Spring 2020 Gavel 268650 SBAND Gavel Magazine_web | Page 22

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. Lail, 2020 ND 13. Filed 1-23-20.
In a criminal murder-for-hire case, the Supreme Court stated that
taking actions that could reasonably lead to the hired individual
committing the solicited killing, constitute a substantial step in
attempting to commit the underlying crime. The Court further
stated solicitation accompanied by an offering of a specific amount
of money and assisting in formulating a plan to commit murder
were concrete steps toward the commission of the crime. The
Supreme Court held there was sufficient evidence to support the
guilty verdicts of attempted murder and, therefore, affirmed the
criminal judgment convicting the defendant.
North Star Mutual Ins. v. Ackerman, et. al.,
2020 ND 73. Filed 3-25-20.
North Star Mutual appealed from a district court declaratory
judgment holding that a commercial general liability (CGL) policy
it issued to its insured, Jayme Ackerman (Ackerman), provided
coverage for Ackerman’s potential liability arising from an accident.
Ackerman was driving his vehicle on I-94 when a wheelbarrow
allegedly fell out of Ackerman’s pickup truck and landed on the
highway. A motorist driving behind Ackerman lost control of his
vehicle after he came upon the object on the road, went through the
median, and struck another individual who received a severe injury.
Even though the North Star CGL policy had an exclusion for the
use of motor vehicles, because Ackerman potentially had liability
for non-motor vehicle-related fault regarding the accident, i.e., the
failure to remove the wheelbarrow from the road after it fell out of
his vehicle and failure to give notice to the public of the presence
of the wheelbarrow on the highway, Ackerman could have liability
for non-motor vehicle-related negligence for the accident. Because
one can have both motor vehicle and non-motor vehicle-related
liability for the same accident, the concurrent cause doctrine applied.
Therefore, North Star had a duty to defend Ackerman for the
accident and a potential duty to indemnify him under his CGL
policy because of his potential non-motor vehicle-related liability
for the claimant’s injury. The Supreme Court stated the concurrent
cause rule takes the approach that coverage should be allowed
whenever two or more causes do appreciably contribute to the loss,
and at least one of the causes is an included risk under the policy.
The declaratory judgment against North Star was affirmed.
Martodam v. Martodam,
2020 ND 70. Filed 3-19-20.
In this primary residential responsibility dispute involving minor
children, the Supreme Court stated a district court clearly errs in
granting parenting time subject to and conditioned upon whether
the minor child wants to go with the parent for parenting time
or not. The Supreme Court modified the district court’s amended
judgment to strike language allowing children, 14 years of age or
older, to make the decision of whether they want to spend parenting
time with the non-custodial parent.
Lakeview Excavating, Inc. v. Dickey County, et.
al. 2020 ND 67. Filed 3-19-20.
In this tort and breach of contract action, the Supreme Court stated
that under the “discovery rule,” for statute of limitation purposes,
the start or accrual of the time in which to commence an action
is postponed until a plaintiff either knows, or in the exercise of
reasonable diligence should know, of the defendant’s wrongful act
and plaintiff ’s resulting injury. However, the accrual of the time
in which to commence an action begins when the plaintiff had
notice of a possible claim against the defendant, even though the
plaintiff was not aware of its entire damage or injury caused by the
defendant. In other words, the Supreme Court stated the “discovery
rule” does not require knowledge of the full extent of an injury in
order to start the clock running to commence an action, rather it
only requires the party be aware of an injury. The Supreme Court’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 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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