Hins v. Heer , 1977 N.D. LEXIS 204 ( 1977 )

PEDERSON, Justice

(concurring specialty).

I agree that Hins cannot require Aid to defend Heer but that does not mean that Hins cannot point to this clause in the insurance contract in discussing the ambiguities in the policy. I find the contract terms, including clauses on duty to defend, totally ambiguous and, if there was not already a judgment which, in effect, conclusively determines that Hins was injured by Heer’s willful act, I would not have applied § 26-06-04, NDCC, but would then have used the doctrine of reasonable expectations, as that term is discussed in Mills v. Agrichemical Aviation, Inc., 250 N.W.2d 663 (N.D.1977). There can be no reasonable expectations contrary to the public policy defined in § 26-06-04, NDCC. Therefore, the judgment is property affirmed.