Filed 03/25/20 by Cler k of Supreme Court


### IN THE SUPREME COURT STATE OF NORTH DAKOTA

2020 ND 73

North Star Mutual Insuranc e, Plaintiff and Appellant

v. Jayme Ackerman d/b/a Ackerman Homes, Levi Chase, Progressive Insurance Company, and State Farm Mutu al, Defendants and Kyle Lantz, Defendant and Appellee

No. 20190135

Appeal from the District Co urt of Stark County, Southwest Judicial District, the Honorable Dann E. Greenwood, Judge.

AFFIRMED.
Opinion of the Court by Crothers, Justice.
Jonathon F. Yunker, Devils Lake , ND, for plaintiff and appellant. Jared J. Wall (argued) an d David S. Maring (on br ief), Bismarck, ND, for appellee.1 North Star Mutual Insura nce v. Ackerman, et al. No. 20190135
Crothers, Justice.
[¶1] North Star Mutual Insurance appe als from a declaratory judgment holding that a commercial general liabili ty policy it issued to Jayme Ackerman, doing business as Ackerm an Homes, provides coverage for Ackerman’s potential liability arising from an acci dent involving Kyle Lantz and that North Star has a duty to defend Acke rman. North Star argues the district court erred in finding coverage because the policy excludes accidents arising out of the use of an automobile. We affirm.

I
[¶2] North Star sued Ackerman, Lantz, Levi Chase, Progressive Insurance Company, and State Farm Mutual for declaration of the parties’ rights and responsibilities under the commercial ge neral liability (CGL) policy North Star issued to Ackerman. North Star alleged that on July 13, 2017, Ackerman was driving eastbound on Inte rstate 94; a wheelbarro w allegedly fell out of Ackerman’s pickup truck and landed on the interstate; Chase was traveling on the interstate behindAckerman and lost control of his vehicle after he came upon an object on the ro ad; and Chase’s vehicle wentthrough the median and struck Lantz, who received severe injuries.
[¶3] Lantz and North Star moved for summ ary judgment. North Star argued the policy did not cover the claims becaus e of exclusions for the use of motor vehicles as well as the loading and unlo ading of equipment. Lantz agreed the policy contains a motor vehicle exclusio n but argued there were also covered non-vehicle related negligen t acts and the concurrent cause doctrine applies to provide coverage.
[¶4] In deciding the summary judgment motions, the district court noted North Star requested the co urt assume for purposes of the motion for summary judgment only that the wheelbarrow was the object in the road and that the wheelbarrow was owned by Ac kerman, which would allow the court to decide2 whether the policy provides coverage as a matter of law. Acke rman also argued an evidentiary hearing wa s unnecessary and requested the court rule on the motions based on the “potential lia bility” arising from the claims. See N.D.C.C. § 32-23-06 (court shall enter a declarat ory judgment even though insured’s liability for the loss has no t been determined). The court concluded the following facts were uncontested:
“While in Belfield, North Dakota, a wheelbarrow, which Ackerman intended to use in wo rk for Ackerman Home s the next day, was placed in a pickup driven by Ackerman toward his home in Mandan, North Dakota, traveling some of th e distance on I-94. When he stopped in New Salem, No rth Dakota, he no ticed that the wheelbarrow was missing. Someti me thereafter, [Chase] also traveling east on I-94, saw someth ing in his lane and swerved to avoid it. He lost control of his vehicle, crossed the median, and collided with Lantz, causing serious injuries. Several days later, a damaged wheelbarrow, which Ackerman acknowledged looked likethe wheelbarrow which had been in his pickup, was found along I94 about 5 miles east of the collision.”
[¶5] The district court granted Lantz’s mo tion for summary judgment. The court explained that the primary issu e was whether the concurrent cause doctrine applies; that Lantz claimed many forms of negligence occurred, including Ackerman’s failu re to remove the wheelbarrow from the highway after it fell from the vehicl e and Ackerman’s failure to give notice to the public of the presence of the wheelbarrow onthe highway; and that Lantz argued those causes are not excluded under Nort h Star’s policy. The court concluded the policy provides covera ge, generally, for portable tools and equipment, including the wheelbarrow, and the polic y excludes vehicle-related acts. The court concluded the policy does not ex clude nonvehicle acts, including the failure to remove the wheelbarrow from the highwa y and failure to give notice to the public of the presence of the wheelbarrow on the high way; and a person who causes or permits an item, which cr eates an unreasonable risk of injury, to be placed on the highway has a duty to remove the item and a duty to give notice of the presence of that item. The court concluded both included and excluded risks contributed to the acci dent, the concurrent cause doctrine3 applies, and the policy pr ovides coverage for Ackerm an’s potential liability and North Star has a duty to defend Ackerman.

II
[¶6] Our standard for reviewing summary judgments is we ll established:
“Summary judgment is a procedural device under N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can re asonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. The party seeking summary judgment must demonstrate there are no genuine issues of material fact and the case is appropriate for judgment as a matter of law. In deciding whether the district court appropriately granted summary ju dgment, we view the evidence in the light most favorable to the opposing party, giving that party the benefit of all favorable infe rences which can reasonably be drawn from the record. A part y opposing a motion for summary judgment cannot simply rely on the pleadings or on unsupported conclusory allegation s. Rather, a party opposing a summary judgment motion must present competent admissible evidence by affidavit or other comparable me ans that raises an issue of material fact and must, if approp riate, draw the court’s attention to relevant evidence in the record raising an i ssue of material fact. When reasonable persons can reach only one conclusion from the evidence, a question of fact may become a matter of law for the court to decide. A district court’ s decision on summary judgment is a question of law that we re view de novo on the record.”

Dahms v. Nodak Mut. Ins. Co. , 2018 ND 263, ¶ 6, 920 N.W.2d 293 (quoting Pettinger v. Carroll , 2018 ND 140, ¶ 7, 912 N.W.2d 305).
[¶7] The interpretation of an insurance policy is a question of law reviewed de novo on appeal. Dahms, 2018 ND 263, ¶ 8, 920 N.W. 2d 293. In interpreting an insurance policy:
“We look first to the language of the insurance contract, and if the policy language is clear on i ts face, there is no room for construction. If coverage hinges on an undefined term, we apply4 the plain, ordinary meaning of the term in interpreting the contract. While we re gard insurance policies as adhesion contracts and resolve ambiguities in favor of the insured, we will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes covera ge. We will not strain the definition of an undefi ned term to provide cove rage for the insured. We construe insurance contracts as a whole to give meaning and effect to each clause, if possible. The whole of a contract is to be taken together to give effect to every part, and each clause is to help interpret the others.”

Id. (quoting Borsheim Builders Supply, Inc. v. Manger Ins., Inc. , 2018 ND 218, ¶ 8, 917 N.W.2d 504). Exclusions from coverage must be clear and explicit and are strictly construed against the insurer. State, ex rel. State Fire and Tornado Fund of N.D. Ins. Dept . v. N.D. State Univ. , 2005 ND 75, ¶ 13, 694 N.W.2d 225.

III
[¶8] North Star argues the district court erred in concluding the CGL policy covers Ackerman’s potential liability be cause of the exclus ion for accidents arising out of the use of an automobile. North Star cl aims none of the alleged causes of the accident ar e covered by the insuranc e policy and therefore the concurrent cause doctrine does not apply.
[¶9] CGL policies are intended to protect an insured against certain losses arising out of business operations. See K&L Homes, Inc. v. American Family Mut. Ins. Co. , 2013 ND 57, ¶ 16, 829 N.W.2d 724; see also 2 New Appleman Law of Liability Insurance§ 9.01(1) (2d ed. 2019). Here, the policy states, “We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘p roperty damage’ to which this insurance applies.” The policy states th e insurance applies to “bod ily injury” only if: “The ‘bodily injury’ or ‘pro perty damage’ is caused by an ‘occurrence’ that takes place in the ‘coverage territory’”; the injury oc curs during the policyperiod; and, prior to the policy period, the in sured did not know the bod ily injury had occurred. An “occurrence” is defined as “an accident, includ ing continuous or repeated exposure to substa ntially the same general harm ful conditions.” The policy also includes a specific provisio n about medical expenses, stating:5 “We will pay medical expenses as de scribed below for ‘bodily injury’ caused by an accident: (1) On premises you own or rent; (2) On ways next to premis es you own or rent; or (3) Because of your operations[.]”
[¶10] The policy excludes: “‘Bodily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operat ed by or rented or loan ed to any insured. Use includes operation and ‘loading or unload ing.’” “Loading orunloading” is the handling of property:

“a. After it is moved from the place where it is accepted for movement into or onto an ai rcraft, watercraft or ‘auto’; b. While it is in or on an airc raft, watercraft or ‘auto’; or c. While it is being moved from an aircraft, watercraft or ‘auto’ to the place where it is fi nally delivered[.]”
[¶11] The district court concluded there we re at least two possible acts of negligence that contributed to the acci dent, including loading and securing the wheelbarrow, failing to remove the wheel barrow from the highway after it fell from the pickup, and failing to give the public notice of the wheelbarrow on the highway. North Star argues none of these causes are covered by its policy.
[¶12] The policy excludes covera ge for the loading and unloading of property and bodily injury arising out of the use of any automobile. For the “use” to be excluded, the use must be su ch “as arises out of the inherent nature of the automobile.” See Norgaard v. Nodak Mut. Ins. Co. , 201 N.W.2d 871, 874 (N.D. 1972). This Court said,
“In determining the meaning of th e phrase ‘arising out of’, courts have recognized that the causal re lationship need not constitute a proximate cause, but on the other hand if an injury is directly caused by some independent or in tervening cause it does not arise out of the use of an automobile , notwithstanding there may have been some remote conn ection between the us e of an automobile and the injury complained of.”

Id. at 875.6 [¶13] The transportation of the wheelbarrow and its fall out of the vehicle onto the interstate are vehicle- related activities, which constitute “use” of an automobile. See Houser v. Gilbert , 389 N.W.2d 626, 628 (N.D. 1986) (stating mud deposited on the road by a truck was a vehicle-related activity). The policy excludes coverage for injuries arising out of that use.
[¶14] The wheelbarrow also was left on th e road for some time before the accident occurred, and Ackerman did not re move it or warn other drivers of its presence. These were inde pendent, nonvehicle-related , acts that did not arise out of the use of the automobile. See Houser , 389 N.W.2d at 630-31. The exclusion for injuries arising out of the use of an automobile does not apply to these acts.
[¶15] North Star argues the district court erred by finding Ackerman had a duty to remove the wheelbarrow from the road or to warn of the hazard. In Houser , 389 N.W.2d at 627, the survivors of the victim of a truck collision sued farmers who deposited mud and dirt on the highway while trucking sugar beets from an adjacent field. A jury found th e farmers’ negligence was the sole cause of the accident. Id. The farmers had a farm li ability policy and two separate vehicle policies covering their trucks. Id. at 628. This Court held all three policies provided coverage. Id. We concluded there was a causal relationship between the use of the vehi cle and the accident becaus e the mud could not have been deposited on the roadwithout the use of the trucks, and therefore the vehicle policies provided coverage for the injuries caused by the vehicle-related activity. Id. We further concluded nonvehicle -related acts caus ed the injury, including the failure to remove the mud fr om the road and the failure to warn. Id. at 630-31. As a result, not all of the loss arose from the use of the vehicles. Id . We held concurrent co verage existed under the vehicle and general farm liability policies. Id. at 631. “Whenever such a non-auto risk is a proximate cause of an injury, liabilit y attaches to the insured, and coverage for such liability should naturally fo llow. Coverage cannot be defeated simply because a separate excluded risk constitutes an additional cause of the injury.” Id. at 630-31 (quoting State Farm Mut. Auto. Ins. Co. v. Partridge , 10 Cal.3d 94, 514 P.2d 123, 125 (1973)).7 [¶16] Houser indicates a duty may ex ist to remove a hazardfrom the road. 389 N.W.2d at 630-31; see also N.D.C.C. § 39-10-59 (sta ting an individual who deposits a destructive or injurious mate rial on a highway shall immediately remove the material or cause it to be removed). Generally, the existence of a duty is a question of law. Devore v. American Eagle Energy Corp. , 2020 ND 23, ¶ 18, 937 N.W.2d 503. Acke rman had a duty to remove the wheelbarrow from the road if it fell out of his truck. Al though he claims he did not realize the wheelbarrow was no longer in the truck until he reached New Salem, at that point he did not contact law enforc ement or attempt to look for the wheelbarrow.
[¶17] Several potential acts of negligence exist in this case: the loading and securing of the wheelba rrow in the vehicle and the failure to remove the wheelbarrow from the interstate and fa ilure to warn. Th ese excluded and covered risks under the policy allegedl y contributed to the accident.
[¶18] In Grinnell Mutual Reinsurance Co. v. Center Mutual Insurance Co. , 2003 ND 50, ¶ 3, 658 N.W.2d 363, a pick up truck was towing a tractor when the tow rope detach ed and snapped back injuri ng the tractor driver. The pickup truck was covered by an auto mobile insurance policy and a farm insurance policy covered the farming operation, which excluded liability arising out of the use of a motor vehicle. Id. ¶¶ 4, 20. This Court adopted the concurrent cause doctrine , under which coverage ex ists when both a covered risk and an excluded risk co ntribute to an accident. Id. at ¶¶ 24, 32. Under the doctrine, coverage will be found if there is a “c ausal connection” between the insured risk and the injury, the inju ry cannot be disassociated from the covered risk, and the potential of creating an unreasonable risk of injury arose just as much from the insured risk as it did from the excluded risk. Id. at ¶ 23. We held concurrent coverage existed un der both the automo bile policy and the farm policy because there were “motor ve hicle”-related acts of negligence and non-“motor vehicle”-related acts of neglig ence involved in th e same accident. Id. at ¶ 32.
[¶19] We have further explaine d, “The concurrent cause rule . . . takes the approach that coverage sh ould be allowed whenever two or more causes do8 appreciably contribute to th e loss, and at least one of the causes is an included risk under the policy.” State Fire and Tornado Fund , 2005 ND 75, ¶ 32, 694 N.W.2d 225.
[¶20] Under the concurrent cause doctrine the GCL policy provides coverage in this case. See Grinnell Mut. , 2003 ND 50, ¶¶ 24-32, 658 N.W.2d 363. The failure to remove the whee lbarrow from the road and the failure to warn were independent acts that allegedly were a cause of the injury. The injury potentially arose just as much from fa ilure to remove th e wheelbarrow and warn other drivers, which are covered risk s, as it arose from the transportation of the wheelbarrow.
[¶21] The district court did not err in granting summary judgment and concluding the policy provid es coverage under the circ umstances of this case.

IV
[¶22] We affirm the declaratory judgment.
[¶23] Daniel J. Crothers Jerod E. Tufte Norman G. Anderson, S.J. Gerald W. VandeWalle Jon J. Jensen, C.J.

[¶24] The Honorable Norman G. Anderson, S.J., sitting in place of McEvers, J., disqualified.