Grand Forks Professional Baseball, Inc. v. Workers Comp.
Inc., a North Dakota Corporation;
David C. Thompson, individually;
William Coutts, individually; and
Jack Geller, individually, Appellants
v.
North Dakota Workers Compensation
Bureau, Appellee
Judge Debbie Gordon Kleven
| Appellant: | David C. Thompson, P.C. | |
| Appellee: | Lawrence A. Dopson , Spec. Asst. Atty. Gen. | |
| Appellee: | Lawrence E. King , Spec. Asst. Atty. Gen. |
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A. The appellate jurisdiction of this district court pursuant to N.D.C.C. 28-32-15(3)(a) and 28-32-19, and the applicable standard of review.
B. The appealed-from erroneous decision of the North Dakota Workers Compensation Bureau.
C. The operative language of N.D.C.C. 65-04-26.1(1) following the August 1, 1995, effective date of 1995 House Bill 1329 [1995 North Dakota Session Laws Chapter 619, 7] was no different, including its sentence structure, from the operative language of N.D.C.C. 65-04-26.1(1) as it had existed prior to August 1, 1995.
i. N.D.C.C. 65-04-26.1(1) as it existed prior to August 1, 1995, and recognitions of this statute's meaning and effect by presiding judges in administrative and judicial review proceedings.
ii. N.D.C.C. 65-04-26.1(1) as it existed after August 1, 1995, with this statute having essentially identical operative language, including specific sentence structure, as its immediate predecessor.
iii. The efforts by the North Dakota Workers Compensation Bureau to abandon the express language of current N.D.C.C. 65-04-26.1(1) are improper, and, given the previous recognitions of the meaning of the operatively-identical language of the pre-August 1, 1995 version of the statute by the bureau itself, and reviewing courts as well, resort to anything outside of the express language of the current statute for the supposed purpose of determining "legislative intent", would be improper and legally incorrect.
D. The North Dakota Workers Compensation Bureau's commencement of a civil action against Grand Forks Professional Baseball, Inc. to recover unpaid premiums from that corporation, coupled with the bureau's subsequent failure to prosecute that case, causes the bureau to be barred by virtue of the doctrine of election of remedies from proceeding in the current administrative case to recover from the three petitioners individually.
E. N.D.C.C. 65-04-26.1(1), both on its face, and as applied to the petitioners is violative of the due process and equal protection clauses of the United States and North Dakota Constitutions.
Appellee's Statement of the Issues:
1 NDCC 65-04-26.1 Imposes Personal Liability on the Appellants for the Premiums Owed.
2. The Commencement of a Civil Action Against GFPB by NDWC to Recover Unpaid Premiums from the Corporation Does Not Bar the Administrative Proceedings Against the Appellants.
a. The Doctrine of Election of Remedies Does Not Apply in this Case.
b. The Appellants' Constitutional Arguments Are Without Merit.
3. NDWC Is Not Required to Proceed Against Every Director and Officer of GFPB.
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