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 .
Pioneer State Mutual Insurance Co . v . Bear Creek Gravel , et . al . 2021 ND 53 . Filed 3-24-21 .
Bear Creek Gravel employee Ty Kirby was driving a vehicle owned by his employer , Bear Creek , while on the job and for job purposes when he was involved in a motor vehicle accident with another vehicle . The other vehicle driver died as a result of her injuries from the accident . Kirby ’ s liability insurer , Pioneer State , which insured Kirby ’ s personal vehicle not involved in the accident , brought a declaratory judgment action contending that its policy excluded coverage to Kirby for the accident because the Bear Creek vehicle was allegedly furnished and available for Kirby ’ s regular use . The district court disagreed , ordering Pioneer State to cover Kirby for the accident . On appeal , the Supreme Court affirmed the district court judgment , concluding that because Kirby needed permission from the vehicle owners to drive the vehicle even for work ; because he was only allowed to drive the vehicle for work purposes and never while off duty ; because he did not have his own set of keys to the vehicle ; and because Kirby could not use the vehicle on weekends , during the evenings , or at any time outside of work purposes , the district court ’ s decision that Kirby did not have the regular use of the vehicle was not clearly erroneous . Thus , Pioneer State ’ s “ regular use ” exclusion did not apply and Pioneer State must provide liability coverage to Kirby for the accident .
Neppel , et . al . v . Development Homes , et . al ., 2021 ND 5 . Filed 1-12-21 .
In this tort action for personal injury , the Supreme Court stated the tort of intentional infliction of emotional distress requires a reasonable finding of extreme and outrageous conduct that goes beyond all possible bounds of decency , which is a strenuously high standard . The Court held when a vulnerable person was placed in the same living space as an individual who had a known propensity to act aggressively and sexually , while the conduct could be described as careless , unreasonable , and negligent , it was not , as a matter of law , the type of conduct that satisfies the strenuously high extreme and outrageous standard .
Johnson v . Menard , 2021 ND 19 . Filed 2-18-21 .
In this personal injury action , the Supreme Court held that while – during trial – a party can make a motion for judgment as a matter of law alleging insufficient evidence under N . D . R . Civ . P . 50 ( a ), after the jury returns its verdict , the party must renew the motion under N . D . R . Civ . P . 50 ( b ) in order to preserve the sufficiency of the evidence issue for review on appeal . Moreover , the Court held that once a defendant moves a case out of small claims court into district court , the defendant remains liable for attorney ’ s fees if the defendant loses the case , even after plaintiff amends the complaint to assert damages not recoverable in small claims court because of the small claims jurisdictional monetary limit . A claim of approximately $ 14,000 ( in small claims court ) resulted in a judgment in excess of $ 180,000 in the district court , including attorney ’ s fees . The Supreme Court upheld that award but remanded the action to the district court to determine whether the defendant was also liable for the plaintiff ’ s attorney ’ s fees for the appeal . There is a valuable lesson to be learned from this case . Exercise small claims court removals carefully and in moderation .
Thompson – Widmer v . Larson , et . al ., 2021 ND 27 . Filed 2-18-21 .
In this civil defamation action , the Supreme Court held that the fulfillment of an open records request by a public entity by sending the public records to the person requesting the same , constituted privileged conduct or communication exempting the responding person / entity from liability for defamation under N . D . C . C . § 14- 02-05 .
Oden v . Minot Builders Supply , et . al ., 2021 ND 30 . Filed 2-18-21 .
The Supreme Court held that res judicata , or claim preclusion , prevents re-litigation of claims that were raised or could have been raised in prior actions between the same parties or their privies , even if the subsequent claim is based on a different legal theory .
Burr v . N . D . State Board of Dental Examiners , 2021 ND 31 . Filed 2-18-21 .
In this personal injury case , the Supreme Court held that the test to be applied when determining governmental liability and discretionary acts distinguishes between immune discretionary acts and non-immune ministerial acts . The first inquiry a court must consider is whether the action is a matter of choice for the acting employee . However , even if the challenged conduct involves an element of judgment or choice , the second inquiry a court must consider is whether that judgment or choice is the kind that the discretionary function exception from liability was designed to shield . Because the choice was based on social and economic policy , the defendant was entitled to discretionary immunity and the district court ’ s dismissal of the plaintiff ’ s complaint was affirmed .
SPRING 2021 21