                Filed 03/25/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                 2020 ND 73



North Star Mutual Insurance,                          Plaintiff and Appellant
      v.
Jayme Ackerman d/b/a Ackerman
Homes, Levi Chase, Progressive
Insurance Company, and State Farm Mutual,                           Defendants
      and
Kyle Lantz,                                          Defendant and Appellee



                                 No. 20190135

Appeal from the District Court 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) and David S. Maring (on brief), Bismarck, ND, for
appellee.
            North Star Mutual Insurance v. Ackerman, et al.
                            No. 20190135

Crothers, Justice.

[¶1] North Star Mutual Insurance appeals from a declaratory judgment
holding that a commercial general liability policy it issued to Jayme Ackerman,
doing business as Ackerman Homes, provides coverage for Ackerman’s
potential liability arising from an accident involving Kyle Lantz and that
North Star has a duty to defend Ackerman. 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 general liability (CGL) policy North Star
issued to Ackerman. North Star alleged that on July 13, 2017, Ackerman was
driving eastbound on Interstate 94; a wheelbarrow allegedly fell out of
Ackerman’s pickup truck and landed on the interstate; Chase was traveling on
the interstate behind Ackerman and lost control of his vehicle after he came
upon an object on the road; and Chase’s vehicle went through the median and
struck Lantz, who received severe injuries.

[¶3] Lantz and North Star moved for summary judgment. North Star argued
the policy did not cover the claims because of exclusions for the use of motor
vehicles as well as the loading and unloading of equipment. Lantz agreed the
policy contains a motor vehicle exclusion but argued there were also covered
non-vehicle related negligent 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 court 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 Ackerman, which would allow the court to decide



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whether the policy provides coverage as a matter of law. Ackerman also argued
an evidentiary hearing was unnecessary and requested the court rule on the
motions based on the “potential liability” arising from the claims. See N.D.C.C.
§ 32-23-06 (court shall enter a declaratory judgment even though insured’s
liability for the loss has not been determined). The court concluded the
following facts were uncontested:

      “While in Belfield, North Dakota, a wheelbarrow, which Ackerman
      intended to use in work for Ackerman Homes the next day, was
      placed in a pickup driven by Ackerman toward his home in
      Mandan, North Dakota, traveling some of the distance on I-94.
      When he stopped in New Salem, North Dakota, he noticed that the
      wheelbarrow was missing. Sometime thereafter, [Chase] also
      traveling east on I-94, saw something 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 like
      the wheelbarrow which had been in his pickup, was found along I-
      94 about 5 miles east of the collision.”

[¶5] The district court granted Lantz’s motion for summary judgment. The
court explained that the primary issue was whether the concurrent cause
doctrine applies; that Lantz claimed many forms of negligence occurred,
including Ackerman’s failure to remove the wheelbarrow from the highway
after it fell from the vehicle and Ackerman’s failure to give notice to the public
of the presence of the wheelbarrow on the highway; and that Lantz argued
those causes are not excluded under North Star’s policy. The court concluded
the policy provides coverage, generally, for portable tools and equipment,
including the wheelbarrow, and the policy excludes vehicle-related acts. The
court concluded the policy does not exclude nonvehicle acts, including the
failure to remove the wheelbarrow from the highway and failure to give notice
to the public of the presence of the wheelbarrow on the highway; and a person
who causes or permits an item, which creates 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 accident, the concurrent cause doctrine



                                        2
applies, and the policy provides coverage for Ackerman’s potential liability and
North Star has a duty to defend Ackerman.

                                       II

[¶6] Our standard for reviewing summary judgments is well 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 reasonably 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 judgment, we view the evidence
      in the light most favorable to the opposing party, giving that party
      the benefit of all favorable inferences which can reasonably be
      drawn from the record. A party opposing a motion for summary
      judgment cannot simply rely on the pleadings or on unsupported
      conclusory allegations. Rather, a party opposing a summary
      judgment motion must present competent admissible evidence by
      affidavit or other comparable means that raises an issue of
      material fact and must, if appropriate, draw the court’s attention
      to relevant evidence in the record raising an issue 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 review 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 its face, there is no room for
      construction. If coverage hinges on an undefined term, we apply


                                       3
      the plain, ordinary meaning of the term in interpreting the
      contract. While we regard 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 coverage. We will not strain the
      definition of an undefined term to provide coverage 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 because of the exclusion for accidents
arising out of the use of an automobile. North Star claims none of the alleged
causes of the accident are covered by the insurance policy and therefore the
concurrent cause doctrine does not apply.

[¶9] CGL policies are intended to protect an insured against certain loses
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 ‘property damage’ to which this insurance
applies.” The policy states the insurance applies to “bodily injury” only if: “The
‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence’ that takes place
in the ‘coverage territory’”; the injury occurs during the policy period; and, prior
to the policy period, the insured did not know the bodily injury had occurred.
An “occurrence” is defined as “an accident, including continuous or repeated
exposure to substantially the same general harmful conditions.” The policy
also includes a specific provision about medical expenses, stating:


                                         4
      “We will pay medical expenses as described below for ‘bodily injury’
      caused by an accident:
      (1) On premises you own or rent;
      (2) On ways next to premises 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 operated by or rented or loaned to any insured. Use
includes operation and ‘loading or unloading.’” “Loading or unloading” is the
handling of property:

      “a. After it is moved from the place where it is accepted for
      movement into or onto an aircraft, watercraft or ‘auto’;
      b. While it is in or on an aircraft, watercraft or ‘auto’; or
      c. While it is being moved from an aircraft, watercraft or ‘auto’ to
      the place where it is finally delivered[.]”

[¶11] The district court concluded there were at least two possible acts of
negligence that contributed to the accident, including loading and securing the
wheelbarrow, failing to remove the wheelbarrow 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 coverage 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 such “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 the phrase ‘arising out of’, courts
      have recognized that the causal relationship need not constitute a
      proximate cause, but on the other hand if an injury is directly
      caused by some independent or intervening cause it does not arise
      out of the use of an automobile, notwithstanding there may have
      been some remote connection between the use of an automobile
      and the injury complained of.”

Id. at 875.


                                       5
[¶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 the road for some time before the
accident occurred, and Ackerman did not remove it or warn other drivers of its
presence. These were independent, 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 the farmers’ negligence was the sole cause
of the accident. Id. The farmers had a farm liability 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 vehicle and the accident because the mud could not have
been deposited on the road without 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 caused the injury,
including the failure to remove the mud from 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 coverage 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, liability attaches to the insured, and coverage for such
liability should naturally follow. 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)).



                                        6
[¶16] Houser indicates a duty may exist to remove a hazard from the road. 389
N.W.2d at 630-31; see also N.D.C.C. § 39-10-59 (stating an individual who
deposits a destructive or injurious material 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. Ackerman had a duty to remove the wheelbarrow from
the road if it fell out of his truck. Although 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 enforcement or attempt to look for the
wheelbarrow.

[¶17] Several potential acts of negligence exist in this case: the loading and
securing of the wheelbarrow in the vehicle and the failure to remove the
wheelbarrow from the interstate and failure to warn. These excluded and
covered risks under the policy allegedly 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 pickup truck was towing a tractor when
the tow rope detached and snapped back injuring the tractor driver. The
pickup truck was covered by an automobile 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 exists when both a covered
risk and an excluded risk contribute to an accident. Id. at ¶¶ 24, 32. Under
the doctrine, coverage will be found if there is a “causal connection” between
the insured risk and the injury, the injury 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 under both the automobile policy and the
farm policy because there were “motor vehicle”-related acts of negligence and
non-“motor vehicle”-related acts of negligence involved in the same accident.
Id. at ¶ 32.

[¶19] We have further explained, “The concurrent cause rule . . . takes the
approach that coverage should be allowed whenever two or more causes do


                                       7
appreciably contribute to the 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 wheelbarrow 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 failure to remove the wheelbarrow and
warn other drivers, which are covered risks, as it arose from the transportation
of the wheelbarrow.

[¶21] The district court did not err in granting summary judgment and
concluding the policy provides coverage under the circumstances 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.




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