Grinnell Mut. Reinsurance Co. v. Lynne

Decision Date31 August 2004
Docket NumberNo. 20030217.,20030217.
Citation2004 ND 166,686 N.W.2d 118
PartiesGRINNELL MUTUAL REINSURANCE COMPANY, Plaintiff and Appellee, v. Ole I. LYNNE, Defendant and Appellant. Dena Karna, and Edward T. Larson, Defendants.
CourtNorth Dakota Supreme Court

Lawrence A. Dopson, Zuger Kirmis & Smith, Bismarck, for plaintiff and appellee.

Dennis Edward Johnson, Johnson & Sundeen, Watford City, for defendant and appellant Ole I. Lynne.

KAPSNER, Justice.

[¶ 1] Ole Lynne appeals from a summary judgment in a declaratory action commenced by Grinnell Mutual Reinsurance Company ("Grinnell") to resolve issues of policy coverage. The district court held Grinnell had no duty to defend or indemnify Lynne under its commercial general liability policy. We affirm.

I.

[¶ 2] Lynne is a farmer who engages in construction work during the winter months. Lynne orally contracted with Edward Larson to construct a new foundation for a farm house built on Larson's property in 1912. The process involved lifting the house from its foundation and supporting it with iron timbers while a new foundation was constructed under the house.

[¶ 3] Lynne drilled holes in the old foundation to accommodate four iron timbers to support the house while Lynne demolished the old foundation and constructed a new one. After Lynne removed the existing foundation and constructed footings, he hired a subcontractor, Dena Karna, to place concrete blocks on top of the footings. In the process of placing the blocks, either Lynne or Karna discovered the house would have to be raised another eight inches in order for the basement walls to be sufficiently accommodated. While Lynne was in the process of raising the house, the iron timbers "rolled over." The house fell off the support jacks and into the basement approximately three feet. Lynne claimed the house fell as a result of unusually high winds on the day of the incident. Grinnell argues the house fell as a result of Lynne's faulty workmanship, thus barring him from recovery under his insurance policy.

[¶ 4] Karna brought an action against Larson and Lynne to recover $8,385.95, money owed to him for work performed. After the house fell into the basement, Karna had to rebuild some of the damaged walls. Karna also modified the foundation to accommodate another house Larson purchased to be placed upon the foundation. Larson filed a cross-claim against Lynne, seeking to recover $35,000 in expenses allegedly incurred by Larson in connection with the removal and replacement of the house.

[¶ 5] At the time of the incident, Lynne had a commercial general liability policy with Grinnell. Lynne filed a claim against his policy seeking a defense of Karna's and Larson's lawsuits and indemnity for any damages. Grinnell denied coverage, but agreed to defend Lynne under a reservation of rights.

[¶ 6] Grinnell filed a complaint in a separate action seeking declaratory relief, claiming the commercial general liability policy does not cover the claims against Lynne by Larson or Karna because of the business risk exclusions in the policy. Grinnell argues the policy does not cover the losses incurred by Lynne because the damage to the house fits into one or more policy exclusions from coverage. Grinnell argues: business risk exclusions preclude coverage because the damage to the house was due to Lynne's incorrectly performing the work he had agreed to do; the house is excluded under the real property exclusion which provides that damage to real property upon which Lynne or a subcontractor was working is not covered by Lynne's policy. Originally, the district court granted summary judgment in favor of Grinnell on Larson's claim, but denied summary judgment as to Karna's claim because there was an issue of material fact as to whether Karna's work on the project was complete. Later, the district court granted summary judgment in favor of Grinnell on Karna's claim when it became clear through deposition testimony that Karna had not yet completed the project at the time the damage occurred.

[¶ 7] Lynne appeals to this Court.

II.

[¶ 8] Grinnell's action for declaratory judgment was brought pursuant to N.D.C.C. § 32-23-06, which provides:

[T]he court shall render or enter a declaratory judgment or decree in an action brought by or against an insurance company to determine liability of the insurance company to the insured to defend, or duty to defend, although the insured's liability for the loss may not have been determined.

Grinnell moved for summary judgment in the declaratory action, and the district court granted summary judgment in favor of Grinnell based on the policy's exclusion from coverage.

[¶ 9] Summary judgment is a "procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result." Hall Family Living Trust v. Mut. Serv. Life Ins. Co., 2001 ND 46, ¶ 6, 623 N.W.2d 32 (citing Mandan Educ. Ass'n v. Mandan Pub. Sch. Dist., 2000 ND 92, ¶ 6, 610 N.W.2d 64). If the issues in the case are such that resolution of any factual dispute will not alter the result, then summary judgment is appropriate under the law. Fisher v. American Family Mut. Ins. Co., 1998 ND 109, ¶ 5, 579 N.W.2d 599 (citing Littlefield v. Union State Bank, 500 N.W.2d 881, 883 (N.D.1993)). We review appeals from summary judgment de novo. Weiss v. Collection Ctr., Inc., 2003 ND 128, ¶ 8, 667 N.W.2d 567.

[¶ 10] "The party opposing summary judgment cannot simply rely on factual assertions in a brief or pleadings and cannot rely on unsupported allegations; such conclusory assertions are insufficient to raise an issue of material fact." Warner and Co. v. Solberg, 2001 ND 156, ¶ 10, 634 N.W.2d 65 (citing Jones v. Barnett, 2000 ND 207, ¶ 5, 619 N.W.2d 490). This Court outlined the duty of a party opposing a summary judgment motion in Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991) (internal citations omitted)):

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. 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 what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

[¶ 11] Lynne argues a genuine issue of material fact exists sufficient to preclude summary judgment in favor of Grinnell. Lynne argues high winds contributed to the collapse of the house. See Shelby Ins. Co. v. Northeast Structures, Inc., 767 A.2d 75, 77 (R.I.2001)

(holding summary judgment authorizing insurance company not to provide a defense inappropriate where factual issue existed of whether an Act of God—high winds— caused structure to collapse). In the lawsuit brought by Karna against Lynne, Lynne first alleged in his answer an "act of nature" was a superceding and intervening act which caused the house to collapse. In response to the cross-claim brought by Larson, Lynne alleged an "act of god" in the form of "clima[c]tic conditions, wind, and natural occurrences" was the cause of the damage. In his brief to the district court in opposition to Grinnell's motion for summary judgment, Lynne pointed to the page and line of Lynne's deposition testimony describing the wind. Lynne did not provide this reference in his brief to this Court.

[¶ 12] The only reference this Court is able to glean from the record is in Lynne's deposition. Lynne stated, "[i]t was a high wind and—I don't know. It was real windy that day. That's all I know. It was miserable out there." Lynne briefly mentions wind in his brief on page 4: "The day that Lynne went to raise the house the few inches needed to install the last layer of blocks, the wind was blowing strongly with gusts as it is well known to do in North Dakota." In his brief, Lynne concedes the wind may not have been the cause for damage to the house in his brief when he states, "Lynne had completed the lifting process when for some as yet unexplained reason, the house moved, the support timbers rolled and the house fell."

[¶ 13] Lynne acknowledges in his brief windy conditions are common in North Dakota. Lynne presented no evidence indicating the winds were different from those reasonably expected and for which a house mover in North Dakota ought to be prepared. When no pertinent evidence on an essential element of the claim is presented to the district court in opposing a motion for summary judgment, it is presumed no such evidence exists. Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 8, 681 N.W.2d 816.

[¶ 14] Lynne does not direct this Court to the page and line number pointing out issues that support the conclusion that a genuine issue of material fact precludes summary judgment, nor does he argue them sufficiently to meet the non-moving party's burden to provide more than mere conclusory statements. We agree with the district court that Lynne failed to establish a genuine issue of material fact. We...

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