Wright v. State

• Decision Date: 02 September 1971
• Docket Number: No. 8720,8720
• Parties: Jeanne Ann WRIGHT, an incompetent person, by Harold E. Wright, her Guardian Ad Litem, Plaintiff and Appellant, v. The STATE of North Dakota et al., Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 675

189 N.W.2d 675

Jeanne Ann WRIGHT, an incompetent person, by Harold E Wright, her Guardian Ad Litem, Plaintiff and Appellant, v. The STATE of North Dakota et al., Defendants and Respondents.

Civ. No. 8720.

Supreme Court of North Dakota.

Sept. 2, 1971.

Syllabus by the Court

1. Where the statute, Section 39--01--08, N.D.C.C., as amended, authorizes the State and its lesser governmental entities 'using or operating motor vehicles * * * to carry insurance for their own protection and for the protection of any employees from claims for loss or damage arising out of or by reason of the use or operation of such motor vehicle * * *' and the State Highway Department purchases a liability insurance policy covering only its employees, the purchase of the policy is not a waiver of the immunity of the State from suit permitted by Section 22 of the Constitution of North Dakota.

2. Section 39--01--08, N.D.C.C., as amended, is construed to authorize the State using or operating motor vehicles, to carry insurance for the protection of the State, or for the protection of its employees, or for the protection of both, giving the word 'and' as used in the statute both a conjunctive and disjunctive meaning, depending on the discretionary exercise of the authority conferred.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for appellant.

Helgi Johanneson, Atty. Gen., and Jos. A. Vogel, Jr., Sp. Asst. Atty. Gen., Bismarck, for respondents State of North Dakota and Walter R. Hjelle, as Commissioner of North Dakota State Highway Department.

Fleck, Mather, Strutz & Mayer, Bismarck, for respondent Charles R. Dukart.

BURDICK, District Judge.

This is a civil action brought by the plaintiff, Jeanne Ann Wright, an incompetent peson, by Harold E. Wright, her guardian ad litem, hereinafter referred to as the plaintiff, against the defendants, the State of North Dakota, Walter R. Hjelle as Commissioner of the North Dakota State Highway Department, and Charles R. Dukart, to recover damages for personal injuries allegedly sustained in a motor vehicle accident on Interstate Highway No. 94 in Billings County, North Dakota, on the 24th day of June, 1970.

The plaintiff alleges in her complaint that while she was driving an automobile on Interstate Highway No. 94, defendant Charles R. Dukart was driving and operating a truck owned by defendant State of North Dakota in the course of his employment by the State Highway Department, at which time Dukart allegedly drove and operated the truck in a negligent manner, causing the two vehicles to collide, and causing the plaintiff to suffer severe personal injuries for which she seeks damages against the defendants.

Defendants State of North Dakota, hereinafter referred to as the 'State', and Walter R. Hjelle as Commissioner of the North Dakota Highway Department, hereinafter referred to as the 'Commissioner', moved the trial court for a summary judgment of dismissal of the plaintiff's claim against them, upon the ground of governmental immunity from suit.

The trial court granted the motion for summary judgment of dismissal. The plaintiff has appealed from the judgment of dismissal directed by the trial court.

The plaintiff contends that the governmental immunity of the State was waived by the State through the purchase of a policy of liability insurance authorized by Section 39--01--08, N.D.C.C., as amended, enacted pursuant to Section 22 of the Constitution of North Dakota.

Section 39--01--08, N.D.C.C., as amended, reads as follows:

'39--01--08. State and political subdivisions authorized to carry insurance on vehicles--Waiver of immunity to extent only of insurance purchased.--1. The state of North Dakota or any department, agency, or bureau, as well as any county, city, or other political subdivision including townships, school and park districts using or operating motor vehicles and aircraft, are hereby authorized to carry insurance for their own protection and for the protection of any employees from claims for loss or damage arising out of or by reason of the use or operation of such motor vehicle or aircraft, whether such vehicle or aircraft at the time the loss or damage in question occurred was being operated in a governmental undertaking or otherwise. If a premium savings will result therefrom, such policies of insurance may be taken out for more than one year, but in no event beyond a period of five years.

'2. If insurance is purchased pursuant to subsection 1, then the purchaser waives its immunity to suit only to the extent of allowing a determination of liability to the extent of the waiver of the immunity against liability described in subsection 3.

'3. If insurance is purchased pursuant to subsection 1, then the purchaser waives its immunity against liability only to the types of its insurance coverage and only to the extent of the policy limits of such coverage.

'4. If any dispute exists concerning the amount of nature of the insurance coverage, the dispute shall be tried separately before the main trial determining the claims and damages of the claimant.

'5. This statute confers no right for a claimant to sue the insurer directly.'

Section 22 of the Constitution of North Dakota reads as follows:

'Section 22. All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay. Suits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct.'

Uncontradicted evidence received in support of the motion for summary judgment shows that the State Highway Department on the 24th day of June of 1969 procured liability coverage for its employees under Policy No. 2CA 83 68 22 issued by Agricultural Insurance Company of Watertown, New York, hereinafter referred to as the 'Company', in which the 'named insured' are described as 'The employees of the North Dakota State Highway Department, State Capitol Building, Bismarck, North Dakota'. The policy was issued with a 'Governmenal Immunity Endorsement' which contains the following provision: 'The Company hereby agrees to waive the defense of governmental immunity unless the named insured requests the company to assert such defense.' The Company has not been requested to assert the defense of governmental immunity.

The policy also carries a special endorsement reading as follows:

'SPECIAL COVERAGE ENDORSEMENT FOR COMMISSIONERS, OFFICERS AND EMPLOYEES OF THE NORTH DAKOTA STATE HIGHWAY DEPARTMENT.

'In consideration of payment of the premium indicated, it is agreed that such insurance as is afforded by the policy for bodily injury liability and for property damage liability applies subject to the following provisions:

'1. The insurance applies to Commissioners, Officers, and Employees as named insured, if an employee of or officer of the State Highway Department, with respect to his operation of or presence in any automobile of the private passenger, commercial, or truck type.

'(1) owned by the State Highway Department, or

'(2) personally owned by the employee, but only while such automobiles are being operated by such persons in performance of their duties as officers or employees of the State Highway Department and only when the officer or employee is specifically authorized to use his private automobiles.

'2. The insurance applies only to the named insured.

'3. The insurance shall be excess insurance over any other valid and collectible insurance available to the named insured, either as an insured under a policy applicable with respect to the automobile or otherwise, against a loss covered hereunder.

'4. The insurance applies only to such and so many of the coverages as are indicated by specific premium charged or charges. The limit of the company's liability against such coverage shall be as stated on the policy subject to all the terms of the policy having reference thereto.

'5. The premium basis to be determined as follows:

The annual charge per employee is $20.26 BI, $10.21 PD. It is further understood and agreed that new employees are covered under this policy from the date of their employment. A pro-rate charge will be made for each such employee for the time of this employment. The policy is subject to premium adjustment at the time of the annual audit.

'6. The approximate number of employees-drivers at inception of this policy, 900. BI rate $20.26; premium $18,234.00. PD rate $10.21; premium $9,189.00. Total estimated premium $27,423.00.

'7. The definition of commercial or truck type automobile as set forth in the coverage endorsement attached to this policy is extended to...