931 N.W.2d 229
N.D.2019Background
- Feb 14, 2012: Wilkens was in a car accident in North Dakota involving Tarin Westby; Westby died the day of the accident.
- Feb 2018: Wilkens sued for negligence and served the North Dakota Department of Transportation director under N.D.C.C. § 39-01-11 (nonresident motorist statute).
- March 2018: An attorney appeared for Westby and moved to dismiss, arguing service was improper and the court lacked personal jurisdiction because Westby was deceased and not a “nonresident” or “absent from the state.”
- District court found the statute did not permit service on the director for an in-state resident who died, dismissed Wilkens’ complaint without prejudice but acknowledged the statute of limitations had already run (practical effect: foreclosed suit).
- Wilkens appealed the jurisdictional/service ruling; the Supreme Court reviewed statutory interpretation de novo and factual findings for clear error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service on the DOT director under N.D.C.C. § 39-01-11 is proper when the defendant was a resident who died in the accident | Wilkens: “Absent” includes death; a deceased resident has been "absent" >6 months, so service on the director is authorized and has effect as service on an estate administrator | Westby: Death does not make an in-state resident a “nonresident” or “absent from the state” for § 39-01-11; proper route is probate/presentation of claim against estate | Held: Statute applies only to nonresidents or residents continuously absent ≥6 months post-accident; death does not satisfy “absent,” so service on the director was improper |
| Whether the dismissal without prejudice was appealable | Wilkens: Dismissal effectively terminated litigation because the statute of limitations had run | Westby: (implicit) Dismissal without prejudice ordinarily not appealable | Held: Because the statute of limitations had expired, the dismissal without prejudice had the practical effect of terminating the litigation and was appealable |
Key Cases Cited
- Austinson v. Kilpatrick, 82 N.W.2d 388 (N.D. 1957) (explains purpose of nonresident motorist statute—to give local courts jurisdiction over nonresidents and remedy geographic obstacles)
- Muhammed v. Welch, 675 N.W.2d 402 (N.D. 2004) (when prospective defendant is deceased and no personal representative exists, claimant should initiate probate proceedings to present a claim against the estate)
- James Vault & Precast Co. v. B & B Hot Oil Serv., Inc., 908 N.W.2d 108 (N.D. 2018) (a dismissal without prejudice is appealable when statute-of-limitations expiry makes the dismissal effectively terminate the litigation)
- Zahler v. Manning, 295 N.W.2d 511 (Minn. 1980) (death is not equivalent to continuous absence for purposes of nonresident motorist statute)
- Schor v. Becker, 263 A.2d 324 (Pa. 1970) (substituted service on a deceased person is invalid where person is neither a nonresident nor a resident who conceals whereabouts)