*1 H5 be, allegations that not consider this to did beyond acted
the small claims court has may jurisdiction upon of its be raised
scope for a certiorari or a
application writ of writ, upon appeal.
supervisory but not supra;
Kostelecky Engelter, v. Bernhardt Dittus,
v. appeal 21 asserts that requests and costs and
frivolous actual at-
torney's pursuant fees Rule N.D.R. deny
App.P. request. We appeal is dismissed. ERICKSTAD, C.J., LEVINE and Dosland, Dosland, Nordhougen, Lille- GIERKE, JJ., R. and VERNON haug Johnson, Moorhead, Minn., & PEDERSON, Justice, Surrogate concur. plaintiffs appellants; appearance by Dosland. J.P. PEDERSON, Surrogate R. VERNON Hvass, King, Minneapolis, Weisman & Justice, sitting MESCHKE, place Minn., plaintiffs appellants; argued J., disqualified. Charles by T. Hvass. Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., for defendant and appellee; argued Cheryl by L. Anderson. ERICKSTAD, Chief Justice. 11, 1986, On June Thompson Mark died injuries as the result of arising from a THOMPSON, Rebecca Jonathan Mark vehicle accident. children His and wife Thompson, Meghann Thomp- Marie action, (Thompsons) part, initiated an son, Appellants, Plaintiffs and recover underinsured motorist benefits un- purchased a der which had been (No- from him Nodak Mutual Insurance MUTUAL NODAK INSURANCE COM- dak). parties Both seeking filed motions PANY, Appellee. Defendant and summary judgment. Thompsons appeal Civ. No. 900328. judgment 13, 1990, July dated is- Supreme Court of North Dakota. sued the District Court the East District, Judicial granted Central No-
Feb. summary judgment dak’s motion for dis- Thompsons’ complaint, missal of and de- Thompsons’ nied the motion for summary judgment. We affirm.
The decedent inju- died as result of he sustained in ries a two-vehicle accident. death, theAt time of his the decedent was separate poli- covered three which were Nodak. cies issued Froelich Feeds, employer of the driver of the accident, paid vehicle second involved in $500,000, through insurer, sum its Company, Fireman’s Fund Insurance plaintiffs prior to the initiation of this ac- *2 116 damages for BODILY INJURY LIABILITY BONDS Thompsons’ claims The
tion. $500,000 recovered from the THAT APPLY HAVE the AND POLICIES exceed tort-feasor. UP BY PAYMENTS OF third-party BEEN USED OR SETTLEMENTS.” JUDGMENTS question the of presented with areWe policy.] pages 38 & 39 of the [See Thompsons are entitled to or whether capital language motorist benefits un- The letters indicates underinsured recover to dece- issued the exists un- der a that no underinsurance Thompsons argue Essentially, the damages the third- dent. til at least exceed the motorist benefits under coverage. that underinsured party liability tort-feasor’s the dam- policy are available whenever the Thompsons proceed argu- their with the amount of insur- ages incurred exceed quoting again ment further tort-feasor, by the while No- carried ance under Part V as follows: argues underinsurance benefits dak 1-2 “COVERAGE apply when the amount only , 1. is shown on The amount less by the tort-feasor is than carried of the Declarations under the front limit underinsurance cover- Person ‘1-2—Each Each Accident.’ age. 'Each Person’ is the amount of Under 1987, compul enacted legislature In damages bodily for all due to coverage which includ sory underinsurance person.” injury to one defines an underin- provision ed a that the 1 We believe remainder as “one for motor vehicle as sured parts 2 and 3 well as of COVERAGE liability applicable limit of insurance is less are also relevant determination this applicable limit of underinsurance than the appeal and read as follows: coverage.” v. Auto-Owners Insur 347, (N.D.1988); 349 420 ance N.W.2d “1. ... Under ‘Each Accident’ is total (1989). However, 26.1-40-15.3 N.D.C.C. § of coverage amount for all untimely oc the decedent’s death bodily injury to or of the 1987 due to two prior curred the enactment persons apply does not in the same accident. legislation, legislation no case as there is indication to this 2. this Any payable amount under cov- apply retroactively. statute the 1987 should by any erage shall be reduced amount e.g., N.D.C.C. See State Section payable or to or for insured: (N.D. Dimmler, 298 v. any compensation, a. under workers’ 1990); Reiling Bhattacharyya, law; disability benefits or similar or any person organiza- b. argument by Thompsons begin their may legally tion who is or who be held quoting following of the un- bodily injury for the in- liable of Part V of derinsurance sured; or bodily injury liability under the c. 1-2—Under-insured Motor “COVERAGE Vehicle Any payment person 3. made to a bodily injury: “We will shall reduce accident; 1. caused person to that under the arising 2. out the maintenance or use liability injury coverage.” [See motor vehicle. of an under-insured Policy.] 42 and 43 damages an “These must be insured: para- The Thompsons interpret the first for; compensated 1. has not been graph part 1 of 1-2 on COVERAGE legally entitled to recover from the mean that 42 of $100,000; of an under-insured owner driver irrespec- motor vehicle. they may collected from tive of what have third-party tort-feasor’s cover- “THERE IS NO COVERAGE UNTIL compensation age, the workers’ THE LIMITS LIABILITY OF ALL or under OF disability They benefits or similar law. example, injured above party is “legally proceed interpret paragraph then un- entitled to only recover” the additional $25,000. der 1 of 1-2 to COVERAGE
procedural step
calculating
the amount We
previously recognized
have
that in-
*3
damages, focusing
phrase
of
on the
“all
surance contracts
interpreted
are to be
ac-
damages
bodily injury.”
due
They
also cording to the rules of construction in
“any
payable”
contend that
under Chapter 9-07 of the North
Dakota
part 2 must refer
“any damages pay-
Code. Walle Mutual
Insurance Co. v.
agree.
able.”
para-
We do not
The first
Sweeney,
176,
419
178
graph
part
of
1 of COVERAGE 1-2 on Section 9-07-06 of the North Dakota Cen-
page 42 tells the reader where to find the
tury
requires
Code
the contract to be inter-
amount of
for either “Each Per- preted as a whole. The Thompsons appear
son” or “Each Accident.” The second to have selected individual
partial
words or
paragraph
part 1
of
then defines “Each phrases in order to create uncertainty as to
coverage,
Person”
and the third paragraph
the construction of the contract. When
part
1 then defines “Each Accident”
read as a
whole the
is unambiguous.
paragraphs
These three
aid the
“When the
of an
policyholder
provisions
in
on
is unambiguous it should not be strained to
the front of the
Declarations
attached
impose liability on the insurer.” Davis v.
policy.
to the
Auto-Owners
Insurance Company, 420
view,
In
“any
347,
(N.D.1988)
348
(citing
2,
coverage”,
this
relates to the Anderson v. American Standard Insur-
reference to “1-2 Underinsured Motorist
Co.,
ance
(N.D.1980)).
N.W.2d 878
$100,000
PERSON/$300,000
EACH
EACH
We have previously upheld provisions for
OCCUR.” which is shown on the front of
underinsurance similar
provisions
page.
Declarations
If we take that
provided in
in this case where the
amount,
i.e., $100,000
and reduce it
“policy unambiguously stated that its un-
a.,
paragraphs
b.,
items listed in
and c. of
coverage applied
derinsurance
only when
2,
negative $400,000
we arrive at
liability
tort-feasor’s
insurance was less
case,
Thompsons
this
as the
already
have
agreed
than Auto-Owners’
amount of un-
$500,000
by the third-party tort-
coverage.”
derinsurance
Davis,
feasor’s insurance carrier.
N.W.2d at 348. Accord Smith v. Atlantic
Thompsons argue that,
if “amount
Co.,
808,
Mut. Ins.
155 Wis.2d
456 N.W.2d
payable” is construed to mean the limit of
(1990);
Paape v. Northern Assur. Co.
policy, perverse
results would occur as
America,
142 Wis.2d
416 N.W.2d 665
following
indicated in the
example:
poli-
A
(Wis.App.1987).
cy is
$100,000
sold Nodak for
coverage;
We note that underinsurance
$50,000
causing
accident occurs
of bodi-
interpreted
has been
provide
ly
coverage in
injury;
$25,000
the tort-feasor has
the manner similar to that proposed by
Thompsons
insurance. The
con-
Thompsons as “add
you
coverage”.
tend
if
on
But
follow the district court’s
those decisions are
interpretation
based primarily upon
required
would be
$75,000
application
specific
example,
state statutes.
an amount
greater
Hudson,
which is
than the
Auto-Owners Ins. Co. v.
injury.
actual
However,
(Ala.1989) (an
So.2d 467
Thompsons
application
fail to consider
the following language,
Code of
they
(1975));
which
quoted
Alabama
§
argument,
earlier in their
American
which
States Ins. Co. v.
defines
Estate
Tol
damages
lari,
requires
(Iowa
1985) (an
Other applied or are cur- previously of the state in auto is your either laws have contrary statutes to reach rently applying mainly garaged; and have reached herein. See the result we needed 2. are less than the amount (1989); N.D.C.C., Minn.Stat. 26.1-40-15.3 § for dam- (1986).1 65B.49, In Broton 4a Subd. § ages.” Ins. Nat. Mut. Western Although we find no reference to these Supreme (Minn.1988) Minnesota Court brief, Thompsons’ in the as Jus- 65B.49, 4a applied Minn.Stat. Subd. provisions cru- tice Meschke deems these (1986) defined the limits underin- cial, discuss them. we will coverage as the “lesser dif- surance o/the *4 coverage the UIM set out ference between provisions quoted by Justice policy in Declarations or schedules the Meschke do not make reference to the paid or will the which has been coverage, merely amount of but define the by insured tort-feasor what constitutes an underinsured motor ve- tort-feasors, the amount of part hicle as of “Other Additional Defini- 2 (Emphasis sustained but not recovered.” policy. agree the tions for Part V” of We added.) adopted that have Even states Thompson that Mark was struck an statutory define underinsu- schemes which in underinsured motorist. But order to coverage” coverage as “add on allow rance coverage applies, determine the one for amounts for a reduction of benefits provisions actually read the must previously paid to the insured under vari- refer to “COVERAGE” which are under ous circumstances. See Poehls v. Guaran- heading Liability”, the “Limits of also un- (Iowa 1989) ty Nat. Ins. coverage der Part V. The limit of is first (benefits payable policy under the were re- immediately established on and is paid by duced amounts same insurer provisions disclosing followed the how policies). under other computed. the is to be The dis- We have concluded as we have based attempts sent to use the definition of what upon analysis arguments of the briefed is an underinsured motor vehicle to estab- orally argued by Thompsons in this lish the amount of which is to be Notwithstanding, appro- case. we deem it paid. priate to review other of the policy light by asserting in of Justice Meschke’s dissent. The dissent continues He asserts that: you compare when the amount of ambiguity with an “exclusion clause” an majority opinion correctly quotes
“The However, results. the dissent is not com- pp. from 38-39 and relevant paring coverage, policy impor- 42-43 of the but omits an amount of but is com- part pp. policy: paring tant from 40-41 of the the definition of an underinsured Under-insured, vehicle, providing motor with the clauses Motor means a Vehicle computation coverage; trailer, no land motor vehicle or attached amount of has been at ownership, maintenance or use of established point bodily the definition of which is insured or bonded for injury liability Determining in amounts that: underinsured motorist. vehicles, 1. See note 2 underinsured motorist cover- infra. age any whenever one of those statute, 2. Please note that the Minnesota section vehicles meets the definition of underinsured 65B.49, 4a, legisla- subsequently Subd. has 65B.43, motor vehicle in section subdivision tively changed to read: However, 17. no event shall the underin- Liability "Subd. 4a. on underinsured motor sured motorist carrier have to more than respect vehicles. mo- With to underinsured of its the amount underinsured motorist lim- coverage, torist the maximum its.” insurer is sustained the amount of 213, 2; See 1989 Minn. Laws Ch. 1989 Minn. § policy but not recovered from the insurance of the driver or 20; Gimmestad, Ch. Gimmestad v. Laws underinsured at owner of (Minn.App.1990). 451 N.W.2d person injured fault vehicle. two or If a
H9 mo- party was an but an important pp. liable underinsured omits 40-41 torist does determine Only
coverage in this case. Under-insured Motor Vehicle means a party liable is an underinsured motorist land trailer, motor vehicle or attached the ownership, must we determine how much maintenance or use which is exists in this case. To do that must insured or bonded for we injury liability in proceed amounts that: to COVERAGE at of the as we did the earlier requirements meet the of the laws of opinion. of our state which your mainly auto is garaged; and also dissent seems infer that our 2. are than less the amount needed premised provi- decision in Davis was on compensate damages. were ambiguous. sions which far less Davis, Thus, per- N.W.2d 347. As the author of policy plainly said un- that an haps memory Justice Meschke has a der-insured motor vehicle was one insured provisions of Our re- in amounts that “are than Davis. less quoted parts view of discloses no of needed to Davis insured for damages.” (My emphasis). case, the policy merely therein involved. In this *5 claim ambiguous. is that the policy states that the was not vehicle struck the $500,000 insured decedent was insured for princi- The dissent asks us review the and less than the amount com- needed to ples previously which have been stated pensate the insured Services, AID Inc. v. Geiger, Ins. decedent. (N.D.1980). While those Nodak agreed could have that an under- sound, principles are the conclusion each insured vehicle was one is depends upon not, upon case whether a amounts that “are coverage less than the reading insurance, policy of the entire so, policy.” under this If decision ambiguous. is We must still Compa- v. Auto-Owners Insurance general follow our rule of construction (N.D.1988) ny, would have that a states contract should be in- controlling, agree and I then would terpreted aas whole. See N.D. today’s with decision. But is not No- whole, C.C.3 When read as a agreement. Therefore, dak’s I insuring re- ambiguous. spectfully dissent. herein, For the reasons stated the sum- Nodak begins policy by its under-insured mary judgment is affirmed. stipulating that “THERE IS NO COVER- AGE UNTIL THE OF LIMITS LIABILITY JJ., LEVINE, VANDE WALLE and ALL OF BODILY INJURY ... POLICIES concur. THAT APPLY HAVE BEEN UP USED MESCHKE, Justice, dissenting. Here, $500,000 BY PAYMENTS....” was paid by bodily injury policy that did policy language Pertinent for under-in- injuries its limits. These are claimed be sured is scattered over six serious, clearly so there would be interspersed and with clauses for Nodak here. majori- uninsured motorist The ty opinion correctly quotes relevant lan- The pertinent language next of Nodak’s guage pp. and policy stipulates 42-43 of the that an ve- under-insured 3. Section North parties 9-07-06 Dakota "The intention to a contract instrument, Code as reads follows: gathered must be from the entire clause, clauses, interpreted every “9-07-06. Contract as a whole. not from isolated sentence, and togeth- whole a contract is to be taken provision given should be effect give every part er so as to ably practicable. effect to if reason- purpose consistent with main of the con- help Each clause is to inter- tract.” pret the others.” Harvester, Harvey National Bank v. Intern. recently applied We have section 9-07-06 stat- ing following: coverage by up to bodily injury under-insured “insured ... is one hide $100,000, subject plaintiff’s proof less than ... are in amounts $500,000. in- compensate exceeding in an amount the amount needed insur- damages.” sured for reverse, respectfully I would I Because $500,000 “less than was ance of dissent. the insured amount needed Again, clearly there would damages.” GIERKE, J., concurs. here. coverage by Nodak policy, we reach a Further Liability.” At this “Limits of
section on policy says the “amount of
point, Nodak’s front of the Dec- on the is shown T-2—Each Person-Each
larations ” $100,000. Accident.’ That amount clause, Later, an exclusion we read when Plaintiff, JORGENSEN, says: “Any John T. The exclusion doubt arises. shall payable by any be reduced Jorgensen, Beulah Plaintiff
to or for the insured ... Appellant, legally liable for the person ... who is ... Thus the bodily injury to the insured.” circumstance that defines same Crow, Donna R. Leslie J. CROW and exclusion. also defines the *6 Appellees. Defendants and way that Nodak would ever
There is no that it have to Civ. No. 900296. kind of double-talk agreed to furnish. This Supreme Court of North Dakota. ambiguous, and should be construed is against insurer. Feb. today’s aptly decision has
The author of principles of inter-
summarized
preting an insurance in North Dakota is well-established
[I]t
that, insurance adhesion, any ambiguity
contract meaning as to the
reasonable doubt strictly construed is to be
against the insurer and favor language in an
insured. If the support interpretation
contract will impose liability on the insurer will not, the former inter- one which will
pretation adopted. bewill Services, Geiger,
AID Ins. Inc. v. (N.D.1980)(citations omit
ted). also, L M Emcasco Ins. Co. v. & Inc., (N.D.
Development,
1985). Absent other of mu clear evidence intention, interpre
tual these standards of
tation should be followed. Mutual Walle
Insurance Co. v. Sweeney, 419 N.W.2d
(N.D.1988). Therefore, I would reverse
summary judgment and hold that there