North Dakota Insurance, Claims and Liability Law

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1 North Dakota Insurance, Claims and Liability Law North Dakota Tort Law Copyright 2012 Brownson & Ballou Brownson & Ballou, PLLP 225 South Sixth Street, Suite 4800, Minneapolis, MN Brownson & Ballou, PLLP Brownson & Ballou, PLLP is a law firm formed by Robert D. Brownson, D. Scott Ballou, Thomas J. Linnihan, and Kristi K. Warner, experienced Minneapolis litigation attorneys. Together with their partner, Patrick M. Biren, associate, Jessie E. Rosenthal, and colleagues, they are committed to providing their clients the finest quality in legal services. Brownson & Ballou, PLLP is a Professional Limited Liability Partnership with a litigation practice before state and federal trial and appellate courts and administrative agencies. The firm performs legal service for a large and well-established clientele of corporations and insurance companies with whom the partners of the firm have long-standing relationships. The firm practices in the areas of commercial and insurance litigation with a focus on environmental, toxic tort, insurance coverage, construction and surety bond disputes, premises liability, employment, products liability, copyright and trademark disputes, personal injury, wrongful death, automobile liability, and workers compensation defense work. Since 1987, lawyers at the firm have served as National Coordinating Counsel for defendants in the asbestos bodily injury, property damage, and insurance coverage litigation. In that capacity, we have handled trials and appeals of major bodily injury and property damage cases in state and federal courts throughout the country. We supervise the defense of the cases and provide strategy, oversight, and coordination to our clients and local counsel across the country. In addition, the firm serves as regional and Minnesota trial counsel in asbestos litigation. TABLE OF CONTENTS Statute of Limitations 2 Insurance Law 3 Automobile Liability 4-5 Dram Shop 6 Premises Liability: Duty 7 Premises Liability: Defenses 8 Products Liability 9 Professional Liability 10 Employment Law 11 Whistleblowers 12 Asbestos Claims 13 Wrongful Death Actions 14 An Overview of Fault 15 Government Immunities 16 Recoverable Damages 17 Collateral Source Offset 18 Personal Injury Claims and Medicare 19 Settlement Agreements 20

2 Page 2 North Dakota Insurance, Claims and Liability Law Statute of Limitations Statutes of Limitations establish the time period during which a plaintiff, insured, or claimant must file a cause of action in order to preserve his or her claim. The limitations period typically runs from the date of the accident or injury, or from the day the individual discovered the existence of a potential claim. In North Dakota, the following types of actions must be brought within either two or six years: 2 Years N.D.C.C Libel Slander 6 Years N.D.C.C Assault Action upon a Liability Created by Statute Battery Fraud False Imprisonment Other Injury to a Person, Including Products Liability and Negligence Malpractice Personal Injury when Death Ensues

3 North Dakota Insurance, Claims and Liability Law Page 3 Insurance Law (deadlines in bold) Licensing Resident Licensing An individual applying for a resident insurance producer license in the State of North Dakota must submit a uniform application to the commissioner, who must then find that the applicant: Is at least eighteen years of age, Has not committed any act that is a ground for denial, suspension, or revocation, Has paid the application fees, Has successfully passed the necessary examinations, and Is competent, trustworthy, financially responsible, and has a good personal and business reputation. To access information regarding initial resident licensing, please refer to: Business Entity A business entity acting as an insurance producer must submit a uniform business entity application to the commissioner to obtain an insurance producer license. Before approving the application, the commissioner must conclude that the business entity has paid the application fee and has appointed a principal insurance producer responsible for the entity s compliance with insurance laws and state regulations. Nonresident Insurance Producer The commissioner also issues nonresident insurance producer licenses. To receive a nonresident license, an individual must satisfy the following criteria: The individual must be licensed as a resident in good standing in another state, The individual must submit the proper request for licensure and pay the attendant fees, The individual must submit either a home state application for licensure or a completed uniform application, and His or her home state must award nonresident insurance producer licenses to residents of North Dakota on the same basis. To access additional information, please refer to: Claims Handling North Dakota statutory law requires that once an insured or claimant completes proof of loss, an insurer must affirm or deny coverage within a reasonable time. Moreover, once liability has become reasonably clear, insurers are required to attempt to effectuate prompt, fair, and equitable settlements of claims in good faith. Finally, with regard to communication, insurers are instructed to acknowledge pertinent communications concerning claims with reasonable promptness. Continuing Education A licensed resident insurance producer or consultant must: Complete twenty-four hours of approved continuing education hours over a two-year period, three of which must be in ethics. o Up to twelve hours of continuing education work over the minimum requirement in a twelve month period may be credited to the next twelve month period. Provide the commissioner with evidence of participation in the coursework. The commissioner may reduce or waive the number of hours per year for individuals having licenses limited to a specific product type. The commissioner may also provide a one-time extension of up to thirty-six months if necessary to implement the transition to reporting hours by birth month. Individuals at least sixty-two years of age as of January 1, 2010 are not required to complete continuing education hours if their age, combined with the number of continuous years of licensure as an insurance producer, equals eighty-five. For additional information, please see: t-licensing-and-continuingeducation/resident-continuing-education/

4 Page 4 North Dakota Insurance, Claims and Liability Law Automobile Liability No Fault Insurance The State of North Dakota requires the owner of an automobile to carry: Liability Insurance, Uninsured and Underinsured Insurance, and No Fault Insurance Coverage Under the no fault model, an insured s own insurer will pay the insured s damages in the event of an accident, regardless of fault. In North Dakota, no-fault benefits cover: Accidental bodily injury incurred by the owner of an insured automobile as well as all relatives of the owner while they are occupying any vehicle or while they, as pedestrians, are hit by a vehicle or motorcycle; Benefits for economic losses resulting from accidental bodily injury sustained by any other individual while occupying the insured automobile; and Accidental bodily injury sustained by any pedestrian after being struck by the insured automobile. The purpose of the no-fault system is to compensate motor vehicle accident victims adequately and to simultaneously limit tort recovery and fault-based litigation. As such, in order to seek noneconomic damages from another insured individual, above and beyond their own no-fault recovery, an accident victim must demonstrate: That he or she is insured, and That his or her injury is a serious one A serious injury is defined as an accidental bodily injury resulting in: Death, dismemberment, serious and permanent disfigurement, or Disability beyond sixty days, or Medical expenses over two thousand and five hundred dollars. Other Insurance and Priority of Payment Any damages an insured is entitled to collect from uninsured or underinsured coverage must be reduced by the amount paid or payable under: o Any workforce safety or insurance law, and o Any valid automobile medical payments, o Personal injury protection insurance, or o Similar vehicle coverage. If an insured is entitled to uninsured or underinsured coverage under more than one policy, the maximum recoverable amount may not exceed the highest limit of coverage provided for any one automobile under a single policy. If more than one policy applies, a policy covering an automobile occupied by the injured person at the time of the accident has priority over a policy covering a vehicle not involved in the accident under which the injured individual is a named insured, which in turn has priority over a policy covering a vehicle not involved in the accident under which the injured person is an unnamed insured.

5 North Dakota Insurance, Claims and Liability Law Page 5 Automobile Liability Uninsured and Underinsured Coverage Each motor vehicle in North Dakota must be minimally insured to provide up to $25,000 to one individual for bodily injuries or death sustained in a single accident, up to $50,000 total, per accident, and up to $25,000 for the destruction of property in a single accident. Uninsured and underinsured coverage provide protection in instances where an insured s liability coverage is insufficient to cover their damages and the other motorist s vehicle is uninsured or underinsured. In North Dakota, an automobile is uninsured: If it is not covered by a liability insurance policy, If the insurer refuses to provide coverage, If the insurer denies coverage, If the insurer becomes insolvent, or If the identity of the owner or operator cannot be ascertained and the injury or death of the insured victim is caused by: o Physical contact of the automobile with the insured, o Physical contact of the automobile with a vehicle occupied by the insured, or o Is verified by a disinterested witness. A vehicle is underinsured when: The vehicle is covered by a bodily injury liability insurance policy or bond, but the limit of the policy or bond is less than the: o Applicable limit for underinsured coverage pursuant to the insured s policy or o Has been reduced by payments to others injured in the accident to an amount less than the insured s underinsured coverage limit. Uninsured coverage must pay the amount of damages an insured is entitled to collect for bodily injury, disease, sickness, or death, from the owner or operator of an uninsured automobile arising out of the ownership, maintenance, or use of the uninsured automobile. The maximum liability of the uninsured coverage is the lesser of the limits of the liability of the uninsured coverage or the amount of compensatory damages established by agreement, settlement, or judgment with or for the individual or entity liable for the injury or death, but not recovered. The serious injury threshold requirement applicable to no-fault coverage does not limit or qualify an insurer s liability regarding uninsured coverage. Insurer s must provide underinsured coverage at limits equal to those of uninsured coverage and underinsured coverage must also pay the amount of damages an insured is entitled to collect for bodily injury, disease, sickness, or death, from the owner or operator of an underinsured automobile arising out of the ownership, maintenance, or use of the underinsured vehicle. The maximum liability of the underinsured coverage is the lesser of either the limits of the underinsured coverage amount or the unrecovered compensatory damages established by any agreement, settlement, or judgment with the person or entity liable for the injury or death. Brownson & Ballou, PLLP 225 South Sixth Street, Suite 4800, Minneapolis, MN

6 Page 6 North Dakota Insurance, Claims and Liability Law Dram Shop CLIENT TESTIMONIAL Under North Dakota s dram shop statute, any person injured by an obviously intoxicated person has a claim against any individual who knowingly disposes, sells, barters, or gives away alcoholic beverages to a person under twenty-one years of age, an incompetent, or an obviously intoxicated person. If death ensues, the survivors of the victim are entitled to damages proportionate to their injuries resulting from the death. The dram shop statute does not cover claims on behalf of the intoxicated person, the estate of the intoxicated person, or the personal representatives of the intoxicated person, nor does it cover claims by adult passengers in an automobile driven by an intoxicated person, the estate of the passengers, or the personal representatives of such passengers. North Dakota case law provides that passengers in an automobile driven by an intoxicated person owe no statutory duty to members of oncoming traffic under the dram shop statute. Moreover, the statute does not replace or otherwise alter the common law duty of bar and night club owners to protect patrons from assault only when reasonable cause exists as to conduct likely to endanger the safety of patrons. To Whom It May Concern, Our company engaged Ms. Warner and the Brownson Law Firm for a significant personal injury claim filed against us in Ms. Warner managed every aspect of the claim with extraordinary professionalism. From the moment the claim was filed, Ms. Warner took the necessary steps to ensure that we were fully prepared, and nurtured us through all steps, leading ultimately to a most acceptable settlement in favor of our firm. Ms. Warner handled the case with diligence, passion, and with a strong sense of protecting our company. No stone was left uncovered. We were most impressed with every aspect of Ms. Warner s performance and proudly recommend her to those seeking the best in legal representation. Throughout the entire claim, our company felt confident in our position. Ms. Warner has the unique ability of delivering the facts and preparing the client in such a way as to best represent it in a claim. Yours sincerely, NATIONAL HOSPITALITY SERVICES LLC Norman H. Leslie President 225 South Sixth Street, Suite 4800, Minneapolis, MN

7 North Dakota Insurance, Claims and Liability Law Page 7 Premises Liability Duty Landowners and occupiers owe a duty to others to maintain their land in a reasonably safe condition under all of the circumstances, including the likelihood of injury, the seriousness of the injury, and the burden of avoiding the risk. Landowners have a right to use and develop their property, but an owner or occupier must take reasonable measures to prevent injury to foreseeable individuals when the owner conducts dangerous activities or allows hazardous conditions to exist on their premises. Adequate warnings are not always sufficient to eliminate landowner liability. Although North Dakota has abolished the distinction between the duty owed by landowners to invitees and licensees, it has retained the distinction with regard to trespassers. As such, an owner or occupier owes no affirmative duty to a trespasser to warn of dangerous conditions on the land and must only refrain from willfully or wantonly exposing the trespasser to hidden dangers or injury. Once a trespasser s presence in a place of peril becomes known, however, an owner or occupier has a duty to exercise ordinary care to avoid injuring the trespasser. MISSION STATEMENT Our goal at Brownson & Ballou, PLLP is to deliver results that exceed our clients expectations. We offer the superior quality associated with large firms in combination with the close personal attention typically found only in small firms. We are a creative, efficient and experienced team of professionals ready to listen to and understand each client s individual needs. The firm strives to provide the best possible results for its clients in an expeditious, cost effective manner. Companies, insurers, public entities, and individuals rely upon Brownson and Ballou, PLLP for prompt, thoughtful, and knowledgeable counsel. Our attorneys are respected and ethical advocates for the many clients we are privileged and proud to serve. Brownson & Ballou, PLLP 225 South Sixth Street, Suite 4800, Minneapolis, MN

8 Page 8 North Dakota Insurance, Claims and Liability Law Premises Liability Defenses Snow and Ice Under North Dakota law, landowners and occupiers must exercise reasonable care to prevent the occurrence of dangerous conditions on their land, including those caused by the natural accumulation of snow and ice. The reasonableness duty extends to steps and stairways attached to abutting buildings, but does not extend to sidewalks, unless a city ordinance provides otherwise, because of their potential length and remoteness. As to abutting public sidewalks specifically, landowners are not rendered liable due to the mere fact that snow or ice is present on an abutting sidewalk in front of their property. Liability with respect to snow and ice on sidewalks attaches only where a party engages in an act or omission that creates an unreasonably dangerous condition. Similarly, absent a further act or omission that generates an unreasonably hazardous condition, landowners are not liable for conditions on sidewalks caused by snow removal efforts. Landowners who construct canopies over sidewalks, however, owe a duty to others to keep it free from artificial accumulations of water and ice. Pursuant to North Dakota statutory law, municipalities are exempt from liability with regard to injuries sustained as a result of snow and ice upon municipal sidewalks unless an officer, governing body, or marshal of the municipality possessed actual knowledge of the condition of the sidewalk at least forty-eight hours prior to the injury. Actual knowledge must be proved and will not be presumed based upon the existence of the condition. Under the common law, municipalities must only exercise reasonable care with regard to sidewalks and are not liable for injuries resulting solely from slippery conditions. However, if snow or ice is allowed to remain on sidewalks for long periods of time such that the accumulation itself becomes an obstruction, a municipality will become liable either for the accumulation or for the failure to exercise due care by spreading salt or sand. Government Property Under North Dakota law, premises liability of political subdivisions, including school districts, is governed by the same reasonableness principles applicable to private landowners. Political subdivisions are liable for injuries caused by a condition on or use of public property and for injuries caused by the negligent or wrongful acts or omissions of any employee acting within the scope of their employment. Open and Obvious Doctrine The open and obvious doctrine is a factor in comparative fault analysis. A landowner owes entrants a more limited duty to protect and/or warn when a dangerous condition is known or obvious. However, when landowners can and should anticipate that a dangerous condition will cause an entrant physical harm, they retain a duty of reasonable care despite the open and obvious nature of the condition. Moreover, distracting circumstances, such as store displays, may excuse a plaintiff s inattentiveness to open and obvious hazards. Lack of Knowledge A landowner or occupier s duty to warn others of dangerous conditions on the land is premised on their having superior knowledge of dangers posed by a particular condition. A warning is not necessary in instances where an individual is already fully aware of the danger at issue. Recreational Use Recreational use immunity statutes shield landowners, including political subdivisions, from liability with respect to recreational entrants and premises under recreational use. As a result, there is no duty to warn recreational entrants of dangerous conditions or to keep recreational premises safe. However, recreational use immunity will not apply, as of 2011, to an individual who enters the premises to provide goods or services at the request of the owner or where a for-profit business owner directly or indirectly invites entrants for commercial purposes or during periods of commercial activity.

9 North Dakota Insurance, Claims and Liability Law Page 9 Products Liability Claims Generally Products liability claims may be alleged in the context of negligence, strict liability, or breach of warranty actions. Under North Dakota law, negligence claims focus on whether a manufacturer s conduct satisfied the standard of reasonable care, while strict liability claims focus on whether the product at issue is unreasonably dangerous. Types of Cases Failure to Warn A failure to warn action is based on the duty of a manufacturer to provide adequate warnings with respect to the intended use(s) of the product and/or reasonably foreseeable use(s) of the product. Under a negligence theory, the focus is on whether or not the manufacturer s conduct with regard to providing or not providing warnings satisfies the reasonable care standard. Under a strict liability theory, on the other hand, the failure to warn question focuses on whether the warnings provided are adequate to avoid exposing ordinary users to unreasonable danger. Defective Condition In a defective condition action, a plaintiff must demonstrate that: The product was defective in design or manufacture; The defect existed when the product left the manufacture s control; The defect rendered the product at issue unreasonably dangerous; The product did not undergo substantial change in its condition prior to reaching the consumer; and The defect proximately caused his or her injury. A product is defective in design or condition if it does not operate reasonably and safely under ordinary or intended uses.

10 Page 10 North Dakota Insurance, Claims and Liability Law Professional Liability (deadlines in bold) Medical Malpractice Once a claim accrues, a plaintiff must commence a medical malpractice claim within two years. An action against a physician or licensed hospital, however, must not extend beyond six years of the alleged malpractice unless the physician or hospital at issue fraudulently prevented discovery of the act or omission. In order to state a medical malpractice claim, a plaintiff must offer expert evidence, in the form of an affidavit, establishing: The applicable standard of care, Violation of that standard, and A causal relationship between the violation and the alleged harm within three months of commencing the malpractice action. The court may, however, extend the deadline for serving an expert affidavit for good cause shown provided the plaintiff requests an extension of time within the three-month period following commencement of the action. Professional Malpractice North Dakota plaintiffs may also bring malpractice claims against other professionals pursuant to state statutory law. The applicable statute does not identify particular professionals subject to malpractice claims, but courts have held that architects and engineers qualify as professionals, while electricians and certified financial planners do not. In order to determine whether an individual is a professional subject to suit, North Dakota courts assess whether the occupation at issue satisfies the definition of profession, in that it requires advanced education, training, and intellectual skills. Professional malpractice claims are subject to a two-year statute of limitations period. Legal Malpractice The statute of limitations period applicable to legal malpractice claims is two years. However, the limitations period: Does not begin to run until the client has incurred damage from the alleged malpractice, and Is tolled until the client either knows or should know of the damage incurred, its cause, and the attorney s possible negligence. In order to state a legal malpractice claim against an attorney, a plaintiff-client must demonstrate: That an attorney-client relationship existed; That the attorney owed him/her a duty; That the attorney breached that duty; and That the attorney s breach of that duty proximately caused his or her damages. Brownson & Ballou, PLLP

11 North Dakota Insurance, Claims and Liability Law Page 11 Employment Law Discrimination North Dakota s Human Rights Act prohibits an employer from engaging in discriminatory practices on account of the following characteristics: Race Color Religion Sex National Origin Age Physical Disability Mental Disability Status with Respect to Marriage or Public Assistance Participation in Lawful Activities Outside of the Workplace During Non-Working Hours. The statute also provides that an employer s failure to make reasonable accommodations for otherwise qualified individuals with physical or mental disabilities, or because of religion, qualifies as a discriminatory practice. Contrastingly, the statute does not prohibit compulsory retirement of any employee sixty-five years of age (but not seventy years of age) who, for the two-year period immediately preceding the retirement, served as an executive or occupied a high policymaking role provided the employee is entitled to an immediate nonforfeiture annual retirement totaling at least $40,000. Termination Pursuant to North Dakota law, employment is presumed to be at-will. In an at-will employment relationship, an employer may terminate an employee with or without cause. The North Dakota Supreme Court has, however, recognized a public policy exception to the employer s right to terminate an employee in an at-will employment situation. The exception applies when a constitutional or statutory provision, which prohibits termination of the at-will employee at issue, supports the public policy alleged. Parties can also modify the at-will employment presumption via contract. In order to obtain breach-of-employmentcontract damages, both the nature and origin of the damages must be clearly ascertainable.

12 Page 12 North Dakota Insurance, Claims and Liability Law Whistleblowers (deadlines in bold) Pursuant to the North Dakota employer retaliation statute, employers may not discharge, discipline, threaten to discipline, or otherwise penalize employees because an employee reports a violation or suspected violation of law, in good faith, to an employer, a governmental agency, or a law enforcement official. Employers similarly may not penalize an employee if an employee is requested by a public body or official to participate in an investigation, or because an employee refuses to perform an action the employee believes unlawful at the request of the employer. Deadlines An employee asserting a violation of the retaliation statute may file a civil action seeking injunctive relief, actual damages, or both, within one hundred and eighty days after the alleged violation(s), after completion of proceedings initiated by the department of labor, or after completion of any grievance procedure available to the employee, whichever is later. If a recourse process is available to an employee pursuant to a collective bargaining agreement, contract, or pursuant to public employee rights, the employee must exercise that process to completion prior to commencing a civil action under the statute. Elements of a Claim To establish a case for retaliation, an employee must demonstrate the following: That the employee engaged in activity protected by the statute; That the employer took adverse action against the employee; and That a causal connection exists between the employee s activity and the employer s adverse action. The causal connection element requires more than speculation or conjecture, but circumstantial evidence is sufficient to establish an inference of causation. If an employee establishes a prima facie claim by a preponderance of the evidence, the burden shifts to the employer to rebut the presumption of unlawful discrimination. An employer rebuts the resulting presumption by demonstrating, by a preponderance of the evidence, that it had a legitimate, nondiscriminatory reason for actions taken with regard to the employee. Relief If the court determines that an employer violated the statute, the court may order the following: Reinstatement of the employee, Backpay for no more than two years after the violation (reduced by interim earnings or amounts earnable by the employee from the same employer), Reinstatement of benefits, Permanent or temporary injunctive relief, and/or Attorney s fees.

13 North Dakota Insurance, Claims and Liability Law Page 13 Asbestos Claims In North Dakota, personal injury asbestos cases are organized by county, and are typically put into so-called sets, which may include anywhere from six to thirty separate plaintiffs. The cases are grouped by filing date. Currently, there are approximately 120 cases pending in three counties: 1. Cass County (Fargo), 2. Grand Forks County (Grand Forks), and 3. Morton County (Mandan). The North Dakota Supreme Court has not addressed the question of how much exposure evidence a plaintiff in an asbestos-related case must product to raise a material issue of fact as to causation. District courts, however, traditionally follow the Lohrman frequency, regularity and proximity text. Under the Lohrman test, a plaintiff must establish the following elements to survive summary judgment: He or she was exposed to a particular asbestos-containing product made by the defendant; The exposure occurred with sufficient frequency and regularity; The exposure occurred in proximity to where plaintiff actually worked; and The probability that the exposure to defendant s products caused medical harm. North Dakota is a several liability state, and there is no joint liability. In asbestos cases, therefore, a defendant is liable only for the percentage of fault attributed to it by the jury and will not be allocated the fault of any other party, even uncollectible shares. Brownson & Ballou, PLLP 225 South Sixth Street, Suite 4800, Minneapolis, MN

14 Page 14 North Dakota Insurance, Claims and Liability Law Wrongful Death Actions (deadlines in bold) A wrongful death claim is available to the surviving husband or wife, if any, the surviving children, if any, the surviving mother or father, a surviving grandparent, the personal representative, or a person who had had primary physical custody of the decedent (in that order), for a wrongful act, neglect, or default, which would have entitled the decedent to maintain an action for damages had death not ensued. Wrongful death actions are subject to a two-year statute of limitations period and begin to accrue upon the death of the decedent, unless such death results from malpractice, in which case the two-year period begins to toll on the date of the discovery of the malpractice. Recoverable economic damages include: Damages arising from medical expenses and care Rehabilitation services Custodial care Loss of earnings and earning capacity Loss of income or support Burial costs Cost of substitute domestic services Loss of employment or business or employment opportunities Other monetary losses Recoverable noneconomic damages include: Those arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness Loss of society and companionship Loss of consortium Injury to reputation Humiliation Other nonmonetary damage

15 North Dakota Insurance, Claims and Liability Law Page 15 An Overview of Fault Comparative Fault North Dakota adopted a modified comparative fault regime in 1987, rejecting joint and several liability in favor of several liability. Under the comparative fault model, the jury determines the percentage of fault attributable to a single defendant in producing an injury and that particular defendant is liable only for the assessed percentage of the overall damages. As such, there is no third-party practice in the State of North Dakota and a defendant may not bring other defendants who a played role in producing the injury into a case to avoid liability. However, defendants, in an attempt to mitigate liability, may request that the jury determine the amount of damages attributable to all others, including non-parties, by including those individuals on the jury form. Joint and Several Liability and Contribution - Acting in Concert Although North Dakota adopted several liability in 1987, defendants remain jointly and severally liable for all resulting damages in cases where the defendants acted in concert, aided or encouraged a tortious act, or ratified or adopted a tortious act. When two or more parties become jointly or severally liable for the same injury or wrongful death in tort, a tort-feasor who pays more than their pro rata share of the common liability has a right to contribution in the amount paid in excess of the pro rata share, provided he or she did not act willfully or wantonly in causing the injury. Additionally, a liability insurer who has fulfilled its obligation as insurer has a right of contribution if it paid more than the insured tort-feasor s share of common liability. Contributory Fault A plaintiff s contributory fault reduces the amount of recoverable damages in proportion to the amount of the plaintiff s fault. Contributory fault will bar the plaintiff from recovering damages where the plaintiff s fault was as great as the combined fault of all others who contributed to the injury (50%).

16 Page 16 North Dakota Insurance, Claims and Liability Law Government Immunities Discretionary Function Immunity Discretionary function immunity, as recognized by North Dakota law, protects political subdivisions from liability for acts and/or omissions committed by their employees where the employees were performing discretionary functions or duties. To determine whether discretionary function immunity applies, a court must determine whether the challenged employee conduct was discretionary in nature (e.g. whether the conduct required decision-making or choice), and whether the challenged conduct was a type of discretionary function the immunity defense was designed to protect. Statutory Cap on Liability Pursuant to North Dakota statutory law, the liability of political subdivisions is limited to a total of $250,000 per person and $500,000 for injury to three or more persons. Moreover, a political subdivision may not be held liability for exemplary damages. Qualified Immunity Qualified immunity aims to safeguard the ability of government officials to exercise discretion and authority while performing their public duties. In order to utilize the qualified immunity defense in a suit for civil damages, a public official must demonstrate that his or her actions did not violate a clearly established statutory or constitutional right of which a reasonable person would have been aware. If a reasonable official could have believed the conduct at issue was lawful, qualified immunity will apply and the claim will be dismissed. If however, the relevant law was clearly established at the time of the alleged conduct such that a reasonable official would or should have known the status of the law, the defense will not apply. Issues concerning the applicability of qualified immunity are generally questions of law to be resolved by the court, but fact finders may on occasion be required to determine the reasonableness of an official s conduct.

17 North Dakota Insurance, Claims and Liability Law Page 17 Recoverable Damages Economic and Noneconomic Damages Under North Dakota law, money damages are available to any person who suffers a detriment as a result of an unlawful act or omission of another individual. In personal injury and wrongful death actions, plaintiffs may recover both economic and noneconomic damages. Recoverable economic damages include: Costs arising from medical expenses and medical care Rehabilitation services Custodial care Loss of earnings and earning capacity Loss of income or support Burial costs The cost of substitute domestic services Loss of employment or business or employment opportunities Other monetary losses Noneconomic damages recoverable by personal injury or wrongful death plaintiffs include: Damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness Loss of society and companionship Loss of consortium Injury to reputation Humiliation Other nonmonetary damage A plaintiff whose contributory fault was as great as the combined fault of other individuals who contributed to the injury, however, will be barred from recovering damages. Brownson & Ballou, PLLP Exemplary Damages In North Dakota, punitive damages are called exemplary damages. Exemplary damages, aimed at punishing defendants rather than compensating plaintiffs, may be awarded in addition to compensatory damages by the court or jury in any case alleging a breach of an obligation, other than a claim arising from contract, when a defendant has been guilty of oppression, fraud, or actual malice by clear and convincing evidence. Plaintiffs may not seek exemplary damages in the complaint, but must rather file a motion to amend the pleadings after the suit has been filed to claim exemplary damages. The motion to amend must be accompanied by one or more affidavits or deposition testimony demonstrating the basis for the exemplary damage claim. The opposing party may then respond with affidavit or deposition testimony of its own. North Dakota courts allow the moving party to amend the pleadings to claim exemplary damages only if there is sufficient evidence to support a finding by the trier of fact that a preponderance of the evidence demonstrates oppression, fraud, or actual malice. Additionally, exemplary damages are only available if a plaintiff is entitled to compensatory damages and have a cap. If awarded, exemplary damages may not exceed two times the amount of the compensatory damage award or two hundred and fifty thousand dollars, whichever is greater. In a jury trial, the jury may not be informed of the limit on exemplary damages prior to deliberation. If the jury award exceeds the exemplary damage limits, the court will reduce the award.

18 Page 18 North Dakota Insurance, Claims and Liability Law Collateral Source Offset Pursuant to North Dakota statutory law, a party responsible for payment of economic damages may apply to the courts for a reduction of the damage award by the amount covered by a collateral source. A collateral source is any sum from any other source paid or to be paid to cover an economic loss which need not be repaid by the party recovering economic damages. Life insurance, death and retirement benefits, and insurance or benefits purchased by the recovering party, however, are excepted from the definition of collateral source. During trials, parties may not inform the jury of potential collateral source payments and evidence concerning a plaintiff s access to potential government benefits is barred. MISSION STATEMENT Our goal at Brownson & Ballou, PLLP is to deliver results that exceed our clients expectations. We offer the superior quality associated with large firms in combination with the close personal attention typically found only in small firms. We are a creative, efficient and experienced team of professionals ready to listen to and understand each client s individual needs. The firm strives to provide the best possible results for its clients in an expeditious, cost effective manner. Companies, insurers, public entities, and individuals rely upon Brownson and Ballou, PLLP for prompt, thoughtful, and knowledgeable counsel. Our attorneys are respected and ethical advocates for the many clients we are privileged and proud to serve. CLIENT TESTIMONIAL I had the opportunity to get to know and work with Tom Linnihan as retained workers compensation claims counsel for North Star Foodservice Minnesota and U.S. Foodservice Minnesota from August November During this period of time I observed the following attributes that enabled Tom and his law firm, Brownson & Ballou, to service these organizations in an exemplary manner: Tom consistently demonstrated exceptional personal character and ethical behavior; he also demonstrated a very high level of expertise in the area of workers compensation claims administration and resolution...he managed to save the company in excess of $100,000 during the time period noted! I have worked with several attorneys over the years in this area of the law and Tom Linnihan is absolutely the best one that I have encountered. He was, and still is, regarded as a wonderful business partner for U.S. Foodservice! In conclusion, I strongly recommend Tom Linnihan and the Brownson & Ballou law firm to any organization in need of a very high level of workers compensation claims administration and resolution legal expertise! James T. Hixon, [Former] Human Resources Manager NORTH STAR FOODSERVICE MINNESOTA Brownson & Ballou, PLLP 225 South Sixth Street, Suite 4800, Minneapolis, MN

19 North Dakota Insurance, Claims and Liability Law Page 19 Personal Injury Actions and Medicare Reporting Requirements Medicare currently functions as a secondary payer, which means it will not pay for medical expenses in situations where primary insurance plans or self-insurance coverage exists. Until recently, however, Medicare lacked a mechanism to ensure it was not making payments where primary coverage existed. In 2007, Congress passed legislation requiring primary plans (defined broadly to include employers, workers compensation insurers, auto and liability insurers, group plans and programs, and third-party administrators) responsible for payment in cases involving Medicare-eligible claimants to notify Medicare of its existence and liability. Fines of up to $1,000 per day apply to noncomplying plans. Plans are also required to report settlements and judgments concerning Medicare-eligible claimants to Medicare entities. As of January 1, 2012, plans must report settlements or judgments over $100,000. Plans will be required to report lower settlements to Medicare by July 1, 2012 (settlements $50,001 to $100,000), October 1, 2012 ($25,001- $50,000), and January 1, 2013 (all settlements over an identified threshold, which is currently set at $5,000). For additional information concerning Medicare and insurer reporting requirements, please see of- Benefits/MandatoryInsRep/index.html?redirect =/mandatoryinsrep. Reimbursing Medicare and Preserving its Future Interests In addition to the reporting requirements described above, attorneys and participants involved in personal injury actions concerning Medicareeligible claimants must also address Medicare s financial interests. Upon reaching a settlement or judgment in a personal injury action, participants must reimburse Medicare for the past payments it made on behalf of the claimant. Participants must also consider Medicare s future interests where claimants may incur future medical expenses. The means by which to protect Medicare as to future medical expenses, however, remains unclear. At present, no statute or regulation governs the treatment of future medical expenses and Medicare in the context of tort actions. A proposed regulation on this topic, largely consistent with the use of Medicare Set Aside (MSA) Trusts in workers compensation cases, which has been required by the Code of Federal Regulations since 1989, mandates the use of Medicare Set Aside Trusts in liability cases (LMSAs). To create an LMSA, parties would place certain funds into a trust designated for payment of future medical costs upon settlement or judgment. The claimant would then draw on those funds to pay medical expenses and would not be entitled to Medicare assistance until depletion of the trust funds. The regulation, however, is not yet law and various Medicare regional offices and courts have offered competing views on the use of LMSAs in tort cases, adding to the present state of ambiguity. Until clarifying law is available, practitioners should work together to ensure the interests of Medicare are addressed in cases involving Medicare-eligible claimants likely to accrue future medical expenses.

20 Page 20 North Dakota Insurance, Claims and Liability Law Settlement Agreements North Dakota law favors compromise and settlement efforts. Courts refrain from setting aside settlement agreements unless parties demonstrate fraud, duress, undue influence, or other facts which warrant such action. Miller v. Shugart Release North Dakota recognized the validity of the type of agreement utilized in the Minnesota Supreme Court case of Miller v. Shugart in This type of settlement allows an insured to consent to judgment in favor of a plaintiff provided the plaintiff satisfies the judgment out of proceeds from the insured s policy only. For example, in the context of an automobile claim, a Miller v. Shugart agreement allows an injured plaintiff to settle with insured car owners and drivers and to have a judgment entered in the amount of a stipulated sum (to be collected only from the proceeds of applicable insurance) while the insurer is litigating coverage. Once coverage is determined to exist, the plaintiff would be entitled to recover the stipulated judgment, up to the policy limits, in a garnishment action against the insurer provided the insurer received notice of the earlier agreement, the agreement did not result from fraud or collusion, and the agreement is reasonable. Bartels Agreement The Supreme Court of North Dakota validated the Bartels release in the 1979 Bartels v. City of Williston case. A Bartels release allows a plaintiff to settle a claim against, and dismiss from a pending action, one tort-feasor without affecting its rights regarding other nonsettling defendants. The issue between the plaintiff and nonsettling defendants remains the percentage of fault attributable to the nonsettling defendants in producing the injury, and the plaintiff s recovery is limited to that amount as determined by the jury. CLIENT TESTIMONIAL I have had the privilege of working with Bob Brownson and a number of his partners and associates for over 25 years on a wide variety of matters. Bob and his colleagues have always exhibited great knowledge and professionalism in their dealings with me. They have been tenacious advocates for me in any matter they handled, whether on the plaintiff or defendant side of the fence. Most recently, Brownson & Ballou have been managing extremely complicated multistate personal injury and workers compensation matters for my business. They have been enormously effective and have provided much appreciated legal guidance through some very difficult litigation. And as important as anything, these are very nice people to work with I highly recommend Brownson & Ballou. Robert Crowson, President Conwed Corporation Copyright 2012 Brownson & Ballou Brownson & Ballou, PLLP 225 South Sixth Street, Suite 4800, Minneapolis, MN

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