Buurman v. Central Valley School Dist., 10927

• Decision Date: 11 July 1985
• Docket Number: No. 10927,10927
• Citation: 371 N.W.2d 146
• Parties: 26 Ed. Law Rep. 460 Martin J. BUURMAN, Plaintiff, v. CENTRAL VALLEY SCHOOL DISTRICT, a political subdivision, Defendant, Third-Party Plaintiff, and Appellant, v. Dorothy WAITH, Third-Party Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 146

371 N.W.2d 146

26 Ed. Law Rep. 460

Martin J. BUURMAN, Plaintiff, v. CENTRAL VALLEY SCHOOL DISTRICT, a political subdivision, Defendant, Third-Party Plaintiff, and Appellant, v. Dorothy WAITH, Third-Party Defendant and Appellee.

Civ. No. 10927.

Supreme Court of North Dakota.

July 11, 1985.

David S. Maring (argued) and Leah Fujimoto, of Cahill, Jeffries & Maring, P.A., Moorhead, Minn., for defendant, third-party plaintiff, and appellant.

Kathleen A. Weir, of Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., for third-party defendant and appellee.

VANDE WALLE, Justice.

Central Valley School District (hereinafter School District) appealed from a summary judgment dismissing the third-party defendant, Dorothy Waith, as a party to the litigation. We dismiss the appeal.

Norma Buurman, the wife of the plaintiff, Martin Buurman, and Dorothy Waith were traveling in a motor vehicle owned by the University of North Dakota. Waith was the driver of the vehicle in which other employees, in addition to Norma, were also traveling. The motor vehicle driven by Waith was involved in an accident with a motor vehicle owned by the School District. Norma was killed and her husband, Martin, brought a wrongful-death action against the School District. The School District filed a third-party complaint against Waith, claiming her negligence was responsible for the death of Norma. Waith answered the third-party complaint and moved for summary judgment alleging that because she and Norma were employees of the University of North Dakota and acting within the scope of their employment, any action against her arising out of the accident was barred by the North Dakota Workmen's Compensation statutes, Title 65-01, N.D.C.C., i.e., the exclusive-remedy provisions of the Workmen's Compensation Act prohibit liability of a co-employee for contribution or indemnity.

The trial court issued an order determining:

"That there is no genuine issue as to any material fact and that Third-Party Defendant Dorothy Waith is entitled to summary judgment as a matter of law pursuant to Rule 56 of the North Dakota Rules of Civil Procedure, there being no just reason for delay."

Subsequent to the entry of summary judgment and this appeal therefrom, Martin Buurman moved the trial court for a "separate bench trial of the issues between Plaintiff Martin J. Buurman and Defendant Central Valley School District, a political subdivision, pursuant to Rule 42(b) of the North Dakota Rules of Civil Procedure." The motion alleged that because of Martin's advanced age and state of health, delay could prejudice his case in the event of his death or disability. The motion further alleged that the issues between the School District and Waith did not directly affect him. The trial court ordered that Martin's claim against the School District "be tried separately by the court from the third-party claim of Central Valley School District, a political subdivision, Third-Party Plaintiff vs. Dorothy Waith, Third-Party Defendant," and scheduled the trial of Buurman against the School District for May 21, 1985. This appeal was heard on June 24, 1985, and we were informed at oral argument that at the May 21 trial the School District was found totally responsible for the accident and Waith was found not negligent.

Neither Waith nor the School District has raised the issue of whether or not the summary judgment entered in this case is appealable. This court has, however, on several occasions considered sua sponte whether or not a particular order or judgment is appealable. See, e.g., Federal Land Bank of Saint Paul v. Wallace, 366 N.W.2d 444 (N.D.1985); Union State Bank v. Woell, 357 N.W.2d 234 (N.D.1984). Our concern with this particular appeal is twofold: (1) whether or not the third-party action was severed from the main action and (2) if it was not severed whether the Rule 54(b), N.D.R.Civ.P., order contained in the order for summary judgment was providently granted.

If a claim against a party is severed, no Rule 54(b) order is required. Federal Land Bank of Saint Paul v. Wallace, supra. However, our examination of the record indicates that Buurman's motion for a trial separate from that of the third-party action under Rule 42(b) and the trial court's order granting that motion were exactly that, a motion and an order for separate trial. It was not a motion or an order severing the third-party action pursuant to Rule 21, N.D.R.Civ.P., which provides that any claim against a party may be severed and proceeded with separately. Thus, contrary to Federal Land Bank of Saint Paul v. Wallace, supra, we cannot determine that the trial court was acting under Rule 21.

If the third-party claim has not been severed, a Rule 54(b) order expressly stating there is no just reason for delay in directing the entry of final judgment as to one or more but fewer than all of the claims or parties is necessary in order that the particular judgment may be appealed. Federal Land Bank of Saint Paul v. Wallace, supra; Union State Bank v. Woell, supra; Striegel v. Dakota Hills, Inc., 343 N.W.2d 785 (N.D.1984). Here, a Rule 54(b) order was required and was a part of the order granting summary judgment. However, as noted above, that does not end our inquiry.

In Union State Bank v. Woell, supra, 357 N.W.2d at 236, we stated:

"Even if the trial court does make the requisite determination under Rule 54(b), we are not bound by the court's finding that 'no just reason for delay exists.' We will sua sponte review the court's certification to determine if the court has abused its discretion. [Citations omitted.] Upon a determination by this Court that the trial court has abused its discretion in certifying under Rule 54(b), we will set aside the certification. At that point there is no final order or judgment for us to review."

Union State Bank, authored for the court by Justice Sand, contains a thorough and logical discussion of the reasons for Rule 54(b). Those reasons include a long-standing policy of this court against piecemeal appeals. The trial court, in considering an application for a Rule 54(b) order, is to weigh...