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James Vault & Precast Co. v. B&B Hot Oil Service, Inc.

Supreme Court of North Dakota

March 1, 2018

James Vault & Precast Co., Donna Bline, Melvin Zent, Thomas Kuntz, Dave Olheiser, and Jerry Kram, Plaintiffs
v.
B&B Hot Oil Service, Inc., Steve Forster, Daniel Krebs, and Debra D. Krebs, Defendants Steve Forster, Daniel Krebs, and Debra D. Krebs, Crossclaim Plaintiffs and Appellants
v.
B&B Hot Oil Service, Inc. & JB's Welding, Crossclaim Defendants and Appellees and St. Paul Surplus Lines Insurance Company, Crossclaim Defendant B&B Hot Oil Service, Inc., Counter-Crossclaim Plaintiff and Appellee
v.
Steve Forster, Daniel Krebs, and Debra D. Krebs, Counter-Crossclaim Defendants and Appellants Steve Forster, Daniel Krebs, and Debra D. Krebs, Plaintiffs
v.
St. Paul Surplus Lines Insurance Company, Defendant St. Paul Surplus Lines Insurance Company, Third-Party Plaintiff
v.
Acuity, a Mutual Insurance Company, Third-Party Defendant

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Dann E. Greenwood, Judge.

          Randall J. Bakke (argued) and Shawn A. Grinolds (on brief), Bismarck, ND, for appellants

          Steve Forster, Daniel Krebs, and Debra D. Krebs.

          Nicholas C. Grant (argued), Randall N. Sickler (on brief), Allison R. Mann (on brief), Dickinson, ND, and Zachary E. Pelham (appeared), Bismarck, ND, for appellee B&B Hot Oil Service, Inc.

          Lawrence E. King (argued) and Alyssa L. Lovas (appeared), Bismarck, ND, for appelle JB's Welding.

          James Vault & Precast Co., Donna Bline, Melvin Zent, Thomas Kuntz, Dave Olheiser and Jerry Kram, plaintiffs; no appearance.

          St. Paul Surplus Lines Insurance Company, defendant and third-party plaintiff; no appearance.

          Acuity, a Mutual Insurance Company, third-party defendant; no appearance.

          OPINION

          Jensen, Justice.

         [¶ 1] Steve Forster, Daniel Krebs, and Debra Krebs (collectively "Forster/Krebs") appeal from a judgment dismissing their claims against B&B Hot Oil Service, Inc., and JB's Welding. Forster/Krebs argue the district court erred in construing language in a lease agreement with B&B Hot Oil as a waiver of their claims against B&B Hot Oil for damages to their building and property and to preclude a subrogation claim by their insurer, Acuity, against B&B Hot Oil. Forster/Krebs also argue the district court improperly granted summary judgment dismissing their claims against JB's Welding for concerted action and a joint venture. Because we conclude a stipulation to dismiss Forster/Krebs' other remaining claims against JB's Welding without prejudice does not make the judgment final for purposes of our appellate jurisdiction, we dismiss the appeal.

         I

         [¶ 2] B&B Hot Oil leased one-half of a building owned by Forster/Krebs and used the leased property to store two hot oil trucks. An explosion in January 2010, destroyed the building and its contents and damaged surrounding property. See Messer v. B&B Hot Oil Serv., Inc., 2015 ND 202, ¶¶ 1-3, 868 N.W.2d 373 (outlining general underlying factual background and reversing summary judgment dismissal of adjoining landowners' negligence and strict products liability claims against JB's Welding for property damage). The alleged cause of the explosion was a propane leak from one of the hot oil trucks, which has been referred to by the parties as a "knock off" truck built through "reverse engineering" by B&B Hot Oil with assistance from JB's Welding. Id. at ¶¶ 2-3.

         [¶ 3] Several third parties sued Forster/Krebs and B&B Hot Oil in this action for damages. Forster/Krebs cross-claimed against B&B Hot Oil and JB's Welding for damages related to the destruction of Forster/Krebs' building and the contents. Forster/Krebs ultimately alleged claims against B&B Hot Oil for breach of contract, negligence, res ipsa loquitur, and strict products liability, and against JB's Welding for negligence, strict products liability, and concerted action and a joint venture with B&B Hot Oil.

         [¶ 4] The district court granted summary judgment dismissing all of Forster/Krebs' cross-claims against B&B Hot Oil, ruling that Forster/Krebs waived their right to recover damages to their property under the provisions of the lease agreement with B&B Hot Oil and that Forster/Krebs' insurer, Acuity, was not entitled to subrogation from B&B Hot Oil. The court denied Forster/Krebs' motion to amend their pleadings against B&B Hot Oil. The court also granted summary judgment ...


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