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Fetch v. Guam3/7/2001
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.
AFFIRMED.
Opinion of the Court by Kapsner, Justice.
[ ] As personal representative of the estate of Waylin Fetch, Greg Fetch appeals the district court's summary judgment for American Hardware Mutual Insurance Company ("American Hardware") and order dismissing Fetch's complaint that American Hardware breached an implied covenant of good faith and fair dealing with Fetch. We affirm.
I.
[ ] On May 31, 1988, Waylin Fetch was driving a motorcycle which collided with a pickup driven by Kelly Guam, resulting in a fractured vertebra in Fetch's neck. Fetch hired an attorney within days of the accident. In March 1989, American Hardware, the insurance provider for Fetch's father whose policy covered Fetch, settled the property damage claim on Fetch's motorcycle. In April 1990, American Hardware received notification that Fetch was now represented by a different attorney. Fetch commenced a personal injury lawsuit against Guam in November 1990, seeking $450,000 damages. Guam was uninsured at the time of the accident and did not answer the complaint. In December 1990, American Hardware filed a motion to intervene, as a provider of uninsured motorist coverage to Fetch under his father's insurance policy.
[ ] In August 1991, Fetch filed a motion to amend the complaint against Guam to add a bad faith claim against American Hardware for "unreasonably and arbitrarily denying coverage to [Fetch] and by intervening in this lawsuit and defending [Guam], with whom they have no contractual or other relationship."
[ ] In September 1991, the district court determined Guam was in default and allowed Fetch to amend his complaint, but severed the bad faith action against American Hardware until Fetch's claim against Guam was resolved. The court also limited American Hardware's appearance to the questions of whether there was negligence on the part of Guam and the extent and amount of damages resulting from the accident. Since Guam was in default, the district court decided contributory negligence would not be in issue at the hearing, because it is an affirmative defense which is waived if not raised by an answer.
[ ] Waylin Fetch died from leukemia in October 1991. His brother and personal representative, Greg Fetch, was substituted as plaintiff in the lawsuit.
[ ] In March 1994, after the restricted default hearing, the district court entered judgment for Fetch against American Hardware in the amount of $125,000 for Fetch's injuries, pain, and suffering and $10,697 for Fetch's medical costs. On appeal, we reversed and remanded in Fetch v. Guam, 530 N.W.2d 337 (N.D. 1995), concluding American Hardware was an intervenor of right and should have been allowed to show comparative fault by Fetch. On remand, a jury found Fetch 40% at fault for the accident and Guam 60% at fault. The jury awarded Fetch $30,000 in damages. After allocation based on fault, judgment was entered for $18,000, and American Hardware paid the judgment within six weeks.
[ ] Fetch filed a motion in April 1999 to reinstate the severed bad faith claim against American Hardware, arguing American Hardware breached its implied covenant of good faith and fair dealing by unreasonably and arbitrarily denying coverage to Fetch and by intervening in Fetch's lawsuit against Guam and defending Guam. The district court permitted Fetch to proceed and set the trial date for July 2000. In May 2000, American Hardware moved for summary judgment, which the district court granted and dismissed Fetch's bad faith complaint. The district court r
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