Dundee Mutual Insurance Co. v. Balvitsch

540 N.W.2d 609, 1995 N.D. LEXIS 219, 1995 WL 707585
CourtNorth Dakota Supreme Court
DecidedNovember 30, 1995
DocketCiv. 950068
StatusPublished
Cited by15 cases

This text of 540 N.W.2d 609 (Dundee Mutual Insurance Co. v. Balvitsch) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dundee Mutual Insurance Co. v. Balvitsch, 540 N.W.2d 609, 1995 N.D. LEXIS 219, 1995 WL 707585 (N.D. 1995).

Opinions

MESCHKE, Justice.

Vernon Hoyt, as personal representative of the estate of Corey Hoyt (Estate), appealed a judgment declaring that a farm liability policy issued by Dundee Mutual Insurance Company to Frank and Sandra Balvitsch covered their pickup in a collision that killed Corey, and that Dundee had not waived its right to assert other defenses to a settlement between the Estate and the Balvitsches. We direct the trial court to modify the judgment by striking the clause about no waiver of other defenses to the settlement and, as modified, we affirm the judgment.

The collision occurred in August 1992 at the intersection of State Highway 200 and a township road adjoining the Balvitsches’ farm. Sandra Balvitsch was driving lunch to [611]*611her husband, Frank, who was doing farm work in a nearby field. Sandra’s pickup and Hoyt’s motorcycle collided, killing Rhonda Hoyt and Corey Hoyt.

Corey’s Estate sued Balvitsches for his wrongful death. The Balvitsches had automobile insurance for the pickup with State Farm Insurance and liability insurance for their fanning operations with Dundee. State Farm accepted a tender of the Balvitsches’ defense; however, Dundee denied coverage and did not defend the Balvitsches.

In September 1993, the Estate and the Balvitsches settled the wrongful death action for $600,000, agreeing that the Estate would “accept $100,000 from State Farm and [would] seek payment of the remaining $500,-000 in damages solely from [the Balvitsches’] insurer, Dundee ... and not from [the Bal-vitsches] personally nor from State Farm.” The agreement said it was intended to serve the purposes of the settlements in Miller v. Shugart, 316 N.W.2d 729 (Minn.1982) and Sellie v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 151 (N.D.1992). A $600,000 stipulated judgment was entered in Cass County in the wrongful death action.

The parties tell us that the Estate served a garnishment summons on Dundee in October 1993 and that Dundee there disclosed that it did not owe the Balvitsches anything. However, the garnishment summons, disclosure, and subsequent proceedings are not part of this record.

In November 1993, Dundee sued the Estate and the Balvitsches in Foster County, for a declaratory judgment that its farm liability policy with the Balvitsches did not cover the collision and death of Corey Hoyt. The trial court granted summary judgment for the Estate, concluding that Dundee’s policy covered the collision. The judgment also declared “that Dundee Mutual has not waived and is not estopped from asserting defenses it may have against the enforcement or validity of the judgment rendered against its insureds, Sandra and Frank Bal-vitsch, which was entered pursuant to the Miller-Shugart settlement agreement” between the Estate and the Balvitsches. The Estate appealed, and Dundee cross-appealed.

Dundee’s cross-appeal contends the trial court erred in holding its farm liability policy with the Balvitsches covered this collision. Dundee asserts that a limitation of its organizational act in NDCC 26.1-13-16 is part of its insurance contract under state law, and that this limitation on its powers prohibits it from insuring a motor vehicle operated upon any highway. Dundee concedes, absent that statutory prohibition against a county mutual insurance company issuing automobile liability coverage, its farm liability policy would cover this collision.

Dundee’s farm liability policy covers “[a]ll operations of the insured which are necessary or incidental to farming.” This policy excludes coverage for “the ownership, maintenance or use of automobiles while away from the premises or the ways immediately adjoining” the premises. The scope of that exclusion, “while away from the premises or the ways immediately adjoining” the premises, does not exclude overage for use of a vehicle on the premises and on the immediately adjoining “ways.” This creates an exclusion from the exclusion of coverage for the use of automobiles. In Applegren v. Milbank Mut. Ins. Co., 268 N.W.2d 114 (N.D. 1978), we held that, when an insurance policy contains an exclusion to an exclusion from coverage, coverage exists for the exclusion to the exclusion. Under Applegren, Dundee’s farm liability policy with the Balvitsches thus insures the use of automobiles for “operations ... incidental to farming” on the “premises or the ways immediately adjoining” them. We therefore agree with Dundee that the farm liability policy covers this collision at the intersection of ways immediately adjoining Balvitsches’ farm, and our analysis turns to the statutory prohibition against a county mutual insurance company issuing automobile liability coverage.

Dundee is organized under NDCC ch. 26.1-13 regulating the organization and activities of county mutual insurance companies. NDCC 26.1-13-16 says:

Any county mutual insurance company may make insurance contracts against loss, expense, or liability by reason of bodily injury or death by accident, disability, sickness, or disease suffered by others for [612]*612which the insured may be liable or may have assumed liability, except no liability insurance contracts against any or all loss or expense resulting from the ownership, maintenance, or use of any motor vehicle normally operated, intended to be operated, or designed for use, upon any highway, road, or street in this state, may be made.

(Emphasis added). Dundee relies on this statutory prohibition that circumscribes its insuring activities.

The interpretation of a statute is a question of law. Continental Casualty Co. v. Kinsey, 499 N.W.2d 574 (N.D.1993). We construe statutes to ascertain the intent of the Legislature. Id. Statutes must be considered as a whole and in relation to other provisions, with each provision harmonized, if possible, to avoid conflicts. Id. When read together, the provisions of NDCC ch. 26.1-13 do not preclude a county mutual insurance company from insuring against liability for loss or damage by a vehicle incidental to farming operations.

A county mutual insurance company is largely restricted to insuring property in rural areas outside of an incorporated city. See NDCC 26.1-13-15. Despite the limitation of NDCC 26.1-13-16, “[a] county mutual insurance company may insure against loss or damage by ... vehicles.” NDCC 26.1-13-14. When construed together, we believe the provisions of NDCC ch. 26.1-13 do not preclude a farm liability policy from covering loss or damage by vehicles incidental to a farming operation.

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Dundee Mutual Insurance Co. v. Balvitsch
540 N.W.2d 609 (North Dakota Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
540 N.W.2d 609, 1995 N.D. LEXIS 219, 1995 WL 707585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dundee-mutual-insurance-co-v-balvitsch-nd-1995.