Daley by Daley v. American Family Mut. Ins. Co.

• Decision Date: 23 October 1984
• Docket Number: No. 10622,10622
• Citation: 355 N.W.2d 812
• Parties: Kyza DALEY, by her next friend, LeRoy DALEY, Plaintiff and Appellee, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 812

355 N.W.2d 812

Kyza DALEY, by her next friend, LeRoy DALEY, Plaintiff and Appellee, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant and Appellant.

Civ. No. 10622.

Supreme Court of North Dakota.

Oct. 23, 1984.

H.H. Galloway, Grand Forks, for plaintiff and appellee.

Letnes, Marshall, Fiedler & Clapp, Grand Forks, for defendant and appellant; argued by Howard D. Swanson, Grand Forks.

ERICKSTAD, Chief Justice.

American Family Mutual Insurance Company appeals from a judgment in favor of Kyza Daley in the amount of $2,413.99 plus interest. We reverse and remand for a trial by jury.

Kyza Daley initiated this action against American Family on December 10, 1981, alleging that she was an insured under a policy from American Family and that American Family had refused to pay medical expenses for a knee injury suffered by Kyza during training for her high school track team. In its answer to the complaint, American Family denied coverage alleging that Kyza's injury was not a "covered sickness" under the policy and that the injury was excluded from coverage under Exclusion A8 of the policy. Exclusion A8 is a "pre-existing condition" clause which excludes coverage for injuries sustained or illnesses manifested prior to the coverage date. American Family demanded trial by a twelve-person jury, in accordance with Rule 38, N.D.R.Civ.P.

A pretrial conference was held on August 1, 1983, and the court issued its pretrial conference order that same date. ¹ In its order, the court sua sponte struck American Family's demand for a jury trial:

"The Defendant has demanded a trial by jury of twelve persons. The Court has informed counsel that in its discretion it will strike the demand for trial by jury of this case which involves a claim of less that $2,500." ²

On the first day of trial, American Family advised the court that by appearing for trial it was not waiving its right to a jury trial. The court heard further argument on the jury issue, then ruled from the bench that there was no genuine issue of fact raised in the pleadings and therefore American Family was not entitled to a jury trial. Trial commenced to the court, and at the close of the plaintiff's evidence plaintiff's counsel made a "motion for judgment." The court granted the motion, notwithstanding that American Family had not been allowed to present its evidence.

American Family has appealed, alleging that the court erred in striking its demand for trial by jury and in granting plaintiff's motion for judgment at the close of the plaintiff's evidence. We agree with American Family on both issues.

The court initially ordered at the pretrial conference that American Family's demand for a jury trial be stricken. This was purportedly done by the court as an exercise of its discretion, based upon the relatively small dollar amount of the claim.

Right to trial by jury is governed by our constitution, statutes, and rules of procedure. Article I, Section 13 of the North Dakota Constitution provides: "The right of trial by jury shall be secured to all, and remain inviolate." We have held that this provision preserves the right of trial by jury as it existed at the time of the adoption of our state constitution. City of Bismarck v. Altevogt, 353 N.W.2d 760, 764 (N.D.1984); General Electric Credit Corporation v. Richman, 338 N.W.2d 814, 817 (N.D.1983).

In addition, Rule 38(a) of the North Dakota Rules of Civil Procedure provides:

"Right Preserved. The right of trial by jury as declared by the Constitution of the United States or by the Constitution of the State of North Dakota or as given by a statute of the United States or of the State of North Dakota shall be preserved to the parties inviolate."

When a timely demand for trial by jury has been made in accordance with Rule 38(b), N.D.R.Civ.P., trial of all issues "shall be by jury" unless the parties consent to a non-jury trial or the court determines that a right of trial by jury does not exist under the relevant constitutional and statutory provisions. Rule 39(a), N.D.R.Civ.P. There is no discretion placed in the trial court to deny a jury trial when the action falls within one of the categories for which right to a jury trial has been preserved in our constitution. See Kilgore v. Farmers Union Oil Co., 74 N.D. 640, 651, 24 N.W.2d 26, 32 (1946). An action for money damages for breach of contract is an action at law in which the parties have an absolute right to trial by jury if properly demanded. See General Electric Credit Corporation v. Richman, supra, 338 N.W.2d at 817; Kilgore v. Farmers Union Oil Co., supra, 74 N.D. at 648-649, 24 N.W.2d at 30-31. We hold that the court erred in striking American Family's demand for jury trial in its pretrial conference order.

Furthermore, we do not agree with the court's conclusion that American Family's answer failed to raise a genuine material issue of fact to be submitted to a jury. We have previously held that there must be a question of fact present before a party is entitled to a jury trial. General Electric Credit Corporation v. Richman, supra, 338 N.W.2d at 819; Production Credit Association of Minot v. Melland, 278 N.W.2d 780, 788 (N.D.1979); Dorgan v. Kouba, 274 N.W.2d 167, 173 (N.D.1978) (on Petition for Rehearing).

Under the liberal pleading requirements of our Rules of Civil Procedure, a complaint need only place the defendant on notice as to the general nature of a plaintiff's claim. Sorum v. Schwartz, 344 N.W.2d 73, 76 (N.D.1984); Gowin v. Hazen Memorial Hospital Association, 311 N.W.2d 554, 556 (N.D.1981); State Bank of Towner, Inc. v. Rauh, 288 N.W.2d 299, 304 (N.D.1980). The rules do not require the pleader to recite all of the facts which will be used to prove the cause of action. Sorum v. Schwartz, supra, 344 N.W.2d at 76; Gowin v. Hazen Memorial Hospital Association, supra, 311 N.W.2d at 556. In determining the sufficiency of a pleading, we will look to the substance of the claim alleged:

"When determining the sufficiency of a plaintiff's claim, the court should look at the substance of the claim alleged and not merely at the language used. The determination of a claim's sufficiency should be tempered with a liberal construction in favor of upholding the plaintiff's right to be heard." Gowin v. Hazen Memorial Hospital Association, supra, 311 N.W.2d at 556.

This liberal interpretation of our rules of pleading applies with equal force to defenses asserted in an answer. Rule 8(b), N.D.R.Civ.P., provides in pertinent part:

"A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies."

All that is required in an answer is a short, plain statement of the defenses to be raised. In Johnson v. Haugland, 303 N.W.2d 533, 541 (N.D.1981), we stated:

"We believe that modern pleading rules were intended to address this issue: Does the pleader have a cause of action rather than did he skillfully plead one?"

Applying a liberal construction and looking to the substance of American Family's allegations, we conclude that American Family's answer, although somewhat conclusory in nature, raised genuine issues of material fact. American Family's defense was clearly based upon the pre-existing condition exclusion in the policy. For the reasons stated herein, we conclude that a genuine material issue of fact was raised by the pleadings, and that accordingly the trial court erred in denying American Family its right to trial by jury.

American Family also contends that the court erred in granting plaintiff's "motion for judgment" at the close of the plaintiff's evidence. Our Rules of Civil Procedure do not provide for a "motion for judgment" in favor of the plaintiff at the close of the plaintiff's evidence. Cf. Temme v. Traxel, 102 N.W.2d 1, 4 (N.D.1960).

Nor can the "motion for judgment" be sustained as a motion for an involuntary dismissal pursuant to Rule 41(b), N.D.R.Civ.P., a motion for a directed verdict pursuant to Rule 50(a), N.D.R.Civ.P., or a motion for summary judgment pursuant to Rule 56, N.D.R.Civ.P.

Rule 41(b), N.D.R.Civ.P., is clearly a defendant's remedy, providing that "a defendant may move for dismissal of an action" after the plaintiff has completed the presentation of his evidence. The court may then "render judgment against the plaintiff." The rule is therefore...