Dean Bjorneby, Keith Bjorneby, Chris Bjorneby, and Josh Bjorneby, Individually, and collectively d/b/a Lone Wolf Farms, Plaintiffs and Appellees
Nodak Mutual Insurance Company and Bryan Hurst, Defendants and Appellants
from the District Court of Walsh County, Northeast Judicial
District, the Honorable Michael G. Sturdevant, Judge.
R. Oppegard, for plaintiffs and appellees.
Michael J. Morley, for defendants and appellants.
1] Nodak Mutual Insurance Company ("Nodak Mutual")
and Bryan Hurst (together referred to as "Nodak")
appeal from the district court's denial of their motion
for judgment as a matter of law and their alternative motion
for a new trial. We affirm.
2] The Bjornebys are farmers. They insured their farming
operation with a Nodak Mutual insurance policy. Hurst was
their insurance agent. During potato harvest, a fire started
in the break room of the Bjornebys' potato washing
facility. The fire spread and caused substantial damage. The
Bjornebys filed an insurance claim, and Nodak Mutual covered
a number of losses. Nodak Mutual, however, refused to cover
certain potatoes because the Bjornebys reported the potatoes
after they became aware of the fire. The Bjornebys sued
alleging Nodak Mutual breached their insurance contract and
Hurst was negligent. A jury returned a general verdict in the
Bjornebys' favor; the verdict did not allocate liability
between Nodak Mutual and Hurst. Nodak Mutual and Hurst moved
for judgment as a matter of law or, in the alternative, a new
trial. The district court denied their motions. Both Nodak
Mutual and Hurst appeal.
3] Hurst had been the Bjornebys' insurance agent for
about four years prior to the fire. He testified he met with
the Bjornebys every year and gave them advice on insuring
their farming operation. The content of the conversations
Hurst had with the Bjornebys during these meetings was
disputed at trial. Hurst claimed he had told the Bjornebys
about a potato insuring method--bin capacity insurance--that
would insure the full capacity of their potato storage
facilities during harvest and subsequently prorate premiums
when the actual number of potatoes became available. Chris
Bjorneby claimed Hurst never mentioned this option; Bjorneby
claimed he instructed Hurst to insure all of their harvested
potatoes at all times. At the time of the fire, and prior to
it, the Bjornebys were insuring their potatoes by
periodically reporting the harvested potato count to Hurst.
As potatoes were harvested and placed in storage, Chris
Bjorneby would call Hurst and update him on the potato count.
Hurst would then report the new count to Nodak Mutual. In
mid-September 2011, Chris Bjorneby called Hurst and reported
the potato count. The fire started on October 7, 2011.
4] Chris Bjorneby testified that when he first saw the break
room fire, he did not think it would result in damage to the
potatoes. Nonetheless, he quickly called Hurst and reported
additional potatoes had been stored since their last call.
The content of their brief conversation was disputed at
trial. Chris Bjorneby claims Hurst told him the additional
potatoes would be covered by Nodak Mutual. Hurst claimed he
made no such assertion.
5] Soon after they hung up, the local fire department decided
to ventilate the fire; it then became uncontrollable. The
washing facility, where the fire started, was in a building
separate from the potato storehouse. However, the two
buildings were connected by underground water flumes used to
move the potatoes from one building to another. The flumes
had seals, and the Bjornebys believed they were sealed while
the fire was occurring. The fire was ultimately brought under
control, but subsequent flare-ups occurred days after it had
started. The additional potatoes Chris Bjorneby had reported
on the date of the fire were ruined by smoke. It is unclear
when they became unusable.
6] Nodak Mutual and Hurst argue the district court erred when
it denied their motion for judgment as a matter of law. They
claim that, under the known loss doctrine, the potatoes
Bjorneby reported on the day of the fire were uninsurable as
a matter of law. They also assert Hurst did not breach his
duty of care, as a matter of law, and thus he could not be
7] A party moving for judgment as a matter of law "is,
in effect, claiming that the evidence is insufficient to
create a question of fact for the jury. And whether or not
the evidence is sufficient to create a question of fact for
the jury is itself a question of law to be decided by the
trial court." Okken v. Okken, 325 N.W.2d 264,
267 (N.D. 1982). If the trial court determines the evidence
does not raise a factual issue to be decided by the jury, the
court may grant judgment as a matter of law. Id.
The trial court's decision on a motion brought under
N.D.R.Civ.P. 50 to deny or grant judgment as a matter of
law is based upon whether the evidence, when viewed in the
light most favorable to the party against whom the motion
is made, leads to but one conclusion as to the verdict
about which there can be no reasonable difference of
opinion. In considering this motion, the trial court must
apply a rigorous standard with a view toward preserving a
jury verdict, and so must we in our review on appeal. In
determining if the evidence is sufficient to create an
issue of fact, the trial court must view the evidence in
the light most favorable to the non-moving party, and must
accept the truth of the evidence presented by the
non-moving party and the truth of ...