from the District Court of LaMoure County, Southeast Judicial
District, the Honorable Jay A. Schmitz, Judge.
F. Marrin, Grand Forks, ND, for plaintiff and appellee.
Lawrence P. Kropp, Jamestown, ND, for Kelly Steffes and Tasha
Rohrbach, n/k/a Steffes, defendants and appellants.
M. Kelly, Lisbon, ND, for Keith Steffes, defendant and
Keith Steffes, Kelly Steffes and Tasha (Rohrbach) Steffes
appeal from a district court order granting Nodak Mutual
Insurance Company's motion for a new trial. The Steffeses
argue the district court abused its discretion in vacating
the judgment and granting Nodak's motion for a new trial.
We dismiss the appeal because the order granting a new trial
is not currently reviewable.
In April 2012 a vehicle owned by Keith Steffes and insured by
Nodak was involved in a single vehicle rollover. Keith
Steffes claimed he was driving but not injured in the
accident. Kelly Steffes and Tasha Steffes suffered serious
injuries. The Steffeses did not notify authorities of the
accident. Instead, Kelly Steffes and Tasha Steffes were taken
to the hospital by a third party while Keith Steffes removed
the vehicle from the accident scene using a tractor.
Authorities later located the vehicle on Keith Steffes'
father's farm. Keith Steffes' initial statements to
police misreported the location of the accident and
misreported the reason he did not immediately contact
Nodak initiated an investigation as part of its claims
process, gathering sworn statements from the Steffeses and
performing DNA testing inside the vehicle. Based on
inconsistent statements and the DNA test results, Nodak
alleged Keith Steffes was not the vehicle driver, and sought
declaratory relief and a determination of coverage based on
material misrepresentations. The jury returned a special
verdict in favor of the Steffeses, finding Nodak did not
prove its case by the greater weight of evidence. Nodak
successfully moved for a new trial under N.D.R.Civ.P.
59(b)(6), claiming insufficient evidence justified the
verdict. The Steffeses appealed.
Neither party raised the issue of appealability. This Court
considers the matter sua sponte. Ceartin v. Ochs,
479 N.W.2d 863, 864 (1992). A two-prong inquiry is used when
analyzing this Court's jurisdiction to consider appeals
from orders in cases with unadjudicated claims. Id.
First, the order must satisfy one of the bases for appeal in
N.D.C.C. § 28-27-02. Second, the case must comply with
Whether an order satisfies the first prong is governed by
North Dakota Century Code. "An order which grants or
refuses a new trial or which sustains a demurrer" is
appealable under N.D.C.C. § 28-27-02. Here, the appeal
is from the district court order granting Nodak's motion
for a new trial. The first prong is satisfied, and the appeal
must be reviewed for compliance with N.D.R.Civ.P. 54(b)
because an order granting a new trial does not terminate the
action. Standing alone, and without Rule 54(b) certification,
the order for a new trial is not a final order for purposes
of appeal. Ceartin v. Ochs, 479 N.W.2d 863, 865
Rule 54(b) provides:
"If an action presents more than one claim for relief,
whether as a claim, counterclaim, crossclaim, or third-party
claim, or if multiple parties are involved, the court may
direct entry of a final judgment as to one or more, but fewer
than all, claims or parties only if the court expressly
determines that there is no just reason for delay. Otherwise,
any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be ...