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Thesing v. Imperium Insurance Co.

United States District Court, D. Minnesota

March 6, 2018

Charles Thesing, Plaintiff,
v.
Imperium Insurance Company, a/k/a Delos Insurance Company, Defendant.

          ORDER

          JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

         Plaintiff Charles Thesing was injured in a car accident and filed this action seeking underinsured motorist (“UIM”) benefits from Defendant Imperium Insurance Company (“Imperium”). Imperium moves for summary judgment, arguing that Thesing's insurance policy with Imperium bars recovery of UIM benefits. In the alternative, Imperium moves for an order reducing its liability from $100, 000 to $75, 000. For the reasons below, the Court denies Imperium's motion for summary judgment and grants Imperium's motion for a reduction to its liability.

         BACKGROUND

         Thesing works for the Minnesota Department of Transportation (“MnDOT”) as the leader on a drilling and soil sampling crew. He is insured under a policy with Imperium that provides a limit of $100, 000 in UIM coverage. Imperium claims that Thesing also qualifies through his job for up to $25, 000 in UIM benefits from the State of Minnesota Risk Management Fund Automobile Insurance Program (“the MnDOT policy”).

         On March 28, 2013, Thesing drove an MnDOT drill truck to a rural location on Highway 84 to collect soil samples in preparation for a potential road construction project. He was standing on the rear of the truck to operate the drill controls when a car hit and injured him. Thesing settled his claim against the at-fault driver for the $100, 000 policy limit of the driver's liability insurance coverage. This did not cover Thesing's loses, making the at-fault driver an underinsured motorist and triggering Thesing's right to pursue UIM benefits.

         Minn. Stat. § 65B.49 subd. 3a(5) directs an injured person occupying a vehicle to “to seek [UIM] coverage initially from the insurer of the motor vehicle [he or she] occupied at the time of the accident and establishes as limits of liability those specified in the policy on the occupied vehicle.” Becker v. State Farm Mut. Auto. Ins. Co., 611 N.W.2d 7, 11 (Minn. 2000). The statute further provides that an injured person “may be entitled to excess insurance protection” on a personal policy if he or she was “not an insured” on the policy covering the occupied vehicle. This is called “excess UIM coverage.” Thesing has not received any UIM benefits from the policy covering the MnDOT vehicle he occupied during his injury. But he asked Imperium for $100, 000 in excess UIM coverage. Imperium refused and Thesing filed this action to recover the $100, 000.

         STANDARD OF REVIEW

         The Court “shall grant summary judgment 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). A factual dispute is material if its resolution will affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In making these determinations, the Court draws all reasonable inferences from the evidence in favor of the nonmoving party. Id. at 255.

         DISCUSSION

         Imperium moves for summary judgment and, alternatively, for a reduction to its liability. The Court denies the former motion and grants the latter motion.

         I. Motion for Summary Judgment.

         Imperium moves for summary judgment because an exclusion in the insurance policy allegedly precludes Thesing from recovering excess UIM benefits. The exclusion states that:

Neither the Uninsured Motorist Coverage nor the Underinsured Motorist Coverage apply to bodily injury sustained by: . . . an Insured Person while occupying a motor vehicle furnished by an Insured Person's employer and operated in the course of that Insured Person's employment. This exclusion does not apply to Your Car.

ECF No. 14-1 at 59. Thesing concedes that the exclusion applies to his injury on the MnDOT truck on March 28, 2013. But he maintains that the exclusion is invalid, as it eliminates coverage required under the Minnesota No-Fault Automobile ...


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