Estate of Gladys I. Norby v. Waseca Mutual Insurance Company n/k/a Austin Mutual Insurance ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1146
Estate of Gladys I. Norby, et al.,
Appellants,
vs.
Waseca Mutual Insurance Company n/k/a Austin Mutual Insurance,
Respondent.
Filed May 18, 2015
Affirmed
Larkin, Judge
Clay County District Court
File No. 14-CV-13-1608
Zenas Baer, Zenas Baer Law Office, Hawley, Minnesota; and
Scott Wilson, Minneapolis, Minnesota (for appellants)
Kevin A. Velasquez, Benjamin D. McAninch, Blethen, Gage & Krause, PLLP, Mankato,
Minnesota (for respondent)
Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant-insured challenges the district court’s grant of summary judgment to
respondent-insurer, arguing that the district court erred by determining that respondent-
insurer did not have a duty to defend appellant-insured in a civil lawsuit. We affirm.
FACTS
The Norby and Minch families own adjacent parcels of farmland near the Buffalo
River in Minnesota. In October 2008, the Minch family, acting through a limited liability
limited partnership, sued appellant Robert Norby (Norby) in federal district court, in his
individual capacity and as the personal representative of appellant Estate of Gladys I.
Norby. The Minch family claimed that “an L-shaped field dike built and maintained” by
Norby caused a portion of the Minch property to flood during heavy rain. The complaint
alleged that Norby wrongfully altered a natural drainage way, violated the reasonable-use
doctrine, and was liable for trespass, nuisance, strict liability, and deliberate disregard for
the Minch family’s rights.
At all times relevant to the Minch family’s claims, Norby was insured under a
“farm personal liability policy” issued by respondent Waseca Mutual Insurance
Company, now known as Austin Mutual Insurance (Austin Mutual). Norby notified
Austin Mutual of the Minch lawsuit shortly after service of the summons and complaint.
In December 2008, Austin Mutual denied coverage based on the policy’s intentional-act
exclusion, reasoning that because the complaint alleged that Norby had acted
intentionally, there was no accident or “occurrence” under the policy. Austin Mutual also
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denied coverage based on the policy’s criminal-act exclusion, reasoning that because the
complaint alleged that Norby violated rules of the Buffalo-Red River Watershed District
(BRRWD), his actions allegedly were illegal.
The federal district court granted summary judgment for Norby after determining
that a two-year statute of limitations applied and that the Minch family had been aware of
the flooding since at least 2000 or 2001. The Eighth Circuit affirmed. Minch Family
LLLP v. Estate of Norby, 652 F.3d 851 (8th Cir. 2011).
In June 2012, Norby initiated a declaratory-judgment action in Minnesota district
court, alleging that Austin Mutual breached its duty to defend Norby in the Minch
lawsuit. Norby sought $66,264.81 for legal fees and expenses incurred defending the
lawsuit. Norby and Austin Mutual each moved for summary judgment.
The district court granted summary judgment to Austin Mutual and dismissed
Norby’s claims. The district court reasoned that Austin Mutual did not have a duty to
defend for three reasons. First, because the allegations in the Minch complaint do not
allege an “occurrence” as defined by the policy, the Minch family’s claims against Norby
are beyond the scope of coverage. Second, because the Minch complaint alleges only
intentional conduct, the policy’s intentional-act exclusion applies. And third, because the
Minch complaint alleges that Norby violated BRRWD rules and illegally maintained the
field dike, the policy’s criminal-act exclusion applies.
Norby appeals.
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DECISION
A summary-judgment motion “shall be granted when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that either party is entitled to a
judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
“[Appellate courts] review a district court’s summary judgment decision de novo. In
doing so, we determine whether the district court properly applied the law and whether
there are genuine issues of material fact that preclude summary judgment.” Riverview
Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation
omitted). “On appeal, the reviewing court must view the evidence in the light most
favorable to the party against whom judgment was granted.” Fabio, 504 N.W.2d at 761.
I.
Norby challenges the district court’s grant of summary judgment, arguing that
because the Minch complaint alleged a violation of the reasonable-use doctrine, Austin
Mutual had a duty to defend “as a matter of law.”
The interpretation of an insurance policy, including whether an insurer has a legal
duty to defend its insured, is a question of law and reviewed de novo. Auto-Owners Ins.
Co. v. Todd, 547 N.W.2d 696, 698 (Minn. 1996).
An insurer has a contractual duty to defend a covered
claim brought against its insured when the insurer undertakes
such a duty in the insurance policy. A potential duty to
defend a particular claim is triggered when the insured
tenders notice of suit and opportunity to defend to the insurer.
The existence of the duty to defend the claim is determined
by comparing the language of the allegations in the
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underlying complaint to the relevant language in the
insurance policy. If any part of the suit is arguably within the
scope of coverage, the insurer must defend; only if the insurer
proves that all claims in the suit are clearly outside coverage
does it not have a duty to defend.
Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602, 616 (Minn.
2012) (citations and quotation omitted).
Norby’s policy with Austin Mutual covers liability for “property damage caused
by an occurrence.” The policy defines “occurrence” as “an accident,” including “loss
from repeated exposure to similar conditions.” The policy does not define “accident,”
but caselaw establishes that “accident” means “an unexpected, unforeseen, or undesigned
happening or consequence from either a known or an unknown cause.” Hauenstein v.
St. Paul-Mercury Idem. Co., 242 Minn. 354, 358-59, 65 N.W.2d 122, 126 (1954). An
insurer may establish intent to injure, and therefore lack of coverage, in two ways. Ram
Mutual Ins. Co. v. Meyer, 768 N.W.2d 399, 403 (Minn. App. 2009), review denied
(Minn. Oct. 20, 2009). An insurer may offer proof of actual intent to injure, or intent to
injure may be inferred as a matter of law. Id. As a general rule, “intent is inferred as a
matter of law when the nature and circumstances of the insured’s act are such that harm is
substantially certain to result.” Id. at 403-04 (quotation omitted).
Norby’s policy with Austin Mutual excludes coverage for property damage that is
“expected by, directed by, or intended by an insured,” “the result of a criminal act of an
insured,” or “the result of an intentional and malicious act by or at the direction of an
insured.” For the purpose of determining whether an intentional-act exclusion applies, a
court considers “whether the insured specifically intended to cause injury.” Id. at 404-05.
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“[T]he questions of whether an injury is the result of an accident and whether coverage is
excluded because the injury is the result of an intentional act are for all practical
purposes, identical issues.” Id. at 405 (quotation omitted).
The Minch complaint alleges that there was a “robust natural drainage way” that
flowed near or on the Minch family’s and Norby’s properties until Robert Norby
constructed “a two-sided field diking system [that] completely blocked the natural
drainage way.” Norby also constructed a “control structure to control water backing up
the natural drainage way onto [Norby’s property] and regulating water leaving that
property.” The Minch family “complained to the Buffalo-Red River Watershed District
. . . about [Norby’s] field diking and control structure.” Norby’s field dikes washed out
in 2001, and the BRRWD told Norby that he could not repair the washout without a
permit because doing so would be “illegal.” Norby quickly repaired the washout despite
the BRRWD’s warnings. The BRRWD filed a proposed criminal complaint against
Norby with the local prosecutor in 2006. The Minch complaint alleges that Norby’s dike
system “damaged the farmland of [the] Minch Family by at least $75,000,” and that
Norby “acted with deliberate disregard for the rights of the Minch Family” and “in a
conscious and intentional disregard of the high degree of probability of injury to the
rights of the Minch Family.”
Based on the allegations in the complaint, the district court determined that it was
“reasonable to infer Norby’s intent to injure as a matter of law and to conclude that the
damages to [the Minch] farmland and crops . . . were not ‘accidental’ and therefore did
not constitute an ‘occurrence’ under the terms of the policy.” Norby contends that
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because the Minch complaint asserts a violation of the reasonable-use doctrine, Austin
Mutual had a duty to defend “as a matter of law.” Specifically, Norby argues that
because any alleged violation of the reasonable-use doctrine necessarily implies “that the
violator failed to observe reasonable care,” the Minch family’s reasonable-use claims
satisfy the policy definition of an “occurrence.”
The Minch complaint alleges that Norby violated the reasonable-use doctrine. The
supreme court has described the reasonable-use doctrine as follows:
Drainage of surface waters from one’s own land onto
another’s is a “reasonable use” if there is a reasonable
necessity for such drainage, if regard is taken to avoid
unnecessary injury to others, if the utility or benefit to the
land drained outweighs the harm to the land receiving the
water, and if, where practicable, the drainage is done by
improving the natural system or providing a feasible artificial
one.
Highview N. Apartments v. Ramsey Cnty., 323 N.W.2d 65, 71 (Minn. 1982).
“‘Reasonable use’ . . . is a different theory than ‘reasonable care,’ a negligence concept.”
Wilson v. Ramacher, 352 N.W.2d 389, 393 (Minn. 1984). “‘[R]easonable use’ refers
rather to a reasonable regard for the rights of others so that harm may be prevented or
minimized.” Highview, 323 N.W.2d at 72.
We agree with Norby that a reasonable-use violation may be established based on
negligent or unintentional conduct. See id. (“In a case where the plaintiff had chosen to
sue in negligence for harm caused by a diversion of surface water, . . . we nevertheless
analyzed the liability on appeal in terms of the reasonable use test.”). However, Norby’s
argument ignores the factual allegations in the Minch complaint, which assert that Norby
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deliberately violated the reasonable-use doctrine and disregarded the high probability of
resulting injury to the Minch family’s property. Minnesota caselaw establishes that an
insurer’s duty to defend is determined based on the factual allegations supporting the
complaint and not on the stated legal theories of liability. In other words, substance
governs over form.
For example, the supreme court has concluded an insurer does not have a duty to
defend when the undisputed facts establish that there was no coverage, “even if the
complaint can be read to allege a set of facts which, if proved, would be within
coverage.” Farmers & Merchs. State Bank of Pierz v. St. Paul Fire & Marine Ins. Co.,
309 Minn. 14, 20-21, 242 N.W.2d 840, 844 (1976). Likewise, this court has concluded
that an insurer did not have a duty to defend, even though the underlying complaint
alleged negligence, because the claim was “causally connected” to intentional conduct.
Ross v. City of Minneapolis, 408 N.W.2d 910, 912-13 (Minn. App. 1987), review denied
(Minn. Sept. 23, 1987).
This court has also concluded that an insurer did not have a duty to defend even
though the underlying complaint alleged simple negligence, because the stipulated facts
established that the insured acted recklessly, reasoning that “the nature of the cause of
action is separately determined to decide if it constitutes an insured occurrence,
independent of the way the claim is characterized in the underlying lawsuit.” Farmers
Union Oil Co. v. Mut. Serv. Ins. Co., 422 N.W.2d 530, 533 (Minn. App. 1988). Lastly,
this court has concluded that an insurer did not have a duty to defend against a negligence
suit because the alleged negligence was “so intertwined” with conduct supporting an
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inference of intent to injure that it relieved the insurer of its duty to defend. Houg v. State
Farm Fire & Cas. Co., 481 N.W.2d 393, 397 (Minn. App. 1992), review denied (Minn.
May 15, 1992).
The caselaw is clear: an insurer’s duty to defend is based on the substance of the
lawsuit and not on the legal theory of recovery stated in the complaint. Thus, Norby’s
focus on the possibility that the Minch family could have proved a reasonable-use
violation based on unintentional conduct is unavailing. The caselaw focuses on the
factual underpinnings of the lawsuit and not on hypothetical theories of recovery. For the
same reason, Norby’s argument that Minnesota’s notice-pleading standard requires courts
to interpret an insurer’s duty to defend based on “any state of the facts that would support
the claims contained in the complaint” is also unavailing. That proposition is at odds
with caselaw allowing coverage decisions to be based on the facts underlying the lawsuit
and not on the legal theories selected by the plaintiff or on hypothetical legal theories that
plaintiff could have selected.
Norby argues that given the broad nature of an insurer’s duty to defend, Austin
Mutual was obligated to defend. See Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161,
165-66 (Minn. 1986) (“A duty to defend an insured on a claim arises when any part of the
claim is arguably within the scope of the policy’s coverage . . . .” (quotation omitted)).
However, a competing policy in insurance law is that an insurer can only set premiums
and supply coverage if losses are uncertain. Franklin v. W. Nat’l Mut. Ins. Co., 574
N.W.2d 405, 408 (Minn. 1998). “If [a] single insured is allowed through intentional or
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reckless acts to consciously control the risks covered by [an insurance] policy, a central
concept of insurance is violated.” Id. (quotation omitted).
In sum, Norby’s alleged violation of the reasonable-use doctrine did not obligate
Austin Mutual to defend Norby as a matter of law. The district court properly considered
“the allegations of the Minch complaint as a whole” and focused on the gravamen of the
complaint: that by constructing, repairing, and maintaining the dike and berm system,
Norby consciously and intentionally disregarded “the high degree of probability of injury
to the rights of the Minch family.” The district court noted that “[t]he [c]omplaint
contains no allegations that Norby’s actions were unintentional, negligent, or accidental
in any way.” Given the substances of the lawsuit, the district court correctly ruled that
the complaint did not allege an “occurrence” under the policy, that the Minch family’s
claims against Norby are not covered by the policy, and that Austin Mutual therefore did
not have a duty to defend.
II.
Norby also contends that “the district court erred by drawing an inference of intent
as a matter of law . . . , in light of facts arguably establishing that the damage to the
[Minch family’s] property was accidental.” Once again, the district court determined that
“it is reasonable to conclude that harm to Minch was reasonably certain to result based on
the nature and circumstances of Norby’s actions alleged in the [c]omplaint and an
inference of intent to harm is thus appropriate.”
“The determination to infer intent as a matter of law results from a case by case
factual inquiry, not a bright line rule of law. More specifically, the facts of particular
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importance are those tending to show the likelihood of the harm—the greater the
likelihood of the harm occurring, the more reasonable it is to infer intent.” R.W. v. T.F.,
528 N.W.2d 869, 873 (Minn. 1995).
Appellate courts generally “determine a duty to defend by comparing only those
allegations in the complaint with the appropriate language in the policy.” Meadowbrook,
Inc. v. Tower Ins. Co., 559 N.W.2d 411, 418 n.19 (Minn. 1997). “Only when actual facts
within the insurer’s knowledge clearly establish the existence or nonexistence of an
obligation to defend, will [a] court hold that the complaint is not controlling.” Id. The
insured has the initial “burden of proving the existence of coverage.” Kabanuk
Diversified Invs., Inc. v. Credit Gen. Ins. Co., 553 N.W.2d 65, 70 (Minn. App. 1996),
review denied (Minn. Oct. 28, 1996).
Norby argues that “facts readily available in the complaint and in the record
beyond it[] arguably establish[] that the flooding was accidental.” He relies on his
“publicly filed answer” and the “publicly available Eighth Circuit opinion affirming
dismissal of the Minch complaint,” which suggest that the diking system had been in
place since the 1950s. He also points to an exhibit attached to the Minch complaint that
references “the 1979 issuance of a BRRWD permit for repair and straightening of [the]
dike.” He insists that, “[w]here, as here, such facts are readily available to the insurer and
also contained in the underlying complaint itself, an issue of fact as to the existence of
covered claims exists, and a duty to defend is triggered.”
Norby’s argument is unavailing because he does not show that Austin Mutual
knew that the diking system was in place since the 1950s or that the BRRWD issued a
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permit to repair the dike in 1979. Norby served his answer after Austin Mutual denied a
defense, and the Eighth Circuit opinion was not released until more than two years after
Austin Mutual denied a defense. Moreover, Austin Mutual’s letter informing Norby of
its decision states that Norby did not provide Austin Mutual with a copy of the exhibits to
the Minch complaint and invited Norby to provide additional information. We find
nothing in the record suggesting that Norby did so. In sum, the “readily available facts”
that Norby relies on were not available to Austin Mutual when it determined that it did
not have a duty to defend.
To the extent that Norby suggests that Austin Mutual should have further
investigated the Minch family’s claims and discovered those “readily available facts,”
caselaw provides otherwise. The supreme court “has consistently stated that where the
insurer has no knowledge to the contrary, it may make an initial determination of whether
or not it is obligated to defend from the facts alleged in the complaint against its insured.”
Garvis v. Emp’rs Mut. Cas. Co., 497 N.W.2d 254, 258 (Minn. 1993). “Where the
pleadings do not raise a claim arguably within the scope of coverage, the insurer has no
duty to defend or investigate further to determine whether there are other facts present
which trigger such a duty.” Id. Accordingly, Austin Mutual was not required to seek out
facts beyond the Minch complaint to determine whether it had a duty to defend.
The Minch complaint supports the district court’s determination that it was
“reasonable to infer Norby’s intent to injure as a matter of law.” The complaint describes
an ongoing conflict between Norby, the Minch family, and the BRRWD concerning
Norby’s dike and berm system. The complaint alleges that Norby was advised that his
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maintenance of the system lacked proper permits and violated BRRWD rules. The
complaint alleges that by constructing, repairing, and maintaining the dike and berm
system, Norby deliberately disregarded the Minch family’s rights and the high probability
that their property would be damaged. Because the complaint does not give rise to a
genuine issue of material fact regarding Norby’s intent to injure, the district court did not
err by inferring intent as a matter of law.
In conclusion, the district court did not err by granting summary judgment for
Austin Mutual based on its determination that Austin Mutual did not have a duty to
defend Norby because the Minch complaint did not allege an occurrence and because
coverage is excluded under the intentional-act exclusion. We therefore affirm without
considering application of the policy’s criminal-act exclusion. See Stansell v. City of
Northfield, 618 N.W.2d 814, 818 (Minn. App. 2000) (“We will affirm a grant of
summary judgment if it can be sustained on any ground.”), review denied (Minn. Jan. 26,
2001).
Affirmed.
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