Opinions

Johnson v. WSI, et al. 2012 ND 87
Docket No.: 20110262
Filing Date: 5/3/2012
Case Type: Appeal - Administrative - Workers Compensation
Author: Maring, Mary

Highlight: To receive WSI benefits, a claimant must prove, by a preponderance of the evidence, a compensable injury was suffered.
The definition of "compensable injury" excludes preexisting injuries unless the employment substantially accelerated or substantially worsened an injury's severity.
A compensable injury does not exist when a claimant's employment merely triggered symptoms of a preexisting injury.
When an employee cannot be returned to substantial gainful employment under the hierarchy of options in section 65-05.1-01(4), N.D.C.C., but meets the income test under section 65-05.1-01(6)(a)(3), N.D.C.C., the employee has a retained earnings capacity and is entitled to partial disability benefits.

Vining v. Renton 2012 ND 86
Docket No.: 20110233
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Child Support
Author: Crothers, Daniel John

Highlight: When considering modification of primary residential responsibility, a district court must gauge the best interests of the child factors against the backdrop of the stability of the child's relationship with the custodial parent.
Cases that are "close calls" may result in a change of primary residential responsibility when other considerations are weightier than the custodial stability factor.
Although a change of primary residential responsibility is legally permissible without resorting to other remedies, that result should be a rare event rather than the first choice.

Pelzl v. State (cross-reference 20100227) 2012 ND 85
Docket No.: 20110364
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Judgment summarily dismissing application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Tibor v. State 2012 ND 84
Docket No.: 20110313
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Per Curiam

Highlight: Order dismissing application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(4) and (6).

Harmon v. State (Cross-reference w/19960206 & 19970100) 2012 ND 83
Docket No.: 20110343
Filing Date: 5/3/2012
Case Type: Appeal - Civil - Post-Conviction Relief
Author: Not Available

Highlight: A district court order summarily dismissing a petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).

Willard v. Allstate Ins. Co., et al. 2012 ND 82
Docket No.: 20110314
Filing Date: 4/18/2012
Case Type: Appeal - Civil - Personal Injury
Author: Per Curiam

Highlight: Summary judgment in a wrongful death action is summarily affirmed under N.D.R.App.P. 35.1(a)(6).

Tibert et al. v. Nodak Mutual 2012 ND 81
Docket No.: 20110143
Filing Date: 4/12/2012
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Public policy precludes an insured from being indemnified for losses caused by the insured's intentional or willful conduct.
In determining whether coverage is barred by an intentional acts exclusion in an insurance policy or by the statutory prohibition against coverage for intentional or willful conduct, intent to cause the injury or damages can be inferred when the act was done intentionally and was of such a character that harmful consequences are substantially certain to result from the act.
A tortfeasor who acted in concert with another by agreeing to pursue a common plan to commit wrongful acts, with knowledge of the plan and its purpose, intended the harm and injury caused by the wrongful act.
A liability insurer has a duty to defend an underlying action against its insured if the allegations in the complaint give rise to potential liability or the possibility of coverage under the policy, and any doubt about whether a duty to defend exists must be resolved in favor of the insured.

Hector v. City of Fargo 2012 ND 80
Docket No.: 20110187
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Other
Author: Crothers, Daniel John

Highlight: A resolution of necessity for an improvement district must set forth the general nature of the improvement, the approximate amount the municipality will be obligated to pay, and the amount proposed to be paid by special assessments.
The resolution of necessity and engineer's report for a proposed improvement does not include the final costs of the project, and the actual amount specially assessed may exceed the amount proposed in the resolution and engineer's report.
A special assessment commission has broad discretion in choosing the method used to decide the benefit a property receives from an improvement and to apportion the costs to individual properties.

M.M., et al. v. Fargo Public School Dist. #1, et al.(cross-reference w/ 20090121 2012 ND 79
Docket No.: 20110260
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Personal Injury
Author: Sandstrom, Dale

Highlight: When statutes are silent on an issue, courts may consider authorities from outside the state to resolve the issue.
A parent is not entitled to recover medical expenses paid on behalf of an injured minor child whose comparative fault exceeds the fault of the tortfeasor.

Northern Excavating v. Sisters of Mary of the Presentation 2012 ND 78
Docket No.: 20110209
Filing Date: 4/10/2012
Case Type: Appeal - Civil - Contracts
Author: Maring, Mary

Highlight: When no amount is stated in a construction contract, the amount of a filed construction lien must be reasonably accurate for the lienholder to avoid liability for the owner's costs and reasonable attorney's fees.
Under N.D.C.C. 35-27-24.1, an owner who successfully contests the validity or accuracy of a construction lien is entitled to all attorney's fees and costs associated with the lien contest.
Determination of who is a prevailing party is based upon success on the merits, not damages.