Grinnell Mutual Reinsurance Co. v. Center Mutual Insurance Co.

asserts, in which the would otherwise with- cases State dismiss motion to the State’s evidence, any the absence of required prove as- be to any “[Counsel’s providing out applicant’s claims ap- supporting and evidence ‘grossly incompetent’ was sistance not mean that evidentiary allegations. and This does be allowed an should plicant can any every post-conviction in case State provide failed to hearing.” Steinbach require applicant prove up to his case perfor- counsel’s showing how evidence any hearing merely by moving for put prior after he was to to ineffective mance was asserting there is pro- summary disposition to opportunity an proof given his applicant’s support did no evidence to The trial court some evidence. vide in applies only claims. It those summarily dismissing Stein- cases err required be to of counsel which the State would assistance ineffective bach’s any sup- prove negative absence claim. —the to porting evidence the record—in order IV initial burden as movant of show- meet its failed to conclude Steinbach We [¶ 19] there are no contested issues of fact. ing to raise at failing cases, show excuse In all other that initial burden must appeal trial and on direct the criminal by the movant before the still be met 1, 2, 3, 5, 6, 7, post- and 8 of his applicant claims can be to the to burden shifted therefore, application; relief prior hearing sup- conviction to to produce evidence pro- misuse of claims are barred understanding these port his claims. With § 29-32.1-12. We III, under N.D.C.C. majority opin- cess I in the part concur err trial court did not conclude the also ion. 4, ineffec- summarily dismissing claim J., counsel, MARING, when Steinbach

tive assistance MARY MUEHLEN [¶ 23] failed to proof his and then put concur. com- present some satisfy his burden support his admissible evidence

petent judgment of

allegations. We affirm the summarily dismissing trial applica- relief post-conviction

Steinbach’s

tion.

2003 ND 50 WALLE, GERALD W. VANDE REINSURANCE MUTUAL GRINNELL SANDSTROM, J., C.J., DALE V. Appellee, COMPANY, Plaintiff concur. Justice, NEUMANN, concurring. INSURANCE CENTER MUTUAL majority’s opin- I concur in the COMPANY, Defendant regard- separately case. I write ion this Appellant. I because fear ing part opinion III of that No. 20020073. prose- may broadly by read too some be courts. cutors and Dakota. Court of North Supreme it, III part I read As [¶22] 26, 2003. March unsup- to use opinion permits State summary disposition ported motion evidentiary burden to pre-hearing

shift only in those applicant post-conviction & Dopson, Zuger A. Kirmis

Lawrence Bismarck, N.D., Smith, plaintiff and for appellee. Bucklin, Klemin, Klemin & R.

Lawrence Bismarck, N.D., McBride, defendant for appellant. and MARING, loop bumper Justice. braided to the hitch on the pickup, pin back stuck a Compa- Mutual Insurance [¶ 1] Center through loop through bumper (“Center”) ny appealed declaratory from a gear placed hitch. tractor was holding that an in- judgment automobile neutral Jones steered the tractor R. surance it issued Steven Has- while Haskins towed it with the pickup. injuries for suf- provided kins towing While Haskins was the tractor with D. fered Jones an accident on by James pickup, he accelerated to take some farm, ordering to in- Haskins’ stretched, out of the rope; rope slack Mutual demnify Reinsurance Grinnell out,” pin snapped “the rope (“Grinnell”) Company for a settlement arm, back snapped striking Jones payment by Grinnell made to Jones and severely injuring him. The trial court by guaranty payment made Grin- found: “The accident was caused nell to the States on Haskins’ be- United was pin fact there no cauter [sic] inserted half. the trial did We conclude not hole.” into the Neither Center nor Grin- err in ruling automobile insurance Center’s disputed finding appeal. nell on Jones accident, provided for the taken to the hospital the Minot Air ruling but did err in the Grinnell did hospitalized Force Base where he was provide coverage ordering and in Cen- days and surgeries underwent seven on fully indemnify ter to Grinnell with inter- his arm. est for the settlement. We also conclude the trial in ordering court erred Center to accident, At the time of the Has- with indemnify Grinnell on its interest kins’ truck was covered an auto- guaranty the United States. affirm We mobile insurance issued Center. part part. and reverse also Haskins had a farm policy insurance by Grinnell, covering issued farming his I operation. Haskins first notified Grinnell 1990, [¶ During 2] Haskins owned a about the accident and notified Center af- 22, 1990, farm Deering. near On April United requested ter the States the insur- Jones, friend, Haskins’ who served in the policy ance number for the pickup truck. Force, United driving States Air was in Center and Grinnell each concluded its the stopped area and farm- Haskins’ did policy provide coverage for the wife, stead. with spoke Jones Haskins’ who After accident. Center refused to contrib- supposed told him help she was Haskins ute with Grinnell ato settlement of Jones’s move an inoperable John Deere tractor the Haskins, against claim paid Grinnell Jones family stored in a field. Jones offered to $25,000 signed and obtained a release from help instead. finding Haskins After Has- 22, May him on 1991. The United States kins, him if help Jones “asked he needed also submitted to Center and Grinnell a moving the tractor and he yes.” They said $17,684 bill for medical services provided drove in Haskins’ 1970 Chevrolet pickup for Both companies Jones. refused pay, the field where tractor was located. 20, April and on the United States

[¶ took Haskins, 3] Haskins from Center, sued and Grinnell in fed- nylon toolbox a “light rope” with a hook on eral district court to recover Jones’s hospi- one end and a braided loop on the other to tal and medical expenses under the Medi- up hook Act, and tow the Recovery disabled tractor. cal 2651 et § Care 42 U.S.C. Haskins wrapped the hooked seq. end After Center refused to participate rope axle, around tractor hooked the with Grinnell a settlement with the Grinnell, 10,1993, rather farm States, policy, surance than Grinnell’s in a June United States, provided coverage for “guaranteed policy, insurance letter to the United full paid lien mil injuries. force be that the air Jones’s a determination of ... facilitate Summary judgment is a 9] [¶ without priority issue of procedure expeditious for prompt liti- expensive involved in need to become if controversy without trial disposition you action U.S. District Court gation judgment is as a party either entitled to have commenced.” law, if no exists as to dispute matter of began August In Grinnell [¶5] inferences either the material facts or the declaratory judgment against action facts, if from undisputed to be drawn the insurance Center to resolve disputes not alter resolving factual would dispute and to be reimbursed Center. Koehler, ND result. Luallin v. Haskins were Depositions Jones and 80, ¶ 7, 644 N.W.2d 591. Factual issues May Although 1994. no formal taken judg appropriate summary for become guaranty agreement was executed reasonable can draw but ment when minds States, the federal Grinnell and the United from the evidence. Jones one conclusion with action was dismissed district court ¶ Barnett, 207, 4, 2000 ND motion prejudice upon the United States’ if Summary judgment appropriate 490. 7,1994. on October only ques issues to be resolved are declaratory action judgment [¶ The 6] of law. Rask v. Nodak Mut. Ins. tions Grinnell, by dif- represented sat idle until ¶ 10, Inter 693. 2001 ND N.W.2d counsel, judg- summary moved for ferent pretation ques is a insurance 31, 2001. July Center on against ment law, on fully which is reviewable tion of with motion responded its own Hauer, Ins. Co. v. appeal. Fortis Benefits trial summary judgment. ¶ 11, 200. 2001 ND motion, concluding Cen- granted GrinnelTs a trial court’s than Grin- We review automobile rather ter’s of an insurance provided coverage interpretation nell’s farm accident, construing examining enti- independently Grinnell $25,000 v. Nodak Mut. policy. DeCoteau tled to reimbursement for the ¶3, 19, We Jones, Co., ND 603 906. plus six interest 2000 N.W.2d paid percent to construing our for the summarized standards payment, from date of and for the v. TMG policy Ziegelmann the $17,684 guaranteed pay to an insurance Grinnell to ¶ Co., 55, 6, ND N.W.2d States, 2000 607 plus six interest Ins. percent United Life omitted): (citations guaranty. from the of the date when insurance goal interpreting Our jurisdiction trial court The had [¶ 7] Const, other con construing when policies, as VI, § and N.D. art. under tracts, mutual give to effect to the 27-05-06, is 32-23-02, §§ and 32- N.D.C.C. parties as it existed intention of timely under appeal was 23-06. Center’s to look first contracting. of We 4(a). the time juris- has This Court N.D.R.App.P. Const, contract, language the insurance VI, 2,§ under N.D. art. diction clear on its policy language if the is §§ 27-02-04 and 28-27-01. N.D.C.C. face, there is no room for construction. II coverage hinges an undefined “If on term, ordinary mean apply plain, argues trial court we [¶ 8] Center the con interpreting in- the term ing of ruling personal its automobile erred said, regard policies, we insurance ance this “the causal poli tract.” Court While relationship proxi- contracts and resolve need not cies as adhesion constitute insured, cause, in favor of the we ambiguities but other if an mate on the hand impose a contract to will not rewrite injury directly indepen- is caused some an insurer if the unam liability on intervening dent or it does not cause arise coverage. We will biguously precludes automobile, out use of an notwith- definition of an not strain the undefined may re- standing there have been some for in coverage term provide to mote an connection between use of sured. construe insurance contracts We injury complained automobile and the of.” “ meaning give as a to and effect to whole ruled, ‘use’, Id. at 875. This Court clause, possible. each if The whole of a liability result in part on the the insur- together taken to give contract is be carrier, ance must be such use as arises every each part, effect clause is out of the inherent nature of the automo- interpret the others. help bile.” at 874. Id. This Court held from insurance Exclusions causal connection test was satisfied explicit clear and are must be that case because “the automobile be- against strictly construed insurer. ing merely used as a rest for the bench University Western Mut. Ins. Co. v. Nat’l rifle,” which was not arising a “use” out ¶ Dakota, 63, 7, North 2002 ND 643 the inherent nature of the automobile. Id. N.W.2d 4. Norgaard, [¶ 13] Since this Court has

A applied causal connection test several Gilbert, times. In Houser v. Center’s “Personal Auto (N.D.1986), insureds, Policy” while provided coverage “for sugarbeets, ‘bodily trucking deposited mud injury’ ‘property damage’ for dirt highway, which ‘insured’ on legally becomes re which later became sponsible rain, of an auto slippery because accident.” after a causing a driver to argues provide does not lose control his truck and strike another coverage in this case because the incident truck. vehicle argued insurers their injuries resulting in was not an Jones’s policies apply did not because the trucks accident,” “auto but was a farm accident involved were not for being transpor used which is no there under the tation purposes at the time of the accident policy. and, therefore, the loss was not caused the use of a motor vehicle. This Court Norgaard In Mut. Nodak concluded a causal present connection was (N.D.1972), because “it obvious here the mud Court adopted causal connection test could not have been on deposited the road determining whether an automobile in- way without use of the trucks.” Id. at 628. surance was liable under company poli- its Exch., In v. cy Transamerica Farmers Ins. for for an injury accidental 641, (N.D.1990), 463 642 N.W.2d this suffered as a “result of the Court ownership, the use of determined causal connection test maintenance or the automobile de- was scribed satisfied under an herein.” The insured used automobile when the a dog roof of owned the a gun pedestri his vehicle as a rest and acci- insured bit an dentally companion dog killed a while the for the in shot and as the waited insured companion the a alighting pickup was from the box of truck. The vehicle. Court reasoned, Relying on interpreting “[c]arrying pets court decisions the household ais phrase, of,” “arising out contained in insur- of family common use vehicles” and the injury to and Jones’s cannot be consid- enough close not have been “would dog in from the use of pedestrian wholly a ered disassociated sidewalk to bite public the to this pickup pickup. previous the haul the Under Court’s without use of the face test, waiting.” applications while of the causal connection dog and to hold the dog the the Ins. v. we conclude the accident arose out of In Milbank Mut. Co. at 643. Id. Co., inherent of the and the causal pickup Ins. N.W.2d use Dairyland (N.D.1985), as a automobile connection test has been satisfied the insurer’s farmer, in of to the matter law. to a similar issued case, pay damages for promised to law held him injury for which the bodily B a “car because of accident.” responsible Moreover, him Jones was hay unloading was bales The insured Pay an the self insured under “Medical top truck the bale fell off his when from Coverage” poli ments section Center’s the and struck individ- side of truck policy obligated That cy. section ual, him. Court concluded injuring This in expenses to reasonable “pay established as connection had been causal funeral necessary curred for medical and “unloading of law because bales a matter ‘bodily ... injury’ services because the truck” a “use” which “arose from was ” by an ‘insured.’ An “[i]n- [sustained nature of the truck.” inherent out for of this de purposes sured” section is at 893. Id. “[a]ny to other person fined mean while ” ‘occupying’ ‘your cases covered auto.’ “Occu [¶ 14] These demonstrate “in, upon, pying” test is broad and was defined mean the causal connection off,” Here, on, in, “[y]our getting Center’s out comprehensive scope. “[a]ny ‘trail covered auto” was similar Milbank policy, defined^as A as liability coverage you er’ own.” was defined provided “[t]railer” Ins. Mut. injury including wagon imple farm or farm bodily which Haskins be “a by a “because an ment while towed vehicle listed” legally responsible comes case, pickup policy. occupy In this Jones was auto accident.” Haskins’ was rou items, implement being a farm towed tinely towing bumper ing used for while con towing, vehicle. Center does not designed be used for listed was was a “farm tend the farm tractor rope pickup’s was stored tool tow term is in the implement” attached as the used rope The tow was box. Farm Bureau v. Orville bumper policy. to the tractor. Has- See Utah pickup’s Sons, 1308, 1310 Andrews 665 P.2d driving pickup towing & kins (Utah 1983) (a truck a “farm back feeder rope snapped tractor when law); compare a matter of persuaded by implement” as hit Jones. We are not Cen Sweeney, is no causal con Walle Mut. Co. argument ter’s that there (N.D.1988) (a pickup in this and the accident re N.W.2d nection case as may imple truck construed a “farm intervening from an cause because be sulted ment”); Mut. Ins. being Heitkamp v. Milbank longer tractor was no towed (N.D.1986) Co., 383 rope after became un 836-37 (same). argument that the trac negligence Center’s and was Haskins’ hooked being towed when longer rather than his tor was no hooking up rope driv and therefore rope disengaged became that caused accident. “causal ing meaning a within need a not “trailer” relationship proxi not constitute merit. cause,” at is without 201 N.W.2d Norgaard, mate 372

C requested help towing Jones’s the trac- Jones that tor. testified after Haskins’ an ex argues “ him supposed help wife told she was to liability policy ‘bodily clusion to its tractor, move the he her: Haskins told of that dur injury’ employee person to an just I’m driving go around. I’ll “Wait. ing employment” applies in the course of testified, him.” help upon locating Jones this Jones gratuitous case because was a Haskins, just “I him if asked he needed employee of Haskins. In Milbank Mut. moving and (footnote help yes.” the tractor he said at 893 omit 373 N.W.2d “Well, said, ted), Jones also testified: I T un- this summarized the law Court on tractor,’ you help need moving derstand gratuitous employees: said, ‘Well, he yeah. sup- and Charlene’s In Kem Ar- Temple, Olson v. Ancient said, to posed come and do it.’ And I Shrine, Mystic abic Order 77 N.D. ‘Well, I talked to Charlene and I her told (1950), 43 N.W.2d this Court help you,’ okay.” I’d come and he said person performs held that a who ser- “pulled Haskins testified Jones and over vices without consideration at the re- said, me and T hear stopped you want to quest is a gratuitous employ- of another field,’ pull this tractor out of the then I 34-02-04, N.D.C.C., ee and that Section well, I accepted his offer.” Reason- applies gratuitous to In said' — employees. only able minds could this conclude from Nerby, Severinson v. 105 N.W.2d evidence that Jones was a volunteer rather (N.D.1960), 256-257 this Court elaborat- gratuitous than a employee. gratu- ed on the distinction between employee itous and a volunteer: does, “A ‘volunteer’ is one who .or D who on own his initiative undertakes argues [¶ 18] Center the trial do, something legal- which he not at least should have lia apportioned ly morally or obligated do bility between Grinnell Center under in pursuance which is protec- or Transamerica, principles stated personal tion of his own interests. A Houser, at N.W.2d at volunteer comes under rule that 631, which allowed allocation of losses for one who volunteers to act for another casualty separate same between poli personal injuries cannot recover as one cies of insured. Allocation of losses is a servant of such other.” only allowed when is determined

The North Dakota cases establish that to exist under more than one policy. See in order person for a to be gratuitous Transamerica, 643; Hous employee, “employer” must have ex er, 389 N.W.2d at 630. pressly or impliedly requested the em ployee’s help. See Olson v. Kem Tem [¶ 19] The Grinnell Farm-Guard ple, Shrine, Arabic Mystic Order provides: Policy Bever, supra; Jacobs 79 N.D. LIABILITY TO PUBLIC —COVER- (1952); N.W.2d 512 Severinson v. Ner AAGE by, Meide, supra; Anderson v. (N.D.1964); N.W.2d 275 Schan v. How pay subject will We limits Sober, Inc., (N.D.

ard 216 N.W.2d 793 terms of the all sums 1974). arising out one loss which case, In person there is no evidence insured legally obligat- becomes expressly Haskins either impliedly pay damages bodily ed as because of liability covered does not exclude out of injury damage arising or property maintenance, ownership, “the operation, policy. this implement. rental of’ a or use farm The policy of the the definitions section Under logical question next is the in- whether implement” princi- means “a vehicle “farm sured, Haskins, using imple- was a farm public off the designed for use roads pally ment, tractor, the at the time acci- of the purposes, and which is agricultural and for of Liability arising dent. out the use of a agricultural opera- of in conduct used in implement farm the context of this case being The tractor towed tions.” “using” is a covered risk. Haskins was clearly implement” a “farm under case is meaning tractor within the policy policy. “Farming” of the the “definitions” is coverage. there meaning ownership, “the defined as is Russ, R. premises [¶ for the 8 Lee Couch Insur- 21] maintenance or use on (3d ed.1997) raising § or ance 119.56 “The crops or the care states: production livestock, towing a including necessary opera- all of a motor vehicle is ‘use’ of that implement A is a farm vehicle.” Several courts have held that tions.” tractor towing crops, using in the and cer- a vehicle is that vehicle. The production used require Appeals it is that it will United States Court of for tainly foreseeable towing. Fourth Fire maintenance and Grinnell states Circuit held State Farm (4th Pinson, v. complaint: “The Grinnell Cas. Co. 984 F.2d 610 its amended Cir.1993), a policy provided general liability being that a boat towed behind Mutual insured, Haskins, truck was in use when the truck any a were struck a third vehicle liability arising claim as result of use boat ” premises.... farm an intersection. The concluded of the insured there was under owner’s boat The Grinnell does include also there a caus- policy. It concluded was an exclusion: al connection between the boat’s use and pay bodily injury will not or 1. We injuries. of the property damage arising out own- maintenance, Supreme operation, rental or The Court of Colorado ership, has also addressed whether driver use of: towing was another vehicle vehicle who (a) ... Dairy “using” vehicle. In towed (b) any by any insured motor vehicle Drum, land 193 Colo. Ins. Co. person. (1977), towing P.2d Drum was Miller’s ” as: The defines “Motor vehicle had highway. truck on the Drum disabled (a) designed land vehicle motorized Farm an automobile with Colorado subject public for travel on roads or to Bureau, Dairyland with and Miller had one registration, except motor vehicle farm tow, During Company. Insurance implement; traveling highway third down the vehicle ran the towed truck. Both the Colo into (d) vehicle, except imple- a farm Dairyland Insur rado Farm Bureau and ment, being while towed or carried on a all Company policies agreed pay ance (b) (c) (a), included above. vehicle le “shall sums which insured become added.) bodily obligated to because of language gally pay (Emphasis arising injury ... caused accident and unambiguous. It does exclude maintenance, or use ownership, out of the pick- out of the use of arising at 460. The trial However, of the automobile.” Id. equally it is as clear that it up. under the terms of the In Fire found that Cawthon State Farm Co., (W.D.Mo. F.Supp. 1262 & Cas. (steering the vehi- “Miller towed policies, 1997), the cle) property attempting owner was towing his using was and Drum’s both a that to remove tree limb was embedded vehicle; using was vehi- and Drum his own ground nylon rope with a that was cle, Id. at 461. The but not Miller’s.” a trailer of a pickup tied to hitch truck. Colorado, however, Supreme re- Court of truck, owner his As the drove the limb versed, both holding that vehicles were loose, striking killing grand came his since, Miller and Drum being used both There policy son. was an automobile is obvious that Drum’s actions tow- “[i]t a homeowners in effect. The auto ing carried potential the Miller vehicle policy paid, mobile but the homeowners injury. an unreasonable risk creating of of provision coverage had a excluding potential as much Drum’s That arose from “bodily injury property damage for aris use of Miller’s vehicle as from the use of maintenance, ing out of the ownership, [or] own.” 462. his Id. at use a motor operated vehicle owned or line [¶ 28] Under this of cases and our the insured.” Id. at 1264. The United District adoption the “causal connection” States Court for Western Dis Court’s operation trict of Missouri held that “the determining “arising test for out of the vehicle negligent plan and the for Haskins, insured, vehicle, use” a were, most, tying ropes at concurrent at “using” tractor the time of the acci- his grandson’s] death. [the causes The use Therefore, dent. we have the use of the antecedent, of the truck indepen was an tractor, risk, which is an insured and the dent factor which contributed to [the use of the which pickup, excluded injuries.” grandson’s] Id. at 1269. There difference, risk. It makes no fore, the court held that vehicle exclu purposes, negligent whether act occurs sion clause did preclude coverage not in the operation actual of the vehicle. negligent planning tying only There need be “causal connection.” Id. at ropes. 1270. There is a “causal connection” between In Kalell v. Mut. Fire and Auto. injury Haskins’ be- tractor Jones’s (Iowa 1991), 471 N.W.2d 865 after cause the was a accident result of Haskins’ cutting through two-thirds a tree limb with inoperable need to move the tractor to the saw, Peterson a rope attached from the Pinson, side of the field. See 984 F.2d at a pickup limb to truck. When the truck cannot injury 614. The be disassociated broke, pull, hitting started to limb from poten- the “use” of the tractor. The on the Kalell head. The poli- homeowners tial of creating an unreasonable risk of cy contained an exclusion for occurrences injury just as much arose from Haskins’ “arising out of the use” motor vehicle. tractor from as did his truck. exclusion, Id. at 866. Based on that Drum, See 568 P.2d 462. homeowners insurance carrier asserted jurisdictions [¶24] Several have ad- provide did not coverage. dressed is coverage whether there under a The district court held that the exclusion the situation where is an there did not relieve potential the carrier from excluded risk and covered risk. These liability. Supreme Court of Iowa af- jurisdictions have concluded that if both firmed, holding indepen- that “when two the included and excluded risks contribut- dent of negligence alleged, acts are one toed there is coverage. vehicle-related, accident This vehicle-related and one is known as the cause doctrine. is still provided concurrent under the home- indepen- dent resulted from two “allegedly the vehicle-related policy unless owners negligence driver’s] dent proximate [the the cause of is sole negligence causes— operating securing and in the Id. the vehicle injury.” at 868. the unit. sprayer negligent arms to the Since In v. Grinnell Mut. Schlueter 27] [¶ sprayer maintenance and use the is (Iowa 614 553 N.W.2d Reinsurance policy, covered farm North has the Star a a bale of farmer loaded Ct.App.1996), defend, duty to that the notwithstanding a tractor; a the tractor was then hay onto sprayer pickup was attached the when a was hitched to onto trader which loaded The the accident occurred.” Id. at 794. transport, hay the During truck. pickup a court motor vehicle exclu- “[t]he held that by a In off and was hit car. bale fell farm does not policy sion the insured’s policy, to an automobile there was addition exclude mainte- coverage negligent policy” I insurance which a “Farm Guard equipment solely nance of farm because claims out of the owner- “arising excluded equipment the is attached to a motor vehi- maintenance, rental or use operation, ship, cle.” Id. by any motor insured any ... vehicle ” Vang Vang, Id. The In v. [¶ 29] at 615. Court of person.... 647 while one brother “[although (Minn.Ct.App.1992), of Iowa held that the Appeals barn, a was a truck into the other backing here out of the use of a accident arose truck policy, pinned that is under the brother became between the vehicle excluded and a door. truck in- of one or more defective barn The allegedly also arose out acts,” in- volved in accident was insured the concurrent nonvehicle-related addition, In the broth- policy. to load and secure the automobile cluding decision a truck was named insured driving and the failure er in the method chosen bale on a farm The farm exclud- immediately hay policy. policy bale once it remove coverage bodily injury ed “aris- liability Id. at 617. The fell off onto road. ownership, negligent out en- just ing that a motor vehi- of the court said because maintenance, trustment, use, involved, loading or of transporting the act cle was motor hay unloading farm- of ... a vehicle owned did not cease be the bale away operated ... while policy The held that insured related. court premises.” from the Id. at 649. duty insured preclude exclusion did Grinnell’s held Appeals The of Minnesota its Court of to defend insured. Id. of the negligent that the failure to warn In Ins. North Star Mut. Co. neg- independent of the defective door was Johnson, (Minn.Ct.App. 352 791 N.W.2d truck was not ligent driving 1984), sprayer a farm was bolted to “inextricably operation linked with truck pickup a truck. While the bed of Therefore, 653. motor vehicle.” Id. at being purposes, driven for non-farm applied policy the farm found that sprayer arm of the extended the left in- indemnify had to insurer into the of a car trav smashed windshield sured. The in the other driver of eling direction. Houser, 389 Court truck had an automobile Our carrier, that “concur- held there is The farm N.W.2d at policy. farm Star, under both an auto sought declaratory rent judgment North where a vehi- general and a policy did not cover accident that its negligence and a nonvehi- cle-related act of of a motor vehicle exclusion con because negligence are involved cle-related act of policy. in the farm Court of tained Houser, our in the In acci- same accident.” of Minnesota held Appeals not); rope to several Minnesota cases in- whereas a Allstate Co. v. Court cites Jones, Mut. Ins. Co. v. cluding Cal.App.3d Cal.Rptr. North Star John- son, (no (1983) 791. Houser was a for a claim arose out wrongful death action which of a negligent securing, fastening loading, truck collision. 389 N.W.2d 626. A two of steel rebar to truck when mud sugar deposited beet truck and dirt general Lability policy specifically excluded hauling sugar highway while beets. on a damages loading out of arising and unload Later, traveling high- a on that semi-truck automobile); ing of an Columbia Mut. Cas. slippery the way, because of conditions 85, Ins. Coger, Co. v. 35 811 Ark.App. mud, by lost control produced the (1991) (no coverage S.W.2d 345 claim for a with another semi and collided semi-truck of negligent loading and lum unloading of of the sugar on. The owner beet head ber on a truck policy lumber where the two vehicle policies truck was insured question specific contained un loading and liability policy. one farm trial and The loading language exclusion); the New found that the was loss caused Nicholas, 335, ton v. 20 Kan.App.2d 887 (use acts of “both vehicle-related the (no (1995) P.2d 1158 claim coverage for a deposit trucks to and mud on dirt the negligent loading of of fastening (fail- highway) nonvehicle-related acts water tank flatbed to a truck where the from highway ure remove the mud the policy in question specific contained load deposited once or to warn of the danger).” ing unloading exclu language in the Id. at 628. The Court concluded that all sion); Fire State Farm and Cas. Co. v. policies provided coverage stating, three Huyghe, 341, 144 Mich.App. 375 N.W.2d “[c]overage simply cannot be defeated be- (1985) (homeowners 442 insurance separate excluded risk cause constitutes did provide coverage injury caused injury.” an additional cause of the Id. at clothesline); driving under American (quoting Mut. 631 State Farm Auto. Ins. Co., States Ins. Inc. v. Porterfield, 844 94, Partridge, v. 10 Co. Cal.3d 109 Cal. (no (Mo.Ct.App.1992) S.W.2d 13 coverage (1973)). Rptr. 514 P.2d 125 The found under a commercial general liability of supports rationale Houser conclu- policy where the trailer that unhitched and coverage sion there is concurrent under collided with oncoming vehicle inopera- the facts of this case. It was the within the of definition “auto” and specifi gave ble tractor that rise to the need to cally from coverage); excluded Northern hitch the tractor to tow up it. The Ekstrom, Ins. Co. New York v. P.2d 784 of negligent rope attachment of the tow (Colo.1989)(claim 320 negligent entrust the hitch caused the accident. ment found to be excluded general under a recognize application [IT31] We liability policy); and Heimerman the concurrent coverage doctrine has not 89-0495, Franklin Mut. Ins. No 1989 been uniform among jurisdic- the various WL N.W.2d (Wis.Ct.App. 255 tions, but we do not find those cases con- 1989) (holding that the selection truck of a persuasive. trary holding to our See and use of a separate truck were not activ North Star Mut. Co. v. Holty, 402 ities). (Iowa 1987) (subsequently N.W.2d 452 dis- Kalell,

tinguished by Because N.W.2d at our has Court doctrine, which explained Holty, adopted that in the motor concurrent cause vehicle precluded coverage exclusion issue the present be- case is whether alleged acts, cause the auger injury negligent which caused the negligent choice integral vehicle, was an part nylon motor rope negligent and the attach- is excess over other This insurance independent rope, were of the tow ment Howev- valid and collectible insurance. injury. to Jones’s which contributed factors er, 1269; specifically if the other insurance is Cawthon, at see F.Supp. See over this as excess insurance Johnson, at 794. written Since also policy apply limits of this policy, acts “motor vehicle”-related there were pay We will the death proportionately. vehicle”-related non-“motor negligence and E Coverages D and re- benefit under involved negligence both acts other insurance. accident, gardless of under concurrent same farm automobile both adhere to our decisions 36] We [¶ Houser, See exists. conclude Transamerica and Houser and 631. is direct and “each insurer’s loss,” must the same and each primary for general is a The Grinnell $25,000 paying rata in settle pro share operations. farm liability policy for proportion separate in that the ment implement up a farm hitching of activities coverages bear to respective limits of their are activities implement a farm towing policies.1 of the two the total of the limits contemplated parties the risk the within Houser, 631; at Trans 389 N.W.2d insurance for under would be that there america, Accord 463 N.W.2d 643-44. policy. Haskins’ Farm-Guard the Grinnell is entitled to reimburse ingly, Grinnell the tractor hitching up moving of acts Mutual in an amount ment from Center and inde- be farm-related ceased to never pro said rata equal to Center Mutual’s in- just because pendent $25,000 plus paid to Jones Schlueter, share 553 N.W.2d at 617. volved. See from the date of the percent at six interest Per Finally, the Center [¶ 34] payment. Policy provides: Auto sonal INSURANCE OTHER E liability in- applicable If there is other contacted Haskins first 37] Because [¶ only pay will our share surance we accident, at- Center about Grinnell proportion is the the loss. Our share reason- the doctrine of tempts to invoke liability bears to the that our limit of liability under impose to expectations able However, applicable limits. total of all do not need to reach policy. We Grinnell’s for a vehicle provide we any insurance light of our conclusion this issue be excess over do not own shall you under policy provides Grinnell’s insurance. other collectible these facts. Policy Farm-Guard The Grinnell [¶ 35] Ill

provides: “reim- sought Liability [¶ 38] to the Public Grinnell Other Insurance — the amount from for Center Employee burse[ment]” to Farm Coverage, Liability it made with Jones the settlement Payments Coverage and Medical States, and the guaranty to United Named Persons (3d § Segafla, 219:51 determining Couch on Insurance approaches F. ed.1999). other 1. There are However, parties in because the where two or more allocation of the loss issue, we are not brief this case did policies provide primary but include depart the meth- time to from inclined at this conflicting clauses. See "other insurance” and Trans- applied in Houser Liability of allocation Long, Insur- od H. The Law Rowland (2003); § R. Russ & Thomas america. 22.04 Lee ance Co., trial Grinnell was entitled to be v. Ford Cal.App.3d court ruled Cas. Co. Motor (1975): 49, 122 principles indemnity. Cal.Rptr. reimbursed under trial court al- argues Center erred Equitable indemnity, subrogation, like under the circumstances. lowing indemnity not available to a volunteer. It ex- pay performance

tends those who legal duty protect of a order their A rights (Employers own or interests. In its the com answer to Etc. Co. v. Pac. Indem. plaint, argued obligation has no 658.) Cal.App.2d 334 P.2d Howev- $25,000 pay to reimburse Grinnell er, one acting good making faith in pay ment it Jones made to because that under a payment reasonable belief that “voluntary.” ment was necessary protection it is to his is enti- Indemnity remedy is a to indemnity, subrogation, tled even permits party which reim recover though it develops that he in fact no had another discharge bursement from for the protect. (Employers, interest to supra.) that, as between two allowing equitable The rule indemnity for parties, have discharged by should been if settlements the indemnitee has a reason- Corp. Parkway the other. GeoStar Pe potential liability able belief of serves “the (N.D. troleum, Inc., public which favors settlement of 1993). right indemnity A arise may litigation and could be viewed as a reason- express agreement by implication. ... mitigate damages able effort to in its ¶ 160, 8, Zabolotny, Mann v. 2000 ND 615 against” claim the indemnitor. Id. at 855. Where, here, N.W.2d 526. as there is no rule [¶42] The was further express duty indemnify to an contractual explained Phoenix Ins. Co. v. United other, indemnity may nevertheless be re Co., 1511, States Fire Ins. Cal.App.3d 189 if covered the evidence an im establishes 185, 193(1987): Cal.Rptr. 235 plied if party contract or one exposed action, implied indemnity In an where liability by party the action of another brought by defense of an action the in who, equity, good law or in should make jured party third is tendered to the in- the loss of Haug the other. Johnson v. defend, demnitor and he refuses to land, (N.D.1981). 533, 303 N.W.2d 543 In good by faith settlement the indemnitee demnity is an equitable doctrine not ame after such refusal is sufficient to estab rules, nable to hard and fast rather lish the damages paid were aas standards, than using strict must courts legal obligation. result (People ex carefully parties’ examine both conduct Dept. Pub. v. Daly rel. Wks. City Sca light general justice. notions of Nelson (1971) 277, venger Co. Cal.App.3d 19 Johnson, 171, v. ¶ 20, ND 1999 669].) 282, Cal.Rptr. [96 The rule has 246. been also stated as follows: “[Where] Generally, an indemni- the indemnitee notifies indemnitor of tee who settles claim judgment before a pending claim and ‘the indemnitor de prove volunteer, must that it was not a but liability nies ... and refuses to assume liable, was actually claim, in order to recover the defense of the then the indem- indemnity. Indemnity § See 42 C.J.S. 46 is in charge nitee full of the matter and (1991); § 41 Indemnity Am.Jur.2d may 46 make a good faith settlement with (1995). An exception to the general assuming rule out of being the risk able to explained by the court in prove Aetna & absolute legal liability or the actu- Life

379 (Citations.) insurers”); Jorge v. Travelers In by tions damage. amount of al (D.N.J. 150, Co., F.Supp. 156 dem. 947 right make the rule would contrary A 1996) (holding volunteer status should be in cases where meaningless settle “public poli narrowly because interpreted liability.’ [Cita- denied has indemnitor prompt payment of claims cy favors (Pac. Tel. v. Pac. Gas Tel. & Co. tion.]” insurer and against made an insured (1959) 387, Cal.App.2d 170 & Elec. Co. of techni assertion an insurer disfavors 984]; Mabie & 392, see also P.2d [338 on the poli to avoid cal defenses (1972) 25 B E Installers v. & Mintz Katz, v. 177 cy”); Aetna Cas. & Sur. Co. 496, 491, Cal.Rptr. [101 Cal.App.3d (1978) 44, 678, 679 377 N.E.2d Ind.App. 919].) a volun (holding “Aetna did not become Hyatt Inc. v. Hydro-Air Equip., also See the actual cause of the simply teer because (9th Cir.1988); 403, F.2d 407 Corp., 852 contract of not covered its damage was v. Home Indem. Inc. Illinois Tool Works insurance”); American Gen. Fire & Cas. (N.D.Ill.1998); 851, Co., 854 F.Supp.2d 24 Co., 741, 110 N.M. Progressive v. Cas. Co. Tri-County Mortgage Co. v. WestAmerica (1990) 1113, Ameri (holding 1117 799 P.2d Inc., 819, 821 F.Supp. 670 Reports, volunteer, but was can was not General (N.D.Ill.1987); Waterways Corp. Hudson fiduciary to the fulfilling obligations Serv., Inc., F.Supp. Marine v. Coastal subrogation was entitled to insured and (E.D.Tex.1977); Co. Compass Ins. own “Progressive’s a settlement because Co., Cravens, Dargan and 748 P.2d v. failing provide a defense inaction (Wyo.1988). to continue its forced American General have courts 43] Other now hide be and it cannot representation, princi conclusions under reached similar American misdeeds to force hind its own See, e.g., subrogation.2 Weir ples the de bear the burden of General Co., 1395 n. 6 F.2d Federal fense.”); v. PHI- American Cont’l Ins. Co. (the (10th Cir.1987), “liability of an insurer 512 S.E.2d N.C.App. CO Ins. in for it to ironclad order (1999) (American need not be a 490, was not 495-96 subsequent finding a a claim without settle reimburse was entitled to volunteer and volun the insured was payment to refused to defend that PHICO ment because an of if the preventing the “effect have been liable tary” because American would and action did not bringing subrogation a ruled PHICO’s from court had insurer Mut. Auto. coverage); Farm provide reaches a settlement State an insurer whenever Nat'l Ins. v. Northwestern a claim would be Ins. Co. initially challenging after 1996) (State (Utah 983, Farm 986 investiga- 912 P.2d or deter either settlements to Heegaard injustice to another.” equitable remedy avail will result Subrogation 2. is an 440, 77, 81-82, discharge debt 212 N.W. Kopka, of N.D. to secure the ultimate v. 55 able who, Nelson, equity good person (1927). and con by a v. 58 See also Nelson 442 science, ought pay 476, (1929); debt. Farmers Live 134, 140, to that 477 226 N.W. N.D. 65, Ulmer, (N.D. 69 247, v. stock Exch. Syndicate, N.D. Beyer 31 v. Investors’ 747, 755, Twichell, 1986); 63 N.D. v. Morris 476, (1915). 255-56, Because 478 153 N.W. 905, (1933). The "doctrine 249 N.W. 908 equita- subrogation indemnity are similar equitable applied only in subrogation bewill cases, overlap see in some principles that ble v. Auto. Ins. Co. State Farm Mut. discretion.” Wee, Agri-Lines Corp., Idaho Chenery 115 (N.D.1971). "But N.W.2d 60 196 Dobbs, (1988); Dan B. 754-55 766 P.2d provision always subject to the doctrine is ed.1993), 4.3(4) (2d we § Law Remedies applied who where he it will not be that construing volunteer in a a the cases believe volunteer, stranger, was a claims its benefit case. helpful in this subrogation context are intermeddler, application its or where or an 380 insured, Haskins, legal but had a inter- also a named de-

was not a volunteer lawsuit, by investigating settling thereby fendant the federal protect est to to in- dispute triggering duty over Center’s defend and a claim because existed accident). demnify gener- See Haskins that case. See which covered ¶ Russ, Quam, 48, 14, ND ally Couch on Insurance Fetch v. 2001 also 16 Lee R. (3d ed.2000). 223:25, Dairyland §§ 357. Ins. Co. does not 223:27 228:26 establish that Center not have could been case, In this Haskins first con [¶ 44] indemnify liable to Haskins for Jones’s tacted about the accident. Grin- Grinnell expenses medical in the federal lawsuit. disputed nell and which their Center Grinnell policies covered accident. argues Center also in [¶ 47] held hable if the court could have been demnity guaranty on the is improper be ruled did not cover the Center’s money cause Grinnell has not paid to injuries accident. were substan Jones’s States not enter United and did into a tial, opportunity had an to Grinnell written to agreement formal do so. Gen advantageous enter into settlement of erally, implied cause of action for in “[a] partici Center Jones’s claim. refused to demnity does not come into existence until pate negotiations settlement or con indemnitee actual has suffered loss simply settlement tribute to the de through payment judgment aof or applied. nied that its Center has settlement.” Indemnity Am.Jur.2d alleged the settlement amount is (footnote omitted). (1995) § 45 See also circum unreasonable. Under these (1937); § 77 Restatement Restitution stances, Grinnell we conclude had rea (2000); Annot., Subrogation § C.J.S. potential liability sonable belief of and was When statute limitations commences to not a volunteer. against run claim or contribution in tort, demnity based on A.L.R.3d B (1974). concept 883-84 of actual loss argues Center the trial explained is further in 42 Indemnity C.J.S. ruling it indemnify erred in must (2000) (footnotes omitted): § 44 guaranty Grinnell for made right indemnity] [to sue for [T]he does $17,684 pay United bill States not arise until the indemnitee has actual- provided medical services Jones. loss; ly sustained or suffered either through settlement, payment, argues [¶ 46] first the court through injured party’s obtaining an because, erred under the version of the However, judgment. enforceable Act, Medical has Recovery Care 42 U.S.C. been also held that is not necessary § [it] 2651 et in effect seq., at the time of the that there be a lawsuit, judgment against a set- 1993 federal the United States tling tort-feasor seeking indemnity. could directly not recover from an insur- ance company no-fault exception insurance benefits An only to the rule arises See, for medical expenses. e.g., United where is indemnification asserted in a Co., States v. Dairyland third-party So, 674 F.2d 750 action. in- third-party (8th Cir.1982). Because demnity the United States may claim filed be before it accrues, had right no to recover directly from Cen- promote order to a settle- ter, argues United States ment all claims one action. Howev- er, should not able to indirectly be recover such claim cannot be determined be- expenses the medical through pro- fore the underlying claim establishing ceeding. argument Center’s ignores liability and damages is determined.

381 indemnitee became final judgment against general This recognized these has Court satisfied); Gafford, v. 249 indemnity, Leiker in the context see. principles (1991) 571, 655, Suhr, 554, (“Simply 575 274 N.W.2d Kan. 819 P.2d 658 v. Conrad 479, (N.D.1979); Grady, 66 N.D. v. one has been found liable for Jones because 889, (1936), and 488-89, another, 892-93 266 N.W. necessari obligation of it does not v. Bank Streeter See State subrogation. to indemnifi ly follow that one is entitled (N.D.1986); 95, Nester, 98 385 N.W.2d ... precedent cation” because a “condition Implement Hardware & v. United Weber actually indemnitee must have is that the 456, 581, 587, Co., N.D. Mut. 75 obligation for which he seeks paid on Zimmerman, (1948); 55 N.D. v. Rouse 459 indemnification”); Hager Equip. v. Brewer (1927). 515, 94, 99, 517 212 N.W. Co., 489, 54, 57 N.C.App. 17 195 S.E.2d (“it (1973) universally held” that of actual loss is almost requirement [¶48] settlement, indemnity an en not accrue until right or does through payment, well established. the in judgment paid damages “has forceable indemnitee See, v. Ameri Steamship Co. e.g., jured Perry States v. Pioneer Wholesale party”); Co., 66, (Utah 1984) F.2d Refining Co., 214, 339 Smelting & can 681 P.2d 218 Supply Cir.1964) (a (9th cause of action (“[A] indemnity 70 of action for does cause in- “until the indemnity does not accrue party until the of the not arise payment”), made actual demnitee has indemnity damage, results in his seeking Metal, v. Inc. EM-KAY American Sheet clearly of a sum through payment either Inc., Co., 814 F.Supp. 478 Eng’g injured party’s ob through or owed (E.D.Cal.1979) (holding indemnity no could taining judgment.”). an enforceable that had been for an invoice be claimed case, has not In this Grinnell not been indemnitee but had received $17,684it guar- paid the United States Typhoon v. Air Condi Friedman paid); provid- medical services pay anteed to (E.D.N.Y. 22, 24 F.Supp. tioning contains no ed for The record Jones. 1962) indemnity in favor of one (implied and in favor of against Grinnell judgment negligence hable for legally who is ser- for those medical the United States not mere damage, loss or another “covers guaranty. vices or for enforcement judgment is actu and “until the liability,” action, third-party This is not a recov damage no and no ally paid there is in this case. party is not United States Angeles, County Los ery”); Christian and the Unit- The record reflects Grinnell CaLRptr. Cal.App.3d “a contemplated that originally ed States (“[A] (1986) to an prerequisite fundamental to be drafted set- agreement needs formal indem equitable or total partial action for understanding” our the terms of ting forth monetary through an actual loss nity is agree- but no formal guaranty, about the settlement.”); judgment payment in- claim for found. Grinnell’s ment was Gray Sys., Nat’l Bank v. Distrib. Flagship 10, 1993, demnity only upon rests June Inc., (Fla.Ct.App. 485 So.2d attor- States to an assistant United letter 1986) (indemnification indemnitee for of an guaran- Mutual will stating, ney, “Grinnell “prema “obligations” to distributor in paid will be the air force lien tee that of a was no evidence ture” because there not this evidence does conclude full.” We the distributor in favor of judgment an actual suffered establish Grinnell indemnitee); Nalco Gibbons v. against for the indemnified entitling it to be 917, loss Co., 47 Ill.Dec. Ill.App.3d Chem. the United (1980) (a $17,684 pay guaranteed it cause 415 N.E.2d tri- we conclude the Consequently, until States. indemnity did not accrue action for in ordering al Center to in- percent per court erred Six annum is the legal demnify guaranty. for the rate of interest Grinnell authorized under §

N.D.C.C. 47-14-05. We conclude the trial court did not abuse its discretion in TV awarding interest; percent Grinnell six argues [¶ 50] Center the trial however, in decision, accordance with our awarding prejudg court erred Grinnell Center owes the six percent only interest § ment interest under N.D.C.C. 82-03-05 $25,000. pro on its rata share of the Be- $25,000 percent at the rate of six on its cause we have concluded the trial court 22, 1991,3 May settlement with Jones from erred in ordering Center indemnify the date of the settlement. guaranty Grinnell its to the United States, 32-03-05, 51] Section we need not [¶ determine whether the N.D.C.C., gives a court the court erred in awarding prejudgment discretion to in- terest on the prejudgment guaranty. award interest for the breach obligation arising of an not from contract. V Swain v. Harvest Coop., States [¶ 54] We affirm that part judg- of the (N.D.1991). A trial court ment ruling Center’s automobile insurance if abuses its discretion it acts in an arbi- policy provided coverage accident, for the unreasonable, trary, or unconscionable part but reverse that judgment of the con- manner, is not product its decision cluding indemnify Center must Grinnell rational process leading mental to a rea- $25,000 for the full plus interest for the determination, soned misinterprets or it Jones settlement. We hold Center must misapplies the law. Western Nat’l Mut. indemnify pro Grinnell for its rata share of ¶ 63, 31, 2002 ND 643 N.W.2d 4. $25,000 plus percent six interest from argues [¶ 52] interest should the date of the settlement. We reverse not have been awarded because Grinnell that part judgment ordering Center profit should be not able to from delay its indemnify $17,684 Grinnell plus interest in pursuing this action. We do not con- for its guaranty to the United States. done delay Grinnell’s in pursuing its claim Center, against but Center’s inaction can- NEUMANN, [¶ WILLIAM 55] A. ignored. be Center refused to enter C.J., Acting CAROL RONNING into negotiations Jones, settlement with KAPSNER, JJ., concur. settlement, refused to contribute to the [¶ 56] The Honorable JAMES H. required Grinnell to commence this O’KEEFE, Surrogate Judge, participated lawsuit to recover the payment. Center argument in oral place of VANDE did nothing to move along, this lawsuit WALLE, C.J., disqualified, but died presumably because was not party January 2003, and did not participate that had paid the settlement amount. The in this decision. equities do not favor argu- Center in its SANDSTROM, Justice, concurring ment that Grinnell should have moved part and dissenting part. more expeditiously obtaining judgment against requiring Center and it to honor I, A, I concur in Part Part II B obligations contractual C, to its insured. and Part III of majority opin- parties agree 22, 1991, 3. The that the date listed in the is a clerical error. conclusions, findings trial April court’s arising out of ‘the liability II D not exclude from Part dissent respectfully I ion. maintenance, rental ownership, operation, IV, E, and Part V. Part implement.” a farm Id. The or use of majority’s misleading statement is a I ways. policy of The contains no number there is no basis I would hold 58] [¶ statement, majority’s the despite such use of losses between allocation It quotation “equally of marks. is not “Farm-Guard because Grinnell’s Grinnell Further, it is not stated. the clear” when any coverage provide does not Policy” majority phrase the “does not ex- uses of Grin- liability The section this case. phrase to treat that as proceeds clude” but it to Policy” obligates nell’s “Farm-Guard The equivalent policy the of “includes.” the liability limits and subject to the “pay liability not that it “includes does state arising out of the all sums policy terms of ownership, operation, the arising out of person be- which an insured any one loss maintenance, im- or use of a farm rental damages as legally obligated pay comes Contrary implication the of plement.” dam- bodily injury property or because of a majority, policy the this is not both con- policy.” Grinnell age covered liability explicitly arising includes all out provide coverage could provision cedes this implement a farm and excludes the use of case, an exclusion argues in this but liability arising all out of the use of a takes this applies that policy The pickup. motor vehicle such as injury pay bodily away: “We will coverage in policy provide liability would damage arising out of the property liability it all general except that excludes maintenance, rental ownership, operation, a motor vehicle as arising out of the use of any ... motor vehicle or use of policy. defined ¶20, majority, The person.” insured majori- logical fallacy The of the [¶ 59] by engaging misanalyzes this exclusion this: North Dakota law ty is similar to fallacy: logical all incarcerated felons from vot- excludes unambigu- is language The Dakota law does not exclude ing. North liability arising out It does exclude ous. voting. years age from persons over However, it is pickup. of the use of majority’s logic, an Therefore, under the that it does not exclude as clear equally years age is felon over 18 incarcerated arising ownership, out of “the persons over 18 eligible to vote because maintenance, rental or use of’ operation, voting. from are not excluded years age logical The next implement. a farm insured, an acci- Has- excluded Here question [¶ is whether “any the use of motor kins, using implement, arising a farm dent from use, “motor vehicle” tractor, Lia- vehicle.” The at the time of the accident. exclusion, farm is not the triggers of the use of a which bility arising out towed, pick- being but in the context of this case is tractor that was implement towing. Lia- doing that was “using” up Haskins was truck covered risk. unambiguously excluded. meaning policy bility within the here is tractor coverage. and there is II that the ex- majority The concedes into majority proceeds next 61] The the use of the liability arising from cludes coverage. concurrent analysis of policy explicitly states pickup. coverage under both claims, Concurrent majority But then the exclusion. general liability “However, it does an automobile equally as clear that 384 act of bar. The truck collided with another vehi- when vehicle-related

policy exists cle, a nonvehicle-related act of negligence impact and and as a of the and result rebar, involved in the same acci negligence are improper storage the load of the Gilbert, 626, Houser v. 389 N.W.2d dent. of the vehi- rebar struck the driver other (N.D.1986). general liability policy A 631 cle, him. at killing Id. 559. insured if apply only liability of the insured will liability had a with an auto- general “use” of the independently exists in mobile exclusion similar to the one this See, e.g., insured’s vehicle. Columbia rejected argument case. Id. The court Coger, Ark.App. 35 Mut. Cas. Co. apply the exclusion did not because (1991); 345, 85, 347 Allstate 811 S.W.2d independent there was non-auto-related Jones, 271, Cal.App.3d 188 Ins. Co. v. 139 negligence inspecting, supervising, in load- (1983); 557, Cal.Rptr. 561 North Star Mut. ing, securing, fastening and the rebar to 452, 455 Holty, Ins. Co. v. the rack on the truck: (Iowa 1987). Nicholas, Newton v. 20 Kan. have no alternative but to conclude [W]e 335, 1158, (1995); App.2d 887 P.2d 1165 negligence that both of the acts of which Huyghe, Farm Fire and Cas. Co. v. State occurred to the death of Mr. cause Jones 341, 442, 444 Mich.App. were auto-related. Defendants contend (1985); American States Ins. Co. v. Port that we cannot so conclude because the erfield, (Mo.Ct.App. 844 S.W.2d parties stipulated that act of first 1992). example, Coger, For 811 S.W.2d negligence was the failure of Alberts to by compa at a truck owned a lumber “load, secure, fasten, properly supervise ny employees was operated inspect the rebar.” Yet argu- part lumber when of the load delivering ignores ment fail- the obvious. Alberts’ truck, highway, fell off landed on the inspect, ure to etc. would not have been and collided with a van. The lumber com negligent were it not his use of the pany general liability had a with “load, stipulated truck. The failure to automobile exclusion similar to the one secure, fasten, supervise and inspect the this case. Id. The trial court had ruled the manner, rebar” in a non-negligent im- exclusion apply negligence did not because plicitly refers to the failure to do on so alleged was of the the maintenance the truck. straps used to secure the load and se Id. at 561. curing appellate the load. Id. The reversed, concluding “whether or not the Holty, In [¶ 64] N.W.2d at briefly lumber before being came to rest driving farmer was his truck when an au- van, struck negli and whether the side, ger, attached to the truck’s left came vehicle, gent act operation was the of the loose and extended across center line load, the securing of the or the mainte road, of the injuring person an oncom- load, nance straps securing ing vehicle. The farmer had a farm liabili- injury damage clearly arose out of the ty policy with an automobile exclusion sim- maintenance, ownership, or use of the ilar to the one in this case. Id. The court truck or attached equipment ruled the farm pro- did not therefore not policy.” covered Id. vide coverage because “the accident cannot at 347. properly be characterized as nonvehicle- Jones, In Cal.Rptr. solely by auger.” at related caused noted, insured only owned a truck that was Id. 455. The court did equipped “truck, open-ended, with an auger overhead box and constitute one vehicle,” steel rack used transport Holty to store and re- motorized but is hable “[i]f injuries arising out of the automobile acci- adequately general a failure to not for is dent.” Id. at 16. that act could not auger; the tie down use of the him liable without his render Newton, In 887 P.2d at [¶ 67] road,” and “the move- public on a vehicle injured passengers several vehicle were on the truck’s auger depended of the ment they by 500-gallon when were struck a haz- velocity to become a movement and water tank that had fallen from a flatbed ard.” Id. by truck driven and owned the insured. The insured attached the tank to the truck 443, a Huyghe, In at [¶ 65] chain, use by using logging principal a the injured she was struck woman was when water, haul the of the truck was to and by a cleat attached in the back of the head tank was attached to the truck “75% or a clothes- to the insured’s house to secure of the time.” Id. at 1160. The more The garage. the house and line between caused plaintiff alleged the collision was hit free when the insured pulled cleat was solely by the insured’s “nonvehicle-related driving while his the clothesline negligence acts and carelessness in fail- Id. The wom- truck under the clothesline. water tank.” ing to tie down secure the negligently alleged an the insured had in- Id. The insured’s homeowner’s negligently and premises maintained the argued provide surer did not the and located and installed clothesline coverage because of a similar automobile drove regularly because the insured cleat exclusion, agreed: and the court truck under the clothesline between his activity question There is no that the The court con- garage. the house and Id. present in the case involved the direct a similar automobile exclusion cluded negligence use of a motor vehicle. The policy preclud- the insured’s homeowner’s a by hauling occurred in this case which by coverage “[a]ny because risk created ed properly water tank that had not been the location or the installation of to the truck bed inspected or secured clothesline and cleat was result the owner- independent does not exist area,” and being driven truck’s maintenance, use, ship, loading therefore, negligence “the non-auto-related injury unloading of the vehicle. vehicle.” is connected to the use motor in this case because the water occurred Id. at 444. a being negligently hauled tank was Vehicle, negligent motor and Nicholas’ Porterfield, In at S.W.2d appara- failing inspect actions in driving the insured employee truck bed holding the tank to the tus pulling carrying that was a trailer truck properly failure to secure it and his the trailer became un- small tractor when directly were connected place the first and collided with another vehicle. hitched of the tank and do transportation rejected argument that a The court independently from the use not exist in- to the similar automobile exclusion inspect truck.... failure to [T]he liability policy ap- did not general sured’s implicitly secure the tank properly negligent in ply because the insured was to the failure to do logically refers employees of his in the supervision so on the truck. the trailer to proper hitching method of case, act which every truck. Id. at 15. The court concluded In present inju- “injuries leading arose out of the use of the to the claimants’ occurred directly connected with negligent supervision ries was truck and not from the water tank use of hauling and therefore there is no vehicle, an event excluded premi motor enable the underwriter to calculate basis, policy provision equitable issue. ums on an predictable poli “[t]he under automobile [an] Id. at 1165. cy ... ‘dovetailed’ into the exclusion v. In Heimerman Franklin Mut. [¶ 68] comprehensive policy under provide [a] to 89-0495, No. 1989 WL uniform, non-duplicative liability for cover (Un- (Wis.Ct.App.1989) 450 N.W.2d age.” Northern Ins. New York v. Co. of truck owned published), pickup (Colo.1989). Ekstrom, 784 P.2d towing wagon insured was bale thrower Consequently, possible, whenever “[t]he wagon when the truck and were involved coverage provision in an automobile liabili another vehicle. The a collision with ty policy and an in a exclusionary clause pickup owner of the truck had a farmown- general liability policy should therefore be er’s with automobile exclusion construed the same.” Id. in this case. A hearing similar to the one (the was undergoing liq- examiner insurer The majority’s [¶ 70] reliance on the uidation) coverage, ruled there was no con- Houser, fact situation cluding “the accident resulted from the support coverage to concurrent in this ownership and use of a motorized vehicle unpersuasive, case is because Houser as defined and would not farm liability insurer “concede[d] that negligent operation have occurred absent it general is liable under the coverage farm of the motorized vehicle.” Id. at *1. The for the loss caused the failure to re- rejected appellate court affirmed and the move the mud and the failure to warn” argument that should be inter- subsequent to the use of the truck. Under preted provide coverage because did case, undisputed I facts of this believe specifically coverage not exclude for the alleged Haskins’ negligence hooking up towing implement: of a farm rope was inextricably intertwined with policy] coverage excludes

[The liabili- his “use” of tow tractor ty resulting from the use of a motorized and cannot be considered a nonvehicle- vehicle. The accident occurred due to related act of negligence. Because Jones’s the use of a motorized vehicle which was injuries arose from the use of Haskins’ towing pol- a nonmotorized vehicle. The pickup, the exclusion applies. There is an icy to cover towing cannot be read exception to this exclusion relating to farm wagon merely the baler in- because the employees, but there is no evidence that surer specifically did not list the count- Jones was Haskins’ employee, gratuitous less uses of a motorized vehicle. or otherwise. See Center Mut. Ins. v.Co. ¶ 192, 16, Thompson, 2000 ND Id. at *2. 505 (defining employee for purposes of Application of the concurrent person insurance as a who works for coverage doctrine has not been uniform another in exchange for compensation). among jurisdictions, the various not even Consequently, I would poli- hold Grinnell’s among appellate particular courts in cy does not provide any coverage in this jurisdictions. Annot., See Construction case, and there is no basis for allocation of provision excluding liability effect of losses between Center and Grinnell. injuries damage automobile-related personal homeoimer’s or I reject [¶ 71] would also Center’s at-

from (1981). liability policy, tempt 6 A.L.R.4th 555 I to invoke the doctrine of reasonable however, agree, that because in- expectations impose liability under Grin- surance specific is written for a hazard to policy. nell’s The doctrine of reasonable Ill adopted by a has not been expectations See, e.g., Thomp majority of this Court. I would hold the trial court cor- ¶ 192, 12, son, ND 618 N.W.2d 505. rectly ruled automobile policy Center’s Moreover, merely an inter the doctrine in- provided the sole for Jones’s ambigu in the construction of pretive tool case, juries in this and would affirm the contracts, RLI Ins. insurance Co. ous trial percent court’s award of six interest (N.D. Heling, 520 N.W.2d 854-55 $25,000 to Grinnell on its settlement with 1994), ambi and Center has shown from the date of the Jones settlement. policy requiring re guity the Grinnell [¶ 73] Dale Sandstrom use of the doctrine. See Medd sort (N.D.1996). Fonder, majority if a of this Court were to Even

adopt expecta the doctrine of reasonable

tions, the doctrine cannot create unambiguously does not exist under policy.

Grinnell’s

Case Details

Case Name: Grinnell Mutual Reinsurance Co. v. Center Mutual Insurance Co.

Court Name: North Dakota Supreme Court

Date Published: Mar 26, 2003

Citation: 658 N.W.2d 363

Docket Number: 20020073

Court Abbreviation: N.D.