WSI v . Badger Roustabouts . 2021 ND 166 . Filed 9-16-21 .
WSI appealed the ALJ ’ s conclusion that an individual was an independent subcontractor of the defendant , rather than the defendant ’ s employee . The ALJ found the defendant was not liable for payment of workers compensation premiums for the injured individual , which is apparently why WSI appealed . The Supreme Court stated whether a worker is an independent contractor or an employee is a mixed question of law and fact . Section 65- 01-03 ( 1 ), N . D . C . C ., provides a presumption an individual who performs services for another for remuneration is presumed to be an employee of that person for which the services are performed , unless it is proven the individual is an independent contractor under the common law test . The party asserting an individual is an independent contractor has the burden of proving that fact . The central question in determining whether an individual is an employee or an independent contractor is who is in control of that individual ’ s work ? The common law test focuses on the employer ’ s right to direct and control the means and manner of performing the work . Giving due deference to the ALJ , the Supreme Court concluded the ALJ did not err in its conclusion the individual was an independent contractor and , therefore , affirmed the ALJ ’ s decision .
RTS Shearing v . BNI Coal . 2021 ND 170 . Filed 9-30-21 .
Thomas v . State . 2021 ND 173 . Filed 9-30-21 .
In this case , the Supreme Court upheld the district court ’ s exclusion of the testimony of an attorney who purportedly would have testified in a post-conviction relief proceeding regarding the effectiveness of the defendant ’ s trial attorney . In addition to the fact no offer of proof was made regarding the proposed testimony of the expert witness , the Supreme Court also held that while expert testimony is admissible to address questions of fact , it is not admissible to address questions of law because the only expert on domestic law ( the law of the forum ) is the Court . To allow such expert witness testimony on a question of law would have supplanted the district court ’ s role in deciding that question . The district court ’ s order denying post-conviction relief to the defendant was affirmed .
State v . Demarais . 2021 ND 174 . Filed 9-30-21 .
In a criminal assault case , the Supreme Court held that ineffective assistance of counsel claims generally should not be brought on a direct appeal , because post-conviction relief proceedings ( in the district court ) provide a more appropriate forum to develop the evidentiary record necessary to resolve such claims . The Court returned the case to the district court where the issue may be pursued in a post-conviction proceeding , where an adequate record can be made that can then be reviewed on appeal .
In this breach of contract case , the Supreme Court , citing a well-known treatise on contract law , held that as long as a contract makes a clear reference to a different document and describes it in such terms its identity may be ascertained beyond doubt , the parties to a contract may incorporate and utilize contractual terms by reference to a separate , non-contemporaneous document , including a separate agreement to which they are not parties and including a separate document which is unsigned . Moreover , it is not necessary the parties refer to or incorporate the entire separate document , but if the parties so desire , they may incorporate just a portion of the document . However , incorporation by reference to another document is ineffective when the provisions to which reference is made do not have a reasonably clear and ascertainable meaning . It must also be clear the parties to the agreement had knowledge of and consented to the terms of the incorporated document .
STEVEN A . STORSLEE
IN PERSON OR BY ZOOM EXPERIENCED MEDIATION
� 40 years as a civil litigator
� 25 years as a mediator
� Substantial experience in all types of civil cases
Storslee
Law Firm , P . C .
Phone : ( 701 ) 226-3550 steve @ storsleemediation . com P . O . Box 996 , Bismarck , ND 58502-0996 www . storsleemediation . com
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