author: KAPSNER, Justice. MARING, Justice, specially

text:
    2004 ND 166
    GRINNELL MUTUAL REINSURANCE COMPANY, Plaintiff and Appellee, v. Ole I. LYNNE, Defendant and Appellant. Dena Karna, and Edward T. Larson, Defendants.
    No. 20030217.
    Supreme Court of North Dakota.
    Aug. 31, 2004.

      Lawrence A. Dopson, Zuger Kirmis & Smith, Bismarck, for plaintiff and appellee.
    Dennis Edward Johnson, Johnson & Sundeen, Watford City, for defendant and appellant Ole I. Lynne.
   KAPSNER, Justice.

[¶ 1] Ole Lynne appeals from a summary judgment in a declaratory action commenced by Grinnell Mutual Reinsurance Company (“Grinnell”) to resolve issues of policy coverage. The district court held Grinnell had no duty to defend or indemnify Lynne under its commercial general liability policy. We affirm.

I.

[¶ 2] Lynne is a farmer who engages in construction work during the winter months. Lynne orally contracted with Edward Larson to construct a new foundation for a farm house built on Larson’s property in 1912. The process involved lifting the house from its foundation and supporting it with iron timbers while a new foundation was constructed under the house.

[IT 3] Lynne drilled holes in the old foundation to accommodate four iron timbers to support the house while Lynne demolished the old foundation and constructed a new one. After Lynne removed the existing foundation and constructed footings, he hired a subcontractor, Dena Kama, to place concrete blocks on top of the footings. In the process of placing the blocks, either Lynne or Kama discovered the house would have to be raised another eight inches in order for the basement walls to be sufficiently accommodated. While Lynne was in the process of raising the house, the iron timbers “rolled over.” The house fell off the support jacks and into the basement approximately three feet. Lynne claimed the house fell as a result of unusually high winds on the day of the incident. Grinnell argues the house fell as a result of Lynne’s faulty workmanship, thus barring him from recovery under his insurance policy.

[¶ 4] Kama brought an action against Larson and Lynne to recover $8,385.95, money owed to him for work performed. After the house fell into the basement, Kama had to rebuild some of the damaged walls. Kama also modified the foundation to accommodate another house Larson purchased to be placed upon the foundation. Larson filed a cross-claim against Lynne, seeking to recover $35,000 in expenses allegedly incurred by Larson in connection with the removal and replacement of the house.

[¶ 5] At the time of the incident, Lynne had a commercial general liability policy with Grinnell. Lynne filed a claim against his policy seeking a defense of Kama’s and Larson’s lawsuits and indemnity for any damages. Grinnell denied coverage, but agreed to defend Lynne under a reservation of rights.

[¶ 6] Grinnell filed a complaint in a separate action seeking declaratory relief, claiming the commercial general liability policy does not cover the claims against Lynne by Larson or Kama because of the business risk exclusions in the policy. Grinnell argues the policy does not cover the losses incurred by Lynne because the damage to the house fits into one or more policy exclusions from coverage. Grinnell argues: business risk exclusions preclude coverage because the damage to the house was due to Lynne’s incorrectly performing the work he had agreed to do; the house is excluded under the real property exclusion which provides that damage to real property upon which Lynne or a subcontractor was working is not covered by Lynne’s policy. Originally, the district court granted summary judgment in favor of Grinnell on Larson’s claim, but denied summary judgment as to Kama’s claim because there was an issue of material fact as to whether Kama’s work on the project was complete. Later, the district court granted summary judgment in favor of Grinnell on Kama’s claim when it became clear through deposition testimony that Kama had not yet completed the project at the time the damage occurred.

[¶ 7] Lynne appeals to this Court.

II.

[¶ 8] Grinnell’s action for declaratory judgment was brought pursuant to N.D.C.C. § 32-23-06, which provides:

[T]he court shall render or enter a declaratory judgment or decree in an action brought by or against an insurance company to determine liability of the insurance company to the insured to defend, or duty to defend, although the insured’s liability for the loss may not have been determined.

Grinnell moved for summary judgment in the declaratory action, and the district court granted summary judgment in favor of Grinnell based on the policy’s exclusion from coverage.

[¶ 9] Summary judgment is a “procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result.” Hall Family Living Trust v. Mut. Serv. Life Ins. Co., 2001 ND 46, ¶ 6, 623 N.W.2d 32 (citing Mandan Educ. Ass’n v. Mandan Pub. Sch. Dist., 2000 ND 92, ¶6, 610 N.W.2d 64). If the issues in the case are such that resolution of any factual dispute will not alter the result, then summary judgment is appropriate under the law. Fisher v. American Family Mut. Ins. Co., 1998 ND 109, ¶ 5, 579 N.W.2d 599 (citing Littlefield v. Union State Bank, 500 N.W.2d 881, 883 (N.D.1993)). We review appeals from summary judgment de novo. Weiss v. Collection Ctr., Inc., 2003 ND 128, ¶ 8, 667 N.W.2d 567.

[¶ 10] “The party opposing summary judgment cannot simply rely on factual assertions in a brief or pleadings and cannot rely on unsupported allegations; such conclusory assertions are insufficient to raise an issue of material fact.” Warner and Co. v. Solberg, 2001 ND 156, ¶ 10, 634 N.W.2d 65 (citing Jones v. Barnett, 2000 ND 207, ¶ 5, 619 N.W.2d 490). This Court outlined the duty of a party opposing a summary judgment motion in Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (quoting Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991) (internal citations omitted)):

Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief.

[¶ 11] Lynne argues a genuine issue of material fact exists sufficient to preclude summary judgment in favor of Grinnell. Lynne argues high winds contributed to the collapse of the house. See Shelby Ins. Co. v. Northeast Structures, Inc., 767 A.2d 75, 77 (R.I.2001) (holding summary judgment authorizing insurance company not to provide a defense inappropriate where factual issue existed of whether an Act of God — high winds— caused structure to collapse). In the lawsuit brought by Karna against Lynne, Lynne first alleged in his answer an “act of nature” was a superceding and intervening act which caused the house to collapse. In response to the cross-claim brought by Larson, Lynne alleged an “act of god” in the form of “clima[c]tie conditions, wind, and natural occurrences” was the cause of the damage. In his brief to the district court in opposition to Grinnell’s motion for summary judgment,- Lynne pointed to the page and line of Lynne’s deposition' testimony describing the wind. Lynne did not provide this reference in his brief to this Court.

[¶ 12] The only reference this Court is able to glean .from the record is in Lynne’s deposition. Lynne stated, “[i]t was a high wind and — I don’t know. It was real windy that day. That’s all I know. It was miserable out there.” Lynne briefly mentions wind in his brief on page 4: “The day that Lynne went to raise the house the few inches needed to install the last layer of blocks, the wind was blowing strongly with gusts as it is well known to do in North Dakota.” In his brief, Lynne concedes the wind may not have been the cause for damage to the house in his brief when he states, “Lynne had completed the lifting process when for some as yet unexplained reason, the house moved, the support timbers rolled and the house fell.”

[¶ 13] Lynne acknowledges in his brief windy conditions are common in North Dakota. Lynne presented no evidence indicating the winds were different from those reasonably expected and for which a house mover in North Dakota ought to be prepared. When no pertinent evidence on an essential element of the claim is presented to the district court in opposing a motion for summary judgment, it is presumed no such evidence exists. Azure, v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 8, 681 N.W.2d 816.

[¶ 14] Lynne does not direct this Court to the page and line number pointing out issues that support the conclusion that a genuine issue. of material fact precludes summary judgment, nor does, he argue them sufficiently to meet the non-moving party’s burden to provide more than mere conclusory statements. We agree with the district court that Lynne failed to establish a genuine issue of material fact. We conclude Lynne failed to establish a genuine issue of material fact as -to whether high winds caused the incident, rather than faulty contract performance of Lynne.

III.

[¶ 15] Grinnell argues two exclusions apply to preclude coverage of Lynne’s claim under the commercial general liability policy. • The first is exclusion 2(j)(5) which states, “[t]his insurance does not apply to: ... [t]hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations.” The second exclusion is 2(j)(6), which provides, “[t]his insurance does not apply to ... [t]hat particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” Grinnell argues these provisions preclude coverage for Lynne’s claim.

[¶ 16] Generally known . as “business risk exclusions,” the purpose of these provisions is to prevent policyholders from converting liability insurance into protection from foreseeable business risks. Jeffrey W. Stempel, A Mixed Bag for Chicken Little: Analyzing Year 2000 Claims and Insurance Coverage, 48 Emory L.J. 169, 236 (1999). Insurance companies theorize that a business risk, such as costs resulting from improper performance of contract, should be built into the price of the product.

[¶ 17] Business risk exclusions are intended to provide coverage for tort liability, but not for contract liability of the insured for loss because the product or completed work was not that for which the other party had bargained. See Bor-Son Bldg. Corp. v. Employers Commercial Union Ins. Co., 323 N.W.2d 58, 63 (Minn. 1982) (citing Roger C. Henderson, Insurance Protection for Products Liability and Completed Operations — What Every Lawyer Should Know, 50 Neb. L.Rev. 415, 441 (1971)). The exclusions are meant to remove coverage for risks which are subject to manipulation by the insured or a third party. Lee R. Russ and Thomas F. Segal-la, Couch on Insurance, § 129:1 (1997).

[¶ 18] In this case, Grinnell argues its commercial insurance policy is not meant to act as a warranty, and Lynne should be responsible for any damages resulting from the collapse and any resulting contract claims. A commercial liability insurance policy is not meant to act as a warranty of the insured’s work. Rowland H. Long, The Law of Liability Insurance, § 10.05(8) (2004).

The exclusions from coverage for property damage contained in paragraphs j., m. and n. and other similar exclusions in the CGL policy are generally referred to as “business risk” exclusions, and are designed to exclude coverage for defective workmanship by the insured causing damage to the project itself. Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., 182 Ga.App. 220, 223 (355 S.E.2d 130) (1987); Elrod’s Custom Drapery Workshop v. Cincinnati Ins. Co., 187 Ga.App. 670 (371 S.E.2d 144) (1988). The principle behind such exclusions is based on the distinction made between two kinds of risk incurred by a contractor such as Donmac. The first is the business risk borne by the contractor to replace or repair defective work to make the building project conform to the agreed contractual requirements. This type of risk is not covered by the CGL policy, and the “business risk” exclusions in the policy make this clear. Gary L. Shaw, supra at 224, 355 S.E.2d 130. The second is the risk that the defective or faulty workmanship will cause injury to people or damage to other property. Because of the potentially limitless liability associated with this risk, it is the type for which CGL coverage is contemplated. Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788, 791 (1979). “While it may be true that the same neglectful craftsmanship can be the cause of both a business expense of repair and a loss represented by damage to persons and property, the two consequences are vastly different in relation to sharing the cost of such risks as a matter of insurance underwriting. ... The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient product or work. This liability, however, is not what the coverages in question are designed to protect against. The coverage [applicable under the CGL policy] is for tort liability for ... [injury to persons and damage to other property] and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.... ”

Glens Falls Ins. Co. v. Dommac Golf Shaping Co., 203 Ga.App. 508, 511, 417 S.E.2d 197, 200 (1992).

4

[¶ 19] The district court concluded the insurance policy in this case was not ambiguous and exclusion 2(j)(5) precluded coverage for Lynne’s claim. Lynne argues the district court erred in concluding the insurance policy was not ambiguous.

[¶ 20] This issue turns on the interpretation of the insurance policy issued by Grinnell to Lynne. Whether an insurance contract is ambiguous is generally a question of law. Fisher v. American Family Mut. Ins. Co., 1998 ND 109, ¶ 5, 579 N.W.2d 599 (citing Sellie v. North Dakota Ins. Guar. Ass’n, 494 N.W.2d 151 (N.D.1992)). This Court independently examines and construes the insurance policy to determine if the district court erred in its construction. Fisher, at ¶ 5. Interpretation of an insurance policy is fully reviewable on appeal and is a question of .law for a court to decide. Id. “An ambiguity exists when good arguments can be made for two contrary positions about the meaning of a term in a document.” , Id.

[¶ 21] Lynne attempts to defeat application of the exclusions with a number, of arguments that dissect the policy provisions. Lynne’s first argument is that the policy provisions excluding coverage for Lynne’s claim are ambiguous and thus, must be construed against the insurer. In Ziegelmann v. TMG Life Ins. Co., 2000 ND 55, ¶ 6, 607 N.W.2d 898 (citations omitted), this Court summarized our standards for construing an insurance policy:

Our goal when interpreting insurance policies, as when construing other contracts, is to give effect to the mutual intention of the parties as it existed at the time of contracting. 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.

We construe ambiguous contract provisions narrowly; however, this case fits within even a narrow interpretation of the business risk exclusion.

[¶ 22] “Exclusions from coverage in an insurance policy must be clear and explicit and are strictly construed against the insurer.” Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶ 10, 658 N.W.2d 363 (citing Western Nat’l Mut. Ins. Co. v. Univ. of North Dakota, 2002 ND 63, ¶7, 643 N.W.2d 4). Although this Court may construe an exclusionary provision strictly, we do not automatically construe every insurance exclusion provision against an insurer and in favor of coverage for the insured. Nationwide Mut. Ins. Companies v. Lagodinski, 2004 ND 147, ¶ 9, 683 N.W.2d 903.

[¶ 23] Initially, the district court granted summary judgment holding exclusion 2(j)(5) applied and Grinnell had no duty to defend or indemnify Lynne for the claims of Larson. The district court did not initially grant summary judgment on the Kama claim because “an exception to Exclusion 2j.(6) may provide coverage in behalf of Lynne for damage to the block work performed by Kama — if Kama’s work on this project was completed when the house fell into the basement, which would be an unresolved question of material fact.” The exception to exclusion 2(j)(6) provides, “Paragraph (6) of this exclusion does not apply to ‘property damage’ included in the ‘products-completed operations hazard.’ ” Grinnell resubmitted its motion for summary judgment directing the district court to the deposition testimony of Kama. The district court then granted summary judgment in favor of Grinnell, stating “[biased upon the deposition testimony of Kama — the accuracy of which has not been called into question by Lynne — it is apparent to the Court that all of the work called for in his contract with Lynne had not been completed at the time the house fell into the basement.... Accordingly, the Court finds that the exception to Exclusion 2j.6 does not operate so as to provide coverage in behalf of Lynne for the claim submitted by Kama.”

[¶ 24] Applying the language of the policy exclusions, the district court examined the causes of actions asserted by Larson and Kama against Lynne in the underlying lawsuit. While acknowledging allegations of negligence, the court stated it was necessary to determine that the claims “are not in reality contract claims cloaked as tort claims ” (citing Jerry Davis, Inc. v. Maryland Ins. Co., 38 F.Supp.2d 387 (E.D.Pa.1999)). The district court determined “it is undisputed that the damages to Larson’s house came about as Lynne was in the process of performing contractual obligations (i.e., to temporarily raise the house, install a new basement and lower the house onto the new basement) owed to Larson.” In its decision the district court explained:

In summary, the Court believes that it is on solid ground in awarding summary judgment in favor of Grinnell Mutual based upon the applicability of Exclusion 2j.(5), Section IA, of the CGLP [commercial general liability policy] which Grinnell Mutual issued to Lynne. That exclusion clearly states that no coverage is provided under the CGLP for “property damage” to “that particular part of real property on which you (i.e., Lynne) or any contractors or subcontractors (i.e., Kama) working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations.” Reasonable persons could not disagree that at the time of the loss: 1. Lynne was performing operations; 2. on real property (owned by Larson); and, 3. damage (to the property) arose out of those operations.

[¶ 25] The language of the policy indicates “[t]hat particular part of real property” on which Lynne was working is subject to the exclusion. The particular part of real property on which Lynne was working was the house. Thus, damage to the house resulting from Lynne’s work will not be covered by the policy due to the exclusions included in the policy. In Fisher v. American Family Mut. Ins. Co., 1998 ND 109, 579 N.W.2d 599, we held exclusion 2(j)(5) ambiguous and construed it against the insurer. Our holding in that action dealt with whether damages had to occur while work was still in progress. We concluded “exclusion j(5) excludes coverage only for property damage during the time Kensok worked upon the property.” Id. at ¶ 10. The ambiguity discussed by this Court in Fisher does not affect the result here because neither Lynne nor Kama had completed the work on the building. We conclude the exclusion under 2(j)(5) of the policy operates to preclude coverage for Lynne’s claim for defense and indemnity against Larson’s claim for damage to his house.

B.

[¶ 26] Lynne argues the damage to the house did not “arise out of’ Lynne’s work and contract performance. In the alternative, Lynne argues the term “arises out of’ is ambiguous and should be construed against Grinnell. We disagree.

[¶ 27] Citing Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶ 12, 658 N.W.2d 363, Lynne argues under North Dakota law, if the accident was caused by an independent or intervening act, then it did not “arise out of’ Lynne’s operations. In this case, Lynne argues the intervening act was high winds. As discussed above, Lynne failed to adequately meet his burden under summary judgment standards that a genuine issue of material fact existed to demonstrate an independent or intervening act was the cause of the damage to the house. Absent a demonstration, sufficient to raise an issue of fact of an independent or intervening cause of the damage, Lynne’s operations on the house were a direct cause of the resulting damage.

[¶ 28] In Grinnell, we discussed the causal connection test established in Norgaard v. Nodak Mut. Ins. Co., 201 N.W.2d 871, 874 (N.D.1972). Norgaard involved an accidental shooting of an individual due to the unintentional discharge of a gun while the gun rested on the roof of a parked automobile. Id. The owner of the vehicle sued his automobile insurance company seeking indemnification. Id. This Court affirmed the district court’s ruling that the accidental shooting did not arise out of the ownership, use, or maintenance of the vehicle and denied coverage. Id. at 872. In Norgaard, we held that the “causal relationship need not constitute a proximate cause, but on the other hand if an injury is directly caused by some independent or intervening cause it does not arise out of the use of an automobile.” Id. at 875. The resulting liability must arise out of the “inherent nature” of the insured item. Id. at 874.

[¶29] Lynne’s operation was to lift the house from its foundation, tear out and replace the existing foundation, and place the house on a new foundation. The day on which the damage to the house occurred, Lynne was in the process of lifting the house for a second time. During this lift, the timbers supporting the house rolled over and the house subsequently fell into the basement. These facts are sufficient to meet the causal connection test because the damage to the house could not have occurred without Lynne’s act of raising the house. See also Houser v. Gilbert, 389 N.W.2d 626, 627 (N.D.1986) (concluding the causal relationship test was fulfilled when mud from trucks caused another driver to lose control).

[¶ 30] We are not persuaded that no causal relationship exists between the nature of the work performed by Lynne and the resulting damage to the house. We conclude, as a matter of law, the damage to the house arose out of the inherent nature of the work performed by Lynne.

C.

[¶ 31] Next, Lynne argues the house is not real property and therefore, exclusion 2(j)(5) does not apply because it states in part, “[t]his insurance does not apply to: ... ‘[property damage’ to ... [t]hat particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations.” Lynne argues that particular part of real property on which he was working was not the house, but rather the foundation of the house; therefore, any damage to the house should be covered under the terms of the policy, because the exclusion only applies to real property. We find this argument unpersuasive.

[¶ 32] The district court found Lynne was performing operations on real property owned by Larson and the damage to the property arose out of operations by Lynne. The record reflects Lynne was to raise the house off its foundation so the foundation could be rebuilt.

[¶ 33] In his brief, Lynne devotes one paragraph to the argument that his work was directed only at the basement and foundation, not to the house proper. Lynne offered no case law or other authority to support this position. We deem issues not adequately briefed or argued on appeal to be waived. Snyder v. N.D. Workers Comp. Bur., 2001 ND 38, ¶20, 622 N.W.2d 712 (citing First State Bank v. Moen Enterprises, 529 N.W.2d 887, 893 (N.D.1995)). “Without citations to relevant authority or supportive reasoning, an argument is assumed to be without merit.” Snyder, at ¶20 (citing Friedt v. Moseanko, 484 N.W.2d 861, 863 (N.D. 1992)).

[¶ 34] We conclude Lynne did, in fact, perform work on the house and the house was “[t]hat particular part of real property” upon which Lynne directly performed operations.

D.

[¶ 35] The next argument offered by Lynne to defeat application of the exclusion is that the house is not real property, but rather, is personal property because the house was not attached to the foundation at the time of the damage. We disagree.

[¶ 36] In North Dakota, whether an item is a fixture or personal property is defined by statute:

A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs, or imbedded in it, as in the case of walls, or permanently resting upon it, as in the case of buildings, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws.

N.D.C.C. § 47-01-05.

[¶37] This Court has previously applied a three-part test to determine whether an object is a fixture or personal property. Strobel v. Northwest G.F. Mut. Ins. Co., 152 N.W.2d 794, 796 (N.D.1967). In determining whether an object has become a fixture under the statute, the Strobel Court held, “the court will look to the intention of the person making the annexation, the manner in which the building is annexed, and its adaptation to the use of the realty.” Id.

[¶ 38] In this case, the intention of the person using the realty, Larson, is key to determining whether the house was a fixture or personal property. The house was located on the original foundation since 1912 and only removed for purposes of replacing the foundation. Nothing in the record indicates Larson intended to move the house from its location once the foundation was complete. Furthermore, the manner in which the building was annexed indicates its nature as a fixture. The building was temporarily placed upon timbers in order to raise it to the level necessary to complete the basement, and for part of that time, Larson’s family lived in the house and only moved when the plumbing and electrical work had to be disconnected. Finally, the adaptation of the house to the environment demonstrates its permanent nature. The very purpose of rebuilding the foundation of the house was to ensure the house’s permanent status on Larson’s property.

[¶ 39] The house is a fixture and not personal property, because the actions of the owner manifest an intention to have the house remain on the property permanently. We conclude the house is real property within the scope of the exclusion.

IV.

[¶ 40] The next issue raised by Lynne is whether the policy exclusions preclude coverage for damage to work performed by Karna, a subcontractor. The essence of this issue is whether the policy issued to Lynne covers the claim by Karna from .the destruction of his work on the basement walls resulting from the house falling. Grinnell argues both exclusions, 2(j)(5) and 2(j)(6), operate to preclude Kama’s claim.

[¶ 41] Karna sought damages for work performed on the basement. Part of his claim relates to his initial efforts on the basement and is unrelated to the house falling. The remainder of the claim is extra work performed by Karna to accommodate a different house purchased by Larson and .placed upon the foundation. Lynne argues his policy should cover Kar-na’s claim.

[¶ 42] The district court initially determined a genuine issue of material fact existed as to whether Kama’s work was complete on the project, and subject to an exception to exclusion 2(j)(6). An exception to exclusion 2(j)(6) from the policy’s broad coverage provides coverage for property damage included in the products-completed operations hazard. Fisher v. American Family Mut Ins. Co., 1998 ND 109, ¶¶ 12-13, 579 N.W.2d 599. The exception to the exclusion states, “[p]ara-graph (6) of this exclusion does not apply to ‘property damage’ included in the ‘products-completed operations hazard.’ ” The district court indicated our decisions construing the exception to exclusion 2(j)(6) may have provided coverage for damage to the block work performed by Karna, if Kama’s work on the project was completed when the house fell into the basement. The submission of deposition testimony by Karna, the accuracy of which is not contested by Lynne, revealed the work was not complete, and the district court properly concluded the damage to Kama’s work was not covered by the terms of the policy because the claim arose from a contract dispute.

[¶ 43] Although the district court examined the possibility that the exception of exclusion 2(j)(6) may have provided coverage for Kama’s claim, the district court did not otherwise rely on exclusion 2(j)(6) in granting summary judgment in favor of Grinnell. “In this case, because no determination has yet been made as to whether Lynne’s work on Larson’s house was ‘incorrectly performed’, and because reasonable persons could differ as to whether this is the case, any award of summary judgment in favor of Grinnell Mutual cannot be based upon the asserted applicability of Exclusion 2j.(6) of the CGLP.” The trial court relied only on exclusion 2(j)(5).

[¶ 44] The plain language of the policy exclusion 2(j)(5), even if narrowly construed against the insurer, operates to preclude coverage for Kama’s claim. The purpose of the business risk exclusion in a contractor’s general liability policy is to preclude coverage for claims arising out of contract, rather than tort. The district court properly characterized Kama’s claim as part of the contractual obligation of Lynne to Larson, rather than a tort claim. As previously discussed, a policy’s business risk exclusions, such as those present in this case, do not provide coverage for breach of contract. The district court did not err when it concluded coverage for Kama’s claim was precluded by the language of the policy.

V.

[¶ 45] Lynne directs our attention to the recent Minnesota case, Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877 (Minn.2002), holding language found in exclusions 2j(5) and 2j(6), the same exclusions at issue here, was ambiguous and determining the commercial general liability policy provided coverage for a claim for damages. Thommes is not helpful, however. The ambiguity at issue in Thommes was whether the phrases “that particular part of real property” or the word “operations” could be read to exclude coverage for a claim that arose because a contractor improperly cleared trees and plants on the property of an adjoining landowner who had not contracted for such removal. There are no facts giving rise to a similar ambiguity here. Lynne’s actions were taken pursuant to a contractual arrangement with Larson and all work was done on Larson’s property.

VI.

[¶ 46] We affirm the district court’s summary judgment in favor of Grinnell.

[¶ 47] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice, specially

concurring.

[¶ 48] I respectfully specially concur. I agree that Lynne has not raised a genuine question of material fact to avoid summary judgment. If, however, an act of God was a proximate cause of the loss, then in my opinion, there was an “occurrence” within the meaning of the policy.

[¶ 49] Under the policy in the present ease, an “occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Other jurisdictions have recognized that the term “accident” in insurance policies includes damage caused by acts of God. 57A Am.Jur.2d Negligence § 42 (1989); see Royal Indemnity Co. v. McClatchey, 101 Ga.App. 507, 114 S.E.2d 394, 397 (1960); see also Dempsey v. City of Souris, 279 N.W.2d 418, 420 (N.D.1979). Under Section I, COVERAGE A(l.), the Grinnell policy in the instant case states:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies....
b. This insurance applies to “bodily injury” and “property damage” only if: (1) the “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory” ...

Our Court has stated that “[i]f an act of God and the negligence of the defendant combine to produce the injury, the defendant is liable.” Lang v. Wonnenberg, 455 N.W.2d 832, 836 (N.D.1990) (citation omitted). Therefore, not only is there a duty to defend the insured under the Grinnell policy, but arguably, there is a duty to indemnify. Our Court has held: “The efficient proximate cause doctrine is generally recognized as the universal method for resolving coverage issues involving the concurrence of covered and excluded perils” and has concluded North Dakota had adopted it statutorily. Western Nat’l Mut. Ins. Co. v. Univ. of N.D., 2002 ND 63, ¶ 17, 643 N.W.2d 4. The efficient proximate cause “is considered the predominating cause of the loss.” Id. at ¶ 32.

[¶ 50] I do not believe .that exclusion 2j(5) would apply under these circumstances, because any damage caused by the act of God did not arise out of the insured’s operations. The act of God is an independent cause of the damage. In discussing the meaning of the words “arising out of’ the use of a motor vehicle in an automobile policy, our Court stated:

In determining the meaning of the phrase “arising out of,” courts have recognized that the causal relationship need not constitute a proximate cause, but on the other hand if an injury is directly caused by some independent or intervening cause it does not arise out of the use of an automobile, notwithstanding there may have been some remote connection between the use of an automobile and the injury complained of.

Norgaard v. Nodak Mut. Ins. Co., 201 N.W.2d 871, 875 (N.D.1972).

[¶ 51] In Shelby Ins. Co. v. Northeast Structures, Inc., 767 A.2d 75 (R.I.2001), a wood framed indoor arena and stable collapsed during a storm. Id. at 75-76. The insurance company that insured the builder, Northeast Structures, filed a declaratory judgment, seeking to establish it did not have a duty to indemnify or defend the builder under the commercial general liability insurance contract. Id. at 76. The builder claimed the damage was the result of a storm and high winds or an “Act of God.” Id. The Supreme Court of Rhode Island reversed the grant of summary judgment to the insurance company, holding that the builder’s defense raised the possibility that the collapse was the result of an “Act of God” rather than faulty work. Id. at 77. It concluded that a question of fact existed with respect to the cause of the collapse and that if the cause of the collapse was an “Act of God,” the insurance company would have a duty to defend and indemnify the builder. Id. at 76.

[¶ 52] Lynne raised as an affirmative defense “an act of nature” occurred which caused the house to roll off the jacks. North Dakota recognizes the affirmative defense of “Act of God.” Huber v. Oliver County, 1999 ND 220, 602 N.W.2d 710. However, in order to prevail on the act-of-God defense at trial, Lynne would need to establish by a preponderance of the evidence that the winds “(1) were unprecedented and extraordinary; (2) could not have been reasonably anticipated; (3) could not have been reasonably provided against; and (4) were the sole proximate cause of the damage to the ... property.” Lang, 455 N.W.2d at 836 (citation omitted). Whether a loss is occasioned by an act of God is ordinarily a question of fact. Id. In order to successfully resist Grinnell’s motion for summary judgment, Lynne must have presented competent admissible evidence which would raise a genuine issue of material fact that the winds were extraordinary, unexpected, could not have been provided against, and were a proximate cause of the damage. Lynne has failed to do so.

[¶ 53] I, therefore, respectfully specially concur.

[¶ 54JWILLIAM A. NEUMANN, JJ., concur.


source: Caselaw Access Project

author: NEUMANN, Justice. SANDSTROM, Justice,

license: Public Domain

text:
    2004 ND 165
    Gilbert S. HORNER, Plaintiff and Appellant, v. Edwina M. HORNER, Defendant and Appellee.
    No. 20030367.
    Supreme Court of North Dakota.
    Aug. 31, 2004.

      Richard B. Baer, Richard B. Baer, P.C., Bismarck, for plaintiff and appellant.
    Donayin L. Grenz, Linton, for defendant and appellee.
   NEUMANN, Justice.

1 [¶ 1] Gilbert S. Horner appealed from a judgment granting him a divorce from Edwina M. Horner and dividing their marital property. We conclude the district court’s division of marital property is not clearly erroneous, and we affirm.

I

[¶ 2] Gilbert, age 43 at the time of trial, and Edwina, age 39, met and began dating during the late 1990s. Gilbert has a high school education and Edwina has attended “some college.” Gilbert was farming with his father near Kintyre under an informal one-quarter crop-share partnership and also worked part-time for two area livestock markets. Gilbert also owned cattle he kept on his parents’ farm. Edwina was living in Bismarck with her young daughter from a previous relationship and working for Vintage Guitar, Inc. Edwina had been working full-time for several years as the shipping manager at Vintage Guitar and was earning $9.75 per hour, or about $21,000 per year, plus medical benefits. Edwina was also in the preliminary stages of attempting to purchase a home. However, the couple became engaged and Edwina agreed to “move out to the farm, help out on the farm and work a part time job.” In September 1999, Edwina quit her job at Vintage Guitar and moved to Linton with her daughter so the child could begin school there. Edwina was employed part-time at a variety of Linton area jobs, earning substantially less than she had earned in Bismarck. Gilbert eventually purchased a double-wide trailer in March 2000, moved it to his parents’ farmstead, and Edwina and her daughter moved from Linton to the farm.

[¶ 3] Gilbert and Edwina were married on September 30, 2000, in Linton, and Gilbert paid off about $11,000 of Edwina’s debts. Edwina continued to work at a Linton grocery store during the early part of the marriage until Gilbert asked her to quit, insisting that she stay home on the farm. Edwina performed the household chores, cared for Gilbert and her daughter, and also helped out with farm chores. She had an accident with a 4-wheeler while checking cattle and aggravated injuries she had received in a 1995 automobile accident. Marital problems developed and the couple separated at the end of August 2001 for a four-month period. They reunited during Christmas 2001, and lived together for ten additional months, until Gilbert told Edwina to leave the marital home and sued her for divorce in October 2002.

' [¶ 4] Around this time, Gilbert began making gifts and payments to his father. He sold two grain hopper bins valued at more than $7,500 to his father for $1 each, and bought him a bull. He sold calves and gave his father a cattle proceeds check for $21,700 and paid the Production Credit Association $28,500 on his father’s loan for a new piece of farm equipment. Gilbert also cashed in two life insurance policies. In the meantime, Edwina had moved back to Bismarck with her daughter, found an apartment, and attempted to support herself and her daughter on $370 per month child support payments from the child’s father and from approximately $6,000 in her daughter’s savings account. Edwina currently works part-time, 28 hours per week, as a clerk at a Bismarck medical center earning $8.35 per hour. She suffers from arthritis and back and neck pains, but has been unsuccessful in applying for social security disability benefits. The district court ordered that Gilbert pay $1,000 per month in interim spousal support pending the divorce trial, $983 to reimburse Edwina for new tires on her pickup and moving expenses, $1,500 for Edwina’s partial attorney fees, and $80 for reimbursement of payment of Gilbert’s divorce filing fee.

[¶ 5] The only contested issues during the trial were the distribution of the marital property and Edwina’s request for spousal support. Edwina proposed, at a minimum, that she receive more than $40,000 “for her lost earnings and benefits which she gave up to become Plaintiffs wife,” rehabilitative spousal support in the amount of $1,000 per month for two years, and her attorney fees and costs. Gilbert sought an “unequal equitable division of the property of the parties based upon the facts that much of the assets involved in this case were owned by the Plaintiff prior to marriage and that they were originally acquired with the Plaintiffs personal funds.” Gilbert argued spousal support should be terminated or substantially reduced as to the amount and period of payments, and that Edwina receive only “liquid assets ... limited to ... what the court believes would further be necessary to restore her to pre-marital status.”

[¶ 6] The district court ruled that Gilbert had “attempted to hide or wrongfully gift assets,” and included those assets, along with the proceeds of the life insurance policies, in the marital estate. The court further found “[m]ost of their assets and debts have been accumulated during theú marriage.” The court awarded Gilbert his farm assets, financial accounts and household goods, totaling $186,939. The court awarded Edwina her vehicle, financial account, household goods and personal debt, for a net total of $5,681. The court ordered a further division was necessary, reasoning:

Eleven days before Edwina signed the Admission of Service, Gilbert cashed in a ... Knights of Columbus insurance policy on October 7, 2002, and received cash proceeds in the amount [of] $7,125. He cashed in another Knights of Columbus insurance policy on November 21, 2002 [this, of course, was after he served his own Summons which required both parties not to dispose of any assets except for the necessities of life and the retention of counsel, and to account to the other spouse for the proceeds within 30 days], and received cash proceeds in the amount of $6,452. It appears there is a life insurance policy with Security International Insurance Company that is still in force with a cash value of $2,243. The total of these three items is $15,820, which shall be added to Gilbert’s subtotal of $186,939 for a total of $202,759. The Court is reducing this amount by the total of the monthly support payments he has made to Edwina as required by the Interim Order in the amount of $1,000 per month, which was paid for eleven months, for a deduction of $11,000. The Court is also allowing a similar deduction for Gilbert for his living expenses for those same eleven months for another $11,000. Thus, the court is reducing the amount of Gilbert’s share of the marital estate by $22,000 to $180,759. Although the Court has added in assets Gilbert attempted to hide or transfer, if he had not done so, they would have been in the family checking account and would have paid the maintenance expenses of the family unit in the interim. Since the Court has included all of these hidden assets, it has allowed the $22,000 in family expenses as an offset.
The difference between the award of a sub-total of $180,759 to Gilbert and the award of a sub-total of $5,681 to Edwina is $175,078. One-half of this amount paid to Edwina by Gilbert would make the distribution of the marital estate equal and equitable. One-half of the difference is $87,539.
As further division, Gilbert is ORDERED to pay Edwina the sum of $20,539 no later than December 31, 2003, and the sum of $1,000 per month for 67 months beginning with the month of January, 2004. Said payments are to be made on or before the 5th day of each month. With these funds, Edwina can pay her attorney fees and costs.

The court did not award Edwina any spousal support and left the parties responsible for payment of their own attorney fees. Gilbert appealed.

II

[¶ 7] Gilbert argues the district court erred in distributing the marital property.

[¶ 8] A district court’s decision regarding division of property is a finding of fact reversible on appeal only if clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 14, 665 N.W.2d 672. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Walker v. Walker, 2002 ND 187, ¶ 7, 653 N.W.2d 722.

[¶ 9] Under N.D.C.C. § 14-05-24(1), when a divorce is granted, the district court must make an equitable distribution of the property of the parties. When distributing marital property, all of the assets must be considered to ensure the division is equitable. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 21, 673 N.W.2d 601. When all of the assets and debts have been included, the district court can apply the Ruff-Fischer guidelines. Neid-viecky v. Neidviecky, 2003 ND 29, ¶ 10, 657 N.W.2d 255. Under these guidelines, the court considers:

“The respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.”

Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724 (quoting Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462).

[¶ 10] Gilbert first argues the district court’s finding that most of the marital assets and debts were accumulated during the marriage is clearly erroneous.

[¶ 11] During trial, the parties did not focus on when the bulk of the marital assets and debts were acquired. The biggest marital asset, valued at $50,000 by the court, was the double-wide trailer purchased by Gilbert in March 2000 before the marriage. The record shows that the 4-wheeler, which the court valued at $3,750, was acquired during the marriage. The parties’ tax records indicate that a 3,000 bushel hopper bin was acquired for $7,065 in July 2001. Farm records further reveal that during March, April, May and September 2002, the couple paid $4,777.50 for the purchase of livestock. The court also found the value of grain in storage or in the field to be $9,505 and hay on hand to be $5,000. The record is ambiguous as to when the other assets were acquired. Even if the district court’s finding that “most” of the marital assets and debts were acquired during the marriage is clearly erroneous, it does not follow that reversal is required.

[¶ 12] “In divorce cases involving division of property, the courts generally start with the view that marital property should be equally divided, and although the division need not be exactly equal to be equitable, the trial court must explain any substantial disparity.” Reiser v. Reiser, 2001 ND 6, ¶ 10, 621 N.W.2d 348. While a long-term marriage generally supports an equal division of property, see Schoenwald v. Schoenwald, 1999 ND 93, ¶23, 593 N.W.2d 350; Christmann v. Christmann, 1997 ND 209, ¶ 7, 570 N.W.2d 221, we have said a court may unequally divide property in a short-term marriage and award, the parties what each brought into the marriage. See Buzick v. Buzick, 542 N.W.2d 756, 759 (N.D.1996); Lill v. Lill, 520 N.W.2d 855, 857 (N.D.1994). Despite these generalities, duration of a marriage is only one factor of the Ruff-Fischer guidelines and is not controlling in a distribution of marital property. See Lili, 520 N.W.2d at 857. “There is no set formula for dividing a marital estate, but the trial court must equitably divide the property based upon the circumstances of the particular case.” Nelson v. Nelson, 1998 ND 176, ¶ 6, 584 N.W.2d 527. Consequently, the circumstances can be such that an equal division of the marital estate is appropriate even if the marriage is of short duration. See, e.g.; Reiser, 2001 ND 6, ¶¶ 9-13, 621 N.W.2d 348; Weigel, 2000 ND 16, ¶¶7-8, 604 N.W.2d 462.

[¶ 13] It is. appropriate for. a court to consider all of the parties’ time together in dividing the marital property when parties live together and then marry. See Northrop v. Northrop, 2001 ND 31, ¶ 12, 622 N.W.2d 219. Nevertheless, Gilbert and Edwina’s time together was relatively short. Considering the couple’s separation, Gilbert and Edwina were together for approximately three years. There are circumstances present, however, that convince us the district court’s property division is not clearly erroneous.

[¶ 14] Although the district court refused to award Edwina any spousal support, because property division and spousal support are interrelated and should be considered together, we have approved awards of a greater amount of property to disadvantaged spouses in lieu of spousal support. See Mellum v. Mellum, 2000 ND 47, ¶ 19, 607 N.W.2d 580; Bender v. Bender, 276 N.W.2d 695, 698 (N.D.1979). We have said a disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. See Walker, 2002 ND 187, ¶ 15, 653 N.W.2d 722; McDowell v. McDowell, 2001 ND 176, ¶ 12, 635 N.W.2d 139; Marschner v. Marschner, 2001 ND 4, ¶ 10, 621 N.W.2d 339. Equitable rehabilitative spousal support goes further than minimal self-sufficiency and aims to mitigate marital disadvantage caused by the impact at divorce of an economic role assumed during marriage. See Sommers v. Sommers, 2003 ND 77, ¶ 16, 660 N.W.2d 586; Riehl v. Riehl, 1999 ND 107, ¶ 15, 595 N.W.2d 10.

[¶ 15] Here, the district court noted that “[t]heir ages are a somewhat significant factor” because Edwina was 39 and Gilbert was 43. Edwina had been employed full-time with medical benefits in Bismarck and was starting to buy a house when Gilbert proposed marriage. Edwina left her job in Bismarck for part-time employment in the Linton area paying substantially less than she had been earning in Bismarck. Gilbert eventually asked Edwina to quit her job and stay on the farm. There, she took care of the household and assisted in farm chores, aggravating prior injuries she had received in an automobile accident. Edwina testified she purchased the groceries for the family from her funds, including the proceeds of child support payments. The court noted “Gilbert appears to be in good health, while Edwina suffers from a variety of back arid neck pains as well as arthritis.” Edwina had difficulty finding employment after the marriage failed, and currently works part-time earning less than she had been earning before the marriage. Edwina has been significantly disadvantaged by the marriage and divorce, and the court’s findings reflect that the division of the marital property was based, at least in part, on spousal support considerations. Compare Weigel, 2000 ND 16, ¶ 10, 604 N.W.2d 462 (noting spousal support is sometimes appropriate even when the duration of the marriage was short).

[¶ 16] Another important factor the district court considered was “Gilbert’s efforts to convey assets of the marital estate to his father through gifts or payments that were not required or part of their farming partnership.” This Court has long recognized that economic fault is a proper factor for the trial court to consider in dividing marital property. See Hoverson v. Hoverson, 2001 ND 124, ¶ 17, 629 N.W.2d 573; Peterson v. Peterson, 1999 ND 191, ¶¶ 9-10, 600 N.W.2d 851; Bell v. Bell, 540 N.W.2d 602, 605 (N.D. 1995). “A party’s dissipation of marital assets is a particularly relevant factor in arriving at an equitable distribution of the property.” Halvorson v. Halvorson, 482 N.W.2d 869, 871 (N.D.1992); see also Barth v. Barth, 1999 ND 91, ¶ 16, 593 N.W.2d 359; Theis v. Theis, 534 N.W.2d 26, 28 (N.D.1995).

[¶ 17] The district court noted the N.D.R.Ct. 8.3 property and debt listing “was not timely submitted, was not signed by Gilbert, and was incomplete,” even “after the Court allowed the parties and counsel to meet for 40 minutes, thus delaying the start of the trial.” The court further noted Gilbert had violated the restraining provisions of N.D.R.Ct. 8.4(a)(1) by conveying assets to his father and explained:

After filing for divorce, Gilbert gave two grain hoppers to his father, and he gave him a cattle proceeds check for $21,700, and he paid $28,500 to PCA on his father’s loan for a new piece of equipment. He also bought his father a bull, although the bull runs with all of the livestock owned by both Gilbert and his father. Gilbert testified that his agreement with his father changes all of the time. The Court finds his testimony as to his agreement with his father to be designed solely to hide as much of his assets as possible to reduce the marital estate, and thus limit what assets Edwina could receive.

The district court’s award of substantial marital assets to Edwina is not too harsh a sanction for Gilbert’s refusal to cooperate and his intentional dissipation of marital assets. Gilbert’s economic fault also supports the court’s division of the marital property.

[¶ 18] Furthermore, contrary to the assumption of the district court and the parties, Edwina did not receive 50 percent of the marital assets. The bulk of Edwina’s property distribution consisted of 67 monthly payments of $1,000 beginning in January 2004. Periodic cash payments awarded without interest need to be discounted to present value in determining whether a property distribution is equitable. See Welder v. Welder, 520 N.W.2d 813, 816 (N.D.1994); Steckler v. Steckler, 519 N.W.2d 23, 25 (N.D.1994); Sateren v. Sateren, 488 N.W.2d 631, 633 (N.D.1992); Lucy v. Lucy, 456 N.W.2d 539, 542 (N.D. 1990); Pankow v. Pankow, 371 N.W.2d 153, 154 (N.D.1985). Assuming a fair rate of return on an instrument of similar maturity in January 2004 was 3.5 or 4 percent, see Federal Reserve Statistical Release, Selected Interest Rates, January 5, 2004, the actual present value of the monthly payments awarded to Edwina is approximately $12,000 or $13,000 less than $67,000 ($55,265.27 at 3.5 percent; $53,765.81 at 4 percent). Considering the present value of the future payments, Edwina received $12,000 or $13,000 less in marital property than did Gilbert.

[¶ 19] Gilbert argues the district court’s division of marital property creates a financial burden for him and threatens the viability of his farming operation. Courts should avoid a property distribution which will destroy or damage the ability of one of the parties to earn a livelihood or which will destroy the value of the property. Heggen v. Heggen, 541 N.W.2d 463, 465 (N.D.1996); Pankow, 371 N.W.2d at 157. When a court grants a money judgment to achieve an equitable distribution, it should set the term for payment of the cash judgment for as short a period as possible without imposing a serious hardship on the party responsible to pay the judgment. Hendrickson v. Hendrickson, 553 N.W.2d 215, 220 (N.D. 1996); Heggen, 541 N.W.2d at 465.

[¶ 20] Here, the district court awarded Gilbert all of the farm and ranch income-generating property. We have often recognized the importance of preserving the viability of a business operation like a family farm. See, e.g., Marschner, 2001 ND 4, ¶ 17, 621 N.W.2d 339; Gibbon v. Gibbon, 1997 ND 210, ¶ 7, 569 N.W.2d 707. Distributing farm assets to one spouse with an offsetting monetary award to the other spouse is one method of achieving this goal. See Gibbon, at ¶ 7; Heley v. Heley, 506 N.W.2d 715, 718 (N.D. 1993). Gilbert’s claim that the monetary award to Edwina will cause serious hardship to his farming operation is belied by the more than $50,000 in gifts and payments he made to his father around the time of the divorce proceedings. The district court was not impressed with Gilbert’s claim of financial inability to pay, and neither are we.

[¶ 21] Even if the district court’s finding that most of the marital assets were accumulated during the marriage is clearly erroneous, the error is harmless in this case. Considering that the property distribution was made partly in lieu of spousal support, Gilbert’s refusal to cooperate and his intentional dissipation of assets to attempt to reduce the marital estate, and the present value of the future payments awarded to Edwina, we cannot say the district court’s division of marital property is clearly erroneous.

Ill

[¶ 22] The judgment is affirmed.

[¶ 23] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 24] Even if the district court could have awarded the assets and debts as it did, absent its clearly erroneous finding “that ‘most’ of the marital assets and debts were acquired during the marriage,” how do we know it would have awarded them as it did? We do not.

[¶ 25] Our law is clear:

In distributing marital property, the court must apply the guidelines established under Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952)[,] and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), which:
allow the trial court, in making a property distribution, to consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated, or acquired before or after the marriage; and such other matters as may be material.
Corbett [v. Corbett, 2001 ND 113, 628 N.W.2d 312], at ¶ 12 (quoting Freed v. Freed, 454 N.W.2d 516, 520 n. 3 (N.D. 1990)).

Gleich v. Gleich, 2001 ND 185, ¶ 6, 636 N.W.2d 418 (emphasis added).

[¶ 26] Here, because of the district court’s clearly erroneous finding on a Ruff-Fischer guideline, I would reverse and remand for the district court to properly consider the guideline factors.

[¶ 27] DALE V. SANDSTROM.


author: MARING, Justice.

text:
    2004 ND 167
    INVESTORS REAL ESTATE TRUST PROPERTIES, INC., a/k/a IRET, Plaintiff and Appellant, v. TERRA PACIFIC MIDWEST, INC., d/b/a Terra Pacific, Defendant and Appellee, I-Rock, Inc.; MDU Resources Group, Inc., d/b/a Montana Dakota Utilities; and Gary J. Plante, d/b/a Plante’s Painting and Drywall, Defendants.
    No. 20030363.
    Supreme Court of North Dakota.
    Aug. 31, 2004.

      Dean A. Frantsvog (argued) and Richard P. Olson (on brief), Olson Burns Lee, Minot, for plaintiff and appellant.
    Troy A. Wolf, Smith Bakke Oppegard Porsborg & Wolf, Moorhead, MN, for defendant and appellee.
   MARING, Justice.

[¶ 1] Investors Real Estate Trust Properties, Inc. (“IRET”) appeals from district court judgments dismissing IRET’s claims against Terra Pacific Midwest, Inc. (“Terra Pacific”) arising out of an apartment building fire. We affirm.

I

[¶ 2] On October 1, 1998, IRET contracted with Terra Pacific for Terra Pacific to construct a 27-unit apartment building for IRET. Construction on the building began in the fall of 1998, with Terra Pacific as general contractor. By March 1999, the three-story building had been framed, the roof was on and there was temporary power and lighting in the building. Due to the winter weather, gas heaters were being used to heat the building during construction. The building had exterior window openings and doorways, but not all of the windows and doors had been installed. Openings without doors or windows were temporarily covered with sheetrock, wood, or plastic.

[¶ 3] In the early morning hours of March 14, 1999, a fire started in the building. Efforts to contain the blaze were unsuccessful, and the building collapsed. The Fire Chief of the Jamestown Fire Department decided to immediately bulldoze the rubble from the fire, because he believed further investigation of the site would not assist in determining the source or cause of the fire due to the extensive damage to the building, and because bulldozing the rubble would assist in assuring the fire was completely extinguished. Although there were initially suspicions of arson, fire officials subsequently concluded that the cause and origin of the fire could not be determined.

[¶ 4] IRET brought this action against Terra Pacific, alleging Térra Pacific negligently caused the fire. IRET also alleged breach of contract and breach of warranty, and sought damages of $1,200,000. On cross-motions for summary judgment, the trial court determined that IRET had failed to raise a genuine issue of material fact on negligence because no competent, admissible evidence of the cause or origin of the fire had been presented and that res ipsa loquitur did not apply in this case. Judgments were entered dismissing IRET’s claims against Terra Pacific, and IRET appealed.

II

[¶ 5] We recently outlined our standard of review of a summary judgment in Zuger v. State, 2004 ND 16, ¶¶ 7-8, 673 N.W.2d 615 (citations omitted):

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. “Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343 (quoting Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶ 6, 640 N.W.2d 689). On appeal, this Court decides if the ■ information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving.party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. “Factual assertions in a brief do not raise an issue of material fact 'satisfying Rule 56(e).” Kemp v. City of Grand Forks, 523 N.W.2d 406, 408 (N.D.1994). “Nor may a party merely reassert the allegations in. his pleadings in order to defeat a summary judgment motion.” Id.
The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s. attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate 'Court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in; the case, and cannot leave to the court the chore of divining what facts are relevant or why facts ■ are relevant, let alone material, to the claim for relief.
Iglehart, at ¶ 10 (quoting Anderson v. Meyer Broad. Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46 (citations omitted)). Mere speculation is not enough to defeat a .motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. If no pertinent evidence on an essential element is presented to the trial court in resistance to a motion for summary judgment, it is presumed that no such evidence exists.

Ill

[¶ 6] The dispositive issue on appeal is whether summary judgment was appropriate on IRET’s negligence claim against Terra Pacific.

A'

[¶ 7] In a negligence action, the plaintiff has the burden of demonstrating (1) a duty, (2) bréach of that duty, (3) causation, and (4) damages. See Azure v. Belcourt Pub. Sch. Dist., 2004 ND 128, ¶ 9, 681 N.W.2d 816; Koehler v. County of Grand Forks, 2003 ND 44, ¶ 28, 658 N.W.2d 741. The district court in this case concluded IRET had failed to present competent, admissible evidence that any breach of duty by Terra Pacific caused the fire and IRET’s resultant damages. See Grandbois and Grandbois, Inc. v. City of Watford City, 2004 ND 162, ¶ 20, 685 N.W.2d 129.

■ [¶ 8] IRET’s theory of the case is that Terra Pacific negligently left the temporary gas heaters running unattended, thereby causing the fire. IRET further contends that other potential causes for the fire were eliminated, leaving the heaters as the most probable cause of the fire. In particular, IRET claims “the fire investigators ruled out all other potential ignition sources other than the unattended gas powered space heaters.” IRET’s argument not only ignores our law on proving proximate cause by circumstantial evidence, but also misstates the record in this case.

[T9] We have specifically held that a plaintiff must present affirmative evidence of proximate cause, and may not establish causation solely by discrediting other possible causes:

We have previously held that “proximate cause may be proved by the cir- . cumstances of a case if such circumstances permit a reasonable inference of a cause of injury for which the defendant is responsible, and at the same time exclude equally reasonable inferences of other causes for which the defendant is not responsible.” Leno v. Ehli, 339 N.W.2d 92, 96 (N.D.1983); see also Bismarck Baptist Church v. Wiedemann Industries, Inc., 201 N.W.2d 434 (N.D.1972); Farmers Home Mutual Insurance Co. v. Grand Forks Implement Co., 79 N.D. 177, 55 N.W.2d 315 (1952). This requires that some affirmative evidence be presented from which the jury may infer that the injury resulted from a cause for which the defendant was responsible, in addition to evidence which excludes other possible causes, to support a finding of proximate cause. Under the jury instruction given in this case, however, the jury would be free to find causation solely by eliminating other possible causes. In effect, the plaintiff would be alleviated of his burden of presenting evidence from which the jury could infer that it was the defendant’s conduct which caused his injury.
The difficulty in allowing proof of causation solely by disproving other possible causes is that this presupposes that there is a finite number of possible causes for any given injury. It is apparent, however, that in most cases it will be impossible to disprove every other conceivable cause of an injury. Certainly the facts in this case give rise to a veritable plethora of possible scenarios leading up to the fire. The plaintiff may not choose a few possible causes, attempt to disprove them, and on that basis alone claim that one other possible cause has been established as the proximate cause. The plaintiff, having the burden of proof on this issue, must present some affirmative evidence that the defendant’s conduct caused the injury to allow the jury to find that the defendant proximately caused the plaintiffs injury.

Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155,164 (N.D.1985).

Nor may causation be based upon mere speculation:

[I]f from the plaintiffs evidence it is as probable that the injury and damage of which the plaintiff complains resulted from a cause for which the defendant is not responsible as it is that such injury and damage resulted from a cause for which the defendant would be responsible, a prima-facie case of proximate cause has not been made and the plaintiff cannot recover, since plaintiffs recovery must be based upon more than mere speculation.

Bismarck Baptist Church v. Wiedemann Indus., Inc., 201 N.W.2d 434, 441 (N.D.1972). Thus, even if there was evidence in the record eliminating other causes as the source of ignition of the fire, IRET must still present some affirmative evidence that the fire originated in and was caused by the gas heaters. Evidence that some officials had ruled out some, but not all, other potential sources does not meet IRET’s burden of proving causation. IRET has done precisely what Victory Park prohibits: chosen a few other possible causes, attempted to disprove them, and then claimed the heaters must be the cause of the fire. Victory Park, 367 N.W.2d at 164.

[¶ 10] Furthermore, IRET’s statement that “fire investigators ruled out all other potential ignition sources” is a mischaracterization of the record. The record shows that every fire official and expert witness who provided testimony concluded it was impossible to determine the place of origin or cause of the fire and they could not definitively rule out any other possible sources and causes of the fire. Other potential causes mentioned by the witnesses included arson, electrical, gas, or spontaneous combustion.

[¶ 11] All of the fire officials and experts deposed in this case testified that, given the extensive damage to the building and the bulldozing of the rubble, there was no way to determine the origin or cause of the fire. IRET did not offer any evidence from any witness, expert or otherwise, affirmatively showing that the fire originated near, or was caused by, the gas heaters. IRET’s evidence that use of the heaters may have been dangerous, without evidence that the fire originated near the heaters, is mere speculation and cannot support an inference that the fire originated in and was caused by the heaters.

[¶ 12] We conclude the trial court did not err in holding IRET failed to present competent, admissible evidence raising a genuine issue of material fact on causation, an issue on which it would bear the burden of proof at trial. Summary judgment dismissing IRET’s negligence claim was therefore appropriate.

B

[¶ 13] IRET contends that liability for negligence can be established in this case by applying the doctrine of res ipsa loquitur. We outlined the doctrine in Victory Park, 367 N.W.2d at 159 (citation and footnote omitted):

As applied in this State, res ipsa loqui-tur allows the fact-finder to draw an inference that the defendant’s conduct was negligent if the following foundational facts are proved: (1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the plaintiffs injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff. In order to have the court instruct on res ipsa loquitur, the plaintiff must present probative evidence from which the jury could find each of the required foundational facts.

[¶ 14] IRET argues that, because Terra Pacific had control over the building and the jobsite, it had control over the “instrumentality” which caused the injury. In Victory Park, however, we specifically rejected the argument that control over the location of the fire equates with control over the instrumentality that caused the fire:

Victory Park asserts that the “instrumentality” which caused the injury in this case was either the couch or the apartment, which were in the exclusive control of Doris as the tenant of the apartment. We disagree.... We question the logic of a rule which would permit an inference of negligence to arise merely from the defendant’s control over the object in which the fire originated or the area where it originated. The far better rule, which we have already embraced in Foerster v. Fischbach-Moore, Inc., 178 N.W.2d [258,] 263 [(N.D.1970)], is that “the ‘thing’ or ‘instrumentality’ which caused the fire ... is required to be under the control of the defendant.”

Victory Park, 367 N.W.2d at 159-60. Therefore, it is axiomatic that when the plaintiff has failed to present any evidence establishing the point of origin or the specific thing which caused the fire, but relies upon mere speculation as to the cause of the fire, res ipsa loquitur is inapplicable. See Foerster, 178 N.W.2d at 263-64.

[¶ 15] In this case, IRET has offered mere speculation that the fire was caused by unattended gas heaters. It is equally as likely, based upon the evidence presented on the motion for summary judgment, that the fire was caused by arson, an electrical malfunction, a gas leak, or spontaneous combustion. The burden was upon IRET to present competent, admissible evidence showing the instrumentality that caused the fire was in the exclusive control of Terra Pacific. Without some evidence identifying the “instrumentality” that caused the fire, there can be no showing that the instrumentality was in the exclusive control of the defendant.

[¶ 16] The trial court did not err in concluding res ipsa loquitur was inapplicable in this case.

IV

[¶ 17] We have considered the remaining issues and arguments raised by the parties and find they are either without merit or are unnecessary to our decision. The judgments dismissing IRET’s action against Terra Pacific are affirmed.

[¶ 18] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, and CAROL RON-NING KAPSNER, JJ., concur.

      . IRET also sued I-Rock, Inc., MDU Resources Group, Inc., and Gary Plante. The claims against those defendants were dismissed, and IRET has not challenged those dismissals on appeal.

      . IRET was paid in full for its losses under a builder’s risk policy issued by Republic Western Insurance Company, and this is essentially a subrogation action against Terra Pacific.
      The parties' have not raised as an issue on appeal whether the action should have been brought in the name of Republic Western as the real party in interest. See N.D.R.Civ.P. 17(a); Tschider v. Burtts, 149 N.W.2d 710, 712-13 (N.D.1967); Newby v. Johnston’s Fuel Liners, Inc., 122 N.W.2d 156, 158-60 (N.D. 1963).