must testify first . A declarant ’ s testimony cannot be rebutted or rehabilitated with a prior consistent statement without first being impeached or attacked . The district court abused its discretion by allowing hearsay testimony concerning prior statements made by the victim before the victim testified . However , the Court affirmed the conviction , finding the error to be harmless , because the victim was cross-examined regarding her prior statements and those statements mirrored the testimony of the witnesses .
Kutcka , et al . v . Gateway Building Systems , Inc ., 2023 ND 91 . Filed 5 / 9 / 23 .
David Kutcka was injured , and Austin Dejno was killed while performing millwright work for their employer MC Mill Workers (“ MCMW ”) when a crane jib extension fell on them . The crane was operated by an employee of Gateway Building Systems . MCMW was acting as the subcontractor for Gateway . Gateway required MCMW to obtain and maintain workers ’ compensation insurance , which MCMW properly secured . After the incident , WSI accepted claims and awarded benefits .
Kutcka and the estate of Dejno then brought a lawsuit against Gateway for negligence . Gateway moved for summary judgment based on the argument it was immune from suit as it was the statutory employer of Kutcka and Dejno . The district court granted summary judgment in favor of Gateway because it held that Kutcka and Dejno were employees of Gateway for purposes of immunity provisions of N . D . C . C . § 65-04-28 and therefore , the exclusive remedy for Kutcka and Dejno was through WSI .
The district court concluded Gateway was immune from suit under N . D . C . C . § 65-04-28 because Kutcka and Dejno were deemed employees of Gateway under N . D . C . C . § 65-04-26.2 ( 1 ) and Gateway complied with N . D . C . C . ch . 65-04 . Under N . D . C . C . § 65-04-26.2 ( 1 ), an individual employed by a subcontractor operating under an agreement with a general contractor is deemed to be an employee of the general contractor .
The Court reversed and held Gateway was not an employer of Kutcka and Dejno for purposes of the exclusive remedy provisions . The Court found the legislature did not intend to extend immunity to the general contractor when the subcontractor secures coverage for its employees and pays WSI premiums . The Court determined N . D . C . C . § 65-04-26.2 is a premium collection statute that is only meant to create a legal fiction – deeming a non-employee an employee – for purposes of premium collection . The Court stated the intent of N . D . C . C . § 65-04-26.2 ( 1 ) is to create liability for premium payments and penalties to other subcontractors in addition to the general contractor and is not intended to create immunity for the general contractor for employees of their subcontractors . The Court held that N . D . C . C . § 65-04-26.2 does not actually make the employee of the subcontractor the employee of a general contractor for purposes of immunity under N . D . C . C . § 65-04-28 .
Rather , the Court stated an employer under Title 65 is defined as a person that engages or received the services of another for
remuneration . As the Court reasoned Gateway did not engage or receive the services of Kutcka and Dejno for remuneration , it held Gateway was not their employer and therefore not entitled to immunity under N . D . C . C . § 65-04-28 . As such , the Court reversed the granting of summary judgment and remanded for further proceedings consistent with its decision .
Nelson v . NDDOT , 2023 ND 90 . Filed 5 / 9 / 23 .
Nelson was stopped by a highway patrol officer who believed Nelson was under the influence of alcohol . The officer asked Nelson to submit to an on-site screening test and advised Nelson ’ s refusal to submit to the test could result in the revocation of his driving privileges for up to three years . The officer failed to advise Nelson North Dakota law required him to take the screening test and that refusal would result in revocation for at least 180 days .
The Court found Nelson was only provided with a partial implied consent advisory , as required by N . D . C . C . § 39-20-14 ( 3 ). Although a verbatim reading of the statutory language is not required , actual communication of the information mandated by N . D . C . C . § 39- 20-14 ( 3 ) is required . Because the officer did not communicate to Nelson all of the substantive information as required by N . D . C . C . § 39-20-14 ( 3 ), the officer ’ s request for on-site screening was not in compliance with the law nor sufficient to result in a refusal to submit to testing . As a result , the Court remanded for reinstatement of Nelson ’ s driving privileges .
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