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.
Bakke v. Magi-Touch Carpet One Floor
& Home, Inc., 2018 ND 273
In a home remodeling construction case, the Supreme Court
reiterated that North Dakota law recognizes an implied warranty of
fitness for a particular purpose in construction contracts. Moreover,
the Supreme Court agreed with the district court that a plaintiff
is generally precluded from asserting a negligence action against a
defendant, for any negligent actions of the defendant’s independent
contractor. However, since the plaintiff also asserted a claim against
the defendant for breach of contract, aside from a negligence claim,
the Supreme Court stated it is a well-established principle in the law
of contracts that a contracting party cannot escape its liability on the
contract by merely assigning its duties and rights under the contract
to a third party. The North Dakota Supreme Court stated it has
applied this rule of law to all categories of contracts.
Accordingly, even though affirming the district court’s summary
judgment against the plaintiff regarding her tort claim against
the defendant (because of the independent contractor principle),
because the plaintiff ’s claim was also based on contract principles, the
Supreme Court reversed and remanded the case back to the district
court to allow the plaintiff to pursue a breach of contract claim
against the defendant. This was notwithstanding the defendant’s
retention of an independent contractor to perform certain work
within the contract between plaintiff and defendant, because the
hiring of an independent contractor does not relieve the defendant
from the performance of its contractual obligations to the plaintiff.
Green v. Swiers, 2018 ND 258
The plaintiff appealed the district court’s order denying her motion
to relocate with the parties’ minor child and granting the defendant’s
motion to modify parenting time. The plaintiff sought approval
from the district court to relocate the parties’ minor child, to Seattle,
Wash., where she planned to reside with her fiancé. The district court
denied the plaintiff ’s motion to relocate and granted the defendant’s
motions.
The Supreme Court stated a parent moving for permission to
relocate a child has the burden of proving by a preponderance of
the evidence that the move is in the child’s best interest. A four-
factor test is utilized. No single factor is dominant. The district
court found in this case that the plaintiff ’s potential relocation was
motivated, at least in part, by her desire to distance the minor child
from the defendant and his family and replace the defendant with
her fiancé. North Dakota law provides this is an improper reason for
relocation. The district court’s aforementioned finding was a Finding
of Fact, which the Supreme Court said was not clearly erroneous.
Accordingly, the Supreme Court affirmed the district court’s order
denying the plaintiff ’s motion to relocate the minor child of the
parties.
Dahms v. Nodak Mutual Insurance Company,
2018 ND 263
This case was an insurance coverage dispute under a homeowner’s
insurance policy. When the policy was issued, the covered property
consisted of a two-story dwelling house and a detached two-
story garage. After purchasing the insurance policy, the plaintiff
homeowners constructed a deck between their dwelling house and
the garage. The deck was attached to the garage and lag-bolted to
the house. The plaintiffs did not inform their agent of the addition
of the deck. In April 2013, the garage was destroyed by fire and the
estimated damage exceeded $87,000.00.
Nodak contended that coverage for the garage was limited to
the Coverage B limit of $34,891.00, the coverage limit for “other
structures.” The homeowners argued the garage was covered under
Coverage A Dwelling Coverage, contending the garage structure was
attached to the dwelling and, therefore, covered by the higher limit
of the Coverage A Dwelling. The district court disagreed with the
homeowners and granted summary judgment to Nodak. The issue in
this case was a question of first impression in North Dakota. Relying
upon language in decisions from other states, the Supreme Court
agreed with the district court, concluding as a matter of law that the
homeowners’ deck constituted “clear space” between the “dwelling”
and the “other structure,” even though the garage was connected to
the dwelling by the deck. The Supreme Court affirmed the district
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.
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THE GAVEL