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Clark v. Farmers Union Mut. Ins.

Supreme Court of North Dakota

December 22, 2015

Kory Clark, Plaintiff and Appellant
v.
Farmers Union Mutual Insurance and QBE Americas, Inc., Defendants and Appellees

Page 621

Editorial Note:

The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

Marianne O. Knudson, Grand Forks, N.D., for plaintiff and appellant.

Tyler J. Siewert, Bismarck, N.D. for defendant and appellee, Farmers Union Mutual Insurance.

Jeanne H. Unger (argued) and Steven M. Sitek (appeared), Minneapolis, Minnesota, for defendant and appellee, QBE Americas, Inc.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice.

OPINION

Page 622

Sandstrom, Justice.

[¶1] Kory Clark appeals the summary judgment dismissing his claims for breach of contract. He argues the district court erred in granting summary judgment and holding he was not entitled to coverage under a farm liability policy. He also argues the district court should not have dismissed his claim for breach of duty to defend. Because we conclude the district court correctly held Clark failed to present evidence sufficient to raise genuine issues of material fact in regard to his claims, we affirm the judgment.

I

[¶2] In January 2010, Clark received a telephone call around 3 a.m. from his brother asking for assistance with his pickup, which was stuck in a snowdrift. According to Clark's deposition, after the brothers were unable to pull the pickup out of the snowdrift, he drove to their grandfather's nearby farm to get a tractor to pull it out. Clark stated that after proceeding a short way down the road, the tractor broke down and he was unable to get over to the shoulder of the road or restart it. He then walked back to the farm to get his pickup and pick up his brother, who took him home and said he would take care of the tractor. Before the tractor was removed from the road, Rita Fred collided with it while driving to work. Fred sued Clark and his grandfather to recover for her injuries.

[¶3] At the time of the accident, Clark's grandfather had a farm liability policy with Farmers Union Mutual Insurance. Farmers Union defended the grandfather in the action brought by Fred, but declined to defend Clark, claiming he was not insured under the policy. Clark sought a declaratory judgment that Farmers Union had a duty to defend or indemnify him. He also sought damages for bad-faith refusal to defend. QBE Americas, Inc., joined as the third-party claims administrator for Farmers Union. Both Farmers Union and QBE moved for summary judgment, which the district court granted.

[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶5] Clark argues the district court erred in granting summary judgment and finding he is not entitled to coverage under the farm liability policy. Specifically, he argues the court was wrong when it held that because the accident did not occur on an " insured location" and because he did not qualify as an employee of his grandfather's under the policy, he was not entitled to coverage.

[¶6] We review a district court's grant of summary judgment de novo. Tibert v. Nodak Mut. Ins. Co., 2012 ND 81, ¶ 8, 816 N.W.2d 31. " 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 . . . ." Id. (quoting Myaer v. Nodak Mut. Ins. Co., 2012 ND 21, ¶ 9, 812 N.W.2d 345).

[¶7] The interpretation of an insurance contract is a question of law fully reviewable on appeal. Id. ...


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