Farmers Union Mutual Ins. Co. v. Decker

20040371 Farmers Union Mutual
Insurance Company, Plaintiff, Appellee
and Cross-Appellant
v.
Martin Decker, Donald
Decker, Gerald Decker,
Jamie Iverson, and
Rodney Iverson, Defendants, Appellants
and Cross-Appellees

Appeal from: District Court, Southwest Judicial District, Stark County
Judge Allan L. Schmalenberger
Nature of Action: Contracts
Counsel:
Appellant: William P. Zuger
Appellant: Vinje Law Firm
Appellee: #Bucklin, Klemin, McBride & Schweigert, P.C.
Term: 10/2005   Argument: 10/05/2005  10:00am
ND cite: 2005 ND 173
NW cite: 704 N.W.2d 857

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. The District Court erred, as a matter of law, and the Appellants are entitled to a Summary Judgment that they are provided coverage under the Appellee's policy of general liability insurance.
2. The Appellants are entitled to all of their reasonable attorneys' fees and expenses of litigation for the defense of the declaratory judgment action brought by their insurance company.

Appellants' Issues on Reargument
Issue 1: Should the coverage issue stated as issue 2 be considered by the Court when raised first in a reply brief on appeal?
Issue 2: Does the phrase "used exclusively" in the exception to the motor vehicle exclusion of the farm liability policy, mean "used exclusively" within the policy period, within the insured's ownership of the motor vehicle or within some other time frame?

Appellee's Statement of the Issues:
A. Did the District Court err in determining that the insurance policy of Farmers Union Mutual did not provide insurance coverage and a duty to defend Gerald Decker in a negligent entrustment action (the "underlying action") commenced against him by Jamie Iverson and Rodney Iverson?
B. Did the District Court err in determining that Gerald Decker was entitled to an award of his attorney fees and costs in the underlying action?
C. Did the District Court err in determining that the Defendants were not entitled to an award of their attorney's fees in the declaratory judgment action? Appellee Issues on Reargument
1.Should the coverage issue stated in question (2) be considered by this Court when raised first in a reply brief on appeal?
2.Does the phrase "used exclusively" in the exception to the motor vehicle exclusion of the farm liability policy, mean "used exclusively" within the policy period, within the insured's ownership of the motor vehicle or within some other time frame?

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Docket entries:
112/20/2004 NOTICE OF APPEAL: 12/17/2004
201/03/2005 NOTICE OF CROSS APPEAL (filed in trial court on 12-30-04)
301/14/2005 RECORD ON APPEAL (1 volume)
401/26/2005 APPELLANT BRIEF
501/26/2005 APPELLANT APPENDIX
601/26/2005 DISK - ATB
702/08/2005 MOT. EXT/TIME APPELLEE BRIEF (letter dated 2-07-05 from Lawrence R. Klemin)
802/08/2005 ACTION BY CLERK (MAE). Granted: 03/28/2005
903/28/2005 APPELLEE BRIEF
1003/28/2005 APPELLEE APPENDIX
1103/31/2005 Corrected Table of Authorities & pages for AEB
1203/31/2005 DISK - AEB (e-mailed)
1304/11/2005 REPLY BRIEF
1404/13/2005 DISK NONCOMPLIANCE (RYB)
1504/15/2005 Letter dated 4-14-05 from Lawrence R. Klemin (Farmers Union Mutual will not be filing a RYB)
1605/04/2005 APPEARANCES: William P. Zuger; Lawrence R. Klemin of Bucklin, Klemin & McBride, P.C.
1705/04/2005 ARGUED: Zuger; Klemin (Vol. Z, Page 117)
1805/04/2005 ORAL ARGUMENT WEBCAST
1909/30/2005 Appellant's Brief on Reargument
2009/30/2005 Corrected title page, TOA, & page 3 for Appellant's Brief on Reargument
2109/30/2005 DISK - (Appellant's Brief on Reargument)
2209/30/2005 Supplemental Brief of Appellee and Cross-Appellant
2309/30/2005 DISK - (Supp. Brief of Appellee/Cross-Appellant
2410/05/2005 APPEARANCES: William P. Zuger, Ralph A. Vinje; Lawrence R. Klemin
2510/05/2005 REARGUED: Zuger; Klemin
2610/05/2005 ORAL ARGUMENT WEBCAST
2710/18/2005 DISPOSITION: AFFIRMED/PT, REVERSED/PT
2810/18/2005 SPLIT OPINION: Kapsner, Carol Ronning
2910/18/2005 (CONCUR in part and DISSENT in part): VandeWalle, Gerald W.: CON/DIS
3010/18/2005 (DISSENT): Maring, Mary Muehlen: DISSENT
3110/18/2005 Costs on appeal taxed in favor of appellee
3210/20/2005 Judgment Mailed to Parties
3311/25/2005 MANDATE
3411/29/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3506/07/2012 EXPUNGED - Nonpermanent record items destroyed

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