Fall 2017 Fall 2017 Gavel | Page 22

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. Vail v. S/L Services, Inc., 2017 ND 202 In a case certified to the North Dakota Supreme Court from the United States District Court for the District of North Dakota, the North Dakota Supreme Court concluded the exclusive remedy provisions of the North Dakota Workforce Safety & Insurance (WSI) laws do not preclude an individual’s right to bring a common law tort action against the business she was working for at the time of her injury. Vail was a welder’s helper for S/L Services, Inc. (S/L). She suffered a workplace injury in the course and scope of her employment for S/L. She submitted a claim to WSI for benefits for her workplace injury. WSI accepted the claim and determined Vail was an employee of S/L and entitled to benefits. S/L requested WSI to reconsider its decision. However, before WSI acted on S/L’s request for reconsideration, Vail filed a tort action against S/L in Federal District Court in North Dakota for her personal injuries sustained while working for them. The issue then arose as to whether Vail could maintain a common law tort action against her employer in light of the exclusive remedy provisions of the WSI laws. Answering the certified questions, the North Dakota Supreme Court stated an employer who intentionally, and not inadvertently, misrepresents the amount of payroll upon which WSI premiums are based or intentionally, and not inadvertently, fails to secure WSI coverage for employees, loses the exclusive remedy protection of the WSI statutes and may be subject to common law tort liability to the employee. The Supreme Court stated the employee was not required to show the employer intended to deceive WSI or violate the law, only that its misrepresentations of the amount of payroll or its failure to secure WSI coverage was intentional and not inadvertent or accidental. Moreover, the Supreme Court said an employer’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 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. 22 THE GAVEL ignorance of the law, or even a good faith belief the worker was not an employee, was not a defense to potential exposure to common law tort liability to the employee. Koenig v. Schuh, 2016 ND 252 In another workplace injury, the plaintiff was injured when he fell while tightening a strap around some hay bales on a trailer. He sued the farm owner and others for his injuries. Some of the defendants were awarded summary judgment of dismissal. A jury found the others not at fault for plaintiff ’s injury and his case against them was dismissed. In the appeal, plaintiff failed to provide the Supreme Court with a trial transcript, thus preventing a meaningful and intelligent review of most of his issues on appeal. Plaintiff had tried to have the District Court waive the cost of the transcript, claiming he could not afford it. On appeal, the Supreme Court held that a personal injury litigant in a civil negligence claim does not have a fundamental constitutional right to a free trial transcript and that, therefore, the District Court did not abuse its discretion in denying plaintiff ’s petition for a free transcript and his application to proceed informa pauperis. The Supreme Court also held that, because they were not provided with a trial transcript on appeal, they could not meaningfully consider the plaintiff ’s claim the District Court deprived him of a fair trial by allegedly committing numerous errors during trial. The Supreme Court affirmed the District Court’s dismissal of plaintiff ’s personal injury actions. Zundel v. Zundel, 2017 ND 217 This case involved the thorny question of just what constitutes “agricultural land” in the state of North Dakota in the context of whether a lease exceeding 10 years violated N.D.C.C. § 47-16-02, which invalidates a lease of agricultural land for a longer period than 10 years. The Supreme Court said while that statute (§ 47-16-02) does not define “agricultural land,” a different statute did, namely N.D.C.C. § 47-10.1-01(1) relating to agricultural land ownership by aliens. The Supreme Court stated, while the use of “in this Chapter” concerning N.D.C.C. Chapter 47-10.1 appeared to limit the definition of “agricultural land” to that Chapter, the Court saw no reason why that definition could not be applied elsewhere in the code on the issue of what is “agricultural land.” The Court stated whenever the meaning of a word or phrase is defined in any statute, the definition is applicable to the same word or phrase wherever it occurs in the same