Jеsse Dellinger, Plaintiff v. Jeremy Young Wolf d/b/a Young Wolf Trenching, Trevor Grandchamp, and SITE Energy (USA) Inc., and QEP Energy Company, Defendant and Appellee v. Kinsale Insurance Company, Third-Party Defendant and Appellant and Legendary Field Services, LLC, Third-Party Defendant
No. 20190301
In the Supreme Court State of North Dakota
June 2, 2020
2020 ND 112
Filed 6/2/20 by Clerk of Supreme Court
2020 ND 112
Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Daniel S. El-Dweek, Judge.
DISMISSED.
Opinion of the Court by Tufte, Justice.
Jordan B. Weir (argued) and Robert B. Stock (appeared), Fargo, N.D., for defendant and appellee QEP Energy Company.
Larry L. Bosсhee (argued) and Jack E. Zuger (appeared), Bismarck, N.D., Nicholas C. Grant (on brief), Dickinson, N.D., and Aaron L. Warren (on brief), Miami, Florida, for third-party defendant and aрpellant Kinsale Insurance Company.
[¶1] Kinsale Insurance Company (“Kinsale“) appealed from a district court‘s partial summary judgment determining Kinsale has а duty to defend QEP Energy Company (“QEP“). QEP moved to dismiss the appeal, arguing the partial summary judgment is not appealable. Kinsale responded, asserting the Declаratory Judgment Act provides a statutory basis for the appeal. We conclude the Declaratory Judgment Act does not provide a statutory basis for thе appeal, and we dismiss the appeal for lack of jurisdiction.
I
[¶2] This is a personal injury lawsuit arising from an explosion at a well site in McKenzie County. The Plaintiff, Jеsse Dellinger, sued multiple defendants, including his employer, Legendary Field Services, LLC (“Legendary“), and QEP. QEP was the operator of the well site. Legendary was an oil аnd gas service provider. Legendary and QEP had entered into a master services agreement which required Legendary to maintain a commercial liability insurаnce policy that named QEP as an additional insured. Legendary purchased such a policy from Kinsale. After the explosion, QEP tendered its defense to Lеgendary and Kinsale as an additional insured on the policy. Kinsale denied QEP coverage.
[¶3] QEP filed a third-party complaint against Kinsale and Legendary claiming breach of contract and requesting declaratory relief. QEP moved for partial summary judgment, requesting a declaration that Kinsale has a duty to defend QEP аs an additional insured on the policy. Kinsale opposed the motion, invoking various coverage exclusions. The district court granted partial summary judgment dеclaring Kinsale has a duty to defend QEP.
[¶4] Kinsale moved to certify the partial summary judgment as final under
II
[¶5] The right of appeal is governed by statute in North Dakota. Jordet v. Jordet, 2015 ND 73, ¶ 13, 861 N.W.2d 154. When there is no statutory basis for
[¶6] However, Kinsale asserts the Declaratory Judgment Act provides statutory authorization for this appeal. The Declaratory Judgment Act is codified at
The court may refuse to render or enter a declaratory judgment or decree if such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. However, the cоurt shall render or enter a declaratory judgment or decree in an action brought by or against an insurance company to determine liability of the insuranсe company to the insured to defend, or duty to defend, although the insured‘s liability for the loss may not have been determined.
(Emphasis added.) The Legislature added the emphasized language in 1983 in response to our case law to the contrary. Blackburn, Nickels & Smith, Inc. v. Nat‘l Farmers Union Prop. & Cas. Co., 452 N.W.2d 319, 322-23 (N.D. 1990). See also 1983 N.D. Sess. Laws ch. 377, § 1. Kinsale also relies on Section 32-23-01,
The [court‘s] dеclaration may be either affirmative or negative in form and effect, and such declaration shall have the force and effect of a final judgment or decree.
Kinsale reads these two provisions together as creating immediate appealability of decisions concerning insurers’ duty to defend.
[¶7] In Ziegler v. Meadowbrook Insurance Group, Inc., 2009 ND 192, 774 N.W.2d 782, wе were presented with the same argument and decided the case without a majority opinion. Ziegler requested a declaratory judgment determining the defendant insurers had a duty to defend him in a separate lawsuit. Id. at ¶ 3. He also brought claims for breach of an insurance contract and breach of the duty of good faith and fair dealing. Id. The district court granted partial summary judgment, concluding there was a duty to defend, but the court did not resolve Ziegler‘s other claims against the insurers. Id. at ¶ 6. Thе insurers appealed and then moved for Rule 54(b) certification. Id. at ¶ 30. The district court did not decide the Rule 54(b) motion, concluding it lacked jurisdiction while the insurers’ appeal was pending. Id.
[¶8] Two justices concluded the partial summary judgment order was not appealable because it was not intended to be final and was not appealable under
First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28-27-02. If it does not, our inquiry need go no further and the aрpeal must be dismissed. If it does, then Rule 54(b),
NDRCivP, must be complied with. If it is not, we are without jurisdiction.
Id. at ¶ 11 (quoting Mann v. N.D. Tax Comm‘r, 2005 ND 36, ¶ 7, 692 N.W.2d 490). The plurality then explained that
[¶9] We find the plurality opinion in Ziegler persuasive in deciding this case. As in Ziegler, the district court here entered a partial summary judgment on the duty-to-defend issue, but it left other issues unresolved. The partial summary judgment contemplated the case would proceed with further discovery and additional proceedings. The district court‘s denial of certification under
III
[¶10] We hold the order granting partial summary judgment is not appealable. We dismiss the aрpeal.
[¶11] Jerod E. Tufte
Daniel J. Crothers
Jon J. Jensen, C.J.
I concur in the result.
Lisa Fair McEvers
VandeWalle, Justice, concurring specially.
[¶12] In Ziegler v. Meadowbrook Insurance Group, Inc., 2009 ND 192, 774 N.W.2d 782, as noted in ¶ 8 of the majority opinion, I dissented believing that the amendment of the Declaratory Judgment Act provided the basis for appeal to this Court. However, Ziegler was decided more than ten years ago, and the Legislature has not acted. When this Court construes a statute and the Legislature takes no action, it is presumed the Court‘s interpretation is in accord with the Legislature‘s intent. City of Bismarck v. Uhden, 513 N.W.2d 373, 376 (1994) (citing Blair v. City of Fargo, 171 N.W.2d 236 (N.D. 1969)).
[¶13] I therefore concur in the result.
[¶14] Gerald W. VandeWalle