National Farmers Union Property & Casualty Company v. Prochnow

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
National Farmers Union Property
& Casualty Company,
Plaintiff,
vs.
Michael Prochnow, Prochnow Farms,
and Torrey Kath,
Defendants,
and
Michael Prochnow, and Prochnow Farms,
Defendants and
Third-Party Plaintiffs,
vs.
Farmers Union Mutual Insurance Company,
and Kyle DeVries,
Third-Party Defendants.
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ORDER
Case No. 3:20-cv-143
Pending before the Court are two motions for summary judgment – one filed by Plaintiff
National Farmers Union Property & Casualty Company (“National Farmers”) on August 19, 2021
(Doc. No. 44), and the other filed by Third-Party Defendant Farmers Union Mutual Insurance
Company (“Farmers Union”) on August 11, 2021 (Doc. No. 40). Defendants Michael Prochnow
(“Prochnow”) and Prochnow Farms (“Prochnow Farms”) (together, “Prochnow”) and Third-Party
Defendant Kyle DeVries (“DeVries”) filed responses to each motion. See Doc. Nos. 56, 58, 51,
54. Defendant Torrey Kath (“Kath”) joined Prochnow and DeVries in opposition to both summary
judgment motions. See Doc. Nos. 59, 64.
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For the reasons below, National Farmers’ motion is granted. As a result, Farmers Union’s
motion is denied as moot, as the Court declines to continue exercising supplemental jurisdiction
over Prochnow’s third-party complaint and Farmers Union’s counterclaim and dismisses the third-
party complaint and counterclaim without prejudice.
I. 	FACTUAL BACKGROUND
This case involves an insurance coverage dispute that originates from a May 2, 2018,
incident where Kath sustained personal injuries. An introduction of the parties is necessary from
the outset. National Farmers is a Colorado insurance company that is authorized to issue insurance
policies in the State of North Dakota. Doc. No. 7, ¶ 3. Prochnow is a North Dakota resident, and
Prochnow Farms is a North Dakota business entity and farming operation. Id. ¶¶ 4, 5. Prochnow
is the owner of Prochnow Farms. Id. ¶ 5. Kath is a North Dakota resident, who worked for
Prochnow and his farm operation. Id. ¶¶ 8, 12.
As it relates to the Farmers Union motion, Farmers Union is a North Dakota insurance
company that is authorized to issue insurance policies in the State of North Dakota. Doc. No. 26,
¶ 3. DeVries is an insurance agent who conducts business in North Dakota and is an insurance
agent for National Farmers and Farmers Union. Id. ¶¶ 4, 9.
A. 	The Policies.
As a part of Prochnow’s farming operation, he purchased certain insurance policies,
including one policy with National Farmers and one policy with Farmers Union. National Farmers
insured Prochnow under a commercial automobile policy, policy number 1PA3321041 (the
“National Farmers Policy”), with a policy period providing coverage from April 27, 2018, through
April 27, 2019. Doc. No. 1-4, p. 1. The National Farmers Policy states:
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PART I – LIABILITY
COVERAGE A – LIABILITY COVERAGE
We will pay damages for which any insured person is legally liable because of
bodily injury and property damage arising out of the ownership, maintenance or
use of a car or utility trailer.
Damages include prejudgment interest awarded against an insured person.
We will defend any suit or settle any claim for these damages, as we think
appropriate. We will not defend or settle, however, after our limit of liability for
this coverage has been reached. We have no duty to defend any suit or settle any
claim for bodily injury or property damage not covered under this policy.
Id. at 17. In relevant part, the National Farmers Policy also has several exclusions, including an
exclusion for bodily injury to an employee:
EXCLUSIONS
This coverage does not apply to:
* * *
(4) Bodily injury to an employee of an insured person arising in the course of
employment. Coverage, however, does apply to a domestic employee unless
benefits are payable or are required to be provided for the domestic employee
under a workers’ compensation law or similar law.
Id. at 18 (the “Employee Injury Exclusion”). The National Farmers Policy also contains an
endorsement for Personal Injury Protection (the “PIP Endorsement”), consistent with North
Dakota law. The PIP Endorsement states:
We agree with you, subject to the provisions of this endorsement and to the
provisions of the policy, except as changed by this endorsement, as follows:
SECTION I – PERSONAL INJURY PROTECTION COVERAGE
We will pay, in accordance with the North Dakota Auto Accident Reparations Act,
personal injury protection benefits for:
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(a) medical expenses,
(b) rehabilitation expenses,
(c) work loss,
(d) replacement services loss,
(e) survivors income loss,
(f) survivors replacement services loss, and
(g) funeral expenses
incurred with respect to bodily injury sustained by an eligible injured person and
caused by an accident arising out of the operation, maintenance or use of a motor
vehicle as a vehicle.
Id. at 10.
Farmers Union, on the other hand, insured Prochnow under a Farm and Ranch Package
Policy, policy number 33-136497-07-1001-04 (the “Farmers Union Policy”), with a policy period
providing coverage from April 27, 2018, to April 27, 2019. Doc. No. 42-1. The Farmers Union
Policy also included a Farm Employers’ Liability and Farm Employees’ Medical Payments
Insurance endorsement, effective April 27, 2018 (the “Farm Employee Endorsement”). Id. The
Farm Employee Endorsement covers bodily injuries sustained by farm employees arising out of
and in the course of the farm employee’s employment. Id.
B. 	The Incident, Kath’s Injuries, and the State Court Action.
The parties largely agree on the underlying facts that led to Kath’s injuries, but dispute
which policy, if any, provides coverage for Kath’s injuries. As noted above, Kath was an employee
of Prochnow and worked for him and his farm operation as a farmhand. Doc. No. 46-1 at 21:20-
22. He performed various tasks around the farm and the maintenance shop and considered himself
a “main mechanic.” Id. at 23. Kath, among other things, worked on vehicles, machines, and
equipment for the farm, including trailers. Id.
On May 2, 2018, while working, Prochnow asked Kath to go under a vehicle to set the
brakes on a trailer. Id. at 22-28. As Kath was working under the vehicle, setting the brakes,
Prochnow got into the driver’s seat and began moving the truck and trailer in reverse. Id. at 30-44.
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Prochnow then proceeded to drive the truck with the trailer attached some distance, with Kath
stuck under the trailer as it moved. Id. As a result, Kath suffered serious injuries. Id.
Following the incident, in August 2019, Kath commenced a personal injury action against
Prochnow and Prochnow Farms in North Dakota state court (the “State Court Action”). Doc.
No. 1-1. In the State Court Action, Kath alleged Prochnow and Prochnow Farms were liable for
his personal injuries resulting from the May 2, 2018, incident. Id. Prochnow tendered the claims
to National Farmers and Farmers Union. Both insurance companies, however, denied coverage
under the applicable policies. See Doc. No. 1-2 (as to National Farmers).
C. 	The Federal Action and Procedural Posture.
National Farmers filed its amended complaint for declaratory judgment against Prochnow
and Kath on October 29, 2020.1 Doc. No. 7. In the amended complaint, National Farmers seeks a
determination that the National Farmers Policy does not provide coverage to Prochnow with
respect to the claims and allegations in the State Court Action. National Farmers asserts that this
Court has diversity jurisdiction under 28 U.S.C. § 1332(a)(1), as the amount in controversy
exceeds $75,000 and there is complete diversity of citizenship between National Farmers, on the
one hand, and Prochnow, Prochnow Farms, and Kath, on the other. Id. ¶ 10.
Prochnow, invoking only supplemental jurisdiction2 and asserting the Court has “subject
matter jurisdiction over this action pursuant to 28 U.S.C. § 1367,” filed a third-party complaint
against DeVries and Farmers Union on February 22, 2021. Doc. No. 26. Farmers Union answered
and filed a third-party counterclaim3 and a declaratory judgment action against Prochnow, seeking
1 National Farmers filed its original complaint on August 10, 2020. Doc. No. 1.
2 As pleaded, there is a lack of complete diversity of citizenship between Prochnow and Prochnow
Farms, on the one hand, and Farmers Union and DeVries, on the other.
3 The counterclaim is silent as to subject matter jurisdiction.
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a determination that the Farmers Union Policy provides no coverage to Prochnow with respect to
Kath’s injuries. Doc. No. 31.
As noted above, National Farmers moves for summary judgment on all counts of its
amended complaint, arguing the Employee Injury Exclusion of the National Farmers Policy
precludes coverage. Doc. No. 45. Similarly, Farmers Union moves for summary judgment on its
Policy, arguing the motor vehicle exclusion in the Farmers Union Policy precludes coverage. Doc.
No. 41. The Court addresses National Farmers’ motion first, then Farmers Union’s motion.
II. 	LEGAL STANDARD AND ANALYSIS
Summary judgment is required “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue is ‘genuine’ if the evidence
is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party.” Schilf v.
Eli Lilly & Co., 687 F.3d 947, 948 (8th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). “A fact is material if it ‘might affect the outcome of the suit.’” Dick v.
Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Anderson, 477 U.S. at 248).
Courts must afford “the nonmoving party the benefit of all reasonable inferences which may be
drawn without resorting to speculation.” TCF Nat’l Bank v. Mkt. Intelligence, Inc., 812 F.3d 701,
707 (8th Cir. 2016) (quoting Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th
Cir. 2014)). “At summary judgment, the court’s function is not to weigh the evidence and
determine the truth of the matter itself, but to determine whether there is a genuine issue for trial.”
Nunn v. Noodles & Co., 674 F.3d 910, 914 (8th Cir. 2012) (citing Anderson, 477 U.S. at 249). If
the movant demonstrates the absence of a genuine issue of material fact, “[t]he nonmovant ‘must
do more than simply show that there is some metaphysical doubt as to the material facts,’ and must
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come forward with ‘specific facts showing that there is a genuine issue for trial.’” Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
The parties agree North Dakota law controls. Under North Dakota law, “[i]nsurance policy
interpretation is a question of law.” Forsman v. Blues, Brews & Bar-B-Ques, Inc., 2017 ND 266,
¶ 10, 903 N.W.2d 524 (citing K & L Homes, Inc. v. Am. Fam. Mut. Ins. Co., 2013 ND 57, ¶ 8,
829 N.W.2d 724). The North Dakota Supreme Court has consistently explained its approach to
interpreting insurance policies this way:
We look first to the language of the insurance contract, and if the policy language
is clear on its face, there is no room for construction. If coverage hinges on an
undefined term, we apply the plain, ordinary meaning of the term in interpreting
the contract. While we regard insurance policies as adhesion contracts and resolve
ambiguities in favor of the insured, we will not rewrite a contract to impose liability
on an insurer if the policy unambiguously precludes coverage. We will not strain
the definition of an undefined term to provide coverage for the insured. We construe
insurance contracts as a whole to give meaning and effect to each clause, if possible.
The whole of a contract is to be taken together to give effect to every part, and each
clause is to help interpret the others.
Borsheim Builders Supply, Inc. v. Manger Ins., Inc., 2018 ND 218, ¶ 8, 917 N.W.2d 504 (cleaned
up). The basic task is to determine if the insurance policy’s affirmative coverage provisions apply,
and if so, to then look at whether any exclusions bar coverage. “It is axiomatic that the burden of
proof rests upon the party claiming coverage under an insurance policy.” Forsman, 2017 ND 266,
¶ 12, 903 N.W.2d 524 (citation omitted). “If and only if a coverage provision applies to the harm
at issue will the court then examine the policy’s exclusions and limitations of coverage.” Borsheim
Builders, 2018 ND 218, ¶ 9, 917 N.W.2d 504 (citation omitted).
A. 	National Farmers’ Policy and Motion for Summary Judgment
In its motion, National Farmers asserts it is entitled to summary judgment because the
Employee Injury Exclusion bars coverage for Kath’s injuries. Prochnow and DeVries disagree.
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DeVries asserts the Employee Injury Exclusion does not apply because Kath was a “domestic
employee,” while Prochnow argues the Policy’s PIP Endorsement provides coverage. Based on
the plain language of the Policy and the undisputed facts, the Court agrees with National Farmers.
As a threshold matter, “[i]n interpreting an insurance policy, this Court first examines its
coverages before examining its exclusions.” See Borsheim Builders, 2018 ND 218, ¶ 9, 917
N.W.2d 504. Here, neither party disputes that, as an initial matter, the National Farmers Policy
provides coverage, and the Court agrees. Indeed, the National Farmers Policy states:
PART I – LIABILITY
COVERAGE A – LIABILITY COVERAGE
We will pay damages for which any insured person is legally liable because of
bodily injury and property damage arising out of the ownership, maintenance or
use of a car or utility trailer.
Doc. No. 1-4, p. 17. Accordingly, the National Farmers Policy provides initial coverage for the
bodily injuries to Kath, which arose from the use and maintenance of a truck and trailer.
Having found initial coverage under the National Farmers Policy, the Court will next
consider whether the Employee Injury Exclusion applies and whether it excludes coverage for
Kath’s injuries as alleged in the State Court Action. The Employee Injury Exclusion states:
This coverage does not apply to:
***
(4) Bodily injury to an employee of an insured person arising in the course of
employment. Coverage, however, does apply to a domestic employee unless
benefits are payable or are required to be provided for the domestic employee
under a workers’ compensation law or similar law.
Id. at 18. National Farmers argues that the Employee Injury Exclusion applies and excludes
coverage because Kath was an employee. Conversely, DeVries argues the exclusion does not apply
as the “domestic employee” language is ambiguous, and even if the language is not ambiguous,
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that Kath qualifies as a “domestic employee.” The Court disagrees with DeVries on both
arguments.
“An ambiguity exists when good arguments can be made for two contrary positions about
the meaning of a term in a document.” Ctr. Mut. Ins. Co. v. Thompson, 2000 ND 192, ¶ 14, 618
N.W.2d 505 (quoting Fisher v. Am. Fam. Mut. Ins. Co., 1998 ND 109, ¶ 5, 579 N.W.2d 599).
“The absence of a definition in and of itself does not establish ambiguity.” Id. at ¶ 15 (cleaned up).
“When an insurance policy fails to define a term, we often turn to the dictionary to determine the
plain, ordinary meaning of that term.” Id. (quoting Dundee Mut. Ins. Co. v. Marifjeren, 1998 ND
222, ¶ 14, 587 N.W.2d 191).
Here, the National Farmers Policy does not define the term “domestic employee.”
Nevertheless, the Eighth Circuit Court of Appeals has concluded that “a ‘domestic employee’ is
commonly understood to be a household servant.” See United Fire & Cas. Co. v. Gravette, 182
F.3d 649, 655 (8th Cir. 1999). “The primary definition of ‘domestic’ as a noun is ‘a domestic
worker; maid, cook, butler, etc.’” Id. (citing Webster’s New 20th Century Dictionary 543 (2d ed.
1979)). Additionally, under North Dakota law, in the context of workers compensation law, a
“domestic employee” is “engaged in household or domestic work performed principally inside the
residence. This would include a cook, housekeeper, laundry worker, maid, butler, companion, or
babysitter.” N.D. Workforce Safety & Ins., 2018 Classification Manual (original emphasis
removed); see also Spectrum Care, LLC v. Workforce Safety & Ins., 2004 ND 229, ¶ 9, 690
N.W.2d 233 (describing 2002 definition of “9002 Domestics”). Notably and importantly, the North
Dakota definition of “domestic employee” specifically excludes farm activities. Id. Moreover,
other courts have routinely recognized that “domestic employee” is generally accepted and
understood to mean one who performs services in a private home. See Richoux v. Callais & Sons,
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Inc., Civ. A. No. 85–4161, 1987 WL 10457, at *3 (E.D. La. May 6, 1987) (holding “the term
‘domestic employee’ is unambiguous and carries its generally accepted meaning of one who
performs services of a household nature in or about a private home”); Spain v. Travelers Ins. Co.,
332 So.2d 827, 829–30 (La. 1976) (similar domestic employee exclusion is not ambiguous). Given
the precedent and well understood definition, the term “domestic employee”, as used in this
particular Policy, does not create ambiguity as to the Employee Injury Exclusion .
Additionally, Kath does not qualify as a “domestic employee” under the facts of this case.
Here, none of the material facts in this case indicate Kath was a “domestic employee,” as that term
is generally accepted to be understood. Rather, the undisputed facts show that Kath was instead an
employee. For instance, in his deposition, Kath answered in the affirmative that he was a
“farmhand.” Doc. No. 46-1 at 21:20-22. Indeed, Kath was hired as a farmhand, did mechanical
work, and performed general farm work for Prochnow. Moreover, there is no dispute that Kath
suffered bodily injuries arising in the course of his employment with Prochnow. Accordingly, per
its plain language and the undisputed material facts, the Employee Injury Exclusion applies. See
Doc. No. 1-4, p. 18. As a result, the National Farmers Policy plainly excludes coverage for Kath’s
bodily injuries arising in the course of his employment with Prochnow.
Prochnow presents an alternative argument and path to coverage under the National
Farmers Policy. As posited by Prochnow, coverage for Kath’s injuries exists under the PIP
Endorsement. The Court disagrees. Based on its plain language, the PIP Endorsement
provides coverage “in accordance with the North Dakota Auto Accident Reparations Act.” Id.
at 12. The North Dakota Auto Accident Reparations Act is North Dakota’s no-fault statute,
intended to “avoid protracted litigation over issues of fault or causation by removing the bulk of
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motor vehicle accidents from the tort system.” Haff v. Hettich, 1999 ND 94, ¶ 33, 593 N.W.2d
383 (N.D. 1999).
To start, the Court notes that Kath’s deposition testimony suggests that he has
previously recovered the maximum allowable no-fault benefits under North Dakota law,
though the source of the payments is not clear from the testimony. See Doc. No. 46-1, p. 63.
This testimony is consistent with his claims (or lack thereof) in the State Court Action, where
Kath did not assert a claim for recovery of no-fault benefits consistent with the North Dakota
Auto Accident Reparations Act. Instead, in the State Court Action, Kath asserted fault-based
claims, including negligence, among others, against Prochnow and Prochnow Farms. As such,
based on the specific facts of this case, the Court declines to adopt Prochnow’s interpretation
of the PIP Endorsement, which risks broadening no-fault coverage to liability coverage, even
though the plain language of the PIP Endorsement limits the coverage to compliance with the
North Dakota Auto Accident Reparations Act. Accordingly, the Court finds that the PIP
Endorsement does not provide coverage to Prochnow for Kath’s injuries and claims as alleged
in the State Court Action.
In sum, there are no genuine issues of material fact, and the Court finds as a matter of
law that coverage for Kath’s bodily injuries is excluded under the National Farmers Policy
per the plain language of the Employee Injury Exclusion. Because the Exclusion applies, the
National Farmers Policy does not provide coverage to Prochnow for the claims asserted in the
State Court Action, and National Farmers has no duty to defend or indemnify Prochnow for
the claims asserted in the State Court Action. Moreover, the Court finds as a matter of law
that the PIP Endorsement does not provide coverage for Kath’s injuries as alleged in the State
Court Action. Accordingly, National Farmers’ motion for summary judgment is granted.
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B. 	Prochnow’s 	Third-Party 	Complaint 	and 	Farmers 	Union’s 	Motion 	for
Summary Judgment
Prochnow’s third-party complaint seeks declaratory relief against Farmers Union,
alleging the Farmers Union Policy provides coverage to Prochnow for Kath’s injuries.
Farmers Union responded and asserted a counterclaim and declaratory action against
Prochnow, 	asserting 	that 	coverage 	is 	not 	available. 	Notably, 	Prochnow’s 	third-party
complaint and Farmers Union’s counterclaim are added to National Farmers’ main and lead
complaint and is before this Court only under supplemental jurisdiction. Indeed, Prochnow’s
third-party complaint only pleads subject matter jurisdiction “pursuant to 28 U.S.C. § 1367”
and Farmers Union’s counterclaim is silent as to subject matter jurisdiction. See Doc. Nos.
26, 31. Importantly as well, there is a lack of complete diversity of citizenship between
Prochnow and Prochnow Farms, on the one hand, and Farmers Union and DeVries, on the
other. Although the parties have undertaken some limited discovery and Farmers Union has
moved for summary judgment, no claims over which the Court has original jurisdiction
remain and therefore the Court may choose whether to exercise supplemental jurisdiction over
these state-law claims. 28 U.S.C. § 1367(c); see also Grinell Mut. Reinsurance Co. v. Moon,
845 F. Supp. 2d 989 (2012).
When all federal claims are eliminated before trial, the balance of the factors to be
considered in deciding whether to exercise supplemental jurisdiction over state-law claims
typically weighs against exercising jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988). Nothing in this case convinces the Court that it should deviate from
that principle. Additionally, it appears the Court lacks subject matter jurisdiction, given the
lack of complete diversity of citizenship following resolution of National Farmers’ motion.
Accordingly, with no federal claim remaining, the Court declines to continue exercising
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supplemental jurisdiction over Prochnow’s third-party complaint and Farmers Union’s
counterclaim and dismisses both without prejudice. Accordingly, Farmers Union’s motion for
summary judgment (Doc. No. 40) is denied as moot.
III. 	CONCLUSION
In conclusion, no genuine issues of material fact remain, and National Farmers is entitled
to judgment as a matter of law. The Court has carefully reviewed the entire record, the parties’
filings, and the relevant case law. For the reasons above, National Farmers’ motion for summary
judgment (Doc. No. 44) is GRANTED. The Court further ORDERS and DECLARES as follows:
1. 	National Famers has no duty to defend Prochnow and Prochnow Farms under the
National Farmers Policy against the claims asserted in the State Court Action;
and,
2. 	National Farmers has no duty to indemnify Prochnow and Prochnow Farms under
the National Farmers Policy for any liability to Kath in the State Court Action;
and,
3. 	Kath is not entitled to recover under the National Farmers Policy for the claims
asserted against Prochnow and Prochnow Farms in the State Court Action.
Additionally, because the Court declines to continue exercising supplemental jurisdiction,
Prochnow’s third-party complaint (Doc. No. 26) and Farmers Union’s counterclaim (Doc. No. 31)
are DISMISSED WITHOUT PREJUDICE, and Farmers Union’s motion for summary
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judgment (Doc. No. 40) is DENIED AS MOOT.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 30th day of March, 2022.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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