Wisness v. Nodak Mutual Insurance Co.

Summary

The North Dakota Supreme Court affirmed summary judgment for Nodak Mutual Insurance Company, holding that a Farm and Ranch Excess Liability Policy provided only third-party liability coverage and did not provide underinsured motorist coverage for the plaintiff's first-party claim. The court also held that an underinsured motorist exclusion could not create coverage where the insuring agreement did not otherwise provide it.

Holdings

1. The Farm and Ranch Excess Liability Policy did not provide underinsured motorist coverage because its insuring agreement provided only third-party liability coverage for amounts the insured became legally liable to pay, while Wisness asserted a first-party claim for underinsured motorist benefits.
2. An exclusion cannot create or expand coverage that is not otherwise provided by the policy's operative insuring agreement. The underinsured motorist exclusion therefore did not make the policy ambiguous or provide underinsured motorist coverage.
3. North Dakota law does not require an excess, umbrella, or other nonprimary motor vehicle policy to provide coverage conforming to the statutory uninsured and underinsured motorist provisions.

Questions Presented

1. Whether the Farm and Ranch Excess Liability Policy's third-party liability insuring agreement provided first-party underinsured motorist coverage for Wisness's injuries.
2. Whether the policy's underinsured motorist exclusion created an ambiguity or otherwise supplied coverage that was absent from the insuring agreement.
3. Whether a later-issued 2007 policy or endorsement could be considered to establish ambiguity in the policy applicable to the claim.

Disposition

affirmed