*1 Lundberg, Conmy, Nodland, ceasing Lucas construction [Larson] Schulz, Bismarck, for defendants and appel- lees; argued Patrick A. Conmy, Bis- The court Larson to responsible intended marck. for incurred by those costs Brunsoman in
repairing
pay-
defects and those claims for
materials,
Chief Justice.
ment for
fur-
supplies,
and labor
subcontractors,
nished to Larson and its
opinion
Pursuant to our
in John Larson
repair
and the responsibility
of which
for
Brunsoman,
Co. v.
(N.D.
by plaintiff and its subcontractors
prior plaintiff ceasing construc-
tion, repair of which would
the obligation plaintiff
terms of the contract.
“(b) That shall indemnify and hold any harmless defendants from BROS., INC., corporation, WAGNER claims for payment supplies, for ma- Appellant, Plaintiff
terials, and labor furnished plain- v. tiff and its subcontractors prior plaintiff ceasing construction, the re- WILLISTON, CITY OF a North Dakota sponsibility payment of which municipal Defendant, corporation, Third obligation would be the of plaintiff Plaintiff, Party Appellee, under the terms of the contract. v. “(c) The amount Two Hundred Seven- WEBSTER, WESTON, FOSTER and teen Dollars and Forty Cents Party Third Defendant and ($217.40)in favor of the defendants Appellee. plaintiff.” No. 10368. Civ. John Larson Company (Larson) contends on remittitur does not Supreme of North Court Dakota. conform with the opinion. court’s Specifi- 24, 1983. June cally, counsel for argues Larson para- (b) graph should be eliminated.
We believe the trial court properly con-
strued our opinion as intending to limit
Larson’s obligation to indemnify Brunso-
man et (Brunsoman) al with regard to both:
(1) any incurred by costs [Brunso- in repairing defects in work per-
man]
formed and its subcon- [Larson] prior
tractors ceasing con- [Larson] ” struction, and, ....
(2) “... sup- claims materials,
plies, and labor furnished pri- subcontractors [Larson]
McGee, Hankla, Wheeler, Backes & Mi- not, party appellee; for third defendant filed brief amicus curiae. Justice. facts in this case are not in
The relevant briefly and thus can be summarized. 1978, Protection the Environmental City of Williston Agency awarded (hereinafter City) sewage a federal Thereafter, 3, 1980, on November grant. Brothers, (hereinafter Wag- Inc. Wagner ner) City perform contracted with the construction work on requisite project. improvements waste treatment However, commencing work on the after a demand for project, Wagner submitted project’s plans that the alleging at variance with the specifications were performed, actual work to be compensation. additional tling Wagner to refusal Upon City’s a declara- an action for Wagner commenced right to judgment of its contractual tory that the controversies Subsequent arbitration. ac- thereto, party a third City brought Webster, Foster and Weston that if it is Webster) alleging (hereinafter deter- Wagner, whether adjudged liable proceed- or mined result proximate be the ings, would entitling the thus negligence, Webster’s Wagner indemnity. or City to contribution then moved that there was judgment grounds on the of material fact genuine issue irrevocably was the matters bound submit order, dated In an amended arbitration.1 District Court December Kloster, Mackoff, Dic- Kellogg, Kirby & motion Wagner’s County Williams denied kinson, argued appellant; granted summary judgment Kirby, Ward M. Dickinson. that the arbitration declaring City’s motion was Bonner, Williston, provision for de- MacMaster & was entered A fendant, appellee; unenforceable. party plaintiff, third from Bonner, therewith argued by Margaret Williston. enforcing their contractual was so contended that bound; however, City argued Section' precluded the court appeals. now For bar, the reasons hereinafter in the case at stated, we affirm. have contractually agreed to arbitrate: The salient issue raised on “30.1 All other mat- appeal is: of, ters in or question arising Whether district errone- to, the or the *3 CONTRACTDOCUMENTS ously determined the that arbitration thereof, except breach for claims which clause of the contract was waived the by making have been enforceable, not specifically of final acceptance provided as tling the of Williston to a shall be decided by Section arbitra- judgment. the tion in accordance with Construction Specifically, Wagner contends that the Arbitration Rules of the Ameri- Industry clause constitutes an enforce- agree- can Arbitration Association. This able agreement because it was included in be en- specifically ment to arbitrate shall the pursuant to the federal rules prevailing arbitration forceable regulations governing grants EPA award law. The rendered arbitra- construction waste treatment works. final, judgment may tors shall be be The relevant federal rules regu upon it in having juris- entered lations that waste every treatment Specifications diction thereof.” Sew- works “Supplemen contract include certain Williston, age Improvements, Treatment tal General requisite gen Conditions.” The Dakota, 1980, Conditions: North General eral regard condition with to arbitration is: Weston, Webster, Foster Page 9 “7. Remedies. contract pro Unless this Consulting Engineers. otherwise, claims, vides counter clause, which This contractual constitutes claims, disputes and other materials [mat arbitrate, the parties’ agreement mutual to in question between the Owner and ters] agreement states: to unequivocally “[t]his arising relating Contractor of or out be enforceable specifically arbitrate shall to agreement or its breach will be prevailing arbitration law.” parties decided arbitration if here mutually agree, or in a court of compe Thus, Wagner- jurisdiction tent within the State en specifically arbitration clause is which Specifica the Owner is located.” our contingent upon interpreta forceable is Sewage tions for Improve Treatment phrase “prevailing arbitration ments, Williston, Dakota, North Webster if provision, law.” the Remedies Under Weston, Consulting Foster & Engineers, mutually had not 1980, at 56. p. agreed to their alternative reme dy bring The would have been to an action “... clear import provision 7 on Remedies in a of competent jurisdiction” is within that if City “mutually Dakota, North agree,” counterclaims, “all State vein, Owner similar arising other materials ... is located.” a [matters] relating interpret phrase “prevailing of or arbitration ...” their contract or law” breach will to mean the law in arbitra- North Hence, tion. there absolutely is enforc specifically federal requirement mandating ing that Pursuant to agreement the City N.D.C.C.,2 arbitrate their disputes. agree- “an Section nent tions cannot be to arbitration.” enforced “3. An “32-04-12. What part: n 32-04-12, N.D.C.C., speciñcally. [*] enforced [*] to submit —The obligations [*] specifically: following obliga- reads in [*] a controversy cannot be : n perti- clares: tractual specifically cally The 12(3), arbitration enforceable “[t]his agreement is not clause in agreement inasmuch estopped pursuant arbitrate to arbitrate shall as the to Section 32-04- specifically asserting is not parties’ specifi- con- that de- ar- to arbitra- obvious from the fierce resistance that ment to submit We tion” cannot be enforced.3 made, only ease, in this regularly therefore affirm. procedure our is not a viable resolution forum. As alternative WALLE, and PAUL- soon as a court will declare the statutes SON, JJ., concur. unconstitutional, open will be door PEDERSON, Justice, valid and fair concurring special- legislativé efforts to write a ty- law.
If the arbitration law” would “prevailing
provide due for the in their process parties I concur in the
dispute, would not
Justice’s ultra-technical interpretation.
But the North Dakota statutes procedure are so unfair
would be to force their use unconscionable
upon objects. someone who It should be And, 1-01-06, instance, N.D.C.C. bitration law.” In this exists. authority upon secondly, is Section N.D.C.C. the case law relied proposition that in for the broad does not stand Wagner-City arbi- contends that the to submit a circumstances tration clause is specifically en- to arbitration both North case law and common law. See, Fargo Dis- West Public School forceable. arguments respect his are Ed., Fargo v. West 617 trict 259 N.W.2d First, unpersuasive for two reasons. it is well- Swedberg, (N.D.1977); Nordenstrom v. there is no common law in a established (N.D.1966). N.W.2d statutory authority situation where