DeCoteau v. Nodak Mut. Ins. Co., 20010066.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: SANDSTROM, Justice.
• Citation: 636 N.W.2d 432,2001 ND 182
• Parties: James Joseph DeCOTEAU, Plaintiff and Appellant v. NODAK MUTUAL INSURANCE COMPANY, Defendant and Appellee.
• Docket Number: No. 20010066.,20010066.
• Decision Date: 05 December 2001

636 N.W.2d 432
2001 ND 182

James Joseph DeCOTEAU, Plaintiff and Appellant
v.
NODAK MUTUAL INSURANCE COMPANY, Defendant and Appellee

No. 20010066.

Supreme Court of North Dakota.

December 5, 2001.

636 N.W.2d 433

Jeffrey J. Lowe (argued), Simon, Lowe & Passanante, LLC, St. Louis, MO, H. Patrick Weir, Jr. (appeared), Lee Hagen Law Office, Ltd., Fargo, Joseph P. Danis and John J. Carey, Carey & Danis, LLC, St. Louis, MO, for plaintiff and appellant

Richard N. Jeffries (argued), and Aaron J. Dorrheim, Jeffries, Olson & Flom, PA, Moorhead, MN, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] James Joseph DeCoteau appealed from a summary judgment¹ awarding him $25,000 in his action against Nodak Mutual Insurance Company for underinsured motorist coverage. DeCoteau argues we should affirm the judgment, but remand the case and order the trial court to allow him discovery so he can obtain evidence to support a motion to certify a class action against Nodak. Under the circumstances, we conclude the case is moot, and we dismiss the appeal.

I

[¶ 2] On October 6, 1994, DeCoteau was injured in an automobile accident. After receiving $25,000 from the other driver's automobile insurance company, DeCoteau claimed he sustained damages in the

636 N.W.2d 434

accident in excess of $25,000 and sought underinsured motorist coverage under his insurance policy with Nodak. Nodak denied DeCoteau's claim

[¶ 3] In May 1998, DeCoteau sued Nodak for breach of contract in allegedly providing him illusory underinsured motorist coverage. He also claimed Nodak was liable under theories of breach of the duty of good faith and fair dealing, misrepresentation and omission, unjust enrichment, and promissory estoppel. DeCoteau's complaint alleged he was suing on behalf of himself and as class representative for all individuals who had purchased the minimum statutory required amount of underinsured motorist coverage from Nodak since 1992 and had been denied proceeds under their policies. Nodak moved for summary judgment, and DeCoteau moved under N.D.R.Civ.P. 56(f) for a stay pending further discovery on his individual claim and on class action issues. The trial court denied DeCoteau's motion for a stay and granted Nodak's motion for summary judgment, ruling a 1994 version of Nodak's policy was not illusory because it provided coverage under narrow circumstances, and a 1992 version of Nodak's policy did not raise issues about illusory coverage because the 1992 version provided broader coverage than the 1994 version. DeCoteau appealed, and in DeCoteau v. Nodak Mut. Ins. Co., 2000 ND 3, ¶ 20, 603 N.W.2d 906, this Court ruled, "[b]ecause we conclude DeCoteau may be entitled to underinsured proceeds under the 1992 version of the policy, but not under the 1994 version, we conclude there is a material factual dispute about which version applies to DeCoteau's claim, and we reverse the summary judgment and remand for a determination of which policy was in effect when the accident occurred."

[¶ 4] In November 2000, ten months after our remand, DeCoteau served interrogatories on Nodak and requested production of documents. DeCoteau asked Nodak to provide a list of all people who had purchased an automobile insurance policy with underinsured motorist coverage of $25,000 per person and $50,000 per occurrence and which contained the same definition of an underinsured motor vehicle as contained in DeCoteau's 1992 policy. He also sought documents or a computer database identifying similarly situated persons and a list of all persons who had filed underinsured motorist claims that were denied. Before responding to the discovery requests, Nodak filed an offer of settlement under N.D.R.Civ.P. 68, agreeing to settle DeCoteau's individual claim and allow judgment to be entered against it for the $25,000 policy limit on the insurance policy plus costs accrued at the time of the offer. DeCoteau did not accept the offer.

[¶ 5] On December 8, 2000, Nodak objected to DeCoteau's discovery request, claiming it was overly broad, unduly burdensome, oppressive, harassing, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Nodak also claimed the information sought was proprietary and confidential, and argued DeCoteau's lawsuit was not a class action. Nodak simultaneously moved for summary judgment declaring it was liable to DeCoteau for $25,000. Nodak argued, because it was undisputed the 1992 policy applied and the maximum policy limit of $25,000 had been offered to DeCoteau, Nodak was entitled to summary judgment against itself as a matter of law. DeCoteau requested the trial court enter judgment on his individual claim for $25,000, but opposed "entry of final judgment which would allow defendants to defeat the class claims brought by plaintiff because this would circumvent the class action rules and allow a defendant to defeat a class action merely by offering the UIM limits of $25,000."

636 N.W.2d 435

[¶ 6] The trial court granted the summary judgment motion, awarding DeCoteau $25,000 and awarding Nodak $55.50 for its allowable costs and disbursements. Neither the order nor the judgment mentions the class action allegations of DeCoteau's complaint, and at no time did DeCoteau either move to compel discovery or to certify the class action

[¶ 7] After judgment was entered, the parties tendered checks to each other for the amounts ordered by the judgment and executed a mutual satisfaction of judgment. The mutual satisfaction of judgment stated the amounts the parties paid to each other were in "full satisfaction" of the judgment, and authorized the clerk of court "to enter satisfaction of record of said judgment." The mutual satisfaction of judgment was entered on February 2, 2001. DeCoteau appealed, and Nodak moved to dismiss the appeal.

[¶ 8] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. DeCoteau's appeal was timely under N.D.R.App.P. 4(a). This Court has probable jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 9] Nodak argues the appeal should be dismissed either because it is moot, or because DeCoteau waived the right to appeal by his execution and the entry of the...