Wisness v. Nodak Mutual Insurance Co.

MARING, Justice,

concurring in the result.

[¶ 21] I concur in the result reached by the majority. I am of the opinion the exclusion in Wisness’s excess liability policy, stating the insurance does not apply to “[[liability imposed on the insured or the insured’s insurer, under ... [a]ny uninsured motorists, underinsured motorists, or automobile no-fault or first party ‘bodily injur/ or ‘property damage,’ ” is unambiguous and clearly removes coverage for uninsured and underinsured motorist benefits. I, therefore, agree with the majority that there is no coverage under this policy for an underinsured motorist claim. I write separately, however, only to point out that an excess policy, umbrella policy or any other policy which does not provide primary insurance coverage can provide underinsured motorist coverage by its terms or through endorsements. Each policy must be read on its own to determine if underinsured coverage is provided. The fact that the policy generally is construed as a “third party” liability policy does not end the inquiry.

[¶ 22] We have consistently held that “insurance policies are to be interpreted as a whole so as to give effect to all of the provisions of the policy if reasonably practicable.” Haugen v. Auto-Owners Ins. Co., 191 N.W.2d 274, 280 (N.D.1971); see also Nationwide Mut. Ins. Cos. v. Lago-dinski, 2004 ND 147, ¶ 8, 683 N.W.2d 903 (quoting Ziegelmann v. TMG Life Ins. Co., 2000 ND 55, ¶ 6, 607 N.W.2d 898) (“ ‘We construe insurance contracts as a whole to give meaning and effect to each clause, if possible.’ ”); N.D.C.C. § 9-07-06 (providing contracts are to be interpreted as a whole). We have further explained that “ ‘[t]he whole of a[n] [insurance] contract is to be taken together to give effect to every part, and each clause is to help interpret *153the others.’ ” Lagodinski, at ¶ 8 (quoting Ziegelmann, at ¶ 6). We have further stated that an endorsement controls if there is any uncertainty between the policy and the endorsement. Nodak Mutual Ins. Co. v. Heim, 1997 ND 36, ¶ 15, 559 N.W.2d 846. Accordingly, rather than interpreting the insuring agreement in isolation, a reviewing court must look at the insurance policy as a whole, giving effect to each part of the policy, including the insuring agreement of the policy, any exclusions within the policy, and any endorsements to the policy. See id.; see also 2 Steven Plitt et al., Couch on Insurance § 21:19 (3d ed. 2010) (“Coverage of an insurance contract cannot be analyzed in a vacuum; the policy must be construed in its entirety, with each clause interpreted in relation to others contained therein.”).

[¶ 23] The function of the insuring agreement is to provide what kinds of losses are covered under the policy. See 1 Jeffrey E. Thomas & Francis J. Mootz, III, New Appleman on Insurance Law § 1.07[5] (2010) (defining insuring agreement). The function of an exclusion, on the other hand, is to eliminate coverage initially provided by the insuring agreement. See id. § 1.07[6] (explaining an exclusion removes coverage otherwise provided under the policy’s insuring agreement). Therefore, an exclusion takes away coverage granted by the insuring agreement, but an exclusion cannot create or expand coverage. An endorsement is a document attached to a policy that changes the coverage provided by the policy and can add coverage, subtract coverage, or otherwise modify the policy. See id. § 1.07[8], Therefore, to look only to the insuring agreement and not to the entire policy to interpret coverage is error.

[¶ 24] The majority cites Muehlenbein v. West Bend Mut. Ins. Co., 175 Wis.2d 259, 499 N.W.2d 233 (Wis.Ct.App.1993), for the proposition the underinsured-motorist-benefits exclusion in Wisness’s excess liability policy serves to merely clarify that there is no coverage and for the proposition that the excess policy only provides third-party liability coverage. The majority’s reliance on Muehlenbein is misplaced. In Muehlenbein, the Wisconsin Court of Appeals was interpreting an endorsement attached to a commercial excess liability insurance policy that contained an exclusion of coverage, not an exclusion provision within the policy. 499 N.W.2d at 235. An endorsement can limit or subtract coverage initially provided by the insuring agreement and, unlike an exclusion, can also add coverage for risks not covered by the original policy or expand the coverage initially granted by the policy. Appleman, § 1.07[8]. Additionally, an endorsement may modify an insurance policy by adding or removing exclusions listed within the policy. Id. Because an exclusion within an insurance policy serves a different function than does an endorsement to an insurance policy, I cannot agree with the majority’s application of the Muehlenbein reasoning to the legal issue in this case.

[¶ 25] The majority also relies on Jaderborg v. Am. Family Mut. Ins. Co., 239 Wis.2d 533, 620 N.W.2d 468 (Wis.Ct.App.2000). The Wisconsin Court of Appeals interpreted three policy provisions in Jad-erborg: an “exclusion,” an “other insurance” clause, and an “Intra-Insured” clause. 620 N.W.2d at 470-71. With regard to the exclusion, it held: “According to the clear and unambiguous terms of the underinsured motorist exclusion, no under-insured coverage is afforded without the necessary endorsement.” Id. at 470. The exclusion in Jaderborg is worded differently than the exclusion in Wisness’s policy. Therefore, I do not find the Jaderborg decision provides any support for the conclusions of the majority opinion.

*154[¶ 26] “Precedent” has been defined as “[a] decided case that furnishes a basis for determining later cases involving similar facts or issues.” Black's Law Dictionary 1214 (8th ed.2004). Thus, in insurance policy interpretation cases, the role of precedent depends largely on whether the language of the insurance policies and the underlying facts in each case are similar in nature. If they are, then the law should be applied the same. If the policies and underlying facts are different, however, then a prior decision cannot be binding. The policies and underlying facts in Muehlen-bein and Jaderborg differ from those presented here. Therefore, neither should control the resolution of the legal issue in this case, which I believe to be much different than the legal issue addressed by the majority. I am of the opinion the dispositive issue on appeal is whether the language of the underinsured-motorist-benefits exclusion in Wisness’s excess liability policy is ambiguous. Because I find no ambiguity in the language of the exclusion and no endorsement adding coverage, I agree with the result of the majority opinion that Wisness’s excess liability policy does not provide coverage for underin-sured motorist benefits.

[¶ 27] I note that the majority never acknowledges that there is a split of authority on this coverage issue and that other jurisdictions have concluded umbrella/excess policies do provide uninsured or underinsured motorist coverage. See generally Lisa K. Gregory, Annotation, “Excess" or “Umbrella" Insurance Policy as Providing Coverage for Accidents with Uninsured or Underinsured Motorists, 2 A.L.R.5th 922 (1992) (discussing cases and statutes and the split of authority nationwide). A number of jurisdictions which have uninsured and underinsured statutes requiring that no motor vehicle liability policy may be issued unless uninsured and underinsured coverage is provided therein in limits equal to the limits of liability coverage, have concluded that because an excess policy includes motor vehicle liability coverage for automobile accidents, an excess policy must comply with the terms of the state’s statutes. Ins. Co. of Penn. v. Johnson, 186 Vt. 435, 987 A.2d 276, 284-85 (Vt.2009) (discussing the split of authority and holding Vermont statutes require that excess policies provide uninsured and un-derinsured coverage). Underinsured motorist coverage is governed by statute in North Dakota. See N.D.C.C. §§ 26.1-40-15.1 through 26.1^10-15.7. The majority does note that N.D.C.C. § 26.1-40-15.7 states:

No insurer is required to offer, provide, or make available coverage conforming to sections 26.1-40-15.1 through 26.1-40-15.7 in connection with any excess policy, umbrella policy, or any other policy which does not provide primary motor vehicle insurance for liabilities arising out of the ownership, maintenance, operation, or use of a specifically insured motor vehicle.

However, an insurance policy can grant more coverage by its terms, but not less than required by statute. Sandberg v. American Family Ins., 2006 ND 198, ND 198, 722 N.W.2d 359.

[¶ 28] Finally, I also do not agree with the majority’s analysis regarding the endorsement adding excess underinsured motorist coverage offered by Nodak Mutual in 2007 to its insureds. The accident in this case occurred in June 2007. The endorsement was first available in January 2007. A copy of this endorsement, Endorsement EL-76, was provided by Nodak Mutual in a letter to Wisness’s attorney as part of Nodak Mutual’s reason for why Wisness’s policy had no underinsured motorist coverage. Nodak explains in the letter that there was no uninsured motorist or underinsured motorist coverage be*155cause its reinsurance carrier would not accept the risk. Nodak further explains that after an agreement was finally-reached with its reinsurance carrier, No-dak was first able to offer underinsured motorist coverage to Wisness by endorsement on February 27, 2008, the date of renewal of the Wisness policy. The letter and the enclosed copy of the 2007 endorsement was made part of the record in an affidavit and reply in support of Wisness’s motion for partial summary judgment and in opposition to Nodak Mutual’s cross-motion for summary judgment. The grounds specified for a denial of coverage are relevant in determining coverage. See D.E.M. v. Allickson, 555 N.W.2d 596, 599-600 (N.D.1996). In addition, Nodak’s offer of coverage for a “first party” claim under its excess liability policy, a so-called “third party” liability policy, makes its argument based on “this is only a third party liability policy” questionable.

[¶ 29] Accordingly, I concur in the result.

[¶ 30] Mary Muehlen Maring