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Tweten v. Country Preferred Insurance Company

Supreme Court of North Dakota

July 17, 2013

Michelle Tweten and Tony Tweten, Plaintiffs
v.
COUNTRY Preferred Insurance Company and American National Property and Casualty Company, Defendants

Certified question from the United States District Court for the District o f North Dakota, the Honorable Ralph R. Erickson, Chief Judge.

David S. Maring (argued) and James R. Hoy (appeared) for plaintiffs.

Frank J. Rajkowski (argued) and Gordon H. Hansmeier (on brief), defendant

W. Todd Haggart, for defendant

OPINION

Crothers, Justice.

[¶ 1] The United States District Court for the District of North Dakota certified a question to this Court asking:

"Based on the stipulated facts, the language of the automobile insurance policies, and N.D.C.C. Ch. 26.1-40, is the term 'insured' restricted solely to the minor son, who was killed in an underinsured motor vehicle accident, in which his divorced parents, each of whom had separate policies insuring the deceased son, were uninvolved and unharmed in the underlying automobile accident, such that the parents are foreclosed from recovering up to the full amount of underinsured motorist benefits from their respective policies under the 'other insurance' clause contained in each policy and the statutory anti-stacking provisions of NDCC Ch. 26.1-40?"

We answer the question, "Yes."

I

[¶ 2] Michelle Tweten and Tony Tweten brought an action against COUNTRY Preferred Insurance Company and American National Property and Casualty Company ("ANPAC"), seeking the full amount of underinsured motorist coverage from both insurance companies for the Twetens' respective policies. The United States District Court for the District of North Dakota certified a question to this Court and ordered the underlying case stayed pending our decision.

[¶ 3] The parties stipulated to the relevant facts. T.T., the minor child of Michelle Tweten and Tony Tweten, died in a single motor vehicle accident in Fargo in 2010. Michelle Tweten and Tony Tweten married in 1988 and divorced in 2004. They maintained separate households in Fargo since their divorce. At the time of T.T.'s death, Michelle Tweten was insured under a policy issued by COUNTRY, which provided underinsured motorist coverage of $250, 000. Tony Tweten was insured under a policy issued by ANPAC, which provided underinsured motorist coverage of $250, 000.

[¶ 4] T.T. was a passenger in a vehicle driven by E.N. E.N. was insured by Horace Mann Insurance Company with liability limits of $100, 000 per person. No other liability insurance was available to satisfy the claims arising from the death of T.T. The vehicle driven by E.N. was underinsured. The Twetens settled their claim against E.N. for $100, 000 and gave notice to COUNTRY and ANPAC that they could substitute their checks in order to preserve their potential claims against E.N. Neither company did. The Twetens sued COUNTRY and ANPAC to recover underinsured motorist benefits and claimed each insurer owed its per person limit of $250, 000. COUNTRY and ANPAC argued that under North Dakota law and the language of the policies, their liability was limited by statute to $125, 000, respectively.

II

[¶ 5] Certification of questions to this Court by federal courts is permitted under our appellate rules of procedure:

"Power to answer. The supreme court may answer questions of law certified to it by the United States Supreme Court, a court of appeals of the United States, a United States district court, or the highest appellate or intermediate appellate court of any other state, when ...

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