Submitted: November 15, 2016
from United States District Court for the District of North
Dakota - Bismarck
BENTON and SHEPHERD, Circuit Judges, and STRAND,  District
STRAND, District Judge.
case arises out of the untimely death of Adam Fetzer, a
delivery driver for the Papa John's restaurant chain who
was killed in a car accident on April 28, 2012. Fetzer was
driving during the course of his employment in Bismarck,
North Dakota, when another driver ran a red light and struck
Mary Hegel, the personal representative of Fetzer's
estate, demanded underinsured motorist (UIM) coverage under a
business auto insurance policy (Policy) issued by plaintiff
American Fire and Casualty Company (American Fire) to P J
Operations, LLC d/b/a Papa John's Pizza (Papa
John's). American Fire denied the claim and brought suit
for declaratory judgment. On cross motions for summary
judgment, the parties disputed whether North Dakota law
applies to the Policy and, if so, whether American Fire is
obligated to provide UIM benefits in some amount. The
district court granted summary judgment against American
Fire, holding: (1) North Dakota law applies; (2) American
Fire is obligated to provide UIM coverage; and (3)
Fetzer's estate is entitled to an award of $100, 000 in
UIM benefits. American Fire appealed. Having jurisdiction
under 28 U.S.C. § 1291, we reverse.
relevant facts are not in dispute. Fetzer was not at fault.
At the time of the accident he was driving his own vehicle,
which was covered by both a personal auto insurance policy
and the American Fire Policy. The other driver, Robert
Harrington, was also covered by a personal auto insurance
policy, which provided $25, 000 in liability coverage.
Following the accident, Hegel, on behalf of Fetzer's
estate, was paid the full liability amount, $25, 000, from
Harrington's insurance policy. Hegel then sought UIM
benefits from American Fire.
Fire is an insurance company incorporated under Ohio law with
its principal place of business in Massachusetts. Papa
John's is a Kentucky company headquartered in Kentucky. A
Kentucky insurance agent sold the Policy to Papa John's
in Kentucky. The Policy provided liability coverage and
physical damage coverage with a liability limit of $1, 000,
000. The Policy covered vehicles owned and used by Papa
John's employees all over the country. The Policy
contained numerous endorsements addressing specific state
laws, including some that related to North Dakota law. Papa
John's premium payment for the Policy was sent to the
insurance agency's office in Middletown, Ohio.
Fetzer's vehicle was licensed and garaged in North
Fire argues that Kentucky law controls and that the district
court erred in applying North Dakota law to the Policy.
American Fire notes that under Kentucky law it was not
required to provide UIM coverage. American Fire also argues
that even if North Dakota law applies, thus imposing a
requirement to provide UIM coverage in some amount, no
recovery would be appropriate in this case because Harrington
was not underinsured.
Standard of Review
review de novo a district court's grant of summary
judgment, viewing the evidence 'in the light most
favorable to the nonmoving party.'" Barkley,
Inc. v. Gabriel Brothers, Inc., 829 F.3d 1030, 1038 (8th
Cir. 2016) (quoting Beverly Hills Foodland, Inc. v.
United Food & Commercial Workers Union, Local 655,
39 F.3d 191, 194 (8th Cir. 1994)). "If there is 'no
dispute of material fact and reasonable fact finders could
not find in favor of the nonmoving party, summary judgment is
appropriate.'" Shrable v. Eaton Corp., 695
F.3d 768, 770-71 (8th Cir. 2012) (quoting Fercello v.
Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)).
We may affirm a grant of summary judgment on any basis
supported by the record. Noreen v. PharMerica Corp.,
833 F.3d 988, 992 (8th Cir. 2016) (citing Johnson v.
Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th
Cir. 2014) (en banc)).
B.The Choice of ...