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City of Mandan, A Political Subdivision of the State of North Dakota v. Strata Corporation and Liberty Mutual Life Insurance Company

August 20, 2012

CITY OF MANDAN, A POLITICAL SUBDIVISION OF THE STATE OF NORTH DAKOTA; AND INTERSTATE ENGINEERING INC., A NORTH DAKOTA CORPORATION, PLAINTIFFS
v.
STRATA CORPORATION AND LIBERTY MUTUAL LIFE INSURANCE COMPANY,
DEFENDANTS,
THIRD-PARTY PLAINTIFFS AND
APPELLANTS
v.
UNITED CRANE & EXCAVATION, INC.,
THIRD-PARTY DEFENDANT AND APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.

The opinion of the court was delivered by: Crothers Justice.

N.D. Supreme CourtCity of Mandan v. Strata Corp., 2012 ND 173

This opinion is subject to petition for rehearing. [Go to Documents]

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DISMISSED.

Opinion of the Court by Crothers, Justice.

City of Mandan v. Strata CorporationNo. 20120006

[¶1] Strata Corporation and Liberty Mutual Fire Insurance Company appeal from a partial summary judgment dismissing Liberty Mutual's subrogation claim against United Crane & Excavation, Inc., after the district court certified the partial summary judgment as final under N.D.R.Civ.P. 54(b). Because this case does not represent the infrequent harsh case for immediate appeal and subsequent proceedings in the district court may moot the issue raised on appeal, the district court improvidently certified the partial summary judgment as final and we dismiss the appeal.

I

[¶2] Strata was the general contractor and United Crane was a subcontractor for a street reconstruction project in Mandan. During work on the project, heavy rains caused a sewer backup, damaging several homes in Mandan. Under a funding agreement, Mandan, Interstate Engineering, Inc., Strata and United Crane paid the homeowners for their losses. Mandan and Interstate Engineering sued Strata and its insurer, Liberty Mutual, to recover amounts paid under the funding agreement. Strata and Liberty Mutual brought a third-party claim against United Crane for money Strata and Liberty Mutual paid for the homeowners' losses. Mandan and Interstate Engineering settled their claims against Strata and Liberty Mutual, and United Crane moved for summary judgment against Liberty Mutual.

[¶3] The district court decided United Crane was an insured under Strata's insurance policy with Liberty Mutual because that policy defined an insured as any organization to whom Strata was obligated by written agreement to procure additional insured coverage and because Strata's contract with Mandan required Strata to purchase and maintain liability insurance for both Strata and its subcontractors. The court granted United Crane summary judgment, ruling United Crane was an insured under Strata's policy with Liberty Mutual and Liberty Mutual was not entitled to subrogation from an insured. The court dismissed Liberty Mutual's subrogation claim but did not decide Strata's claim against United Crane for $5,000, which represented the amount Strata was required to pay for its deductible under its policy with Liberty Mutual. The court decided "no just reason for delaying the entry of judgment" existed and granted a motion by Strata and Liberty Mutual to certify the partial summary judgment as final under N.D.R.Civ.P. 54(b).

II

[¶4] Strata and Liberty Mutual argue the district court properly certified the partial summary judgment as final under N.D.R.Civ.P. 54(b). They argue certification was appropriate because the issue about the subrogation claim is a unique, complex and controlling issue of law and the parties otherwise would have to proceed to a jury trial on the $5,000 claim before that issue could be reviewed. United Crane responds the court improvidently certified the partial summary judgment because future district court proceedings may moot the issues raised for appellate review.

[ΒΆ5] "Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable." Brummund v. Brummund, 2008 ND 224, 5, 758 N.W.2d 735. Rule 54(b), N.D.R.Civ.P., preserves this Court's long-standing policy against piecemeal appeals in actions involving multiple claims or parties and authorizes a district court to expressly direct entry of a final ...


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