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 .
Interest of K . S . D . and J . S . D ., 2017 ND 289
The plaintiff appealed from a Juvenile Court Order terminating his parental rights to his two children . The Supreme Court stated when Indian children are involved in a termination proceeding such as this , state and federal law create a dual burden of proof for the party seeking termination of parental rights . The Court stated , in addition to proving deprivation under state law by clear and convincing evidence , the state must also prove beyond a reasonable doubt , pursuant to federal law , the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child . 25 U . S . C . § 1921 ( f ).
The Court stated that on the record before it , clear and convincing evidence existed to support the Juvenile Court ’ s termination of parental rights under North Dakota state law . However , because the children were Indian children , federal law provided no parental rights may be terminated in a proceeding involving Indian children in the absence of a determination , supported by evidence beyond a reasonable doubt , including testimony of qualified expert witnesses , the continued custody of the child by the parent or Indian custodian was likely to result in serious emotional or physical damage to the child . The Supreme Court also stated , under federal law governed by the Federal Indian Child Welfare Act (“ ICWA ”), the county or state social worker regularly assigned to the Indian child ’ s case may not serve as a qualified expert witness in the termination proceedings concerning that child and give the testimony required by the ICWA for termination of parental rights .
Accordingly , the Supreme Court remanded the action to the District Court for a hearing only on the ICWA requirement of proof beyond a reasonable doubt from a qualified expert witness . The Court ordered a different District Court judge decide the ICWA issue on remand . The Supreme Court retained jurisdiction .
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 .
Forsman v . Blues , Brews & Bar-B-Ques , Inc ., 2017 ND 266 , 903 N . W . 2d 524
This case involved a stipulated Miller-Shugart Agreement and judgment establishing the defendant ' s bar ’ s liability on a garnishment proceeding against its insurer . The Supreme Court stated an insured defendant may agree to a settlement of a plaintiff ’ s claims against it and stipulate the judgment entered on the settlement be collected only from the proceeds of any insurance policy of the defendant , with no personal liability to the defendant . However , the Court stated stipulated judgment is not conclusive on the defendant ’ s insurer and the plaintiff judgment creditor ( the assignee of the stipulated judgment ) still has the burden of proof to show the settlement was reasonable and prudent in the proceeding to collect the proceeds of the stipulated judgment from the defendant ’ s insurer .
The Supreme Court stated , while the Miller-Shugart judgment settles the issue of the underlying defendant ’ s liability to the plaintiff judgment creditor , it does not resolve the question of whether the defendant ’ s insurance policy provides coverage for that liability . If there is found to be no coverage for the Miller-Shugart judgment , that ends the matter against the defendant ’ s insurer .
Apparently the District Court granted summary judgment to the insurer on the issue of coverage for the plaintiff ’ s negligence claim against its insured . However , because the Supreme Court concluded that genuine issues of material fact existed in the record as to whether or not the plaintiff ’ s injuries resulted from events excluded by the policy ( i . e ., an assault by another patron or from providing alcohol to an intoxicated patron ), or from any event not excluded by the policy , the Supreme Court reversed the District Court ’ s summary judgment in favor of the insurer that its policy did not provide coverage to the plaintiff .
Moreover , the Supreme Court reiterated the long-standing principle that if there is a possibility any of the claims against the insured may be covered by the policy , doubt is to be resolved in favor of the insured and the insurer is required to defend the insured .
Accordingly , the Supreme Court reversed the District Court grant of summary judgment that the insurer had no obligation to cover or indemnify its insured , and affirmed the District Court ’ s Order that the insurer was obligated to defend its insured for the suit against it by the injured patron .
State v . Myers , 2017 ND 265 , 903 N . W . 2d 520
In 2012 , the defendant pleaded guilty to the Class C felony charge of aggravated assault . The defendant received a sentence of five years incarceration , with all five years suspended with supervised probation .
20 THE GAVEL