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APM, LLLP v. TCI Insurance Agency, Inc.

Supreme Court of North Dakota

March 15, 2016

APM, LLLP, Plaintiff and Appellant
v.
TCI Insurance Agency, Inc., Defendant and Appellee

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

         Mara C. Brust, Fargo, N.D., for plaintiff and appellant.

         John F. Thomas (argued) and KristiK. Brownson (appeared), Minneapolis, MN, for defendant and appellee.

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

          OPINION

Page 35

          Lisa 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.

         I

          [¶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 interest.

          [¶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, without change.

          [¶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

Page 36

not enhanced because APM failed to establish a genuine issue of material fact indicating a special relationship ...


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