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Moeller v. Zurich American Insurance Co. of Illinois

United States District Court, D. North Dakota, Northwestern Division

October 2, 2015

Timothy E. Moeller, Plaintiff,
v.
Zurich American Insurance Company of Illinois, (NAIC 1535), Defendant.

ORDER RE MOTION FOR SUMMARY JUDGMENT

CHARLES S. MILLER, Jr., Magistrate Judge.

Before the court is defendant's motion for summary judgment, filed on April 17, 2015. On May 13, 2014, both parties consented to proceed before a magistrate judge. For the reasons outlined below, the motion is granted.

I. BACKGROUND

Plaintiff, Timothy Moeller ("Moeller"), alleges that on December 8, 2012, he was operating a semi-tractor and pulling a tanker loaded with crude oil traveling eastbound on McKenzie County Road when an unidentified semi-tractor drifted into his lane causing him to move his semi-tractor as far as he could to the right side of the road to avoid a collision which ultimately caused his semi-tractor to roll on its side. Moeller reported the incident to his employer, Powerline Transport LLC, who notified law enforcement. McKenzie County Deputy Sheriff Michael Ficken ("Deputy Ficken") responded to the scene and took Moeller's statement.

The semi tractor and trailer being operated by Moeller was insured under an insurance policy issued by Zurich American Insurance Company of Illinois ("Zurich") with uninsured motorist coverage limits of $100, 000, 00. Moeller filed a claim under the uninsured motorist insurance policy which was denied.

Moeller initiated this action on April 1, 2014 in the state court of McKenzie County. Zurich removed on April 29, 2014, invoking the court's diversity jurisdiction.[1] In his complaint he alleged "[t]hat as a result of the negligence and carelessness of the phantom driver' causing said semi-tractor and trailer to overturn, Plaintiff Moeller sustained severe and permanent injuries to his body[.]" Moeller seeks to recover in excess of $50, 000.00 for uninsured motorist benefits; statutory interest on all accrued claims; and reasonable attorney fees.

On April 17, 2015, Zurich moved for summary judgment, arguing that Moeller has not presented corroborating, competent evidence other than his testimony of his version of the alleged accident on December 8, 2015, and as such, his uninsured motorist claim should be dismissed as a matter of law. Moeller opposed summary judgment, relying on the deposition of Deputy Ficken, the affidavit of Piccola Clark, and the notes made in the claim file by a Zurich claims representative in support of his position that there is competent, corroborating evidence which creates a material issue of fact.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed.R.Civ.P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.

The court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving party bears the burden of demonstrating an absence of a genuine issue of material fact. Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir. 2005). The non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response must... set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). The court must consider the substantive standard of proof when ruling on a motion for summary judgment. Anderson, 477 U.S. at 252.

III. DISCUSSION

Based on the parties' submissions, it appears that both parties agree that the Zurich insurance policy is a valid contract and that North Dakota contract law applies.

It is well-established in North Dakota that the interpretation of an insurance policy is a question of law. Close v. Ebertz, 1998 ND 167, ¶ 12, 583 N.W.2d 794. The standard for construing an insurance contract in North Dakota is as follows:

Our goal when interpreting insurance policies, as when construing other contracts, is to give effect to the mutual intention of the parties as it existed at the time of contracting. We look first to the language of the insurance contract, and if the policy language is clear on its face, there is no room for construction. If coverage hinges on an undefined term, we apply the plain, ordinary meaning of the term in interpreting the contract. While we regard insurance policies as adhesion contracts and resolve ambiguities in favor of the insured, we will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage. We will not strain the definition of an undefined term to provide coverage for the insured. We construe insurance contracts as a whole to give meaning and effect to each clause, if possible. The whole contract is to be taken together to give effect to every party, and each clause is to help interpret the others.

K & L Homes, Inc. V. American Family Mut. Ins. Co., 2013 ND 57, ¶ 8, 829 N.W.2d 724 (quoting Zieglemann v. TMG Life Ins., 2000 ND 55, ¶ 6, 607 N.W.2d 898 (citations omitted)). "Exclusions from coverage in an insurance contract must be clear and explicit and are strictly construed against the insurer." Tibert v. Nodak Mut. Ins., 2012 ND 81, ¶ 9, 816 N.W.2d 31 (quoting Myaer v. Nodak Mut. Ins., 2012 ND 21, ¶ 9, 812 N.W.2d 345). Although a policy's exclusionary clauses are strictly construed, under North Dakota law, this court will not rewrite a contract to impose liability on the insurer when the policy unambiguously precludes coverage. K & L Homes, Inc. at ¶ 8. Tibert, at ¶ 9; Schleuter v. Northern Plains Ins., 2009 ND 171, ¶ 8, 772 N.W.2d 879.

A. The Zurich Insurance Policy

The Zurich insurance policy contained a "North Dakota Uninsured Motorists Coverage" endorsement. (Docket No. 23, Ex. 1). Section A of the endorsement, subsection 1, states:

1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle". The damages must result from "bodily injury" sustained by the "insured" caused by an "accident". The owner's or driver's liability for these damages must result from the ownership, maintenance or use of the "uninsured motor vehicle".

Id. As it relates to coverage when neither the driver nor owner can be identified, Section F(3)(c)(2) of the Zurich insurance policy defines an "uninsured motor vehicle" as follows:

C. That is a hit-and-run vehicle and neither the driver nor owner can be identified. The vehicle must either:
(1) Hit an "insured", a covered "auto" or a vehicle an "insured" is "occupying"; or
(2) Cause "bodily injury" to an "insured" without hitting an "insured", a covered "auto" or a vehicle an "insured" is "occupying", provided the facts of the "accident" can be corroborated by competent evidence other than the testimony of any person having a claim under ...

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