Symington v. Walle Mut. Ins. Co., 960340

Decision Date13 May 1997
Docket NumberNo. 960340,960340
Citation563 N.W.2d 400
PartiesClayton SYMINGTON, Plaintiff and Appellant, v. WALLE MUTUAL INSURANCE COMPANY, Defendant and Appellee, and Citizens Insurance Agency of Cavalier; and Steven Brekke, Defendants and Appellants. Civil
CourtNorth Dakota Supreme Court

Kenneth F. Johannson (argued), of Johannson, Taylor, Rust, Tye & Fagerlund, P.A., Crookston, MN, for plaintiff and appellant.

Thomas L. Zimney (argued), of Vaaler, Warcup, Woutat, Zimney & Foster, Grand Forks, for defendants and appellants.

Jay H. Fiedler (argued), of Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for defendant and appellee.

MARING, Justice.

¶1 Clayton Symington, Citizens Insurance Agency of Cavalier, and Steven Brekke appealed from a partial summary judgment declaring a farm property insurance policy issued by Walle Mutual Insurance Company did not provide coverage for the loss of Symington's feeder pigs. We hold the trial court did not abuse its discretion in certifying the partial summary judgment as final under N.D.R.Civ.P. 54(b). We also hold Symington's loss was not a covered cause of loss under the insurance policy. We affirm.

¶2 Symington raised feeder pigs on his farm near Neche, North Dakota. In 1994, a racoon became entangled in a power line on the farm and interrupted electrical service. As a result, the ventilating system in a barn quit working, and the barn overheated, suffocating about 720 of Symington's feeder pigs. At the time of the loss, Walle Mutual insured Symington under a farm property policy procured through Citizens Insurance and Brekke (collectively referred to as Citizens Insurance). Walle Mutual denied coverage, asserting the policy did not provide coverage for Symington's loss.

¶3 Symington sued Walle Mutual and Citizens Insurance. Symington alleged Walle Mutual's farm policy provided coverage for the loss. Symington also alleged that, if Walle Mutual's policy did not provide coverage for the loss, Citizens Insurance negligently failed to procure coverage and misrepresented that coverage had been provided.

¶4 The trial court granted summary judgment for Walle Mutual, ruling the loss did not result from a covered cause of loss under the policy. The court granted certification under N.D.R.Civ.P. 54(b), and partial summary judgment was entered dismissing Symington's claim against Walle Mutual. Symington and Citizens Insurance appealed.

¶5 Rule 54(b), N.D.R.Civ.P., authorizes a trial court to enter a final judgment adjudicating fewer than all of the claims or the rights and liabilities of fewer than all of the parties upon "express determination that there is no just reason for delay" and "express direction for the entry of judgment." We are not bound by a trial court's Rule 54(b) certification, and we review the court's decision under the abuse-of-discretion standard. Sickler v. Kirkwood, 1997 ND 40, p 5, 560 N.W.2d 532, 533; Wyatt v. Adams, 551 N.W.2d 775, 777 (N.D.1996); Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D.1995).

¶6 The trial court's discretion must be measured against the "interest of sound judicial administration." Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980), quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956). In Union State Bank v. Woell, 357 N.W.2d 234, 236 (N.D.1984), we noted a "marked increase" in Rule 54(b) certifications and said they should not be routinely granted. We cited Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3rd Cir.1975), for a non-inclusive list of relevant factors for a trial court to assess in deciding Rule 54(b) certification:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Woell, 357 N.W.2d at 238.

¶7 Here, the trial court decided Walle Mutual's farm policy with Symington did not provide coverage for his loss. The court said Symington's remaining claims against Citizens Insurance, although predicated upon a determination that Walle Mutual's policy did not provide coverage, were separate and distinct from the claim against Walle Mutual. The court stated Symington's remaining claims could have been brought separately, but were consolidated merely for purposes of economy and to avoid duplication of discovery and attendant expenses. 1 The court decided there was no just reason for delay in the entry of judgment of dismissal against Walle Mutual.

¶8 We agree with the trial court that Symington's remaining claims against Citizens Insurance, although contingent upon a determination that Walle Mutual's farm policy did not provide coverage to Symington, are separate and distinct from the issue of coverage. Symington's claims against Citizens Insurance allege negligent failure to procure coverage and misrepresentation that coverage had been provided. No matter how those remaining contingent claims against Citizens Insurance are decided, the coverage issues raised in this appeal will always need to be resolved and will never be mooted by future developments in the trial court. See Wyatt, 551 N.W.2d at 777; Gessner, 529 N.W.2d at 870. Instead, the converse is true. A decision on Symington's remaining contingent claims against Citizens Insurance will be unnecessary if there is coverage under Walle Mutual's policy. In this posture, our appellate resolution of the coverage issue now will not result in an advisory opinion. Under the framework of Woell, we conclude the trial court did not abuse its discretion in granting Rule 54(b) certification to allow appellate determination of the coverage issue before further proceedings on the contingent claims against Citizens Insurance.

¶9 Symington and Citizens Insurance contend the trial court erred in deciding there was no coverage under Walle Mutual's policy with Symington.

¶10 We consider this issue in the posture of summary judgment, which is a procedure for promptly deciding a lawsuit without a trial if, after viewing the evidence and possible inferences in the light most favorable to the party opposing the motion, there is no genuine dispute about material facts or inferences from undisputed facts, or if only a question of law is involved. Nodak Mut. Ins. Co. v. Heim, 1997 ND 36, p 8, 559 N.W.2d 846, 848.

¶11 In Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 181 (N.D.1994) (citations omitted), we outlined our framework for construing insurance policies:

The interpretation of an insurance policy is a question of law, fully reviewable on appeal.... Our goal when interpreting insurance policies, as when construing other contracts, is to give effect to the mutual intention of the parties as it existed at the time of contracting.... Generally, we attempt to ascertain the intent of the parties through the language of the contract itself.... To the extent practicable, we give effect to every provision of the contract.... Unambiguous language will be given its clear meaning; ... we will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage....

We regard insurance policies as adhesion contracts, ... and therefore, in applying the rules to resolve ambiguities, we balance the equities against the insurer, i.e., in favor of providing coverage to the insured.... Furthermore, if the rules for interpreting a written contract do not remove uncertainty, the language of the contract is to be construed most strongly against the party who drafted the contract.... The determination of whether a contract is ambiguous is a question of law.... Contract language is ambiguous if it can be reasonably construed as having at least two alternative meanings.... We consider whether a person not trained in the law or in the insurance business can clearly understand the language.

¶12 The insuring clause of Walle Mutual's policy with Symington provided coverage for "direct physical loss of or damage to Covered Property at the 'insured location' described in the Declarations, or elsewhere as expressly provided below, caused by or resulting from any Covered Cause of Loss." The pigs were "covered property" under coverage for unscheduled livestock. A condition of coverage for unscheduled livestock specified that any loss be "caused by, resulting from or made necessary by a covered cause of loss."

¶13 The policy defined "covered causes of loss" as:

B. COVERED CAUSES OF LOSS

Covered Causes of Loss means the causes as described and limited under either B.1. or B.2. or B.3. below in accordance with a corresponding entry of...

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