Johnson v. Nodak Mutual Ins. Co.

20040293 Michele Johnson, f/k/a
Michele Nelson, Plaintiff and Appellant
v.
Nodak Mutual Insurance
Company, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Douglas R. Herman
Nature of Action: Insurance
Counsel:
Appellant: Garaas Law Firm
Appellee: Nilles, Plambeck, Selbo & Harrie, Ltd.
Term: 03/2005   Argument: 03/02/2005  2:45pm
ND cite: 2005 ND 112
NW cite: 699 N.W.2d 45

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Does an insurance policy provision, that provides no action may be maintained against the insurer until there has been full compliance with the terms of coverage, control the date when the appropriate statute of limitations begins running?
2. Is a named insured's action for breach of contract and indemnity against her no-fault insurer controlled by N.D.C.C.  28-01-16 because North Dakota's no-fault statutes provide for a cumulative remedy rather than an exclusive remedy?
3. Is the insurer's payment for a medical examination, and other related medical expenses, that are required by the insured a "benefit" under the policy and a benefit within the meaning of N.D.C.C.  26.1-41-19 (1)?
4. Is Johnson's cause of action against her insurer an action for "further" benefits within the meaning of N.D.C.C.  26.1-41-19 (1)?
5. Was Johnson's action for breach of contract barred by any statute of limitations?

Appellee's Statement of the Issues:
I. Whether Johnson's action is barred by the statute of limitations in N.D.Cent.Code  26.1-41-19(1) for failure to commence the action within four years of the last payment of benefits.
II. Whether Nodak Mutual's payment of claim expenses for copies of medical records, an independent medical evaluation and legal fees constitute "no-fault benefits" within the meaning of N.D.Cent.Code  26.1-41-19(1).
III. Whether the new issues raised by Johnson in her motion for new trial under Rule 59 and relief from judgment under Rule 60 should be considered on appeal.

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Docket entries:
110/25/2004 NOTICE OF APPEAL: 10/22/2004
210/25/2004 ORDER FOR TRANSCRIPT: 10/22/2004
311/24/2004 Transcript dated 6-17-04
411/26/2004 DISK - tr1 (6-17-04)
511/30/2004 TRANSCRIPT DATED 9-08-04
612/01/2004 DISK - TR2 dated 9-08-04
712/02/2004 RECORD ON APPEAL (not rec'd - entries 14 and 31 (tapes))
801/06/2005 APPELLANT BRIEF
901/06/2005 Addendum (attached to ATB)
1001/06/2005 APPELLANT APPENDIX
1101/10/2005 DISK - atb
1202/08/2005 APPELLEE BRIEF
1302/09/2005 DISK - AEB
1402/23/2005 REPLY BRIEF
1502/24/2005 DISK of RYB
1603/02/2005 APPEARANCES: David A. Garaas; William P. Harrie
1703/02/2005 ARGUED: Garaas; Harrie (Vol. Z; Page 93)
1803/02/2005 ORAL ARGUMENT WEBCAST
1906/22/2005 DISPOSITION: AFFIRMED
2006/22/2005 UNANIMOUS OPINION: Sandstrom, Dale V.
2106/22/2005 Costs on appeal taxed in favor of Appellee
2206/23/2005 Judgment Mailed to Parties
2307/07/2005 PETITION FOR REHEARING & Addendum (filed subject to the approval of the Court)
2407/08/2005 DISK - PER
2507/25/2005 ACTION BY SUPREME COURT. Denied
2608/02/2005 MANDATE
2708/08/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2811/29/2011 EXPUNGED - Nonpermanent record items destroyed

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