STATUTE OF LIMITATIONS
- Personal Property6 YearsN.D.C.C. § 28-01-16
- Personal Injury6 YearsN.D.C.C. § 28-01-16(5)
- Personal Injury/Wrongful Death2 YearsN.D.C.C. § 28-01-18(4)
- Personal Injury/Medical Malpractice6 YearsN.D.C.C. § 28-01-16
- Personal Injury/Medical Malpractice/Relief Accures2 YearsN.D.C.C. § 28-01-18
- Breach of Contract/Written6 YearsN.D.C.C. § 28-01-16(1)
- Breach of Contract/Oral6 YearsN.D.C.C. § 28-01-16(1)
- Breach of Contract/Sale of Goods4 YearsN.D.C.C. § 41-02-104. (2-725)
- Statute of Repose/Products/After Purchase Date10 YearsN.D.C.C. § 28-01.3-08*
- Statute of Repose/Products/After Manufacture Date11 YearsN.D.C.C. § 28-01.3-08*
- Statute of Repose/Personal Property10 YearsN.D.C.C. § 28-01-44**
- Breach of Warranty/U.C.C.4 YearsN.D.C.C. § 41-02-104(1)
- Workers’ Compensation6 YearsN.D.C.C. § 65-01-09
- Strict Product Liability6 YearsN.D.C.C. § 28-01-16(5)
Statute of Limitations Exceptions
*10 Years from initial purchase of useful consumption or 11 Years from manufacture date. N.D.C.C. § 28-01.3-08.
**10 Years for improvement to real property, but it does not apply to manufacturers or suppliers of products used in the improvement. N.D.C.C. § 28-01-44.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 50% Bar. Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. If plaintiff is negligent, the degree of fault will reduce his recovery, until it equals the fault of others, then it will be barred. N.D.C.C. § 32-03.2-02.
Med Pay/PIP Subrogation
Med Pay: Coverage not applicable.
PIP: No right of subrogation of “Basic No-Fault Benefits” directly against another insured (“secured”) person. Can pursue “unsecured” person, and no release of rights by insured is effective against the subrogation rights of the no-fault carrier against an “unsecure” person without the carrier’s consent. N.D.C.C. § 26.1-41-16. There is a distinction between subrogating for basic no-fault benefits (no subrogation) and subrogating optional excess no-fault benefits (can subrogate if policy provides for it). A policy may provide for the subrogation of “Optional Excess No-Fault Benefits.” Section 26.1-41-04 provides: “The optional excess no-fault benefits of a basic no-fault insurer may provide for subrogation to the injured person’s right of recovery against any responsible third party.” Subrogation against tortfeasor can be pursued only for benefits paid in excess of basic no-fault benefits. Imperial Cas. & Indem. Co. v. Gen. Cas. Co. of Wis., 458 N.W.2d 335 (N.D. 1990). There used to be “right of equitable allocation” of losses among insurers (i.e., loss transfer) by agreement or arbitration, but N.D.C.C. § 26.1-41-17 was repealed in 2005 and such allocation is no longer available, unless benefits began prior to 8/1/05. N.D.C.C. § 26.1-41-17 (Repealed).
No-Fault State. Monetary threshold. Enacted in 1976. No-fault carrier pays first $10,000 of medical expenses, but has opportunity to coordinate benefits with a workers’ compensation carrier, if applicable. If the no-fault carrier pays benefits above and beyond the $10,000 threshold, the no-fault carrier has the opportunity to coordinate benefits with other health carriers, and can look to the workers’ compensation carrier for primary coverage, if such a carrier is involved. N.D.C.C. §§ 26.1-41-13(3) and 26.1-44-13(1); Kroh v. American Family Ins. Co., 487 N.W.2d 306 (N.D. 1992). Insured cannot sue tortfeasor for non-economic damages unless there is “serious injury”. N.D.C.C. § 26.1-41-08.
The six (6) year personal injury statute of limitations runs from the date of the insured’s accident. N.D.C.C. § 28-01-16.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists. North Dakota’s Department of Insurance orally indicates generally, the insured is paid pro-rata amount based on the percentage recovered, but reimbursement is merely a courtesy to the insured.
Made Whole Doctrine
North Dakota has not adopted the Made Whole Doctrine either for subrogation generally or with respect to the subrogation rights of health insurers and health Plans.
Economic Loss Doctrine
Majority Rule. North Dakota adopted the ELD in 1984. Hagart Farms v. Hatton Indus., Inc., 350 N.W.2d 591 (N.D. 1984). You can’t sue the manufacturer of a product for damage to the product alone where there is no accompanying personal injury or damage to “other property”. The ELD applies equally to commercial and consumer transactions. Clarys v. Ford Motor Co., 592 N.W.2d 573 (N.D. 1999).
A tenant’s liability to the landlord’s insurer for negligently causing a fire depends on the intent and reasonable expectations of the parties to the lease as ascertained from the lease as a whole. Agra-By-Products, Inc. v. Agway, Inc., 347 N.W.2d 142, 146-150 (N.D. 1984) (subrogation denied because lease required lessor to keep insurance and lessee to reimburse lessor for premiums).
Adverse Inference/Sanctions: Trial courts in North Dakota have the authority to sanction a party when key evidence is missing, “even where the party has not violated a court order and even when there has been a no finding of bad faith.” Bachmeier v. Wallwork Truck Ctrs., 544 N.W.2d 122, 124 (N.D. 1996). In sanctioning a party, the district court should at least consider “the culpability, or state of mind, of the party against whom sanctions are being imposed; a finding of prejudice against the moving party, and the degree of this prejudice, including the impact it has on presenting or defending the case; and, the availability of less severe alternative sanctions.” Id. at 124-25. Trial courts have the “duty to impose the least restrictive sanction available under the circumstances in the exercise of it’s inherit power.” Id. at 125. Sanctions can include dismissal, preclusion of evidence, or adverse inference. Id. at 126.
Property Damage. Liability imposed on parents when child willfully or maliciously destroys property. N.D.C.C. § 32-03-39.
The limit of liability is $1,000.00 plus costs. Child must be under 18-years-old.
Auto Liability. Joint and several liability imposed on parents when child commits negligent acts in operation of motor vehicle, such as negligent acts that harm people or property, and parent signed child’s application for license or permit. N.D.C.C. § 39-06-09.
There are no limits of liability. Child must be under 18-years-old.
Modified Joint and Several Liability. Several liability, unless defendants are acting in concert. N.D.C.C. § 32-03.2-02; Pierce v. Shannon, 607 N.W.2d 878 (N.D. 2000).
Contribution allowed in underlying or separate action where tortfeasor pays more than his share of common liability. Contribution plaintiff only entitled to contribution if liability of contribution defendant was extinguished by a reasonable settlement. N.D.C.C. § 32-03.2-02 (1987); Pierce v. Shannon, 607 N.W.2d 878 (N.D. 2000). Must be brought by motion in pending suit or within one year of judgment. If settlement, must be brought within one year of payment.
Suspension of Drivers' Licenses
Administrative Suspension: The Director may suspend a driver’s license for failure to report an accident as required under law. Within 90 days after receipt of an accident report, the Director will suspend the license of any driver unless he deposits the amount of security sufficient to satisfy any judgment. N.D.C.C. § 39-16-04; N.D.C.C. § 39-6-05. Suspension will last until uninsured driver deposits adequate security or one year has elapsed since the accident and no action for damages has been filed against him. N.D.C.C. § 39-16-07.
Judgment: Upon receipt of the certified judgment, the Director will suspend the driver’s license of the judgment debtor. N.D.C.C. § 39-16.1-04. The license will remain suspended until judgment or installment agreement is satisfied in full. N.D.C.C. § 39-16.1-04.
Contact Information: State of North Dakota, Department of Transportation, Driver License Division, 608 East Boulevard Avenue, Bismarck, ND 58505-0700, (701) 328-2600, https://www.dot.nd.gov/divisions/driverslicense/driver.htm.
Diminution of Value
First Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a first-party claim.
Third Party: Section 32-03-09.1 states: “The measure of damages for injury to property caused by the breach of an obligation not arising from contract is presumed to be the reasonable cost of repairs necessary to restore the property to the condition it was in immediately before the injury was inflicted and the reasonable value of the loss of use pending restoration of the property, unless restoration of the property within a reasonable period of time is impossible or impracticable, in which case the measure of damages is presumed to be the difference between the market value of the property immediately before and immediately after the injury and the reasonable value of the loss of use pending replacement of the property.” Sullivan v. Pulkrabek, 611 N.W.2d 162 (N.D. 2000).
One-Party Consent: It is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. N.D. Cent. Code § 12.1-15-02.
North Dakota statute allows a “victim” to recover restitution payments from criminal defendant due to criminal conduct. N.D.C.C. § 12.1‐32‐08; N.D.C.C. § 12.1‐32‐02. Related case law determined that an insurer who has indemnified their insured as a “victim” of criminal defendant’s conduct suffers an economic loss, and therefore, will become a “victim” for purposes of recovery of restitution. State v. Vick, 587 N.W.2d 567, 568 (N.D. 1998).
Health and Disability Insurance
Statute of Limitations: Medical Malpractice – 6 Years. N.D.C.C. § 28-01-16 (within 2 years after claim for relief accrues); N.D.C.C. § 28-01-18. Wrongful Death – 2 Years. N.D.C.C. § 28-01-18.
Subrogation of Medical and Disability Benefits are allowed. Tschider v. Burtts, 149 N.W.2d 710 (N.D. 1967); See e.g., N.D. Cent. Code § 26.1-18.1-07. Made Whole and Common Fund Doctrines do not apply. Hayden v. Medcenter One, Inc., 2013 ND 46, 828 N.W.2d 775 (addressing hospital lien).
Funeral Procession Traffic Laws
North Dakota law grants funeral processions the right-of-way at intersections without regard to any traffic control signal. The escort vehicle driver can direct the procession to proceed through an intersection or make any necessary movements despite any traffic control signals. This implies that the lead funeral escort vehicle can disregard a red traffic signal. Specifically, the law grants processions the right-of-way and allows a law enforcement officer leading a funeral procession to proceed through an intersection or direct traffic despite any traffic control device. The other vehicles in the procession can then follow the police officer, regardless of the traffic signal. Vehicles in a funeral procession must yield the right-of-way to emergency vehicles or if directed by a police officer. All vehicles in the procession must have their headlights lit, and their emergency lights flashing and must be as closely spaced as safely possible. Other vehicles may not drive between, join, pass on a two-lane road, or cross the path of vehicles in a funeral procession. N.D. Cent. Code § 39-10-72.
Statute of Limitations: 6 Years. N.D.C.C. § 65-01-09.
Can Carrier Sue Third Party Directly: Yes, after 60 days.
Recovery from UM/UIM Benefits: Undecided.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: Up to 50% of third-party recovery.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: 25% / 1/3
Future Credit: Yes.
Auto No-Fault: Yes.
Dog Bite Laws
Dog owner will be liable for damages, if the victim can prove that the dog owner was negligent and negligence caused the injury. Sendelbach v. Grad, 246 N.W.2d 496 (N.D. 1976).
Employee Leasing Laws
Both the employee leasing company and the client company are considered employers and immune from third-party actions when the two entities have secured the payment of compensation in accordance with North Dakota law. N.D.C.C. § 65-01-08.
Condominium Waiver of Subrogation Laws
No waiver of subrogation required. N.D.C.C. § 47-04.1.
Automobile Total Loss Thresholds
Percentage of Value: 75%
Vehicle damage exceeds 75% of retail value of vehicle determined by NADA. Glass and hail damage are excluded. N.D.C.C. § 39-05-20.2; 11 N.C. Admin. Code 4.0418.
Sudden Medical Emergencies While Driving
Sudden Emergency Defense or Unavoidable Accident Defense. If suddenly faced with a dangerous situation the person did not create, the person is not held to the same accuracy of judgment as one would be if there were time for deliberation. Harfield v. Tate, 598 N.W.2d 840 (N.D. 1999).
North Dakota has not formally adopted a sudden medical emergency defense. However, an incapacitated driver may use the sudden emergency defense or unavoidable accident defense to argue that they were not liable for the accident.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Claims Against The State. N.D.C.C. §§ 32-12.2-01 to 32-12.2-18 (1995).
Notice Deadlines: Suit against State must be commenced within three years. N.D.C.C. § 32-12.2-02. Written notice must be presented in writing to the Director of the Office of Management and Budget within 180 days. N.D.C.C. § 32-12.2-04.
Claims/Actions Allowed: State waives immunity for both tort and contract claims. State liable for an injury caused by:
(1) negligence of employee acting within scope of employment (including operating motor vehicles); or
(2) use or condition of tangible property, if employee would be personally liable if a private person would be liable under the circumstances.
N.D.C.C. § 32-12.2-02.
Employee cannot be personally liable. This includes operation of a motor vehicle. N.D.C.C. § 32-12.2-03.
Comments/Exceptions: N.D.C.C. § 32-12.2-02(3) lists claims for which a State employee is not liable. (e.g., legislative, quasi-legislative, public duties, collection of taxes, environmental contamination, liability assumed under contract except for rental vehicles, etc.).
Damage Caps: Recovery limited to a total of $250,000 per person and $1,000,000 for any number of claims arising from a single occurrence and prohibits punitive damages in actions against the State. N.D.C.C. § 32-12.2-02.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax. The payment on a total loss would be the ACV less the deductible. ACV is defined as an amount equivalent to the replacement cost of lost or damaged property at the time of the loss, less depreciation. http://www.nd.gov/ndins/consumers/auto/ http://www.nd.gov/ndins/consumers/auto/glossary/.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: No Case Law
Intrinsic Value: No Case Law
Sentimental Value: Can only recover reasonable cost of repairs and the reasonable value of the loss of use pending restoration of the property, unless restoration of the property within a reasonable period of time is impossible or impracticable, in which case the measure of damages is presumed to be the difference between the market value of the property immediately before and immediately after the injury and the reasonable value of the loss of use pending replacement of the property. N.D. Cent. Code Ann. § 32-03-09.1.
Municipal/County/Local Governmental Immunity and Tort Liability
Legal Authority: Political subdivision is liable (1) under circumstances in which the employee would be personally liable, or (2) caused by some condition or use of real or personal property. N.D.C.C. § 32-12.1-03.
Notice Deadlines: None. Suit must be filed against political subdivision within three (3) years. N.D.C.C. § 32-12.1-10.
Claims/Actions Allowed: City liable for light and power distribution but not for operation and maintenance of city water sewer system (where no statutes, regulations, or policies prescribing course of action for maintenance and operation). Olson v. City of Garrison, 539 N.W.2d 663 (N.D. 1995).
Comments/Exceptions: No liability if: (1) Execution of statute; (2) Discretionary function (decision making, matter of choice or judgment); and (3) Public duty (unless special relationship). N.D.C.C. § 32-12.1-03(3).
Damage Caps: $250,000 Per Person. $1 Million Per Occurrence. N.D.C.C. § 32-12.1-03. Liability insurance or self-insurance pool may be obtained by political subdivision to cover liability in excess of statutory limits. Statutory limits then in applicable. N.D.C.C. § 32-12.1-05.
No Pay, No Play Laws
Rule: In any action against an insured driver arising out of an accident where the injured driver is uninsured, the insured driver may not be assessed for non-economic damages where the uninsured driver has at least one conviction of driving without insurance.
Authority: N.D.C.C. § 26.1-41-20.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: The operator of a motor vehicle may not use a wireless communication device to write, read, or send a text message. This does not apply to cell phone calls. N.D.C.C. § 39-08-23(1).
Any minor under the age of 18 with a Class “D” license, may not operate an electronic communication device in any capacity, except for emergencies or to prevent a crime. N.D.C.C. § 39-08-24.
Other Prohibitions: No Applicable Laws.
Comments: Devils Lake, N.D. Code of Ordinances §§ 10.16.460 and 10.16.450 prohibit the use of a wireless cell phone from being used to send, receive, or write text messages while driving. Drivers under the age of 18 may not use a cell phone in any capacity.
Grand Forks, N.D. Code of Ordinances § 8-0528 prohibits an operator of a motor vehicle from using a wireless communications device to compose, read, or send an electronic message.
Admissibility of Expert Testimony
Admissibility Standards: N.D.R. Evid. 702
Case/Statutory Law: State v. Hernandez, 707 N.W.2d 449 (N.D. 2005).
Comments: N.D. R. Evid. 702 (more liberal than Federal Rule of Evidence 702). Daubert rejected. Court determines that method of proof is reliable as an area for expert testimony, then whether the witness is qualified as an expert to apply this method. It is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession. Hernandez stated that North Dakota never has explicitly adopted Daubert or Kumho Tire; expert admissibility instead is governed by North Dakota Rule of Evidence 702.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute expressly mentions “aliens” under the definition of employee. The statute does not touch on “legal” or “illegal” aliens. N.D. Cent. Code § 65-01-02-16(a)(2).
Case Law: Undecided
Product Liability Law
Statute of Limitations/Repose: 6 years for personal injury. N.D.C.C. § 28-01-16. Wrongful death is 2 years. N.D.C.C. § 28-01-18(4). Discovery Rule applies.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: Yes. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 410 (N.D. 1994); Butz v. Werner, 438 N.W.2d 509, 517 (N.D. 1989).
Innocent Seller Statute: Yes. N.D.C.C. § 28-01.3-05
Joint and Several Liability: No. N.D.C.C. § 32-03.2-02.
Available Defenses: Assumption of Risk; Misuse; Alteration; Compliance With Government Standards.
Restatement 2nd or 3rd?: Neither.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver not imputed to owner-passenger suing third party for damages. Jasper v. Freitag, 145 N.W.2d 879 (N.D. 1966); Mertz v. Weibe, 180 N.W.2d 664 (N.D. 1970).
Also not imputed to owner who is not a passenger. Matteson v. Polanchek, 164 N.W.2d 54 (N.D. 1969).
However, even though it admits weight of authority is against doing so, court held that Family Purpose Doctrine imputes contributory negligence of driver to owner for purposes of owner’s suit against third party to recover for damage to his vehicle. Schobinger v. Ivey, 467 N.W.2d 728 (N.D. 1991), overruling Brower v. Stoltz, 121 N.W.2d 624 (N.D. 1963).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
North Dakota recognizes the Family Car Doctrine. Whether the doctrine applies, depends on the totality of the circumstances. While ownership of the vehicle by the head of the household is a circumstance strongly favoring application of the family car doctrine, to be liable, the head of the household must furnish, but need not own, the vehicle for the use, pleasure, and business of himself or a member of his family. McPhee v. Tufty, 623 N.W.2d 390 (N.D. 2001).
Sponsor Liability for Minor’s Driving: N.D.C.C. § 39-06-09: Joint and several liability imposed on parents when child commits negligent acts in operation of motor vehicle, such as negligent acts that harm people or property, and parent signed child’s application for license or permit.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: N.D.C.C. § 39-10-51.
Common Law Rule: Although the case was never officially completed, one case indicates potential support for a defendant being held liable for injuries suffered by a third party after a thief steals the defendant’s car and negligently causes injuries to the third party. See Roquette v. North Am. Van Lines, Inc., 187 N.W.2d 78 (N.D. 1971) (Where a truck was stolen after the driver had left the keys in the vehicle, summary judgment was inappropriate as genuine questions of fact existed as to responsibility of all involved parties. Case was remanded for trial but was never tried).
An insurer is not entitled to subrogation from its own insured for a claim arising from the very risk for which the insured was covered. American Nat’l Fire Ins. Co. v. Hughes, 658 N.W.2d 330 (N.D. 2003). Additionally, an insurer is not entitled to subrogation from entities named as insureds in the insurance policy or entities deemed to be additional insureds under the policy. Id. An entity not named as an insured in an insurance policy is an additional insured protected by the ASR when, under the circumstances, the insurer is attempting to recover from the insured on the risk the insurer had agreed to take upon payment of premiums. Id. Fraud or design can potentially allow subrogation against an insured party to proceed. Id. Subrogation is not prohibited against a subcontractor not named on the owner’s builder’s risk policy. Tri-State Ins. Co. of Minnesota v. Commercial Group West, LLC, 698 N.W.2d 483 (N.D. 2005). In Hughes, Hughes was the vice president of United Crane, a corporation owned entirely by Hughes’ parents. United Crane was insured by American National Fire Ins. Co. (“American”) when Hughes accidentally started a fire in the United Crane workshop by attempting to suck gasoline out of his snowmobile using a shop-vac. Hughes was not acting as an employee of the corporation at the time, but Hughes, his brother, and his father kept and worked on their snowmobiles in the United Crane workshop frequently. American paid $250k in damages to United Crane and then attempted to subrogate for that amount against Hughes. American’s subrogation attempt was barred by the court because the court found that Hughes was an implied co-insured under United Crane’s policy, and that allowing subrogation, given the circumstances, would be allowing subrogation by the insurer for the very risk they had agreed to assume under the policy.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Summary: There is currently nothing in North Dakota law that requires the use of OEM parts when repairing a vehicle. Additionally, House Bill (H.B.) 1332 that would have required non-OEM parts to be certified by a third-party rating agency was rejected by the North Dakota House of Representatives in 2003.