dissenting.
I dissent for a number of reasons. My primary one is that the insurance contract, if read reasonably, and in its entirety, is not ambiguous.
In disassembling Walle Mutual Insurance Co. v. Sweeney, 419 N.W.2d 176 (N.D.1988), the majority must and does concede that the Legislature, through section 9-07-19, NDCC, says that construing an ambiguous contract against the one who drafted it is a rule of last resort. But, then the majority holds that the “Doctrine of Contract of Adhesion” is not a rule of last resort. Compare Walle Mutual, supra. Instead, it is a rule we apply together with other relevant rules of contract interpretation to resolve ambiguities in adhesion contracts. Either, we apply section 9-07-19 last, just as its language tells us to and Walle Mutual confirmed, or we apply it first, like the majority does in fact. It is an oxymoron, an illogical assertion, to apply it “along with other rules of construction.” The question is not whether we apply the statute, but when, in the chronology of interpretive events, we apply it. In applying it first, the majority undermines past efforts to rationalize and harmonize the rules of construction contained in our statutes and those contained in our cases. But here, it is beyond me how coverage for punitive damages could have been intended by the parties. After all, the insured is a lawyer whose stock in trade is knowledge of the law or the skill to acquire that knowledge, and the law, specifically, sections 26.1-32-04 and 9-08-02, prohibits insuring for willful injury and the punitive damages arising from that injury.
The majority finds an ambiguity in this policy “from the seemingly inconsistent dictates of the fraudulent conduct exclusion and the express policy waiver of the punitive damages exclusion.” However, the majority omits a key part of the exclusion to come up with an ambiguity. If, indeed, the policy were as the majority sets forth, I *583would agree it was ambiguous. But, it is not. Section II not only excludes coverage for “dishonest, fraudulent, criminal or malicious acts,” it also excepts from the exclusion “any act or omission which is the basis of a malicious prosecution claim.” The complete, untruncated text reads:
“This insurance does not apply under Coverage A to:
A. any dishonest, fraudulent, criminal or malicious act or omission of the insured or any partner, employee, officer or stockholder of the insured. This exclusion does not apply to any such act or omission which is the basis of a malicious prosecution claim; ...” (Emphasis added.)
So, reading the language which was omitted from the exclusion, along with the language the majority described in the exclusion, there is an exception to the exclusion. The exclusion does not apply to malicious prosecution. We have said that when an exclusion does not apply to a claim because it is excepted, there is coverage for the excepted claim. Applegren v. Milbank Mutual Ins. Co., 268 N.W.2d 114 (N.D.1978). Consequently, there is coverage for malicious prosecution. And, punitive or exemplary damages are recoverable in a suit for malicious prosecution. Stoner v. Nash Finch, Inc., 446 N.W.2d 747 (N.D.1989); Merchant v. Pielke, 10 N.D. 48, 84 N.W. 574 (1900).
Reading the exclusion in its entirety, we can see what the endorsement (that waives the exclusion against punitive damages) applies to. It can only apply to malicious prosecution because malicious prosecution is the only claim for which there is insurance coverage, and the only claim which gives rise to punitive damages. It seems so straightforward to me but I concede that reading any insurance policy is not without challenge.
I would hold that the contract was not ambiguous because of its plain language. In the alternative, it is not ambiguous because, although there may be two or more possible interpretations, only one is reasonable under the circumstances. We define ambiguity by reference to the contingency that there be two reasonable interpretations. I say there is only one reasonable one in this case because the other, that adopted by the majority, renders the contract violative of public policy and, in effect, void. A contract should be construed, if possible, to follow the law and public policy, not to contravene it. See Seher v. Woodlawn School District No. 26, 79 N.D. 818, 59 N.W.2d 805 (1953).
Relevant statutes must be read into every insurance contract. See Montgomery v. Whitbeck, 12 N.D. 385, 96 N.W. 327 (1903); see generally 1 Couch on Insurance 2d § 13.6. Thus, sections 26.1-32-04 and 9-08-02, NDCC, which forbid indemnifying, i.e., insuring against punitive damages, must be read into the policy. A statute controls a contrary policy provision and the conflicting provision in the insurance contract must give way to the statute. Anderson v. Northwestern Fire & Marine Ins. Co., 51 N.D. 917, 201 N.W. 514 (1924). So, the majority’s interpretation sets up a remarkable circumstance. Having construed the policy to cover punitive damages, now it must find, because of the plain language of the statutes, that the coverage violates those statutes (and the public policy enunciated by the statutes) that must be read into the policy. As a result, the majority should then strike the offending provisions. While the majority acknowledges that it can’t enforce the very policy it first rewrote, it simply rewrites the policy a second time, this time creating an extra-policy remedy — the Company must pay the punitive damages and then collect from Kinsey. In order to pay, the Company must have contracted to pay. It did not. In order to subrogate, the Company and Kinsey must have agreed to subrogate. They did not. Therefore, I believe neither the majority’s construction of the contract nor the argument upon which the construction is based, is reasonable. There being only one reasonable construction, there is no ambiguity.
After finding the contract ambiguous and construing it against the insurer to provide coverage for punitive damages, the majority says that because the insurance *584contract “expressly” promised to pay punitive damages (the only reason it “expressly” promised to pay is because of the construction given to it by the majority), it may conflict with the public policy enunciated in our statutes and case law that prohibits insuring against punitive damages.
I was skeptical of the analysis when it was introduced by an excerpt from Couch on Insurance 2d that when there is a public policy against covering punitive damages, there should be no coverage for punitive damages, “absent specific language in the policy extending coverage for punitive damages.” I was afraid we were going to follow Couch, not our state and case law. Even Couch does not say that courts should first construe the insurance contract in a way that makes it violate public policy, and Couch does not suggest that courts should supply the “specific language in the policy” that extends coverage for punitive damages. Yet, that is what the majority does. First, it creates the ambiguity; second, it construes that ambiguity against the insurer so as to provide coverage for punitive damages; third, it recognizes that covering punitive damages conflicts with public policy; and as the grand finale, the majority fashions a solution for the problems of its own making: it converts a liability insurance policy, that was purchased to and intended to provide indemnity, into a surety bond, not contracted for, and presumably not paid for.
The plain language in the contract, the public policy of our State, clearly expressed in our statutes, the case law cited by the majority as well as Haser v. Maryland Casualty Co., 78 N.D. 893, 53 N.W.2d 508 (1952), preclude the result here. A rose by any other name is still a rose. Payment of punitive damages by Continental is still against public policy.
I respectfully dissent. I would affirm the trial court.