from the District Court of Cass County, East Central Judicial
District, the Honorable Wade L. Webb, Judge.
Brust, Fargo, N.D., for plaintiff and appellant.
Thomas (argued) and KristiK. Brownson (appeared),
Minneapolis, MN, for defendant and appellee.
Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom,
Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the
Court by McEvers, Justice.
Fair McEvers, Justice.
[¶1] APM, LLLP, appeals from a summary
judgment dismissing its negligence claims against TCI
Insurance Agency, Inc. We affirm, concluding the district
court did not err in deciding that no genuine issues of
material fact exist and TCI is entitled to summary judgment
as a matter of law.
[¶2] APM, a property management company,
sought a builders risk insurance policy from TCI to cover an
apartment building under construction in Fargo. Jay Alsop,
APM's president, discussed insurance policies with
TCI's agent Devin Gaard. One policy in particular, from
Philadelphia Insurance Company (" Philadelphia" ),
covered lost rent and other " soft costs," such as
[¶3] Alsop also received a quote from a
different insurance agency for another policy from Travelers
Insurance Company (" Travelers" ), which was
cheaper than the Philadelphia policy. The Travelers policy
did not have coverage for lost rent and soft costs. Alsop
informed Gaard about the Travelers policy and requested Gaard
to procure the policy as it was quoted by the other agency,
[¶4] A fire at the construction site delayed
the opening of the apartment building for five months. APM
filed a claim under the insurance policy for damages caused
by the fire, including lost rent and interest charges.
Travelers paid part of the claim, but denied the claim for
lost rent and interest because the policy did not provide
coverage for those costs.
[¶5] APM sued TCI, alleging TCI and Gaard
were negligent for failing to offer APM a policy endorsement
that provided additional coverage for lost rent and soft
costs. TCI denied liability and moved for summary judgment,
claiming that APM did not request the additional coverage for
lost rent and soft costs and that TCI and Gaard were not
required to offer the additional coverage to APM. The
district court granted TCI's motion, determining only one
conclusion could be drawn from the facts. The court concluded
APM failed to raise a genuine issue of material fact as to
whether Gaard breached his duty to APM. The court also
concluded Gaard's duty was
not enhanced because APM failed to establish a genuine issue
of material fact indicating a special relationship ...