*1 Instead, personal is re- property loss of unscheduled State Farm have understood. quoted proceed- earlier The case is remanded for language versed. use the chose to ings opinion. consistent with this at the decision advocated herein. To arrive require this Farm would herein State J., first, policy ERICKSTAD, PEDERSON, whole
court, to read the C. SAND, assume JJ., should policyholders VOGEL and concur. determine important location personal property and then to use company to the insurance interpretive guide assumption as policy in a language contained
ambiguous recovery so as to limit
limitation to a new resi- insured has moved
event the use such constrained
dence. We do not applica- interpretation approach DICKINSON EDUCATION policy limitations. insurance ASSOCIATION, circum totality From the Plaintiff-Appellant, (including the instant case stances ambiguous change-of-resi use policy’s PUBLIC DIS DICKINSON SCHOOL herein), we limitations discussed dence Corporation, a Public TRICT NO. significant control especially think Defendant-Appellee. paid person their ling the Hensons had premium; that State property al insurance No. Civ. 9296. pre no refund of such Farm had tendered Dakota. Supreme Court the time that the Hensons mium claim; had not filed Farm their State March 1977. personal property in the Hensons’ canceled 25, 1977. Rehearing Denied policy; and that uncanceled surance policy, al personal property insurance Policy” “Homeowners did
though labeled a homeownership, but was in the require Policy”, designed
nature of a “Renter’s for renter, reasonably
use who can
expected change We his residence. find the policy
therefore that because limi upon by
tation relied the trial court to limit $1,000.00 recovery per for Hensons’ property ambiguous,
sonal loss is such limi interpretation
tation should receive an impose liability
which will on the insurer as herein,
advocated Hensons thus mak
ing personal proper the full amount
ty coverage ($8,400.00) insurance contained appli policy
in State Farm’s No. 34-049507
cable to the facts of the instant case. finding
The decision of district court personal property
the Hensons’ Farm State uncanceled, policy in force and
insurance the Hensons entitled $360.00 affirmed; living
for expenses” “additional
but limit- the decision district court $1,000.00
ing liability to Farm’s State *3 Bismarck, plain- for Chapman,
Daniel J. tiff-appellant. Kloster,
Mackoff, Kellogg, Kirby & Dic- kinson, defendant-appellee; argued by for M. Kirby, Ward Dickinson.
PAULSON, Justice. appeal is an from the order This County dated Octo- district of Stark 1976, 21, injunctive relief denying ber sought by Education Associa- the Dickinson DEA]. [hereinafter arose when the DEA instant case sought enjoin Dickinson Public School 1, of a temporary restraining No. issuance corporation District order [herein- Judge Board], Thompson, District Alfred issuing A. representa- whose was upon order served accepting any teacher contracts with teach- tives of School Board on June 1976. system represented by of the school ers as the DEA unit its 1976- 8, 1976, July preliminary hearing On at a school term. The DEA contends that Hatch, Judge Larry held before District action would an act of constitute bad sitting assignment by Dakota the North contrary Court, Supreme the temporary restraining Century of the North Dakota 15-38.1 Code. by Judge Thompson order issued was con- 14, 1976, July tinued and the Board, February one were ordered hold at least more recognized the DEA as the ex- agreement, session to such date. bargaining agent of teachers within clusive Judge further if Hatch ordered that *4 system purpose negoti- for the of its school impasse disagreement area of between the ating contracts on their for behalf the DEA and the not School Board was re- representa- 1976—1977 term. The 14, 1976, by July temporary solved the re- of the DEA and the tives School Board met order straining would be dissolved. during three times March of 1976, April during and four times of session 1976. ordered the 28, 1976, 1976, meeting 12, At held on trial court was held on July the the immediately thereafter, parties agreed dispute the impasse an existed in thereafter, resolved, negotiations, having been the appealed the on or DEA court, 4, granted which 1976, temporary stay this a May about North Dakota’s Educa- 14,1976. July 15,1976, order July dated On Factfinding was Commission notified court, apparently the trial without knowl- impasse requested of such and was to hold edge court, of action taken matter, hearings on said pursuant to the dissolving order issued an the trial court’s 15-38.1-13, provisions of N.D.C.C. prior temporary injunction. court This Factfinding The Education Commission appeal August 5, on heard the 1976. hearing parties a at were held which both 5, August 1976, On our issued 1, 26, 1976, June present May on 1976. On constituting additional order a further in- report the Commission issued its written junction prohibiting the School Board from making settlement of recommendations for issuing or receiving teaching contracts impasse the issues which an existed. action, trial of pending again the main 8, 1976, June the DEA and On urging parties to resolve their differ- report of Board met to consider the meetings. ences additional An addition- Commission, Factfinding at Education meeting 20, al August 1976, was held on at time one of accepted which the DEA meeting which no progress further was recommendations, Commission’s and the made. accepted remaining School Board two Trial matter on the merits was agreement recommendations. No further August 24, 1976, held on after which the was parties. reached between the On June parties trial court ordered the meet an 16, 1976, the Factfinding Education Com- time, additional with a court reporter report mission’s published was the Dic- present proceedings. to transcribe the Ac- Press, kinson daily published a newspaper 2, cordingly, parties September met on at Dickinson. 1976, failed but to settle their differences. 18, 1976, On about June thereafter only disagreement remaining area of at period over a days; several was the time amount of contributions teaching caused individual contracts by the to be made School Board to health to be sent being to all negotiated teachers plan accepting insurance School Board —the with —some of which contracts were re- recommendations Education turned to the prior Factfinding offering School Board Commission and plan, I.That single while School Board issued indi- of the cost of equivalent 75% of equivalent wanted vidual conclu- the DEA contributed family plan to be process; sion of the the cost of Board. by the School II.That Board refused to bargaining position its change September meeting of Following the larger yearend revealed findings audits its court made the trial cash anticipated carryover than law, judg- and order for fact, conclusions 1975-1976; year from school III, II, and IV of its Paragraphs ment. of law stated: conclusions Board held secret III.That in violation
“II. “consultations” “open meeting” North Dakota’s hereto have “That 44-04-19, (§ N.D.C.C.), at law complied with major positions of the North Dakota Chapter 15-38.1 adopted. were discussed and no sufficient Code and that Century injunc- granting of grounds exist for the 15-38.1, N.D.C.C., establishes the preclude the De- relief which would tive Dakota to be followed procedure contracts in accord- issuing fendant negotiation with recognition of and for the powers and statutory ance with organizations. representative teachers’ imposed upon school boards duties Counsel the DEA contends that seeking to said school dis- serve teachers compliance determination of *5 during 1976—77 school term. trict of not question 15-38.1 should be a law and “HI. fact, question removing the find a of thus showing has been no “That there ings operation from the of of the trial court in acted in bad faith meet- the Defendant of 52(a) the North Dakota Rules Rule of negotiating for the terms ing with disagree. Edgeley We Civil Procedure. or contracts to be issued provisions Edgeley v. Public Education Ass’n otherwise; Defendant has ex- 3, 826, (N.D. 833 District # 231 N.W.2d willingness accept the recom- a pressed 1975). Finding Fact mendations of State formal Only question bare Plaintiff has to which the Commission question only of law. The compliance is a agreed. not herein is whether the question law raised “IV. 15-38.1, N.D.C.C., Chapter re provisions of of the case it under the facts “That negotia quire school board to continue a to order improper for this Court would be report of the tions after it has received Restraining a of the Order continuance Commission, Factfinding Education State’s injunctive granted, grant previously meeting a subsequent has held prohibit the Defend- relief which would unit, and has found an negotiating teachers’ issuing for the ant from teacher contracts find no impasse still existed. We year, accordingly 1976—77 school 15-38.1, would Chapter in injunction prohibit- prayer Plaintiff’s negotiations at such require such continued issuing ing Defendant from such con- 15-38.1-12, 4 of N.D. point. a Subsection Tempo- things is in all denied and tracts C.C., provides: Restraining issued rary Orders heretofore in this sec- obligations imposed “4. dissolved.” The are party compel either DEA the trial court contends agree proposal to a or to make a finding erred in that the Board acted concession.” nego- in good faith in the course of forth statutory scheme set find that the We Specifically, with the DEA. tiations 15-38.1, N.D.C.C., recognizes in facts combine to DEA contends that three the conclu- point was not that there comes demonstrate that School Board —after negotiation process faith good good faith: sion of 210 through must be other even the forms or techni- board allowed
—when a school law, to the teachers of together offers with an make contractual calities of ab- contracts the teachers system, which sence of all information or belief of It accept reject. or to must choose either facts which would render the transac- provisions of such should be noted that tion unconscientious.’ offered, relative to so the status faith,’ ‘good “With reference to the Su- important negotiations, would factors preme Michigan, Court of in Detroit Po- of a in the determination school board’s Detroit, City lice Officers Ass’n 391 motive. (1974), Mich. 808 N.W.2d stat- court, and this court ed: trial “ appeal, is asked to determine whether the obligation primary placed ‘The complied good faith with upon parties bargain- in collective N.D.C.C. ing setting to meet and confer We find such a to be a factu determination good meaning exact faith. The provided As al determination. in Rule bargain good faith has not 52(a), N.D.R.Civ.P., which rule controls our been defined in the case rigidly law. review of facts found a trial court sit Rather, look the courts to the overall ting jury: without a party conduct to determine if it of a Findings “. . . of fact shall not be engaged actively has in the n erroneous, clearly set aside unless open with an mind and a sin- regard given due shall be to the opportu- agreement. cere desire to reach [Ci- nity judge of the trial tations The law does not omitted.] ” credibility of the witnesses. . .. ultimately parties mandate that Further, Robb, agreement, in Eakman v. reach nor does stated it dictate (N.D.1975), paragraphs N.W.2d 423 4 and the substance of the terms on which syllabus: 5 of the bargain. must In essence requirements bargain- ‘clearly “4. A erroneous’ *6 ing simply parties is only when, although manifest there is some evi- it, such an dence attitude conduct that will support reviewing to court reaching agree- be on the entire conducive evidence left with a defi- ment.’ nite and firm that a conviction mistake has been made. The mere fact that statute, “As used in the we believe to appellate might have viewed the ‘negotiate’ simply present means to pro- facts if it had differently, been the initial posals counterproposals, and offer to dis- case, trier of the does not entitle it to carry proposals, dialogue, cuss reverse the court. lower exchange ideas, all for purpose Questions
“5. of fact by decided being persuaded persuading by logic upon conflicting trial court evidence are This reasoning. par- means that the subject not to reexamination the Su- willing ties must also be to listen and not preme Court.” only talk. It the art of friendly per- persuasion suasion. The can result in an This previously court has considered what agreement understanding or a settle- is meant by requirement 15-38.1- § ment of It does not issues. mean that an 12, N.D.C.C., negotiate good faith. agreement must reached. Neither Paulsen, Fargo Education Association v. required by side is law to surrender or (N.D.1976), 239 N.W.2d we stated: abrogate duties any responsibil- of its Legislature “The North Dakota also it ities. Neither does mean formal or NDCC, ‘good 1-01-21, defined faith’ binding arbitration.” as follows: “ In the instant case the DEA contends ‘Good faith consist in an hon- abrogated est that the its taking intention to abstain from School Board any advantage negotiate good unconscientious of an- faith. ambiguous pretation statutory language BOARD FAIL
I. DID THE SCHOOL what, specify anything, FAITH failed to if IN GOOD TO NEGOTIATE report INDIVIDUAL occur after Educa- IT should WHEN ISSUED Factfinding pub- TO THE CON- Commission has been PRIOR CONTRACTS THE NEGOTIATION the record OF lished. We further find that CLUSION the trial court’s supports PROCESS? Board and DEA had reached that the School Board DEA contends good negotiating proc- faith conclusion it good faith when negotiate failed 21, 1976, the date of the ess of October to the com- contracts
issued individual judgment of district court. order and parties between the negotiations pletion Thus, though even one contract then under consid- provisions on all unresolved— under consideration remained denies that it Board eration. The School coverage to of medical insurance the extent faith, contending that in bad acted is- paid for Board —the fully complied nego- with the Board af- teaching of individual suance provisions of required by the process tiation 21,1976, would not be in viola- ter October 15-38.1, N.D.C.C., before com- Chapter Chapter tion of the contracts. the issuance of individual menced N.D.C.C. herein, although the earlier As held 15-38.1, N.D.C.C., do provisions of FAIL II. DID THE SCHOOL BOARD board to require a school specifically not IN GOOD FAITH TO NEGOTIATE continue IT TO CHANGE WHEN REFUSED Factfinding Commission’s of the Education AF- BARGAINING POSITION ITS forth in report, statutory provisions set RE- TER YEAREND AUDITS 15-38.1, N.D.C.C., the con imply AN- A LARGER THAN VEALED of a clusion TICIPATED CASH CARRYOVER board is parties before the school by the 1975- YEAR FROM THE SCHOOL make contractual offers permitted to 1976? system. teachers in its negotiating session the contract At bar, had In the case at 19, 1976, the School held on impasse agreed yet in to limit its intention announced prior to the commence had been reached salaries, social costs for teachers’ creased ment of the issuance of individual con security health insurance payments, and 18,1976. Board on June tracts $158,832.00, 10% or a increase payments receiving report of the Education After over those of expenditures Commission, parties met Factfinding *7 contends year The DEA school 1975-1976. 8,1976 meet only once—on June which —at prepared at proposal was because such that rejection ing they acceptance their or stated projected an Board time when the School in such proposals of three contained the $200,000.00 carryover of approximate cash negotia report, further and conducted no in ex carryover the cash instead of actual assumption Board’s that tions. School $300,000.00 (which the sum School cess of of Factfind- the the Education early July June or learned in late Board ing report concluded the con Commission’s available), should Board School was negotiation was in error. Al process tract upward at spending limits adjusted its have that, we matter of law as though find as a the School held after negotiation sessions 18, 1976, the Board had of June School cash of the increased was advised complete failed the DEA contends figure; and carryover we required by to do failure so Board’s that that find no facts which would indicate of faith. an act bad constitutes of was the result bad noncompliance ample Board, indicates perusal A of the record part rath of School finding court’s support the trial evidence to as of an incorrect inter- er than the result 212 change or statutory open Board’s failure its stitutional meeting provi-
that the School encompass bargaining position negotiating it received sions consultations carryover was not as conducted in actual cash information the instant case ques- is a of Testimony impression indicated tion first in this an act of bad faith. State. $100,000.00 increase in cash that 92, 1,¶ Article of the Amendments to the significant was not in rela- figure carryover provides: of Constitution North Dakota of budget nearly Board’s tion to the School law, provided “Unless otherwise all $4,000,000.00. testimony Further revealed meetings public governmental of or bod- are considered as contin- that such funds ies, bureaus, boards, commissions, or unexpected expenses meet gency funds to agencies any political of the or state sub- replace or to unforeseen revenue reduc- any state, or organizations division of the or testimony showed that Finally, tions. agencies supported part by in whole or in 19, 1976, offer Board’s School funds, funds, public expending public or upon any carryover cash was not based open public.” be shall to the but, rather, figure projections, was re- foregoing addition to the constitutional sult of the determination of the School 44-04-19, provision, N.D.C.C., provides: Board’s team of what would “Open governmental meetings. —Ex- adequate constitute a substantial and in- cept provided specifically otherwise compensation crease in for the teachers in law, meetings public all governmen- or comparison expenditures total bodies, boards, bureaus, tal commissions year the school 1976-1977. We find no agencies any or state or political record of Board’s or its state, subdivision organizations or having inability team cited finance agencies supported part or whole or in remaining proposal DEA’s on insurance public funds, expending coverage rejection. reason for as their its funds, open public.” shall to the We therefore that conclude foregoing Whether constitutional clearly trial court was not erroneous. statutory provisions applicable are to school board-teacher has III. DID THE SCHOOL YEAR BOARD doubt, especially, been in as in the instant FAIL TO NEGOTIATE IN GOOD case, when only represented a committee FAITH WHEN IT HELD SECRET negotiations. Guy school board in See “CONSULTATIONS” AT WHICH and McDonald Government in the Sun- MAJOR BARGAINING POSITIONS Open Meetings shine: Status WERE DISCUSSED AND ADOPT- Open Dakota, Record Laws in North ED? (1976). N.D.L.Rev. negotiat- Members the School Board’s We find that our constitutional and ing team, as well as other members statutory open meeting provisions require Board, admitted at the trial all meetings at board action had held they secret “consulta- teacher contract offers school board major positions tions” at which offers counteroffers are considered (e. adopted g., were discussed and the 10% open public. We further herein). limit spending increased discussed statutory find our constitutional and position It is negoti- Board’s open meeting provisions require all ating by necessity private are consultations *8 negotiating school board-teacher contract to are meant be included within the sessions, regardless negotiating commit scope open meeting of North Dakota’s con- composition, open tee public. to the open meeting stitutional or law. The DEA any Although contends that formal consid- we have determined that eration of or statutory open offers formulation of counter- our constitutional and meet offers comes the scope ing provisions within of both our applicable are to the school constitutional statutory open meeting board-teacher contract provisions. con- Whether Dakota’s Peters v. Public Bowman School Dis- [see
213 Edgeley in v. (N.D.1975)] and Education Association observe N.W.2d 817 # trict District, supra to provisions Edgeley Public School such a violation of found have con- at 833: in the instant case —we N.W.2d occurred have to void necessary is not it that clude the Legislature “. . . intended be- We also completed. now negotiations representative for a occurred the violation that because lieve commission, fact-finding or the unit (apparently negotiation process in early be, may persuasion ease to resort and subse- April), early March or in late to compulsory mandatory than or rather mitigated such violation —in- events quent proceedings.” resulted cluding public disclosure herein, quoted As 15-38.1- we earlier supervised of judicially months five from N.D.C.C., provides: 12(4), constitutes violation negotiations —such obligations imposed “4. The in this sec- case. in instant error harmless party shall not either to compel filed discussing the dissent or a agree proposal to a to make Without concession,” detail, following in make the case we in this bad it is the contention that observations: were to require If this court to individual per se to issue contracts recognized repre- tions continue with the acceptance to total teachers organization a sentative until final represent recognized such to, major such agreed is would be offer statutory is organization without ative statutory departure express in this court pointed As was out basis. Legislature our and our adopted scheme Edgeley Education Association Edgeley (We prior interpretation such statutes. District, 826, 834 231 N.W.2d Public previous in opinion, note that our also (N.D.1975): years two Edgeley, supra, nearly was issued law on “Case collective present of the before the commencement negotiations arising out of fed- good faith Legislature, allowing body of the term been or sister state which have eral Acts procedures opportunity an amend our attention are not of much called to Chapter N.D.C.C., if provided in of dis- assistance this instance because interpretation expressed in that our felt of, between, key or absence similarities erroneous.) We believe that Edgeley was Acts. Nei- respective provisions significance give recom- order dis- arising ther is case law out labor report contained in the mendations sector, as private in the distin- putes Commission, Factfinding rea- Education sector, any public from the guished fully it and to consider sonable effort significant assistance.” un- report, negotiate, pursuant such subsequent must issues made reason, resolved Legislature has our For whatever report before practices fit to deal with teacher-labor seen may properly board issue contracts pri- than either differently its treatment teachers, Legislature unless individual sector employees public sector other vate instance, nego- provides otherwise. equivalent listing find employees. We no supervi- were conducted under the tiations in the practices labor as found of unfair hoped It the courts. Act, sion of Labor-Management Relations conducted will be future such 34-12, N.D.C.C., applicable which are necessity judicial interven- sector; without equiva- nor private do we find supervision. tion and procedure to that other lent afforded 34-11, pro- employees herein, the order the reasons stated For disputes be- viding for mediation of and the affirmed of the district employees public employers and tween injunction is dissolved. —on the Teachers’ contrary, ERICKSTAD, J., Act, Chap- C. and PEDERSON Representation Negotiation *9 N.D.C.C., SAND, JJ., 15-38.1, to concur. this court ter has led VOGEL, Justice, dissenting. relations, ployee including, but not limit- hours, to salary, ed and other terms and parts I III I dissent employment. conditions of majority opinion, part and do not reach II that the since I matters covered in believe parts I should dispose and III of the case. of representa- “15-38.1-11. Selection Anyone reading majority opinion organization.— tive 15-38.1, reading Chapter without “1. . . . provided would think that the statute . “2. . . something “good-faith negotiation called a “3. . . .
process” by which could terminated “4. . . . findings the Education “5. . . . Fact-finding Commission, that thereafter representation of teachers their cho- representative “6. organiza- When representative organization sen bar- selected, tion has been its authority to end, gaining unit was at an and that the represent unit shall negotiate School Board became free to year at continue for least one from the individually. teachers date of such selection. provided by None “15-38.1—12. of this the statute. Good faith originates ofAll in this court. The tions.— stat- provisions, ute includes these unlimited as board, “1. represent- The school or its unqualified to binding time and as to ef- atives, representative and the organiza- fect: tion, selected the appropriate nego- Purpose. “15-38.1-01. order to unit, tiating representatives, or its —In promote growth development have the to at meet reasonable education North Dakota which es- times request at the of either party and to people, sential the welfare of its it is negotiate respect faith with hereby policy declared to of this to: promote improvement state to per- “a. Terms and conditions of em- management sonnel and relations be- ployment and employer-employee re- public tween school boards of dis- school lations. . employees tricts and their certified providing recognizing a uniform basis for right public Edgeley school certified em- Edgeley Education Assn. v.
ployees join organizations of their own Public SchoolDistrict No. N.W.2d 826 represented by choice organi- and be (N.D.1975), interpreted this court first professional zation in their employ- the statute giving collec- relationships ment with the tive-bargaining rights to teachers and districts. present school administrators. The appeal
gives us an opportunity interpret a por- tion of that statute not dealt with in the Right negotiate.— “15-38.1-08. Edgeley portion case. The we are con- Representative organizations shall have cerned with now to procedures relates to be the right represent appropriate followed when are at an im- negotiating unit employee in matters of passe, impasse procedures of the statute relations with Any the school board. followed, agreement have been no has teacher, administrator, shall have the resulted. right present directly his views school board. case, I Edgeley believing dissented in the Subject opinion
“15-38.1-09. negotiations. majority made much of —The scope meaningless, of representation shall in- 15-38.1 and I dissent clude relating again case, matters terms and con- which I believe continues ditions of employment and employer-em- process.
215
good-
thing
TO
“One
that cannot
done in
AS
OF STATUTE
VIOLATION
bargaining
individually
PROCEDURES
is to deal
faith
IMPASSE
units. This
bargaining
with members of
procedures
impasse
as to the
The statutes
law,
is,
general
under
case
an unfair labor
15-38.1-05 and
15-38.1-03
are Sections
Corp. v.
practice
Supply
Photo
[Medo
for the existence
They provide
15-38.1-13.
830,
NLRB,
678, 64
88
321
S.Ct.
U.S.
factfinding
of
commission”
of an “education
in
of
(1944)],
L.Ed. 1007
even
the absence
Governor,
members,
appointed
three
Pepsi
Bottling
bad faith
Cola
[NLRB
General,
Superintend-
Attorney
and
Miami,
1971),
(5th Cir.
The has found that
Board violated the statute and the Consti- The says only
tution. School Board
the Constitution and the statute should be
interpreted so as it to what to allow do it majority
has says done. I—and agree the Constitution and the stat- —that DICKINSON PUBLIC SCHOOL DIS interpreted. ute cannot be so Not even the al., 1 et TRICT NO. Plaintiffs it complied claims Appellees, agree law as we all should inter- preted. Since violation obvious and continuous, during “judicially even su- SCOTT, County F. Robert Stark pervised negotiations,” I find no basis Superintendent Schools, holding the violation be “harmless.” Appellant. Defendant and majority opinion quotes twice subsec- Civ. No. 9290. 15-38.1-12, N.D.C.C., tion 4 of Section Supreme provides: Court North Dakota. obligations imposed “The section 1977.
shall not compel agree party either proposal make a concession.” dissent, course, This suggests nowhere
that either party obligated to agree with