State of ND v. NDSU

20040228 State of North Dakota, by and
through the State Fire and
Tornado Fund of the North Dakota
Insurance Department, Plaintiff, Counterclaim Defendant,
Crossclaim Defendant, and Appellee
v.
North Dakota State University, Defendant, Counterclaimant,
Third-Party Plaintiff, and Appellant
v.
Hartford Steam Boiler Inspection
and Insurance Company, Third-Party Defendant,
Crossclaimant, and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Ronald E. Goodman
Nature of Action: Insurance
Counsel:
Appellant: Sara Gullickson McGrane , Spec. Asst. Atty. Gen.
Appellee: Leo F J Wilking , Spec. Asst. Atty. Gen.
Appellee: Lawyer not licensed in N.D.
Appellee: Lawyer not licensed in N.D.
Appellee: Vogel Law Firm
Appellant: Rick D. Johnson
Term: 12/2004   Argument: 12/22/2004  10:45am
ND cite: 2005 ND 75
NW cite: 694 N.W.2d 225

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Did the District Court err in characterizing the water that damaged NDSU's Steam Tunnel, IACC and Heating Plant as surface water as a matter of law when neither policy defines surface water?
2. Was the water that damaged NDSU's Steam Tunnel, IACC and Heating Plant excluded flood water under the policies which fail to define flood water?
3. Did the district court err in not applying the efficient proximate cause doctrine, as established in Western National, to determine the predominant cause of loss to NDSU's Steam Tunnel, IACC and Heating Plant?
4. Did the district court err in not applying the efficient proximate cause doctrine to determine the predominant cause of loss to NDSU's direct buried steam line?

Appellee's Statement of the Issues:
1.Did the District Court properly rule that the "flood" and "surface water" exclusion in the HSB Boiler and Machinery insurance policy excludes coverage for damage to NDSU's Steam Tunnel, IACC and Heating Plant?
2. Did the District Court properly rule that the "flood" and "surface water" exclusion in the HSB Boiler and Machinery insurance policy excludes coverage for damage to NDSU's Direct Buried Steam Lines?


State Fire & Tornado Fund Issues:
1. Did the District Court properly rule that the "surface water" exclusion in the State Fire and Tornado Fund insurance policy excludes coverage for NDSU's losses in the IACC and Heating Plant?
2. Did the District Court properly rule that the efficient proximate cause doctrine is inapplicable to this case?

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Docket entries:
108/16/2004 NOTICE OF APPEAL: 08/12/2004
208/16/2004 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
309/01/2004 Affidavit of Michael McNamee in Support of Rule 11.1(e)
409/02/2004 Affidavit of Terrence R. Joy in Support of Rule 11.1(e)
509/14/2004 RECORD ON APPEAL (3 Vols.) & Separates #59(w/Attachments), #60(w/Exhibits 1-29),
609/14/2004 #61 (w/Exhibits 1-55), #62 (w/Depositions), #63 (w/Exhibits 30-65), #66 (w/Exhibits A-I), #73,
709/14/2004 #75 (w/Exhibits A-Z and AA-GG), #76 (w/Exhibits A-Y), #79, #81 (w/Exhibits), #82 (NOT REC'D #95)
809/20/2004 APPELLANT BRIEF
909/20/2004 APPELLANT APPENDIX
1009/21/2004 DISK - ATB
1110/21/2004 APPELLEE BRIEF (Hartford Steam Boiler Inspection and Insurance Company)
1210/21/2004 APPELLEES' JOINT APPENDIX
1310/22/2004 DISK - AEB (Hartford Steam Boiler Inspection and Insurance Company)
1410/22/2004 APPELLEE BRIEF (State Fire & Tornado Fund of the ND Ins. Dept.)
1510/28/2004 DISK - AEB (State Fire & Tornado Fund of the ND Ins. Dept.) (e-mailed)
1611/08/2004 REPLY BRIEF & Addendum
1711/10/2004 DISK - RYB
1811/24/2004 SITTING WITH THE COURT: Jorgensen, Donald L.
1911/26/2004 Request for Radio/TV Coverage - ND Public Radio (email dated 11-26-04 from Jack McDonald) APPROVED
2012/01/2004 Request for Radio/TV Coverage (AP) email dated 12-01-04 from Dale Wetzel (APPROVED)
2112/20/2004 Letter from Michael P. McNamee dated 12-17-04 w/ attached copy of Opinion from Texas Court of
2212/20/2004 of Appeals (Valley Forge Ins. Company v. Hicks Thomas, et al.)
2312/22/2004 APPEARANCES: Ms. Sara Gullickson McGrane, Rick D. Johnson and Rick Frantz; Leo F.J. Wilking;
2412/22/2004 Terrence R. Joy, Michael P. McNamee, and W. Todd Haggart
2512/22/2004 ARGUED: McGrane; Wilking; Joy (Vol. Z; Page 69)
2612/22/2004 ORAL ARGUMENT WEBCAST
2712/23/2004 Copy of letter from Bd of Law Exam. to Terrance Joy re receipt of payment for 2005 to appear
2812/23/2004 pro hac vice
2904/06/2005 DISPOSITION: AFFIRMED
3004/06/2005 UNANIMOUS OPINION: Sandstrom, Dale V.
3104/06/2005 Costs on appeal taxed in favor of appellee
3204/07/2005 Order/Judgment Mailed to Parties
3305/04/2005 MANDATE
3405/05/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3510/27/2011 EXPUNGED - Nonpermanent record items destroyed

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