Richard v. Johnson

• Decision Date: 07 October 1975
• Docket Number: No. 9105,9105
• Citation: 234 N.W.2d 22
• Parties: Claude H. RICHARD, Plaintiff-Appellee, v. Roy E. JOHNSON, Defendant-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 22

234 N.W.2d 22

Claude H. RICHARD, Plaintiff-Appellee, v. Roy E. JOHNSON, Defendant-Appellant.

Civ. No. 9105.

Supreme Court of North Dakota.

Oct. 7, 1975.

Syllabus by the Court

1. The clear and explicit language of a statute cannot be disregarded under the pretext of pursuing its spirit. § 1--02--05, N.D.C.C.

2. Where an injured party has settled an uninsured motorist claim with his insurance carrier prior to seeking recovery of an unsatisfied judgment from the Unsatisfied Judgment Fund under §§ 39--17--03, 39--17--07, and 39--17--09, N.D.C.C., that person may still recover from the Fund the difference between the amount collected from his own insurance carrier and the amount of the outstanding judgment even though the settlement is for an amount less than the maximum liability limits of the uninsured motorist policy.

Robert P. Brady, Asst. Atty. Gen., Bismarck, for defendant-appellant and the Unsatisfied Judgment Fund.

Duane H. Ilvedson, Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, for plaintiff-appellee.

PAULSON, Judge.

This is an appeal from an order of the Cass County District Court directing payment from the Unsatisfied Judgment Fund (hereinafter the 'Fund') of a portion of a judgment obtained by Claude H. Richard in an action to recover for personal injuries sustained as the result of an automobile collision which occurred between Richard's vehicle and a vehicle driven by Roy E. Johnson. Such order directed the state treasurer to pay to Richard from the Fund the sum of $2,422.75, representing the judgment obtained of $3,037.30 less $614.55 which Richard had already received under a policy of insurance he held with Nodak Mutual Insurance Company (hereinafter 'Nodak').

The facts in this case are simple and are not disputed. Richard was injured on Cotober 8, 1972, in an automobile accident in south Fargo when a car driven by Johnson crossed over the centerline of the highway and collided with Richard's vehicle. At the time of the accident Johnson did not carry insurance, but Richard had insurance coverage from Nodak, which coverage included the mandatory $10,000 uninsured motorist coverage. § 26--02--42, N.D.C.C. Prior to commencing suit to recover for his injuries, Richard settled the uninsured motorist claim under his policy with Nodak for the sum of $500.00. In addition, Richard received $114.55 as reimbursement for his medical expenses from the insurance company.

Subsequent thereto, Richard commenced an action against Johnson to recover for his personal injuries and property damage. Pursuant to § 39--17--04, N.D.C.C., the Fund entered the case through the Attorney General, representing the Fund, after Johnson failed to answer. The jury awarded Richard the sum of $3,037.30 in compensation for his personal injuries and judgment was entered accordingly.

Richard was unable to collect the amount of the judgment from Johnson and proceeded then under §§ 39--17-03 and 39--17--05, N.D.C.C., to obtain payment of his judgment from the Fund. It is undisputed that all preliminary statutory requirements for collection from the Fund have been complied with in this case. The district court ordered payment, pursuant to § 39--17--07(2)(b), N.D.C.C., of that portion of the judgment which had not yet been collected from Richard's own insurance carrier under the uninsured motorist provisions of such policy. The Fund then appealed.

The only issue raised on this appeal is whether or not recovery from the Unsatisfied Judgment Fund is precluded where a motorist receives, from his own insurance carrier under uninsured motorist coverage, an amount less than the minimum $10,000 liability coverage set forth by § 26--02--42, N.D.C.C.

The only limitations on payments to be made from the Fund, once all preliminary requirements are met to the satisfaction of the district court, are found in § 39--17--07, N.D.C.C., a statute which has just recently been amended by the North Dakota Legislature. However, at the time when this case arose § 39--17--07(1)(a), N.D.C.C., limited recovery to a maximum amount of $10,000 for bodily injury to one person in any one accident; and § 39--17--07(2), N.D.C.C., provided:

'2. The amount authorized to be paid shall be within the limits provided by this section, and shall be determined as follows:

'a. If the judgment creditor has effected collection of a portion of the judgment from any source, except as provided for in subdivision b of subsection 2 of this section, the fund is authorized to pay him the difference between the amount collected and the amount of the judgment, or ten thousand dollars, whichever is smaller. Provided, if the judgment creditor or creditors have collected an amount equal to the limits payable from the fund from the insurance or nonexempt assets of the judgment debtor, then they are precluded from recovery from the fund.

'b. If the judgment creditor has effected collection of a portion of the judgment from an uninsured motorist insurance policy or payment from the workmen's compensation bureau, then the amount collected from these sources shall be subtracted from the judgment before the procedure outlined in subdivision a of subsection 2 of this section is followed.'

The language of § 39--17--07, N.D.C.C., is clear and explicit. Pearson v. State Unsatisfied Judgment Fund, 114 N.W.2d 257 (N.D.1962). Section 39--17--07 provided not only for a limitation on the Fund's liability, but established a formula which must be followed in calculating the amount which may be authorized for payment from the Fund. As applies in this case, calculation of the amount ordered to be paid from the Fund according to the provisions of § 39--17--07(2)(b), N.D.C.C., results in a conclusion that the Fund is liable to Richard for the amount ordered by the district court.

Nonetheless, the Fund contends that despite the mandatory, clear, and explicit language of § 39--17--07(2)(b), yet another limitation on the Fund's liability must be imposed by implication. That limitation which the Fund seeks to impose would restrict the availability of the Fund to those persons who had first recovered the maximum liability limit on their uninsured motorist coverage. As support for that position, the Fund cites primarily the Michigan case of Brunner v. Austin, 48 Mich.App. 535, 210 N.W.2d 786 (1973).

In the Brunner case, Supra, the Michigan Court of Appeals concluded that there could be no resort to the Michigan Motor Vehicle Accident Claims Fund until the maximum payment under the uninsured motorist coverage had been received by the claimant. That court based its conclusion on an interpretation of the particular language used by the Michigan Legislature in restricting the availability of the Motor Vehicle Accident Claims Fund. However, the Supreme Court of Michigan, in a decision published after oral argument in the instant case now before us, reviewed the same Michigan statutes and...