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Karl Moseng v. Lynn Frey and Hartland Mutual Insurance Company

October 23, 2012

KARL MOSENG,
PLAINTIFF AND APPELLANT
v.
LYNN FREY AND HARTLAND MUTUAL INSURANCE COMPANY,
DEFENDANTS AND APPELLEES



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Douglas L. Mattson, Judge.

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

N.D. Supreme CourtMoseng v. Frey,

2012 ND 220

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

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Crothers, Justice.

[¶1] Karl Moseng appeals a district court judgment granting Lynn Frey and Hartland Mutual Insurance Company's Motions to dismiss Karl Moseng's claims for negligence and negligent infliction of emotional distress. Karl Moseng argues he has legally sufficient claims. We conclude Karl Moseng's claims are legally insufficient, and we affirm.

I

[¶2] Karl Moseng and his wife Vicki Moseng were employed by Hartland Mutual Insurance Company. Lynn Frey was Vicki Moseng's supervisor from 1985 to 2008. Karl Moseng alleged Frey used his position as a supervisor with Hartland to arrange sexual liaisons with Vicki Moseng from 1988 through 1991. Specifically, Karl Moseng alleged Frey sent Karl Moseng on geographically distant employment tasks to more easily allow the liaisons between Frey and Vicki Moseng. Karl Moseng alleged both Frey and Hartland utilized their positions as supervisor and employer to conceal the affair.

[¶3] Karl Moseng brought claims of negligence and negligent infliction of emotional distress. Frey and Hartland moved to dismiss under N.D.R.Civ.P. 12(b)(6). Judgment granting the dismissal with prejudice was entered on March 2, 2012.

II

[¶4] Karl Moseng argues the district court erred by granting Frey and Hartland's motions to dismiss. The district court concluded Karl Moseng's claims of negligence and negligent infliction of emotional distress were masked alienation of affections claims and therefore legally insufficient. Karl Moseng argues his claims are not masked alienation of affections claims because Frey and Hartland violated their duties as employers to Karl Moseng as an employee by unnecessarily sending him to geographically distant locations to facilitate the sexual liaisons between Frey and Vicki Moseng. Karl Moseng attempts to characterize Frey's and Hartland's conduct as violations of N.D.C.C. § 34-01-01, which defines a contract of employment as when an employer engages another to do something for the benefit of the employer or third person. He argues that he was bound to comply with Frey's directives under N.D.C.C. § 34-02-08 requiring an employee substantially comply with all directions of the employer and that Frey and Hartland, as his employer, must indemnify him for losses caused by Frey and Hartland's lack of care under N.D.C.C. § 34-02-03. Frey and Hartland argue Karl Moseng's claims are barred by the statute abolishing alienation of affections actions.

[¶5] "A motion to dismiss a complaint under N.D.R.Civ.P. 12(b)(6) tests 'the legal sufficiency of the statement of the claim presented in the complaint.'" Hale v. State, 2012 ND 148, ¶ 13, 818 N.W.2d 684 (quoting Ziegelmann v. DaimlerChrysler Corp., 2002 ND 134, ¶ 5, 649 N.W.2d 556). "[W]e construe the complaint in the light most favorable to the plaintiff, taking as true the well-pleaded allegations in the complaint." Hale, at ¶ 13 (quotation omitted). "Under N.D.R.Civ.P. 12(b)(6), a 'complaint should not be dismissed unless "it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted."'" Hale, at ¶ 13 (quotation ...


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