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Wangler v. Lerol11/13/2003
estopped from denying coverage under the circumstances.
[ ] This Court has said the doctrines of waiver and estoppel will not operate to create an insurance contract that never existed. See National Farmers Union Prop. & Cas. Co. v. Michaelson, 110 N.W.2d 431, 438-39 (N.D. 1961); Conklin v. North Am. Life & Cas. Co., 88 N.W.2d 825, 831 (N.D. 1958). This is the majority rule. See Annot., Doctrine of estoppel or waiver as available to bring within coverage of insurance policy risks not covered by its terms or expressly excluded therefrom, 1 A.L.R. 3d 1139, 1144 (1965). Other courts have recognized exceptions to the rule, and Wangler relies on an exception requiring that he prove "1) `a misrepresentation as to the fact or extent of coverage, innocent or otherwise, by the insurer or its agent, and (2) reasonable reliance by the insured thereon to his ultimate detriment.'" Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F. Supp. 474, 481 (D. N.J. 1995) (quoting Martinez v. John Hancock Mut. Life Ins. Co., 367 A.2d 904, 911 (N.J. Super. Ct. App. Div. 1976)). Even if we were to recognize this exception to the general rule, we agree with the district court that Wangler has failed to raise a genuine issue of material fact to support his claim.
[ ] Wangler relies on an affidavit of Snortland, one of the owners of Pine Ridge, who said it was "my understanding that Pine Ridge employees were covered under the liability policy as well as the umbrella policy in place." Snortland stated:
Mr. Lerol conducted an annual review of insurance policies with me. During those reviews we discussed my personal insurance as well as business coverage, including Pine Ridge. On each occasion, I asked Mr. Lerol, "Now, we're covered aren't we?" At no time did he indicate that there was no liability insurance coverage for Pine Ridge. Relying on Mr. Lerol's representations, no separate liability coverage was secured for Pine Ridge nor was workers compensation coverage reinstated.
[ ] Wangler relies on several cases from other jurisdictions to support his estoppel argument. However, the facts in those cases are markedly different from the facts related in Snortland's affidavit. As the district court noted, all of the cases Wangler relies upon involved situations in which the misrepresentations were in the form of a definite statement or act indicating that a particular insurance policy provided a specific type of coverage. See, e.g., Ivey v. United Nat'l Indem. Co., 259 F.2d 205, 209 (9th Cir. 1958) (evidence created issue of estoppel where agent told insured his duck hunting business was covered by comprehensive personal liability policy); Golden Gate Motor Transp. Co. v. Great Am. Indem. Co., 58 P.2d 374, 378 (Cal. 1936) (estoppel where insured requested specific insurance coverage for a specific vehicle); Kramer v. United Servs. Auto. Ass'n, 436 So.2d 935, 937 (Fla. App. 1983) (complaint stated cause of action for estoppel where insurer informed insured her new car was covered for 30 days); Peninsular Life Ins. Co. v. Wade, 425 So.2d 1181, 1183 (Fla. App. 1983) (estoppel was established where agent told insured that policy would pay full benefits from date of issuance); Harr v. Allstate Ins. Co., 255 A.2d 208, 219-20 (N.J. 1969) (prima facie case of estoppel was established where insured asked agent to cover business merchandise stored in basement and agent advised insured it was fully covered); Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co., 679 P.2d 879, 882 (Or. App. 1984) (estoppel where insured's son reasonably relied on agent's representation that his auto was covered); State Auto Cas. Underwriters v. Ruotsalainen, 136 N.W.2d 884, 887 (S.D. 1965) (estoppel where agent assured insu
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