Articles Posted in Injury Law

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The Bjornebys insured their farming operation with a Nodak Mutual insurance policy. Bryan Hurst was their insurance agent. During potato harvest, a fire started in the break room of the Bjornebys' potato washing facility. The fire spread and caused substantial damage. The Bjornebys filed an insurance claim, and Nodak Mutual covered a number of losses. Nodak Mutual, however, refused to cover certain potatoes because the Bjornebys reported the potatoes after they became aware of the fire. The Bjornebys sued alleging Nodak Mutual breached their insurance contract and Hurst was negligent. A jury returned a general verdict in the Bjornebys' favor; the verdict did not allocate liability between Nodak Mutual and Hurst. Nodak Mutual and Hurst moved for judgment as a matter of law or, in the alternative, a new trial. The district court denied their motions. Both Nodak Mutual and Hurst appealed. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's decision. View "Bjorneby v. Nodak Mutual Insurance Company" on Justia Law

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Penny Bartholomay, individually for herself and the heirs of her deceased husband, Jon Bartholomay, appealed a judgment dismissing her wrongful death action against Jon Bartholomay's former employer, Plains Grain & Agronomy, LLC. On January 18, 2013, Jon was loading grain into railcars at the Sheldon Grain Elevator as an employee of Plains, which was an insured employer under the Workforce Safety and Insurance Act, N.D.C.C. tit. 65. Jon fell from the top of a railcar he was loading and suffered serious injuries. Plains had no safety equipment in place to protect against falls, but intended to install a fall protection system. Jon never regained consciousness and died as a result of his injuries approximately one month after the . Penny Bartholomay sued Plains for wrongful death damages alleging it intentionally exposed Jon to unsafe working conditions. Plains answered and claimed the lawsuit was barred by the exclusive remedy provisions of the Act. The district court granted summary judgment dismissing the lawsuit because, as a matter of law, Plains' alleged conduct did not rise to the level of an intentional act done with the conscious purpose of inflicting the injury. The North Dakota Supreme Court affirmed, because the facts alleged did not provide a genuine issue of material fact to avoid the exclusive remedy provisions of the Workforce Safety and Insurance Act. View "Bartholomay v. Plains Grain & Agronomy, LLC" on Justia Law

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Audra Woody attended a fireworks display at the Pembina County Fair in Hamilton, N.D. The Fair is a non-profit and tax-exempt corporation. The Fair offered a fireworks display to the public free of charge. Woody did not pay a fee for entry onto the fairgrounds or for any activity she engaged in at the fairgrounds. While looking for a seat to watch the fireworks, Woody stepped on a rotten board in the grandstand, fell to the ground and suffered personal injuries. Woody sued the Fair alleging she sustained serious bodily injury due to the Fair's negligence and maintenance of the grandstand. The parties stipulated to the facts of the case and the Fair moved to dismiss the complaint, alleging no genuine issues of material fact existed. The district court granted summary judgment for the Fair, finding it was protected from liability by recreational use immunity under N.D.C.C. ch. 53-08. Woody appealed. Woody argued the district court erred granting summary judgment because it misapplied North Dakota's recreational use immunity statutes. Woody alleged the Fair was not entitled to immunity because the Fair was engaged in commercial, rather than recreational purposes. Finding no reversible error in the trial district court's judgment, the Supreme Court affirmed. View "Woody v. Pembina County Annual Fair & Exhibition Association" on Justia Law

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In 2010, Amy Hiltner was seriously injured when she fell off the trunk of a moving vehicle driven by Samantha Denault. Denault's insurer paid Hiltner its liability limit under a policy covering the vehicle. Owners Insurance Company provided underinsured coverage to Hiltner in an automobile policy issued to her father. In 2012, Hiltner sued Owners in state court for underinsured motorist coverage benefits under North Dakota law, alleging she was injured as a result of driver Denault's negligent operation of the motor vehicle. Owners removed the action from state court to the United States District Court in North Dakota. The United States District Court for the District of North Dakota certified then certified a question of North Dakota law to the North Dakota Supreme Court regarding the proper calculation of an offset provision to underinsured motorist coverage. The questions was "[w]hether the court should deduct no-fault benefits from the award of past economic damages before reduction for the percentage of fault attributable to plaintiff and other parties for whose conduct the defendant is not responsible." The Supreme Court answered the certified question, "No." View "Hiltner v. Owners Ins. Co." on Justia Law

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In 2011, Chase Koller and his girlfriend Stephanie Nelson were killed when Koller allegedly lost control of an all-terrain vehicle. Nelson was the mother of G.K., a child from a previous relationship. Becky Anderson, Koller's mother, was the registered owner of the vehicle. The vehicle was insured under a policy issued by Nodak Mutual Insurance Company. Todd Anderson, Koller's stepfather, was the named insured. The policy provided coverage for any "family member" of the named insured, up to $100,000 per incident. The policy defined a "family member" as "a person related to you by blood, marriage or adoption, including a ward or foster child, who is a resident of your household." The policy included a "step-down" endorsement that reduced the policy limits to $25,000 per incident if the vehicle was being driven by an insured who was not a "family member" of the named insured. After the fatal accident, Nodak retained an attorney to represent Anderson to prepare probate documents. Nodak then sued Anderson in her capacity as Personal Representative to the Estate of Chase Koller, and Chris Kemp, as guardian of G.K., and the heirs of Stephanie Nelson, seeking a declaration that it was only liable to pay the reduced step-down policy limits because Koller was not a resident of Todd Anderson's household and, therefore, was not a "family member" under the policy. Kemp filed an answer, cross-claim, and third-party complaint asserting wrongful death against Anderson in her capacity as Personal Representative, and asserting negligent entrustment against Todd and Anderson individually, claiming the family car doctrine applied. The district court severed Kemp's wrongful death claim from Nodak's declaratory judgment action. In the declaratory judgment action, Kemp moved for summary judgment. Nodak responded to Kemp's motion for summary judgment arguing that the district court should deny Kemp's motion and grant summary judgment in its favor. After a hearing, the district court entered an order granting Kemp's motion for summary judgment determining that Koller was a resident of the Andersons' household under Nodak's policy. Before the district court entered judgment, the North Dakota Supreme Court decided "Nodak Mutual Ins. Co. v. Bahr-Renner," (842 N.W.2d 912), interpreting an identical "step-down" provision. After reviewing "Bahr-Renner," the district court vacated its order granting Kemp's motion for summary judgment applied the "Bahr-Renner" factors, and found that Koller was not a resident of Todd Anderson's household and, Nodak was only required to pay the "step-down" policy limits. Kemp appealed from the district court's declaratory judgment in favor of Nodak. Finding no error with the district court's judgment, the Supreme Court affirmed. View "Nodak Mutual Ins. Co. v. Koller" on Justia Law

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Deborah Palmer, surviving spouse of Gary J. Palmer, appeals from a summary judgment dismissing Palmer's negligence claim against A.W. Kuettel & Sons, Inc. Gary Palmer was diagnosed with mesothelioma, a form of cancer, in 2011, and died in March 2015. Kuettel supplied and installed asbestos-containing insulation products while performing industrial and commercial insulation contracting work. Palmer's deceased father worked for Kuettel from 1961 through 1965 and 1974 through 1979. Most of Kuettel's jobs were in Minnesota, however, in the 1960s, Kuettel supplied and installed insulation products at the Grand Forks Air Force Base. In 2013 Palmer sued numerous defendants, including Kuettel, alleging Kuettel's negligence caused his mesothelioma. Palmer alleged he contracted mesothelioma from childhood exposure to asbestos fibers through contact with his father's dusty work clothes. In his deposition he stated that while in elementary school he came in contact with his father's work clothes when he would hug his father after he arrived home from work. He also stated he played in the vicinity of the laundry area where his mother washed his father's work clothes. Palmer alleged Kuettel should have warned him or his father of the dangerous nature of asbestos and asbestos-containing products. The Supreme Court affirmed, concluding Palmer failed to raise a genuine issue of material fact to preclude summary judgment. View "Palmer v. 999 Quebec, Inc." on Justia Law

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In January 2010, Kory Clark received a telephone call around 3 a.m. from his brother asking for assistance with his pickup, which was stuck in a snowdrift. According to Clark's deposition, after the brothers were unable to pull the pickup out of the snowdrift, he drove to their grandfather's nearby farm to get a tractor to pull it out. Clark stated that after proceeding a short way down the road, the tractor broke down and he was unable to get over to the shoulder of the road or restart it. He then walked back to the farm to get his pickup and pick up his brother, who took him home and said he would take care of the tractor. Before the tractor was removed from the road, Rita Fred collided with it while driving to work. Fred sued Clark and his grandfather to recover for her injuries. At the time of the accident, Clark's grandfather had a farm liability policy with Farmers Union Mutual Insurance. Farmers Union defended the grandfather in the action brought by Fred, but declined to defend Clark, claiming he was not insured under the policy. Clark sought a declaratory judgment that Farmers Union had a duty to defend or indemnify him. He also sought damages for bad-faith refusal to defend. QBE Americas, Inc., joined as the third-party claims administrator for Farmers Union. Both Farmers Union and QBE moved for summary judgment, which the district court granted. Clark appealed, arguing the district court erred in granting summary judgment and holding he was not entitled to coverage under a farm liability policy. He also argued the district court should not have dismissed his claim for breach of duty to defend. Because the Supreme Court concluded the district court correctly held Clark failed to present evidence sufficient to raise genuine issues of material fact in regard to his claims, it affirmed the judgment. View "Clark v. Farmers Union Mutual Ins." on Justia Law

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Michelle Tidd appeals from a judgment entered on a jury verdict dismissing her negligence action against Scott Kroshus arising out of a collision between Tidd's bike and Kroshus' car. Tidd was riding her bike on a sidewalk in Fargo when she collided with Kroshus' car. Kroshus was entering the street from the alley when he collided with Tidd. Tidd sued Kroshus alleging Kroshus' negligence caused the collision and Tidd's bodily injuries. Over Tidd's objection, the district court instructed the jury on “sudden emergency.” Tidd argued on appeal that the sudden emergency instruction was unnecessary because there was no evidence of a sudden emergency. The Supreme Court reversed and remanded, concluding under the facts presented, the district court erred in instructing the jury on the sudden emergency doctrine. View "Tidd v. Kroshus" on Justia Law

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Calvin Anderson appealed a judgment affirming a Workforce Safety and Insurance ("WSI") decision approving a vocational rehabilitation plan. In January 2005, after slipping on an icy driveway and injuring his right shoulder and left hip while working as an inspector-tester for Finley Engineering, Anderson reported the injury to WSI. On January 28, 2005, WSI accepted liability for the right shoulder and left hip injury and paid benefits to Anderson. During the following three years, Anderson worked in similar positions with different companies. After his injury, and throughout 2010, Anderson sought medical and chiropractic care from numerous providers to address complications with his right shoulder, neck, and left hip. In April 2010, WSI issued a notice of its decision to deny further liability for Anderson's left hip injury on the grounds that the arthritis of which he complained had been present before he sustained the work injury in 2005. After finding no objective medical evidence indicating Anderson's hip condition was caused by his work injury, WSI issued its order denying liability for his hip condition. Anderson argued on appeal to the Supreme Court that WSI's selection of a vocational rehabilitation plan under N.D.C.C. ch. 65-05.1 was not physically appropriate because no reasoning mind, after a review of his medical conditions, could conclude he was capable of completing the work required in his vocational rehabilitation plan. Anderson argued WSI failed to properly consider his difficulties with driving when it formed his vocational rehabilitation plan. "A vocational rehabilitation plan is appropriate if it meets the statutory requirements and gives the injured worker a reasonable opportunity to obtain substantial gainful employment." After review of the record, the Supreme Court concluded a reasoning mind reasonably could have determined the vocational rehabilitation plan would return Anderson to substantial gainful employment that was reasonably attainable in light of his injury.The Court therefore affirmed the district court judgment. View "Anderson v. WSI" on Justia Law

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Neal and Bonnie Messer owned a building located in close proximity to a building owned by Steve Forster and Daniel Krebs. An explosion occurred in the Forster/Krebs building and subsequently damaged the Messers' building. B&B Hot Oil Service, Inc. held a lease on the west half of the Forster/Krebs building. B&B stored two hot oil trucks inside the building. The trucks were a 2005 vehicle designed and manufactured by Energy Fabrication, and a 2009 "knockoff" truck jointly constructed by B&B and JB's Welding through reverse engineering of an EnerFab vehicle. A hot oil truck holds various chemicals to flush and clean oil wells and lines, including propane. An investigation into the explosion determined both trucks were storing propane at the time of the explosion, and the source of the explosion allegedly started in the B&B leased space. The investigation also indicated that the explosion was a result of a propane leak from the "knockoff" truck. The Messers filed claims against both B&B and JB as a result of the explosion: JB for damage to their building under both theories of strict products liability as a manufacturer of the reverse engineered truck and negligence in construction of the truck. They alleged that the EnerFab vehicle design included an electronic failsafe control valve for the propane storage which acts as a shutoff safety feature in case manual control valves fail to close or leak, and the reverse engineered truck did not include a failsafe control valve. JB moved for summary judgment and dismissal of the claims. At the hearing, the Messers presented the affidavit of an expert witness who stated that the failure to install an electronic failsafe shutoff control valve rendered the "knockoff" truck unreasonably dangerous when it was accepted by B&B, and JB was negligent in failing to design and manufacture the firebox assembly with that control valve. In granting JB's motion for summary judgment, the trial court found that JB only welded the shell of the truck including the firebox and propane lines, and had nothing to do with the propane system, valves, or decision to install automatic shutoffs. The Supreme Court reversed: the record showed a factual dispute existed as to whether JB was a manufacturer under a theory of strict liability. "[R]easonable issues of material fact exist as to JB's status as a manufacturer of the truck, and whether JB's alleged failure to install the electronic shutoff valves was the proximate cause of the Messers' injuries. Because this status is undetermined, whether JB holds a duty to exercise reasonable care in the design or manufacture of the truck, or holds a duty to warn of the inherit danger of the vehicle, depends on factual determinations to be decided by a trier of fact. The appropriate procedure is to instruct the jury to find the status of JB before determining whether a duty, if any, was owed by JB to the Messers." View "Messer v. B&B Hot Oil Service, Inc." on Justia Law