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Tracy Jund and Lisa Jund v. Johnnie B's Bar & Grill

December 13, 2011

TRACY JUND AND LISA JUND,
PLAINTIFFS AND APPELLEES
v.
JOHNNIE B'S BAR & GRILL, INC., DEFENDANT AND RANSOM COUNTY,
DEFENDANT AND APPELLANT



Appeal from the District Court of Ransom County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.

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

N.D. Supreme Court

Jund v. Johnnie B's Bar & Grill, Inc.,

2011 ND 230

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

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

[¶1] Ransom County appeals from a summary judgment that awarded Tracy and Lisa Jund the $250,000 coverage limit of Ransom County's underinsured motorist coverage. The issue in this appeal involves the meaning of language in N.D.C.C. § 26.1-40-15.4(1) that "[a]ny damages payable to or for any insured for . . . underinsured motorist coverage must be reduced by" the amounts payable under any Workforce Safety and Insurance ("WSI") law. The district court construed that language to authorize a reduction for WSI benefits payable to Tracy Jund from the Junds' total compensatory damages, not from Ransom County's underinsured motorist coverage limit. We affirm.

I

[¶2] The Junds sued Johnnie B's Bar & Grill and Ransom County, alleging Tracy Jund was injured during the course of his employment as a Ransom County Deputy Sheriff when his patrol car was involved in an accident with an underinsured motor vehicle driven by Shane Reinhardt, an individual the Junds alleged had unlawfully consumed alcoholic beverages at Johnnie B's. The Junds alleged Ransom County, as a pool member of the North Dakota Insurance Reserve Fund, provided underinsured motorist coverage for the patrol car and was liable to the Junds for $250,000 in underinsured benefits under the limits of its underinsured motorist coverage. For summary judgment purposes, the Junds and Ransom County stipulated that Reinhardt's car was underinsured; that Tracy Jund, individually and as trustee for WSI, and Lisa Jund had recovered $100,000 in coverage limits from Reinhardt's liability insurer; that the Junds had been paid $109,680.91 in benefits from WSI; and that the Junds' total compensatory damages for the accident exceeded the sum of the $100,000 received from Reinhardt's liability insurer, the $109,680.91 in benefits payable from WSI, and the $250,000 coverage limit from Ransom County's underinsured motorist coverage.

[¶3] The district court granted the Junds' motion for summary judgment, concluding N.D.C.C. § 26.1-40-15.4(1) is ambiguous. The court construed the statute to authorize a reduction for WSI benefits payable to Tracy Jund from the Junds' total compensatory damages, rather than from Ransom County's underinsured motorist coverage limit. The court said that interpretation provides an insured with additional protection when injured by a driver with a liability limit that is too low to fully compensate the insured for all injuries and permits an offset against damages for benefits paid under workers compensation and first-party automobile coverage while avoiding duplication of recovery for the same loss. The court further explained that "interpretation honors the mandate of N.D.C.C. § 26.1-40-15.3(1) that underinsured motorist coverage must pay compensatory damages which an insured is legally entitled to collect for bodily injury from the owner or operator of an underinsured motor vehicle, and also enforces the limiting language of N.D.C.C. § 26.1-40-15.3." The court decided the Junds were entitled to the underinsured coverage limit of $250,000 under Ransom County's motor vehicle insurance. The court also decided there was no just reason under N.D.R.Civ.P. 54(b) to delay entry of judgment against Ransom County.

[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Ransom County's appeal is timely under N.D.R.App.P. 4(a). After Ransom County filed its notice of appeal, the Junds and Johnnie B's stipulated to dismiss on the merits and with prejudice the Junds' remaining claim against Johnnie B's. All of the Junds' claims against Ransom County and Johnnie B's have been finally resolved for purposes of N.D.R.Civ.P. 54(b), and this Court ...


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