mid-America
Estate &
operation
public
or
struction
of a
utility
Lund,
Corp.
Inv.
v.
289-
system,
plant or
or of an extension of a
While
49-03-01 and
§§
system,
provided
except
or
be-
49-03-01.4 address interference with the
without,
low,
obtaining
first
from the
system
service or
suppli
another electric
commission a
certificate
con-
general,
er in
specifically
49-03-01.3
ad
§
necessity require
venience and
or will
prohibited
dresses the interference
when a
require
operation.
such construction and
public utility extends its lines within a mu
require
This section does not
an electric
Moreover,
nicipality.
accept
if
were
we
public utility to secure a certificate for
argument,
Cass’s
any
municipality
extension within
meaning
49-03-01.3 would be rendered
§
lawfully
within which it has
commenced
less.
correctly
We conclude that the PSC
operations.
any
utility
electric
applicable
determined
is
49-03-01.3
constructing
extending
line,
or
its
in this case.
system,
plant,
unreasonably
or
interferes
with
or is about to interfere unreason-
PSC’s
conclusion
provided
ably
system
49-03-01.3
any
authority
with
service or
it with
to act
public utility,
other
NSP’s extension
electric
elec-
interfered
tric
services
to actual customers
corporation, the commis-
sion,
premised
of Cass within South
complaint
Pointe
on
on
First,
two
upon
bases.
relied
cooperative corpora-
or the electric
*6
following statement of this court in Tri-
claiming
affected,
tion
to
injuriously
County
Cooperative,
Electric
Inc. v. El
hearing
provided
after notice and
as
in
kin,
785,
(N.D.1974):
title, may
this
order
of
enforcement
this
respect
offending
section with
to the
“Even if
should be true that the area
public utility
prescribe
electric
just
question
will eventually be annexed to
and reasonable terms and
Jamestown,
conditions.”
city
eventuality
the
of
that
has
by
been
for
law insofar as
act.—If
“49-03-01.4. Enforcement of
orderly
the
continuance or transfer of
any
public utility
violates or
systems
electric service
is concerned.
to
any
threatens
violate
cooperative
The
could
to
continue
serve
through
of sections 49-03-01
49-03-01.5
its
until
prop
customers
such time as its
or interferes with or threatens to inter-
erty
acquired
in the annexed
by
area
system
fere
the
any
service or
of
negotiation
the
franchised
or
public utility
other electric
or rural elec-
eminent
domain. Montana-Dakota
commission,
tric cooperative, the
after
County
Utilities
v. Divide
Co.
School
notice,
complaint,
hearing
provid-
as
1,
(N.D.
District No.
28-32,
chapter
ed in
make its
shall
order
1972).
City
give
cooper
the
the
Or
could
restraining
enjoining
said electric
ative a franchise to continue to serve the
public utility
constructing
from
or ex-
serving.”
it is
customers
lines,
tending
interfering
sys-
its
or
tem.
In addition
The
sug-
to the restraint
im-
PSC concluded that
dicta
“[t]his
posed,
gests
prescribe
contemplated
possibili-
shall
the
commission
Court
ty
by cooperative
such terms and
conditions as it shall
continued
to
subsequent
deem
to
proper.”
existing
reasonable and
customers
annexa-
There is no indication the
be- not
tion.
Court
unreasonable
deemed
ser-
lieved the annexed area could remain
vice commission.” The PSC reasoned that
cooperative.”
service area of the
exclusive
this amendment resulted in
Legisla-
[Emphasis
original.]
ture’s'adoption of “a narrower definition of
”
interference than
urged by
Cass....
note,
PSC,
initially
as did the
We
in Tri-County
above-quoted
statement
We.reject the PSC’s
regarding
conclusion
Electric
Tri
is dictum. Under the facts in
the effect of the bill’s amendment. Al-
Electric,
County
supra,
N.W.2d at
though “available services” was deletеd
public utility
only
held “the
fran
provision,
sentence,
from the
the final
“pro-
supply electricity
city
chise to
within the
duplication
vided
of services is not deemed
limits
Jamestown.”
court was not
unreasonable
service commis-
agree
confronted with a situation where an
sion,” was also added. If the statute were
cooperative
city
ment
between
prohibit
only
interpreted
interference
allowed the
to serve new cus
customers,
with actual service
annexation,
tomers after
as in this case.
the last sеntence of the
paragraph
first
event,
controlling
In
dictum is not
49-03-01.3 could
be ascribed a
§
subsequent cases. Bakke v. St. Thomas meaning
wholly
which is
at odds with the
Public School Dist. No.
359 N.W.2d paramount purpose
Integ-
of the Territorial
We do not find Tri
rity Act. While
past
this court has in the
County
Electric
persuasive
authority
for
say
declined to
coop-
whether rural electric
proposition
cooperatives
are statu
given
utilities
spe-
were
eratives
torily precluded
serving
new custom
preference
cial
suppliers
electricity
ers within an annexed area.
Act,
under the
recognized
we have
keeping to a
duplication
minimum wasteful
Second,
upon
the PSC relied
an
capital-intensive utility
services is one of
pas
amendment to
49-03-01.3 before its
Properties,
See Wold
primary goals.
its
sage by
Legislature
in 1965. When
Inc.; supra,
proved by
proviso in
the PSC because the
already
after the PSC hаs
deter-
interpreted
49-03-01.3 must be
as a limi- mined that such
an extension
in-
not
only upon
public
right
utility’s
tation
terferes with
services and fa-
municipality
extend within a
without
cer-
cilities
of a
but also constitutes
public
necessity.
tificate
convenience and
duplication
“unreasonable”
of such ser-
contends,
proviso,
cannot be en- vices and facilities.1
larged
prohibition.
to constitute a
We dis-
Accordingly,
judgment
we affirm the
agree.
the district court and remand this case to
true,
generally
It is
as asserted
for a
PSC
determination оf whether or
NSP,
purpose
proviso
of a
in a
not NSP’s extension interferes with and
modify
enacting
statute is to
clause and would constitute
duplica-
an unreasonable
enlarge
power.
not to
it or to confer a
But
tion of investment and available facilities
“provided”
the use of the word
does not in
so,
provided by
and services
Cass.
If
and of
following
itself convert the words
injunction requested by Cass should be
“proviso;”
may
into a
the word
also be
not,
granted.
NSP’s extension should be
in conjunctive
used
sense. See Bowers v.
request
allowed
injunc-
and Cass’s
for an
Ass’n,
492,
Missouri Mut.
333 Mo.
62 S.W.
tion denied.
1058,
(1933);
2d
McKenna v. Roberts
687,
County, 72 S.D.
32 N.W.2d
WALLE,
YANDE
GIERKE and
(1948). Thus,
general principle
“is not MESCHKE, JJ., concur.
unbending
and a consideration of all stat
PEDERSON,
VERNON R.
Surrogate
bearing upon
utes
subject
indicates a
Justice, sitting
LEVINE,
place
intent,
Legislative
different
prevail
this will
J., disqualified.
over a
upon
construction based
the rules of
syntax.” Kinney Loan & Finance Co. v.
PEDERSON, Surrogate
VERNON R.
Sumner,
159 Neb.
65 N.W.2d
248 Justice, concurring specially.
(1954).
2A
See also
Sutherland Stat.Const.
I-concur in the result which Chief Justice
(4th
1984).
47.08
ed.
reached, however,
Erickstad has
I would
earliеr,
As noted
duplication
wasteful
opinion
have couched the
in different terms
investment, facilities, and service is what
so as to make certain that it would not be
Integrity
the Territorial
Act was intended
respect
scope
misunderstood with
to the
Inc.,
minimize.
Properties,
See Wold
supreme
review in the
court of administra-
supra,
189 agency the decision “We review of the district than the decision
rather ...”
court statements are found in: Perske
Similar Dakota, North
v. Job Service 336 N.W.2d (N.D.1983); Application Nebraska Dist, 143, Power
Public 330 N.W.2d Exploration Lee v. Oil
(N.D.1983); Gulf Production, and 318 N.W.2d
(N.D.1982); County Barnes v. Garrison
Diversion, Etc., (N.D.
1981); Burleigh County, v. Shaw See also Geo. Haggart,
E. Inc. v. North Dakota Work. Bur.,
Comp.
Meredith Plaintiff Appellant,
v.
HEBRON PUBLIC SCHOOL DISTRICT Tibor,
and Madonna Defendants Appellees.
Civ. No. 870224.
Supreme Court of North Dakota.
Feb. 1988.