*1 is there Nor school districts.1 of the tion us that record before in the
any indication any com- considered Committee
the State plan as it would reorganization
prehensive We con- annexation. proposed
relate to therefore,
clude, the decision comply with the not Committee does State 15-53.1-29, N.D.
requirements of Section conclusion that In view of our
C.C. be set decision must Committee’s
State accordance with it is not in
aside because law, unnecessary for us to deter- it is equitable there was an whether or not
mine assets, debts, adjustment property, involved.
and liabilities opinion, the with this
In accordance affirming the
ment of the district court hereby Committee
order of State
reversed. WALLE, PEDERSON, PAUL-
VANDE SAND, JJ., concur.
SON PACIFIC INSURANCE COM
UNITED
PANY, Appellant, Plaintiff COMPANY, Mar
AETNA INSURANCE Schelske, Schelske, Martin En
vin Fern Company,
gineering Elec and Cochran Ap Defendants and
tric
pellees.
Civ. No. 9989.
Supreme Court of North Dakota.
Oct. 1981. (1) approving would annexation, That annexation proposed In its order following rele- of education to students accessibility made vide State Committee findings of fact: involved. vant (2) distance make it virtual- That terrain and hearing before to said “That subsequent for students in the ly impossible proposed Board of Public School Education the State area to attend Killdeer Schools.” following findings regarding were made for annexation from the merits of the petition 16 to Public School District No. the Killdeer 1: School District No. the McKenzie Public *2 not, however, express opinion
We do an Findings to the in the trial court’s dicta Fact, deny- Conclusions of Law and Order ing plaintiff’s summary motion for judgment granting but Aetna defendant Company’s summary Insurance motion for Cousineau, McGuire, An- Shaughnessy & judgment. The trial court’s conclusion that Gackle, derson, Minn., Minneapolis, and compensation policy spe- workmen’s Aetna’s Fargo, plaintiff Rodenburg, & for Johnson cifically coverage excluded Schelske Drake, by appellant; argued Kathleen judicata Cochran Electric is thus not res on Minneapolis, Minn. that issue. Fiedler, Forks, Letnes, & Grand Marshall 6, undisputed July facts are that on Co.; appellee Aetna Ins. for defendant and Schelske, employee Marvin of Co- Letnes, argued by Daniel Grand Forks. S. chran, personal injury arising sustained a Cahill, Moorhead, Minn., D. for James employment in out of and the course of his appellee Elec. defendant and Cochran at what known as the Cochran was Inc.; argued by Marquart, Steven Grand Project. Pipestem Dam was in- Schelske Forks. jured when a truck leased or rented to Knutson, Brantner, Vogel, Kelly, Weir & by Engineering Cochran Electric Martin Fargo, appellee Bye, for defendant and tipped ap- Company over. The accident Engineering Martin Co. pears to have occurred when a choker cable by gave way Hansen, Seibo, Davies, furnished Cochran Nilles, Magill & tip and caused the truck to over. Schelske Fargo, appellees Marvin defendants subsequently brought against an action Fern Schelske and Schelske. Engineering claiming Martin that Martin ERICKSTAD, Chief Justice. Engineering negligent, was either as a sub- contractor or as an contractor. declaratory judgment action This is a Engineering then instituted a third brought Chapter 32-23 of the North under employer, party action Schelske’s Century plaintiff, in Dakota Code Electric, alleging if Martin Pacific Insurance seeks a United damages were held liable for declaration as to which of two insurers Schelske, it was entitled to recover con- provide coverage must and defense to Co- tribution or from Cochran Elec- Company party chran Electric for a third interposed tric.1 an- brought against action it. United Pacific party complaint to the third and sub- swer gener- insured Cochran under a contractor’s judgment sequently moved for on liability policy. al Defendant Aetna Insur- ground an em- Company ance insured Cochran for work- ployer precluded by North was Dakota’s compensation employer’s liability men’s compensation workmen’s law. Cochran coverage. .summary judgment Electric’s motion for appeals United Pacific from an order opinion by in was denied a memorandum County granting the District Court of Cass May court dated summary judgment pursuant Aetna to Rule Procedure, point Dakota We will at this in our North Rules Civil not discuss opinion development based the court’s determination that in that action ex- stage proceedings cept Pacific has been say at this there is no that United par- defending issue for the court to determine. Cochran Electric in the third ty by it Martin En- brought We hold that there is no actual gineering rights. nature reservation of and therefore affirm. under a (N.D.1976); 1. We do not address the distinctions between White v. McKenzie Electric opinion. Cooperative, contribution and in this 945-46 Holstrom, generally Sayler (D.N.D. 1964). See 239 N.W.2d brought deed, will, United Pacific this interested under a written con- Aetna, Schelske, tract, writings or other constituting a Schelske, Engineering, contract, Fern status, Co- rights, whose or other chran Electric to determine whether statute, it or relations are affected ordinance, Aetna has the municipal contract, Cochran Elec- or fran- *3 pay any judgment chise, tric and may contribution question determined Engineering may of construction or validity arising under awarded instrument, Cochran Electric. statute, ordinance, con- tract, or may franchise and obtain a dec- appeal, On this United Pacific contends rights, status, laration of or other justiciable exists, that controversy a that its 32-23-02, relations thereunder.” N.D. § comprehensive liability policy doesn’t C.C. coverage vide to Cochran Electric for either liability, defense or and that Aetna’s work- In G. W. Jones Lumber City Co. v. compensation policy men’s provide Marmarth, does 315-16, cov- 67 N.D. 272 N.W. erage to Cochran Electric both for (1937), defense 194 this court said that it does liability. and Aetna contends that there is not render advisory opinions. This court controversy justiciable of a nature and stated that there must be “an actual contro- jurisdiction therefore this court lacks versy to de- parties, submitted to a court cide this matter. It further contends that judgment in which may a be entered that justiciable if this court a controversy finds conclusively will determine the controversy exists, then its compensation workmen’s judicata.” (Citations become res Id. policy does omitted.) not make it liable for justiciable A controversy must Electric’s defense or because of an therefore exist declaratory before a all states endorsement which excludes cov- ment action can be maintained. also, erage in North Dakota. Aetna recognize We duty that the to defend is comprehensive tends that United Pacific’s separate from the indemnify. to liability policy provide coverage does to Co- Smith v. Family American Mutual Insur chran spite Electric in of a clause in the (N.D. 294 ance N.W.2d policy excluding coverage injuries for to an 1980). Because each is a contrac employee injured during insured obligation, tual each is separately con course employment. of his sidered in opinion. this Both United and Aetna moved for sum- The two companies insurance involved in mary judgment in the District Court of this action seeking are to have the court County. stated, Cass previously As the dis- hold the other company liable to indemnify trict court jus- concluded that there was no Cochran Electric if presented ticiable issue to the court for damages awarded in the action. accordingly determination. It denied Unit- agree We with the Fifth Circuit Court of ed summary judgment Pacific’s motion for Appeals’ decision in American F. & C. Co. v. granted Aetna’s motion for Pennsylvania T. & F. M. Cas. Ins. judgment. agree We with the district court (5th 1960), F.2d 453 Cir. that has been liability (as distinguished from the issue of presented to the court. We therefore do defend) to for a may loss which not reach the issue of poli- which insurance never arise does not create a cy provides coverage to Cochran Electric. In that case American Fire & The North Century Dakota Code in Sec- Casualty was an insurer under a policy fleet tion provides 32-23-02 Clay, insurer, Pennsylvania was an actions be instituted to have also under a policy, fleet for Britt. Britt rights and liabilities adju- under a contract unit, driver, leased complete from dicated. provides: That section Clay. Clay The by Clay’s truck driven em- “32-23-02. Power ployee to construe con- on behalf injury of Britt caused an
tracts, statutes,
Any person
plaintiff,
later,
Clay
who sued
wills.—
indemnity un-
amendment,
Clay, at the instance of be awarded contribution or
Britt.
American,
exception
general
Penn-
to that
rule allow-
that Britt and
der
demanded
damage
ing recovery
where an
contrac-
sylvania assume the defense
relationship
employ-
against Clay only. Both tual
exists between
pending
suits then
exception
party.
er and the third
That
was
Pennsylvania declined to tender
Britt and
recognized in the case of White v. McKenzie
defense.
Cooperative,
begun
litigate when
parties
had
court,
(D.N.D.1964),
945-46
in which the
American, defending Clay,
for declar-
asked
interpreting North Dakota workmen’s com-
insured,
Clay,
its
atory judgment
law,
pensation
said:
Britt, Pennsylvania, and the
well as
party’s
“The authorities hold that a third
plaintiffs.
sought
American
damaged
right to recover
from em-
which of the two
have the court declare
ployer
employee
to the
un-
who is liable
companies had the
insurance
*4
provisions
the
of a workmen’s com-
der
legal liability
Clay and which would have
indepen-
pensation act is based
underlying
pay any damages in the
ac-
relationship
gives
dent contractual
was,
court found that
there
tion. The
duty owing
party by
the third
rise to
liability
damage suits
yet,
legal
since the
employer
employer
which the
has
the
yet
finding that
were not
tried.
In
breached,
creating
obligation
thus
liability
reach the issue of
court should not
party.
the third
[Citations
liability
it went to
for a loss which
because
of such
In the absence
inde-
omitted.]
arise,
stated:
may never
the court
pendent
relationship
contractual
saying is that if each of
“What we are
party,
in-
.employer
between
and third
win,
Damage
Plaintiffs
if neither of
demnity
omit-
is not allowed. [Citations
succeed,
Clay
Britt
if
the defendants
or
ted.]
developed requiring
per-
facts are not
or
court, in the
of Marvin
mitting
findings, express or im-
The district
action
decisive
Engi-
and Fern
v. Martin
plied, on the status of the truck or its Schelske
Schelske
neering Company
Electric
they might
upon related
v. Cochran
Com-
driver as
bear
policies, pany,
of
provisions of the two insurance
must make
determination
independent
may then be ac- whether or “not an
contractual
problems now academic
Elec-
relationship exists between Cochran
tual.”
chants Mutual Insurance et and BERN- Co. 461, 463, ING, (1965). Judge, Mass. District 208 N.E.2d concur. In determining whether or not a declara- BERNING, Judge, sitting District in
tory may presently maintained, be place PAULSON, J., disqualified. agree we with the court in Aetna Insurance WALLE, Justice, VANDE dissenting. Co., Co. v. Transamerica Insurance F.Supp. at following the test disagree I with the conclusion in the ma- should be used: jority opinion that declaratory-judgment a
“Basically
question
the
seeking
in each case is
a
duty
determination of a
to
whether the facts averred under the ex-
defend
policy
under an insurance
does not
isting
present
present
circumstances
a real a
many
In
troversy
parties having
adverse
instances the issue of
duty
the
to defend is
thought
1981),
2. Lest
although
it be
that we failed to consider a
we decided in a
arriving
recent decision of our court in
at this
party
action between two insurers which
had
conclusion,
briefly
defend,
duty
we shall discuss it
precedent
at this
the
to
that case is not
say
time. We
requiring
think it is sufficient to
that in
us to do so in this case as the issue of
Dairyland
justiciability
American Hardware Insurance Co. v.
was neither
raised nor decided
Company,
(N.D.
Insurance
duty to defend arises the merits
outcome of *6 such, and, as present justiciable controversy is a
there
which we should decide. recognized we that a Not SHEETS, Appellee, Leona Plaintiff is a distinct contractual element indemnify, we have also from the of an
recognized the effect on the insured FIEDLER, LETNES, MARSHALL & defend. See insurer’s failure or refusal to LTD., professional corporation, and Family v. American Mut. Ins. Smith Marshall, Letnes F. Daniel S. John Delaying the supra. determination individually agents until duty to defend corporation, Defendants fessional merely is also or contribute determined Appellants. which he uncertainty extension of the Civ. No. 10003. live with. must Supreme Court of Dakota. North indicates Although majority opinion responsibility for con- for defense and Oct. deter- should be tribution action, questions I in one have some mined posture procedural of that state-
as to the example, com- As an if an insurance
ment. the insured
pany refuses to defend and himself, ap- separate action
must defend