North Dakota Supreme Court Highlights
By Michael J. Morley
Author’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.
State v. Tyler,
2019 ND 246. Filed 10-3-19.
In this criminal case alleging aggravated assault against the
defendant, a witness testified during the State’s case in chief and
was subject to cross examination by the defense. After the witness
was finished testifying, she was informed she was not released from
her subpoena and was sequestered. The witness then went into
premature labor, was hospitalized, and was unavailable for the rest of
the trial. The defendant moved for a mistrial because the witness was
unavailable to be recalled during the defense case. The district court’s
denial of the defense motion for a mistrial was affirmed on appeal by
the Supreme Court. The Supreme Court held when a party moves
for mistrial because of an unavailable witness who already testified,
and neither party was at fault for the witnesses’ unavailability, the
movant must make an offer of proof at trial to provide a record of
what additional testimony the witness would provide and why the
additional testimony was material. The conviction was affirmed.
Brock v. Price, et. al.,
2019 ND 240. Filed 10-3-19.
The plaintiff was severely injured while in the course and scope
of his employment. He began receiving North Dakota WSI
benefits through his North Dakota-based employer. The plaintiff,
a California resident, also filed an application for California
workers compensation benefits claiming he was also employed by
a California employer at the time of the accident. A California
judge ordered the California employer to begin paying California
workers compensation benefits. Because of this, WSI discontinued
payment of benefits. The California workers compensation carrier
reimbursed WSI for previous benefits WSI expended to the plaintiff.
The plaintiff later commenced a negligence action against his North
Dakota employer and the fellow employee who injured him in North
Dakota. The district court dismissed plaintiff ’s negligence action
because the defendants were immune from suit under North Dakota
law because of the exclusivity provisions of WSI laws. The dismissal
was affirmed by the North Dakota Supreme Court. The Supreme
Court held the legislative intent of N.D.C.C. § 65-05-05 was to
compel a claimant to seek workers compensation benefits in just
one jurisdiction in order to avoid duplication of benefits. The section
contemplates the possibility there may be two employers liable for
a claimant’s work-related injuries under the laws of their respective
states. Once a claimant is allowed to participate in the WSI fund and
the employee status is conclusively settled by the Bureau’s award of
benefits, the employee has no right of action against an employer or
co-employee for his injury.
Accordingly, the fact WSI discontinued payments of benefits once
the plaintiff was determined to be eligible for workers compensation
benefits under California law for the same injury did not change
the plaintiff ’s status as an employee nor did it remove the statutory
immunity of his North Dakota employer and co-employee for the
injury.
Cichos, et. al. v. Dakota Eye Institute, P.C., et. al.,
2019 ND 234. Filed 9-24-19.
In a medical malpractice case, the Supreme Court held, for public
policy reasons, there is no duty owed by a physician to warn a third
party of danger from the doctor’s patient driving a motor vehicle
because of a latent physical condition. However, notwithstanding
this, the Supreme Court held that a purely economic claim against a
physician for medical malpractice is assignable from the physician’s
patient to a third party injured as a result of the malpractice.
The Supreme Court held even though, generally, a personal injury
claim is not assignable to a third party, a medical malpractice claim
may be assignable because it involves purely an economic claim
for indemnity of the patient against his physician, and it is not the
personal injury claim of the patient against his doctor that is being
assigned. Accordingly, the Supreme Court affirmed the district
court judgment dismissing the third party claims, but reversed the
judgment that dismissed the assigned claim.
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 States 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