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 .
APM , LLLP v . TCI Insurance Agency , Inc ., 2016 ND 66
In an insurance agent “ malpractice ”/ negligence case , the North Dakota Supreme Court restated that the duty of care standard for an insurance agent in North Dakota is to exercise the skill and care which a reasonably prudent person engaged in the insurance business would use under similar circumstances and that , absent a special relationship between the customer and the agent , the duty is ordinarily limited to the duties imposed in any agency relationship , which are to act in good faith and follow instructions . In this case , even though the agent misstated to the insurance customer that an insurance policy endorsement was not available , that misstatement did not raise a genuine issue of material fact as to whether the agent breached its duty of care because the statement was not made in bad faith and the customer was experienced in purchasing insurance , had done it before , had talked to various agencies other than the defendant , and did not purchase insurance exclusively through the defendant . The Supreme Court affirmed the District Court ’ s grant of summary judgment in favor of the defendant .
In the Matter of the Estate of Dale Vendsel , deceased v . Vendsel , 2017 ND 71
An estate beneficiary sued the estate co-personal representatives and co-trustees of the trust and estate of her father . The plaintiff was a beneficiary of the estate , not the trust , and only stood to inherit after the trust was terminated . She sought an Order from the District Court requiring the defendants to submit an accounting . The District Court dismissed her petition finding that she had no standing to participate in any issues related to the income of the trust as she did not stand to inherit from the estate until the trust was terminated .
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 .
She appealed . The Supreme Court affirmed the District Court dismissal , concluding that the plaintiff was not entitled to an annual accounting or supervision by the Court of the trust because she had no standing . The Supreme Court also rejected the plaintiff ’ s claim that the co-personal representatives breached a fiduciary duty by comingling estate assets with their personal assets . The Court stated that while it may be a good practice for a personal representative to open a separate account for the estate , there was no statutory requirement to do so . Moreover , the plaintiff had not shown any damage as a result of the co-personal representatives not opening a separate estate account and absent damage , there is no claim for breach of fiduciary relationship . The District Court dismissal was affirmed .
Gagnon v . Gagnon , 2017 ND 67
The plaintiff appealed a District Court award of primary residential responsibility for the parties ’ minor children to the defendant . The Supreme Court stated that a District Court ’ s award of primary residential responsibility is a finding of fact that will not be set aside unless it is clearly erroneous . Moreover , the Supreme Court stated that when there is credible evidence of domestic violence by one parent upon the other , that is the predominant factor and trumps all other statutory factors under N . D . C . C . § 14-09-06.2 used in determining which parent should be awarded the primary residential responsibility of the children . The Supreme Court stated that to overcome the domestic violence presumption against the parent committing the domestic violence , there must be clear and convincing evidence that the other parent ( the victim of the domestic violence ) is an unfit parent . In short , the domestic violence factor is paramount over all other statutory factors when determining who should be awarded the primary residential responsibility of children , when no clear and convincing evidence exists that the other ( nonviolent ) parent is unfit to have the children .
State of North Dakota v . Belgarde , 2017 ND 70
The District Court denied the use of an “ alibi ” defense proffered by the defendant because it was submitted to the State only two weeks before trial and , therefore , was untimely . The defendant was convicted of shoplifting and appealed , contending that the District Court abused its discretion in excluding her alibi witness from testifying at trial . The Supreme Court affirmed , concluding that even while the State should have to show prejudice because of the late alibi disclosure , the starting point is a showing of good cause by the defendant to justify the late disclosure . Here , the Supreme Court stated that the defendant could show no good cause or justification
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