Investors Real Estate Trust Properties v. Terra Pacific Midwest
Properties, Inc., a/k/a IRET, Plaintiff and Appellant
v.
Terra Pacific Midwest, Inc.,
d/b/a Terra Pacific, Defendant and Appellee
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I-Rock, Inc.; MDU Resources Group,
Inc., d/b/a Montana Dakota Utilities;
and Gary J. Plante, d/b/a Plante's
Painting and Drywall, Defendants
Judge Ronald E. Goodman
| Appellant: | Olson & Burns P.C. | |
| Appellee: | #Smith Bakke Oppegard Porsborg Wolf |
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1. Whether the Trial Court erred in its determination that the obligation to procure the builder's risk insurance policy was transferred from Terra Pacific to IRET in direct contract to the clear language of the Construction Agreement?
2. Whether the Trial Court erred in granting Defendant Terra Pacific's Motion for Summary Judgment on the negligence issue when the material facts upon which the Court based its decision were in dispute and competent evidence was presented contrary to the Court's decision?
3. Whether the doctrine of res ipsa loquitor is applicable in a case where a fire occurred and the general contractor has agreed to be solely responsible for the maintenance, security, and quality of construction during the project?
Appellee's Statement of the Issues:
1. Whether the district court correctly ruled that Terra Pacific was an implied co-insured under the Republic Western builder's risk policy procured and paid for by IRET as required by the terms of the construction agreement and that Republic Western could not pursue seek subrogation from Terra Pacific in the name of IRET?
2. Whether the district court correctly ruled that summary judgment was appropriate on the merits of IRET's claims when no competent, admissible evidence was presented as to the cause and origin of the fire and a jury would be compelled to speculate as to the cause?
3. Whether the district court correctly ruled that the doctrine of res ipsa loquitur did not apply where the instrumentality that caused the fire was undetermined?
4. Whether the district court correctly concluded that the indemnity provision in the construction agreement did not apply to this loss?
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