from the District Court of Williams County, Northwest
Judicial District, the Honorable Joshua B. Rustad, Judge.
L. Hoffarth, P.O. Box 1000, Minot, N.D. 58702-1000, for
plaintiffs and appellants.
F. Marrin (argued) and Bradley J. Beehler (on brief), P.O.
Box 14519, Grand Forks, N.D. 58208-4519, for defendant and
VandeWalle, Chief Justice.
1] Samantha Gillespie and her mother, Tina Taylor, appealed
from a summary judgment dismissing their lawsuit against
Taylor's motor vehicle insurer, National Farmers Union,
for underinsured motor vehicle coverage. We conclude
Gillespie and Taylor failed to raise a genuine issue of
material fact about whether Gillespie was legally entitled to
collect for bodily injury from the owner or operator of an
underinsured motor vehicle. We affirm.
2] Gillespie and Taylor sued Farmers Union for underinsured
motor vehicle coverage, alleging Gillespie was insured under
her mother's motor vehicle policy with Farmers Union and
was driving a motor vehicle owned by another person when
Gillespie lost control of the vehicle and it overturned,
resulting in significant injuries to her. According to
Gillespie and Taylor, the motor vehicle was owned by Angela
Ayers, Gillespie's aunt, and insured by GEICO. Ayers died
as a result of the accident and another passenger in the
motor vehicle sustained significant injuries. Gillespie and
Taylor asserted GEICO paid Gillespie $25, 000 in no-fault
benefits, but denied her request for liability coverage based
on a claim that Ayers negligently entrusted the vehicle to
Gillespie, an alleged inexperienced driver who received her
learner's permit two days before the accident.
3] Taylor's policy with Farmers Union had underinsured
motor vehicle coverage in the amount of $100, 000 per person
and $300, 000 per incident. Gillespie and Taylor claimed
Gillespie has unpaid medical bills from the accident and her
injuries and medical expenses exceed GEICO's no-fault
benefits. According to Gillespie and Taylor, Ayers' GEICO
policy provided liability coverage of $25, 000 per person,
and they alleged Ayers' vehicle lacked sufficient
insurance to provide liability coverage for all parties
injured in the accident. They alleged Farmers Union failed to
pay Gillespie underinsured motor vehicle benefits required by
Taylor's insurance contract with Farmers Union and by
North Dakota law. Although Farmers Union's policy says
disputes about whether an insured person is legally entitled
to recover damages from the owner or operator of an
underinsured motor vehicle may be determined by arbitration,
the parties have not pursued arbitration in this case.
4] The district court granted summary judgment dismissing the
action against Farmers Union for underinsured motor vehicle
coverage, ruling the limits of all applicable bodily injury
liability policies had not been exhausted under N.D.C.C.
§ 26.1-40-15.6(6), which provides that underinsured
coverage does not apply to an insured's injuries
"[u]ntil the limits of all bodily injury liability
policies and bonds that apply have been exhausted by payment
of settlements or judgments, or such limits or the remaining
part of them have been offered to the insured in
writing." The court explained "exhausted" was
ambiguous and followed the "weight of authority"
strictly interpreting the word to essentially require
complete and total payment of all liability benefits under
policy limits before an underinsured motor vehicle claim may
lie. The court granted Farmers Union summary judgment on the
claim for underinsured motor vehicle coverage.
5] We review the issues raised in this appeal in the posture
of summary judgment, which is a procedural device for
promptly resolving an action on the merits without a trial if
there are no disputed issues of material fact or inferences
that reasonably can be drawn from the undisputed facts, or if
the only issues to be resolved are questions of law.
Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, ¶
9, 699 N.W.2d 45. A party seeking summary judgment must show
there are no disputed issues of material fact and the case is
appropriate for judgment as a matter of law. Collette v.
Clausen, 2003 ND 129, ¶ 6, 667 N.W.2d 617. On
appeal, we view the evidence in the light most favorable to
the party against whom summary judgment is granted and give
that party the benefit of all favorable inferences. Hurt
v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551.
However, a party resisting a motion for summary judgment
cannot merely rely on the pleadings, briefs, or unsupported
and conclusory allegations. Mr. G's Turtle Mountain
Lodge, Inc. v. Roland Twp., 2002 ND 140, ¶ 22, 651
N.W.2d 625. Rather, we have explained:
The resisting party must present competent admissible
evidence by affidavit or other comparable means which raises
an issue of material fact and must, if appropriate, draw the
court's attention to relevant evidence in the record by
setting out the page and line in depositions or other
comparable documents containing testimony or evidence raising
an issue of material fact.
In summary judgment proceedings, neither the trial court nor
the appellate court has any obligation, duty, or
responsibility to search the record for evidence opposing the
motion for summary judgment. The opposing party must also
explain the connection between the factual assertions and the
legal theories in the case, and cannot leave to the court the
chore of divining ...