North Dakota Supreme Court Highlights
By Michael J. Morley
Authors’s Note and Caveat: The following cases of interest were recently decided by the North Dakota Supreme Court. Because the following contain the
author’s summary of the decisions, the reader is encouraged to read the entire published decision to determine its precedential value, if any, in a given case.
Vail v. S/L Services, Inc., 2017 ND 202
In a case certified to the North Dakota Supreme Court from the
United States District Court for the District of North Dakota, the
North Dakota Supreme Court concluded the exclusive remedy
provisions of the North Dakota Workforce Safety & Insurance
(WSI) laws do not preclude an individual’s right to bring a common
law tort action against the business she was working for at the time
of her injury. Vail was a welder’s helper for S/L Services, Inc. (S/L).
She suffered a workplace injury in the course and scope of her
employment for S/L. She submitted a claim to WSI for benefits
for her workplace injury. WSI accepted the claim and determined
Vail was an employee of S/L and entitled to benefits. S/L requested
WSI to reconsider its decision. However, before WSI acted on S/L’s
request for reconsideration, Vail filed a tort action against S/L in
Federal District Court in North Dakota for her personal injuries
sustained while working for them. The issue then arose as to whether
Vail could maintain a common law tort action against her employer
in light of the exclusive remedy provisions of the WSI laws.
Answering the certified questions, the North Dakota Supreme
Court stated an employer who intentionally, and not inadvertently,
misrepresents the amount of payroll upon which WSI premiums
are based or intentionally, and not inadvertently, fails to secure WSI
coverage for employees, loses the exclusive remedy protection of the
WSI statutes and may be subject to common law tort liability to the
employee. The Supreme Court stated the employee was not required
to show the employer intended to deceive WSI or violate the law,
only that its misrepresentations of the amount of payroll or its
failure to secure WSI coverage was intentional and not inadvertent
or accidental. Moreover, the Supreme Court said an employer’s
Michael J. Morley received his juris
doctor with distinction and was
admitted to the Order of the Coif upon
graduation from the University of North
Dakota School of Law in 1979. That
same year, he was admitted to practice
law in North Dakota State Courts and
the United States District Courts for the
District of North Dakota. In 1981, he
was admitted in the Minnesota State
Courts and the United State District
Court for the District of Minnesota, as well as the United States
Court of Appeals for the Eighth Circuit. He is a member of the
State Bar Associations of North Dakota and Minnesota and is
currently president and shareholder of Morley Law Firm, Ltd.,
in Grand Forks.
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THE GAVEL
ignorance of the law, or even a good faith belief the worker was not
an employee, was not a defense to potential exposure to common law
tort liability to the employee.
Koenig v. Schuh, 2016 ND 252
In another workplace injury, the plaintiff was injured when he fell
while tightening a strap around some hay bales on a trailer. He sued
the farm owner and others for his injuries. Some of the defendants
were awarded summary judgment of dismissal. A jury found the
others not at fault for plaintiff ’s injury and his case against them was
dismissed.
In the appeal, plaintiff failed to provide the Supreme Court with a
trial transcript, thus preventing a meaningful and intelligent review
of most of his issues on appeal. Plaintiff had tried to have the District
Court waive the cost of the transcript, claiming he could not afford
it. On appeal, the Supreme Court held that a personal injury litigant
in a civil negligence claim does not have a fundamental constitutional
right to a free trial transcript and that, therefore, the District Court
did not abuse its discretion in denying plaintiff ’s petition for a free
transcript and his application to proceed informa pauperis. The
Supreme Court also held that, because they were not provided with
a trial transcript on appeal, they could not meaningfully consider
the plaintiff ’s claim the District Court deprived him of a fair trial by
allegedly committing numerous errors during trial.
The Supreme Court affirmed the District Court’s dismissal of
plaintiff ’s personal injury actions.
Zundel v. Zundel, 2017 ND 217
This case involved the thorny question of just what constitutes
“agricultural land” in the state of North Dakota in the context of
whether a lease exceeding 10 years violated N.D.C.C. § 47-16-02,
which invalidates a lease of agricultural land for a longer period than
10 years.
The Supreme Court said while that statute (§ 47-16-02) does not
define “agricultural land,” a different statute did, namely N.D.C.C. §
47-10.1-01(1) relating to agricultural land ownership by aliens. The
Supreme Court stated, while the use of “in this Chapter” concerning
N.D.C.C. Chapter 47-10.1 appeared to limit the definition of
“agricultural land” to that Chapter, the Court saw no reason why that
definition could not be applied elsewhere in the code on the issue of
what is “agricultural land.” The Court stated whenever the meaning
of a word or phrase is defined in any statute, the definition is
applicable to the same word or phrase wherever it occurs in the same