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Chase Wisness v. Nodak Mutual Insurance Company and Eric Mogen

October 18, 2011

CHASE WISNESS,
PLAINTIFF AND APPELLANT
v.
NODAK MUTUAL INSURANCE COMPANY AND ERIC MOGEN,
DEFENDANTS AND APPELLEES



Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable David W. Nelson, Judge.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme Court

Wisness v. Nodak Mutual Ins. Co.,

2011 ND 197

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurrence filed.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

[¶1] Chase Wisness ("Wisness") appeals the district court summary judgment in favor of Nodak Mutual Insurance Company ("Nodak") finding the Farm and Ranch Excess Liability Policy did not provide coverage for his claim. Wisness argues the district court erred by finding the insurance policy did not provide underinsured motorist coverage. We affirm.

I

[¶2] On June 1, 2007, Wisness was a passenger in a vehicle driven by an unrelated third party. An accident occurred, and Wisness was injured and is now a paraplegic. At the time of the accident, Milo Wisness, Wisness's father, owned a Nodak Mutual automobile insurance policy with underinsured motorist limits of $500,000. Milo Wisness also owned a Farm and Ranch Excess Liability Policy issued by Nodak. Wisness settled with Nodak for underinsured limits on the automobile policy and reserved the right to pursue a claim under the excess liability policy.

[¶3] On February 19, 2010, Wisness sued, alleging that Nodak wrongfully denied his claim under his excess liability policy because the policy provided underinsured motorist coverage, that Nodak used bad faith when denying the claim and that Eric Mogen, Milo Wisness's insurance agent, negligently counseled Milo Wisness about what insurance policy to buy. Nodak and Mogen denied the allegations.

[¶4] On May 12, 2010, Wisness moved for partial summary judgment, asking the court to declare coverage existed for his claim. Nodak resisted Wisness's motion and moved for summary judgment in its favor. A hearing on the summary judgment motions was held on September 1, 2010. On October 21, 2010, the district court issued a memorandum opinion granting summary judgment in favor of Nodak, finding the excess liability insurance policy did not provide coverage for Wisness's claim and rejecting Wisness's claim against Mogen. Judgment was entered awarding Nodak its costs and dismissing Wisness's claim with prejudice. Wisness appeals the portion of the district court's judgment determining the excess liability insurance policy did not provide coverage for his claim.

II

[¶5] Wisness argues the district court erred by granting summary judgment in favor of Nodak because coverage existed for his claim. This Court has stated:

"Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record." Johnson v. Taliaferro, 2011 ND 34, ¶ 8, 793 N.W.2d 804 (quoting Hasper v. ...


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