Shermoen Ex Rel. Shermoen v. Lindsay

through SHERMOEN, by and his next Scott guardian, parent, friend, Dor natural Shermoen, Appellant, othy Plaintiff and LINDSAY; Park District of the C.

Fred Dakota; West North Surety Company, a cor ern Respondents. poration, Defendants

Civ. No. 8478.

Supreme Dakota. Court of North

Dec.

Lanier, Shermoen, Fargo, Knox & attor- neys plaintiff appellant. Nilles, Oehlert, Hansen, Magill, & Seibo Fargo, respondents, for defendants and N.D., Park District of Western Co. Wattam, Vogel, Vogel, & Peter- Bright son, Fargo, respondent, for defendant and Lindsay. Fred C. contributory negligence the sole Judge. was not District FRIEDERICH, R. RAY proximate injuries cause of the claimed en- appeal from two orders This is Plaintiff, was caused by the to trial preliminary

tered persons than the Park District. Gov- other County. first order of Cass specifically ernmental was not al- certain strike motion to a defense granted leged as defense on Complaint, and Plaintiff’s the in allegations summary District. A for judgment motion Complaint as to the dismissed the second by urged ground Park District the the on the action. in named defendants one immunity by was denied the District Court. appeal this purposes of for The facts by the to stipulated have, part, Subsequent been in to the decision the motion attorneys. respective their through summary judgment, the was parties for Plaintiff July appears that on stipulation, By permitted complaint file an in amended to the approximately 8:00 P.M. 1963, at Casualty Surety which Western and Com- boy of Shermoen, a ten Plaintiff, pany, corporation, a foreign Scott was named as rope a swinging on action, was age, a to the years of with the adjacent tree limb a complaint tied to all the containing allegations been had Block, South the 800 in original complaint, except Sixth Street one addi- to boy swung theAs Dakota. paragraph, North tional as follows: rope street, portion over out “That all hereto, at times material caught on an and was him behind trailed Defendant Park District had in existence Street along Sixth being driven automobile and full force and effect a Lindsay. The Fred C. the Defendant by with Defendant bodily and sustained street fell boy Casualty Surety Western and Company injuries. Kansas, Scott, insuring of Fort said De- boy swing- was which the fendant, District, against The tree Park Playground, School injuries Hawthorne and for ing was on sustained for Fargo Park District by by the Scott Shermoen as al- used hereinbefore program. playground supervised leged provi- accordance with the summer by the limb tied to NDCC; had been sions of rope 40-43-07 and that § Dis- the Park statute, supervisor pursuant said playground defense of in this event rope-climbing immunity trict for is not available Defendant, Casualty Western program. Surety Company.” Park District that the agreed It is also political existing organized and duly is a Complaint, To Amended the Park program playground subdivision, interposed District its Amended Answers public general benefit for the was specifically alleging the gov- defense of At the public funds. paid with immunity. Casualty ernmental Western was District the Park injury, time of Surety Company moved to strike the li- comprehensive insured under reference Amended by Western ability policy issued Complaint, complaint and to dismiss the as Company. against this defendant. Both motions were by granted separate Trial Court or- commenced action as original In the appeal ders and the is from these two against alleged Plaintiff, negligence was orders. Lindsay, and the Defendant, Fred C. At the alleged time injury denied was sus- Both Defendants District. Plaintiff, contributory tained 40-43-07 alleged negligence; § defense, Century North with Dakota Code was the exist- an affirmative negligence as ing governing authority that if for the alleging further the Park appeals may and which liability insurance, be carried to procurement this Court. If the fall govern- any orders within reference the defense of of the sub- made statute, it might he claimed sections of this would mental 28- 27-02(5) provides insur- NDCC which subdivision and the as follows: carrier as follows: ance “What orders reviewable. —The fol- lowing Au- Political Subdivisions orders when made the court

40-43-07. Carry Liability may supreme Insurance— be carried thorized court: Defense of division available to insurers. — claims of of the state loss, damage, Any insure sub- “5. An "* action or some order ^[*] which involves ^{[*] [*]} thereof; * * mer- ment, agency, agent, employee, subdivision or function, of such subdivision. officer, depart- N.W.2d 823 In the case of In "* (N.D.1964), * Re Fettig’s the ^[*] foregoing * Estate, * * sub- deprive any politi- This section shall not Page is at section discussed 827 with ref- the state of its cal subdivision of erence to an earlier case: immunity, such but governmental to claim Donavan, 575, N.D. “In Bolton v. 9 84 in- available to the shall not be 357, expanded upon N.W. this Court furnishing surance carrier such insurance phrase that term ‘merits’ and held in- policies providing for such and all inter- ‘involves the merits’ must be so a waiver of such surance shall contain pass preted as to orders which embrace 1; 261, R.C. (S.L.1955, ch. defense. § upon rights of suit- legal substantial 1943, supp., 44-0115). 1957 § or, rights or do not whether do directly relate to the cause of action alleged injury filing and the of Since the controversy.” subject matter in statute has been appeal, foregoing by Legislature Dakota the North Koppang, 131 v. N.W.2d also Nord See The Amend- and sessions. at its 1965 1967 Valley In- (N.D.1964); Swiggum v. 617 pertinent are determination ments N.D. 15 N.W.2d Co., vestment 73 in this action. Co., Security Credit Hauser v. 104. N.D. 266 N.W. that It is the Plaintiff’s contention striking all reference to the order under consideration The orders in the Amended existence of appeal- not held to be foregoing cases were precluded the Complaint, Court has in they determinative able, were but neither of proving existence Plaintiff words, were orders In other the case. insurance, which in turn would involved, but questions of not decisive application 40-43-07 prevent of § the Trial pending before left them still claim the Plaintiff’s further is NDCC. was the result the same effect To Court. dismissing the action that Swedberg, 123 N.W.2d v. in Nordenstrom Surety Defendant, Casualty and Western Jensen, Ferguson v. and (N.D.1963) the in- permitting is Company, the Court 560. 38 N.W.2d N.D. the de- avail itself of carrier each of Trial Court The order immunity on be- of fense here, intermediate although an the motions in com- political subdivision half of proving pleading or order, prevents either the statute. of plete contravention liability of existence believe We 40-43-07 NDCC. terms of Defendants, and Park District § The Granger holding analogy exists Company Casualty and Western Forks, Hospital Grand of Deaconness the two appealability challenge the that (N.D.1965) 138 N.W.2d being within as not orders provable under stricken is portion NDCC under 28-27-02 subsections suit, (1) sovereign The Complaint and immune from allegations of the remaining system government which under our merits of an action or yet “involves the include the state La Duke v. would and sub- also part thereof.” See some the state Co., divisions of who are considered Wylie E. W. representatives agencies be appeal will The issues raised sovereign; be considered. the same specifications error as (2) philosophy curious separate the two orders refer expedient more isolated individuals related, will be covered Trial society general than that should suffer attempt heading. No single under inconvenienced; at an discussion being made exhaustive practical public That (3) from a view of American Doctrine policy, governments conglomeration immunity. There is such agencies perform will their duties more however, law, confusion of case efficiently effectively jeopar- if not observa- subject some on the liability. threat dized of tort help preface as a to the be of tions

specific in the case. issues has been under The doctrine attack during years, being abrogated is a science which recent and is in an

Law viable country by legis has been either history increasing our able number of states reasonably judicial well to the needs lative adapt itself action or decision. Some of language condemning the times. Where the most forceful circumstances of apparent following in field can be found in the particularly cases: this is ' liability. immunity Community It was Thomas v. Broad Lands from tort Con of District, 567, liability might Ill.App. tort solidated School 348 argued that the threat of 636, Annotation, 109 N.E.2d 75 A.L.R. jeopardize continued existence 1196, subdivisions, City Detroit, v. charita Williams of 364 its state and 231, institutions, intra-family amity. (1961); In Mich. 111 N.W.2d 1 Pierce ble immunity Valley Hosp. Ass’n., categories, v. Yakima Memorial these three each of 162, 765, preserve 43 260 necessary Wash.2d P.2d 774 (1953); in order was deemed Muskopf Corning Hospital District, condition. v. socially or 55 a desirable service body 211, Cal.Rptr. 89, a law Cal.2d P.2d 457 accomplish this result vast of 11 359 To Holytz Milwaukee, past years (1961); City and is v. developed of 17 over many preserved in Wis.2d 115 Mc tenaciously being (1962); N.W.2d 618 still Mularchuk, that notwithstanding the Andrew v. fact 33 162 jurisdictions, N.J. indemnity 820, 832, liability A.2d procurement (1960). of or 88 A.L.R.2d 1313 any negate justi seem to insurance would The disfavor which the Courts have concern, may exist for the fication immunity shown towards from tort City v. destroy it. Defender completely or general pattern, in follows a in that fre- (D.C.S. F.Supp. 615 McLaughlen, of 228 quently reappraisal of the doctrine of Superior, F.2d 343 D.); v. Coste of immunity intra-family charitable im- Incorporated v. (C.A.7 Wis.); Maffei 100 munity reappraisal is followed of Kemmerer, Wyo. 33, P.2d Town of immunity doctrine of with P.2d Rehearing denied 340 (Wyo. 1959) many pro arguments, of same both Argentine 759; Sayers Dist. of School only years con. This Court has in recent Deerfield, 217, 114 N.W.2d 366 Mich. & expressed position its on the doctrine of 191, 60 A.L.R.2d 1198. immunity in Granger charitable v. Deacon- Hospital Forks, supra, liabil- ness Grand immunity from tort of Governmental others, subject on the cases, among intra-family immunity was of in ity in cited Wells, the case three of Nuelle v. of the basis preserved on (N.D.1967). classifications: statutory state has deemed the directive? We in- legislature in this read the gov- the field of surance contract as controlled necessary to enter into statu- tory language of mean that enactment the insurer ernmental against any 1955, (herein Laws shall defend claims bodily Session Chapter injury brought against Dakota as 40-43-07 North Defendant Park referred to § attempt District, but that such insurer Century Code). Legislative cannot and gov- ex- avail itself remedy the and confusion which will not of the defense of chaos ordinarily remedy ernmental the law and to available in this area of ists part in the harsh effect the Park The insurer has contract- of District. at least justification. be in defense settle- is not without ed to control of the doctrine insured, ment claim behalf of NDCC, enacting In 40-43-07 pay behalf the insured all sums "and on of Legislature has North Dakota demonstrated legally the insured shall become ob- features awareness the undesirable its of bodily pay ligated because of immunity. in- We injury. agree manifestly it is unfair clined procurement an innocent tort should The statute made victim perpe- permissive politi- the tort without recourse when employee by governmental agency, trated cal subdivision. The enlarge scope been un- agent. Although inroads have need not subsequent amend- piece-meal it elects to do so insurance. two less this statute since carrier need elect to insure ments have been made to insurance loss, instance, damage, injury, origin in each these claims of diminishing it is willing resulted in unless to do so the absence amendments have gov- consequences upon of and waiver of defense of doctrine. immunity. ernmental first the effect if We consider upon the continued ex- important to note that istence defense procurement not read: “The statute does immunity. ” * ** deprive but shall the con- insurance paragraph first of any rather, deprive “This not section shall the Park District and the tract between right political the state subdivision of of * * provides as carrier follows: immunity insurance governmental *.” claim “ the legislature believe the included We * * * defend The Western shall a precaution “This section” as words injury or bodily such any alleging any interpretation that the enact seeking property damage might imply the ment 40-43-07 NDCC of § this under the terms of payable are raising preclusion of any allegations if of of policy, even immunity defense of fraudulent; false, groundless, the suit protected insurance or whether in- may make such The Western but subdi not. It does afford any of claim vestigation settlement right vision with insurance expedient.” itas deems or suit governmental im of exercise defense provides: 40-43-07 NDCC Section so, it munity whenever should elect to do “ * * * waive the whenever it chooses defense but such shall Schoening to do so. v. United States Avia fur- carrier be available to the Underwriters, Inc., 119, 265 Minn. 120 tion policies nishing insurance and 859; Flowers v. Board of Com N.W.2d shall con- providing for such insurance County, Venderburgh merce of 240 Ind. a waiver defense.” tain of such 668, 224, overruling 168 N.E.2d Hummer Ind.App. City Hartford placed City, v. School of 124 must be What construction 30, (Ind.). N.E.2d 891 light in the contract of upon 112 744 permitted in this case and earlier, tion cannot be pointed the defense of

As was out why dismissing Trial the order of the raised against the insurer should be imperative the action that the existence surer makes alleged in the sustained. of insurance be complaint. implied Unless there language is statute authorizing a direct action allegation preju cannot be Such an insurer, Plaintiff, as claimed District, how dicial the defendant upon action would to be have based ever, prohibits, of law which view our premise that the insurance contract between trial, any reference to during the course of the insurer and the Park District is for prejudicial to pleadings he parties. benefit third of There somebasis party. Olson, 79 N.D. adverse Reuter v. argument insurance contract Burd, 834, 78 N. v. Hoffer N.W.2d protection was not entered into for the Bober, 278, 282; Peterson v. D. 49 N.W.2d already en- subdivision since N.D. 56 N.W.2d joys immunity liability and there- from tort parties. fore must be the benefit third for prohibits ref equally law Our Courts, however, have restricted the third during the course of erence to insurance brought beneficiary theory cases is not trial, carrier the insurance where providing compulsory for under Koenig, v. Bischoff party to the action. expressed best at insurance. rule is This is (N.D.1959). 100 N.W.2d 1131: A.L.R. be procedure subject pre-trial proper in policy provisions “Where the existence were Once the Court. fore clearly against joinder established, the Court of the insured it is for action, im and the insurer in the same no the defense rule on State, statutory provision existed inconsistent Spielman v. munity. provision, join with such 1958). (N.D. insurer and the insured in the same action portion That the Trial Court’s person.” been denied injured to the liability in allegation striking the Young, order See 43 N. James amended Com surance from Plaintiff’s (N.D.1950). W.2d 20 A.L.R.2d 1097 reasons plaint accordingly reversed. For statutory In language the absence of or portion explained the hereinafter contrary, recognition given must then be striking the name Western der to the contract between the and the insured corporation, Company, a respect, In the contract of in- portion of Par and a the title the action surance between The and the De- Western Complaint refer amended agraph II of unique. It fendant Park District is not con- is affirmed. defendant ring to this tains the conventional “no action clause” provides which as follows: the order next We consider the action dismissing Court the Trial Against “Action The No ac- Western: Surety Com Casualty and against Western unless, against tion shall lie The Western pany. thereto, precedent the in- as a condition fully complied with sured shall have among reluctance general ais There policy, this nor until the the terms of by an actions permit direct Courts obligation pay the insured’s amount of Courts the insurer. against party jured finally either shall have been determined liberality jury undue fearful be seem to the insured after by judgment against is the carrier where suit negligence ain agreement of actual trial or written this Aside a defendant. as joined and The West- insured, claimant oth- however, there are reluctance, ern. ac- an why such reasons specific more er Lindsay, le- Park “Any or the District of the organization person Surety has se- representative thereof who and Western gal agree- Company. Lindsay not figure does this judgment cured or written appeal. re- The Park District is a thereafter be entitled sub- ment shall division is policy to the extent insured Cas- cover under this Western policy. ualty Surety Company this the insurance afforded is the any court, organization orders, have The trial person shall two dismissed the No plaintiff’s join insurer, against The West- action West- under ern, party against as action and directed the removal of the insur- ern liabil- er’s body the insured’s name from the title and insured to determine impleaded complaint. ity, The be It also nor shall Western ordered that representa- legal there by the insured or his be stricken from amended com- plaint paragraph alleging that the Park tive.” appeal District insured This is Western. statute, Only a direct-action so-called is from both orders. directly against the permit which would suit the “no action notwithstanding majority The of this court has reversed clause,” joinder permit the of West- would portion order, that of the trial strik- court’s Company, as Surety Casualty and ern ing paragraph that amended com- attempted in this case. North plaintiff has plaint alleges that the District Park statute, such direct-action Dakota has no is trial insured but sustained the court does 40-4-3-07 interpretation of and our in directing name removal of Western’s actions. authorize such body from the title of the amended complaint plain- dismissing and also in Casualty and The dismissal Western Thus, against tiff’s action Western. defendant, Company as a majority opinion, the accordance with the that affirmed, way implies in no herein against action subdivision lies devolve responsibility ultimate addition, and, but not holds its insurer in fa- judgment company should upon this insurer, Western, may that not defend against the defend- plaintiff and vor of the on the against the suit the Park District subsequently entered. ant immunity. ground of the action the dismissal The basis of that in the trial majority has also advised company is the insurance improper for the would be pro- stage against it, at this action instructions, allude to court, in its trial ceedings, premature. fact the District remanded to case insured. proceed- County for further of Cass I holding herein. concur with the result majority with the ings consistent in reversing appealed of the order from, striking complaint from the the alle- STRUTZ, ERICKSTAD, KNUD- gation that the Park District was insured. SON, JJ., concur. However, I feel the trial court also erred when it dismissed the action PAULSON, J., deeming disquali- himself insured and directed removal of its fied, did participate; RAY Honorable name the pleadings. from am of I FRIEDERICH, Judges R. of the one opinion that the Legislature, enacting District, sitting Second in his stead. Judicial Chapter 261 of the Session Laws of political intended to authorize a subdivision TEIGEN, (dissenting). Chief Justice purchase liability direct-action insurance. plaintiff’s The sounds in tort and action (40-43-07, The at complaint N.D.C.C.) after amendment statute provided: “Any against is directed the defendant time of issue in action action this political may subdivision of state insure division is immune in cases loss, against damage, injury claims of or where it may govern- invoke the defense of against political subdivision or mental immunity. The statute continues department, function, agency,, officer, or or from the quote end of the above and states: agent, * * * employee, or of such subdivision. “ * * * but such shall not be ” language It is noted from the em- available to the insurance carrier furnish- ployed in it this statute authorizes ing such policies pro- all political against subdivision to insure viding for such insurance shall ' contain a * * * loss, damage, “claims of waiver of such defense.” political It does not authorize a subdivision against liability. to insure A claim is de- only The time that an insurance carrier adjudicate mand It or assertion. does not has occasion invoke the defense of im- right or determine the the claimant nor munity if a brought is suit were against it. impose liability upon person it does Obviously, in order assert or have “avail- against whom it is asserted. Under an in- any defense, able” the “insurance carrier” demnity policy the insured must have suf- would party have to be a defendant. money fered actual an loss before the in- liable, surer whereas under policy provides The fact that the the in- policy the cause of action accrues when the surer shall defend suit does not make Appleman Insurance attaches. 7 insurer a to the suit. In defend- Practice, Therefore, it Law and Sec. 4261. ing the entitled, on behalf of the appears language to me that the of the stat- insured, raise the defenses claims,” ute, against indicates a “insure it, insured has available were defend- liability policy, indemnity policy. not an ing the suit. interpretation legislative The intent is in harmony with the first of the next sen- majority deprived the Park section, provides: tence of the which “This Board of the defense of im- deprive any political section shall not sub- munity policy it is because insured under a division of the state its to claim provides the insurer shall assume ” * * * immunity, duty of defending settling plaintiff’s protects political from liabil- claim the Park This Board. hold- money ity resulting There is no loss. ing in judgments against politi- result provisions conflict these the stat- two cal subdivisions limits excess by case ute. It was well established law be- may require political subdivision to adoption (en- 40-43-07 fore the of Section pay judgments being entitled to in- before Chapter acted 261 of Session Laws demnity or, from its insurer if the insurer that the and its sub- 1955) State insolvent, becomes to absorb loss. divisions, in the of constitutional absence squarely flies in the face of statutory immunity, waiver preserved gov- which has the defense of for their v. Town of liable torts. Vail ernmental sub- Amenia, 1092; Hadler N.D. 59 N.W. clear, unambiguous division in language. Agricultural, v. North Live Stock West insurer, in assuming the defense for its 736; Ass’n, Fair 239 N.W. N.D. insured, agent deemed the Holgerson Lake, Devils sured and must have available to it all the Minot Fetzer v. N.W. principal, ordi- defenses of and because Thus, the N.W.2d 601. (N.D.) 138 narily liability policies in direct-action above, Legislature, quoted language it all also has available to the de- by the enactment reaffirm- section, Legislature pro- fenses of insured the exception. ed case law. It authorized a sub- import The clear vided for the op- division to insure “claims” as language of this to me is the insurer posed liability political sub- may directly by to because the third-party be sued claim- liability right This no “5. statute confers for establishing the first ant without directly.” claimant sue the insurer to The statute reaffirms the insured. of immunity be- of defense paragraphs It is in noted and 3-of political subdivision the insured half of Legislature spe- that the section has now a defense as it and waives it against a suit provided cifically political that the insured against its in suit immunity subdivision its suit to to waives allowing a by the extent of determination of Legislature, enact- In liability against within its insurance the 1967 Session Chapter of ment of coverage policy This 40- limits. Laws, and reenacted Section Code, affirmatively provides and statute also that it 43-07, Century North Dakota no a claimant immunity in a suit “confers to sue for waives directly.” very to These are material political subdivision against insured changes original must coverage and its insurance extent of presumed legislative indicate a provides as This statute policy limits. law, change interpret tent to not to follows: originally provide. what was intended to “Political subdivisions authorized Weilenman, N.D., 143 Walker v. im- carry liability of insurance—Waiver Grommesh, N.D., Jager v. 77 N.W.2d pur- only munity of insurance to extent chased.— court, appears to me that the its Any political “1. subdivision of the state opinion, by in- majority accomplished has loss, claims of against insure terpretation prior statute, the same against polit- such damage, or objective Legislature accomplished as the department, ical subdivision amendment, limita- its but without the officer, function, agency, or prescribed tions It is amendment. employee, agent, such subdivi- true, majority, as indicated sion. Legislature has indicated an intention partially abrogate by waiver the doctrine political insures “2. If a subdivision immunity. However, I do against a claim, then not think such an intention was indicated immunity to subdivision waives My passage until Act. rea- allowing only the extent of soning on affirmed a former this is a determination opinion Minot this court. Fetzer v. See the immu- extent of the waiver of District, N.D., (No- 138 N.W.2d nity against described held 1965). vember In that case we subsection 3. park govern- entitled that a district was insures In immunity negligence mental in a case. “3. If a part, claim, discussing question, then the we stated subdivision waives as follows: types of only strongest argument govern- “But for only to coverage its insurance Legislature mental is that limits

the extent State, recently the 1965 of this as coverage. Session, recognized the doctrine. Laws, Chapter dispute concerning the the 1965 Session “4. If a exists 40- of the insurance which amends and reenacts Section amount or nature Code, Century be tried of the North Dakota coverage, dispute shall 43-07 provides liability in- separately main trial for motor vehicle before the municipal for and its determining the the State claims providing After claimant. subdivisions. states, Assembly en- insurance, Legislative many fur- “In have been the statutes per- enabling injured person, acted an or provided: ther property damaged, pro- to son whose deprive shall not section ‘This insurer; directly against liability the ceed the state of political subdivision of * * vary great- these *. While statutes claim right to detail, ly in them are alike in any employee but they permit directly against the be to immunity shall not available by person. In such re- injured surer furnishing such in- carrier spect these are deemed reason- statutes * * surance effect, their purpose able in constitutionality very generally their has regardless legislate, “The cannot courts police upheld. They within the been are so. might to do much we desire of how state, power of the and do not violate worthy a Therefore, of how regardless clause, equal protec- process corporation due municipal claim clause, impairment tion the contract be, the functions cannot assume might we of the Federal constitution.” 29A power Assembly. Our clause Legislative Insurance, 1486. Sec. enacted passing on laws is limited to Am.Jur. and, Legislature if the Legislature, 1191(1), Insurance See also 46 § C.J.S. change the law act, cannot fails we to p. 114, wherein is stated: pre- question here decision. judicial to addressed that should be sented is one juris “Under statutes in number of to the Assembly, and not Legislative expressly provide for dictions Honorable As was said courts. injured direct concurring Christianson, in his A. M. person require or which insurer to in Educa- v. Board of opinion to Anderson policy provision clude in the direct for N.D. City of tion of person injured, 807: N.W. valid, statutes have been held to an be injured person may sue to the in have wrong, Legislature rule is ‘If money applied claim his change it. It ample power to has judgment proceeding an action or courts to duty of the enforce directly against Such a statute ” law it exists.’ purpose has protection for persons injured, who ef majority appears me that It injured person fect makes the a third contrary to adopted a which is view now party beneficiary Fetzer, supra. In that case adopted in remedy. gives extent that the statute him a y/e summary judgment of affirmed Insurance, p. 1191(1), C.J.S. against the Park. tort claim of a dismissal Dis- that the Park ground on the Appleman also See Insurance Law im- entitled to trict was Practice, Section 4833. munity. Young, held in We James that a en- 43 20 A.L.R.2d enacted Many statutes States have city requiring proprietors of person ordinance person or a whose abling injured city directly lines file with the proceed licensed taxicab damaged to property is indemnifying per- insurer, policies auditor and such stat- against public using lines and the upheld. sons very generally been have utes injuries personal which taxicab they are within been held has also liable, the in- proprietors legally allows not violate and do police power of State together protection be made a defendant clause, equal surer process the due in an action for impairment clause with insured clause, contract or the makes ground on the that the ordinance the Federal Constitution. read into injured causing must be directly liable to be mod- liability. contract, cannot insurance and it of the insured’s person proof on by pro- dis- rendered ineffective may be ified or this case recognize that I ”* * * case visions of the contract. present tinguished from Insurance, p. 1191(2), required ordinance that the basis C.J.S. purpose only cited action” clause of I also believe the “no has allowed pointing out prohibits action policy direct party third by a direct suit until the amount of against the insurer obligation has been determined insured’s to in- policy is limited that the The fact must no void and of effect. pro- demnity take it out does light be construed statute 40-43-07, North Dakota policy. visions of Section light terms or contracts of Century polices All Code. my the intent belief that was light construed in the must be

insurance Chapter enacting Legislature, in governed. of they are statute (40-43-07, of 1955 Laws Session contract becomes The statute political sub- provide that N.D.C.C.) Montgomery therewith. construed purchase could Whitbeck, Bach N.W. divisions 12 N.D. proceeding it authorized direct Insurance and that Fire Mutual v. North Dakota company by the Dakota, Company North third-party beneficiary. as a claimant 217 N.W. 273. herein stated I would party For the reasons injured enabling "A the trial court. both orders of reverse insurer of the to recover from

Case Details

Case Name: Shermoen Ex Rel. Shermoen v. Lindsay

Court Name: North Dakota Supreme Court

Date Published: Dec 30, 1968

Citation: 163 N.W.2d 738

Docket Number: Civ. 8478

Court Abbreviation: N.D.