Submitted: Nov. 20, 2013.
Wilbur W. Fluegel, argued, Minneapolis, MN (Charles James Suk, on the brief, Rochester, MN), for Plaintiff-Appellant.
Lawrence Joseph Skoglund, argued, Minneapolis, MN (Nicholas H. Jakobe, on the brief), for Defendant-Appellee.
Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
RILEY, Chief Judge.
Bradley Larson appeals the district court's  adverse grant of summary judgment respecting the timeliness of his lawsuit against Nationwide Agribusiness Insurance Company (Nationwide) seeking coverage under Larson's employer's underinsured motorist (UIM) policy with Nationwide. We affirm.
A. Collision and Underlying Lawsuit
On May 9, 2007, Robert Thompson was hauling liquid fertilizer in rural southern Minnesota when he drove over railroad tracks. Shortly after clearing the tracks, Thompson checked the containment tank in his mirror and noticed it was leaking fertilizer. Thompson then stopped his truck and called Timothy Gudal, Thompson's employer and the truck's owner, who arranged to have county employees spread sand over the fertilizer and place warning flags at both ends of the spill.
Later that day, Larson was driving a grain truck for his employer, Farmers Cooperative
Company (Farmers). Larson approached the same railroad tracks from the opposite direction Thompson had been traveling and at the same time a train approached the crossing. As Larson passed over the stretch of road covered by fertilizer and sand, he was unable to stop before colliding with the train.
On May 5, 2009, Larson served Thompson with a state court summons and complaint, alleging Thompson's negligence caused over $2 million in damages.  On June 16, 2009, Larson filed the summons and complaint in Minnesota state district court. Larson later amended his complaint to add Gudal as a ...