United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-2103

___________________________

Lenny M. Chapman; Tracy M. Chapman

lllllllllllllllllllll Plaintiffs

v.

Hiland Partners GP Holdings, LLC, a foreign company; Hiland Partners, LP, a

foreign partnership; Hiland Operating, LLC, a foreign company

lllllllllllllllllllll Defendants

------------------------------

Lenny M. Chapman; Tracy M. Chapman, as assignees of Hiland Partners GP

Holdings, LLC, Hiland Partners, LP, and Hiland Operating, LLC; Hiland

Operating, LLC

lllllllllllllllllllllThird Party Plaintiffs - Appellees

v.

Missouri Basin Well Service, Inc.

lllllllllllllllllllllThird Party Defendant - Appellant

B&B Heavy Haul, LLC

lllllllllllllllllllllThird Party Defendant

------------------------------
Missouri Basin Well Service, Inc.

lllllllllllllllllllllCross Claimant - Appellant

v.

B&B Heavy Haul, LLC

lllllllllllllllllllllCross Defendant - Appellee

___________________________

No. 15-2396

___________________________

Lenny M. Chapman; Tracy M. Chapman

lllllllllllllllllllll Plaintiffs

v.

Hiland Partners GP Holdings, LLC, a foreign company; Hiland Partners, LP, a

foreign partnership; Hiland Operating, LLC, a foreign company

lllllllllllllllllllll Defendants

------------------------------

Lenny M. Chapman; Tracy M. Chapman, as assignees of Hiland Partners GP

Holdings, LLC, Hiland Partners, LP, and Hiland Operating, LLC; Hiland

Operating, LLC

lllllllllllllllllllllThird Party Plaintiffs - Appellees

v.

Missouri Basin Well Service, Inc.

-2-
lllllllllllllllllllllThird Party Defendant - Appellant

B&B Heavy Haul, LLC

lllllllllllllllllllllThird Party Defendant

------------------------------

Missouri Basin Well Service, Inc.

lllllllllllllllllllllCross Claimant - Appellant

v.

B&B Heavy Haul, LLC

lllllllllllllllllllllCross Defendant - Appellee

____________

Appeals from United States District Court 

for the District of North Dakota - Bismarck

____________

 Submitted: December 15, 2016

 Filed: July 14, 2017

____________

Before KELLY and MURPHY, Circuit Judges, and MONTGOMERY, District 1

Judge.

____________ 

KELLY, Circuit Judge.

The Honorable Ann D. Montgomery, United States District Judge for the

1

District of Minnesota, sitting by designation.

-3-
In this consolidated appeal, Missouri BasinWell Service,Inc. (Missouri Basin)

appeals from the district court’s grant of summary judgment to Lenny and Tracy 2

Chapman (the Chapmans) and from the district court’s rulings on post-judgment

motions. Having jurisdiction under 28 U.S.C. § 1291, we affirm the court’s orders

granting summary judgment to the Chapmans, granting the Chapmans’ Rule 59(e)

motion, and denying Missouri Basin’s Rule 59(e) motion. 

I. Background

Hiland Partners GP Holdings, LLC, Hiland Partners,LP, and Hiland Operating,

LLC (collectively, Hiland) own and operate a natural gas plant in WatfordCity, North

Dakota. Missouri Basin offers trucking services to oil and gas companies in North

Dakota. Hiland entered into a Master Service Contract (Hiland MSC) with Missouri

Basin in 2008 whereby Missouri Basin, as “Contractor,” agreed to perform various

services for Hiland. As part of the agreement, Missouri Basin agreed to “indemnify,

defend and save harmless Hiland Group . . . from and against any and all claims,

demands, judgments, defense costs, or suits . . . in any way, directly or indirectly,

arising out of or related to the performance of this Contract.” The Hiland MSC

included an Oklahoma choice-of-law provision. 

B&B Heavy Haul, LLC (B&B) entered into a Master Services Contract with

Missouri Basin (B&B MSC) in May 2011, in which B&B, as “Carrier” agreed “to

provide the transportation services required by [Missouri Basin] and Customer.” In

the B&B MSC, B&B agreed to “indemnify, defend, and save harmless [Missouri

Basin] and the Customer fromany and all claims, demands, judgments, defense costs,

or suits . . . in any way, directly or indirectly, arising out of or related to the

The Honorable Daniel L. Hovland, Chief Judge, United States District Court

2

for the District of North Dakota.

-4-
performance of this Contract.” The B&B MSC provided for the application of North

Dakota law. 

On October 18, 2011, Hiland requested Missouri Basin remove water from

condensate tanks at the Watford plant. Missouri Basin contacted B&B, which sent

Lenny Chapman to the gas plant. Chapman arrived shortly after midnight. He and

an employee of Hiland began connecting the tank to the B&B truck that Chapman

was driving. An explosion occurred and Chapman was seriously injured. 

Chapman and his wife, Tracy, filed an action against Hiland, alleging

negligence and loss of consortium. Hiland filed a third-party complaint against

Missouri Basin and B&B, contending they were contractually obligated to indemnify

and defend Hiland. Missouri Basin cross-claimed against B&B, seeking a defense

and indemnification if it was required to indemnify Hiland. 

B&B filed a motion for partial summary judgment, contending the B&B MSC

did not require it to indemnify Missouri Basin or Hiland for Hiland’s negligence. On

September 10, 2014, the district court granted B&B’s motion, dismissing Hiland’s

third-party complaint against B&B and Missouri Basin’s cross-claim against B&B. 

As for Hiland’s third-party complaint, the court concluded as a matter of law that

B&B had no legal duty under the B&B MSC to indemnify Hiland for its own

negligence. The court further found that even if the B&B MSC could be construed

to require B&B to indemnify Hiland for its own negligence, the contract was void and

unenforceable under North Dakota law. With regard to Missouri Basin’s cross-claim,

the court concluded as a matter of law that B&B had no legal obligation to indemnify

Missouri Basin for any indemnification obligations Missouri Basin might have to

Hiland.

On October 1, 2014, the Chapmans entered into a “Confidential Release and

Settlement Agreement and Addendum” (Settlement Agreement) with Hiland, settling

-5-
their claims against Hiland for $10 million. Of that amount, $3 million wasto be paid

by Hiland and $7 million by Hiland’s insurers. As part of the settlement, Hiland

assigned all its indemnity claims against Missouri Basin to the Chapmans. The

Chapmans filed an amended third-party complaint, asserting, “as assignees of

[Hiland],” the “right to pursue the Hiland Defendants’ indemnity claims against

Missouri Basin arising from the Missouri Basin MSC.” The Chapmans sought a

judgment “for all amounts that the Hiland Defendants, or others on their behalf, have

paid or will pay” to the Chapmans under the Settlement Agreement. 

TheChapmans and Missouri Basin filed cross-motionsfor summary judgment. 

The parties disputed whether Oklahoma law or North Dakota law governed the

Hiland MSC. Applying Oklahoma law, the district court found the indemnity

provision in the Hiland MSC fully enforceable. On April 23, 2015, the court entered

an order granting the Chapmans’ motion for summary judgment, stating: “Missouri

Basin is obligated to indemnify Third-Party Plaintiffs for all amounts that have been

paid or will be paid as a result of the Confidential Release and Settlement Agreement

and the Addendum.” The judgment was entered on April 24, 2015.

Both the Chapmans and Missouri Basin filed post-judgment motions. The

Chapmans requested the court reduce its judgment to a sum certain: $10 million plus

interest. Missouri Basin opposed the Chapmans’ motion, contending its indemnity

obligation was limited to $3 million—the amount Hiland directly contributed to the

settlement. In its post-judgment motion, Missouri Basin asked the court to reconsider

its September 2014 order granting summary judgment in favor of B&B and its April

2015 order granting summary judgment in favor of the Chapmans. Missouri Basin

argued the two orders were erroneous and contradictory. The court granted the

Chapmans’ motion and denied Missouri Basin’s motion, and issued an amended

judgment the next day. 

-6-
II. Discussion

Missouri Basin appeals the district court’s grant of summary judgment to the

Chapmans, asserting the district court erred in applying Oklahoma rather than North

Dakota law in construing the Hiland MSC. Missouri Basin also contends the district

court erred in its post-judgment rulings. 

A. Summary Judgment

“We review de novo a district court’s grant ofsummary judgment, viewing the

evidence in the light most favorable to the nonmoving party.” Am. Fire & Cas. Co.

v. Hegel, 847 F.3d 956, 958 (8th Cir. 2017) (quoting Barkley, Inc. v. Gabriel Bros.,

829 F.3d 1030, 1038 (8th Cir. 2016)). Summary judgment is appropriate if there is

“no dispute of material fact and reasonable fact finders could not find in favor of the

nonmoving party.” Id. (quoting Shrable v. Eaton Corp., 695 F.3d 768, 770–71 (8th

Cir. 2012)). 

The parties agree that North Dakota choice-of-law rules apply in this case. See

Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 687 (8th Cir. 2001) (when

sitting in diversity jurisdiction, district court applies the conflict-of-law rules for the

state in which itsits). Relying on the choice-of-law provision in the Hiland MSC, the

district court applied Oklahoma law to determine the enforceability of the indemnity

provision in the MSC. See Snortland v. Larson, 364 N.W.2d 67, 68–69 (N.D. 1985)

(applying Minnesota law to contract case because the parties chose Minnesota law);

Am. Hardware Mut. Ins. v. Dairyland Ins., 304 N.W.2d 687, 689 n.1 (N.D. 1981)

(noting that “[p]arties may stipulate as to choice of law”); see also Macquarie Bank

Ltd. v. Knickel, 793 F.3d 926, 933 (8th Cir. 2015) (“We believe that the North

Dakota Supreme Court would resolve this dispute under Texas law, as called for by

the Credit Agreement.”). Because the district court decided that the Hiland MSC was

governed by Oklahoma law, it concluded that “any arguments based on North Dakota

-7-
law necessarily fail.” We “review de novo the district court’s choice-of-law

determination.” DCS Sanitation Mgmt., Inc. v. Castillo, 435 F.3d 892, 895 (8th Cir.

2006). We likewise review de novo the court’s “interpretation of North Dakota law.” 

Kovarik v. Am. Family Ins. Grp., 108 F.3d 962, 964 (8th Cir. 1997). 

Missouri Basin acknowledges that the parties chose Oklahoma law to govern

disputes under the Hiland MSC and concedes that North Dakota courts generally

honor choice-of-law provisions. Missouri Basin does not challenge the district

court’s conclusion that the Hiland MSC indemnity provision is enforceable under

Oklahoma law. Missouri Basin asserts, however, that honoring the choice-of-law

provision in this case is contrary to public policy, as expressed in North Dakota’s

motor carrier anti-indemnification statute. See N.D. Cent. Code § 22-02-10. Section

22-02-10(2) provides, in part: 

Notwithstanding any provision of law to the contrary, any portion of a

provision, clause, covenant, or agreement contained in, collateral to, or

affecting a motor carrier contract which purports to indemnify, defend, 3

Section 22-02-10 is entitled: “Indemnity agreement in motor carrier

3

transportation contracts void,” and the term “motor carrier transportation contract”

is used in other parts of the section. See N.D. Cent. Code § 22-02-10(1)(a) (defining

“motor carrier transportation contract”); id. § 22-02-10(1)(b) (clarifying that the term

“promisee” “does not include a motor carrier that is party to a motor carrier

transportation contract with the promisee”). Neither party has argued that by using

the term “motor carrier contract” in § 22-02-10(2), the North Dakota legislature

meant something different than a “motor carrier transportation contract.” Similarly,

we see no reason that the North Dakota Supreme Court would construe the term

“motor carrier contract” to mean something different than “motor carrier

transportation contract”; and we note “motor carrier contract” is not otherwise

defined in the statute See Sorenson v. Felton, 793 N.W.2d 799, 803 (N.D. 2011)

(“Statutes must be construed to avoid absurd results.” (quoting Toso v. Workforce

Safety & Ins., 712 N.W.2d 312, 318 (N.D. 2006)). For purposes of this appeal, we

use the terms interchangeably.

-8-
or hold harmless, or has the effect of indemnifying, defending, or

holding harmless, the promisee from or against any liability for loss or

damage resulting fromthe negligence or intentional acts or omissions of

the promisee is void and unenforceable to the extent that the loss or

damage:

a. Occurs during the motor carrier’s presence on the promisee’s

premises and is caused by or results from the negligent or

intentional acts or omissions of the promisee[.] 

N.D. Cent. Code § 22-02-10(2). Missouri Basin argues the Hiland MSC fits all three

elements set forth in § 22-02-10(2): (1) the MSC is a motor carrier transportation

contract; (2) the harm occurred while the motor carrier was on the promisee’s

premises; and (3) the harm was caused by the negligence of the promisee. 

As relevant here, the statute defines a “motor carrier transportation contract”

as “a contract, agreement, or understanding covering the transportation of property

for compensation or hire by the motor carrier . . . or a service incidental to activity

described in this subdivision, including storage of property.” N.D. Cent. Code § 22-

02-10(1)(a). Below, Missouri Basin asked the district court to find the

indemnification provision in the Hiland MSC against public policy and thus

unenforceable under § 22-02-10(1)(a), but failed to address why the Hiland MSC

should be considered a “motor carrier transportation contract” in the first instance. 

On appeal, Missouri Basin simply asserts that the Hiland MSC is a “motor carrier

transportation contract” because a significant part of Missouri Basin’s business is

offering trucking services to gas companies to haul property for hire, and Missouri

Basin subcontracted with B&B specifically to “provide the transportation services

required by” Missouri Basin and its “customer.” Missouri Basin’s alternative

assertion is that the Hiland MSC “cover[ed]” a “service incidental to the activity

described in this subsection”—the transportation of property for hire—because

Missouri Basin’s actions in requesting B&B to haul water from the condensate tanks

at the Hiland plant on October 18, 2011, were “a service incidental” to B&B’s

-9-
hauling activities under the B&B MSC—a contract the district court found to be a

motor carrier contract. Though North Dakota enacted its motor carrier anti4

indemnification statute in 2009, neither side has pointed us to any reported cases

applying its provisions and we have found none. Our task then is to determine

whether North Dakota courts would interpret the Hiland MSC to be a “motor carrier

transportation contract” under § 22-02-10. See Kvorarik, 108 F.3d at 964 (“If the

North Dakota Supreme Court has not spoken on [the] issue[], we must attempt to

predict what that court would decide if it were faced with [it].”). 

North Dakota courts construe written contracts to give effect to the parties’

intent when the contract was executed, ascertaining the intent from the written

contract alone, if possible. Rasnic v. ConocoPhillipsCo., 854 N.W.2d 659, 661 (N.D.

2014) (citing N.D. Cent. Code §§ 9-07-03 and 9-07-04). Words in a written contract

are given their plain, ordinary, and commonly understood meaning “unless they are

used by the parties in a technical sense or a special meaning is given to them by

usage.” Specialized Contracting, Inc. v. St. Paul Fire & Marine Ins., 825 N.W.2d

872, 877 (N.D. 2012) (citing N.D. Cent. Code § 9-07-09). 

Nothing in the Hiland MSC identifies it as a contract covering the

transportation of property for hire. There is no reference to a “motor carrier” or to

transportation services. Notably, there is nothing in the MSC to indicate that it was

tailored to Missouri Basin specifically, as opposed to any other contractor or vendor

with whom Hiland might contract. In the Hiland MSC, Missouri Basin agrees, as

“Contractor,” that it will, “from time to time, . . . perform certain work or furnish

certain services to Hiland. The jobs contemplated are any such work or services

performed by Contractor.” Exhibit A, attached to the Hiland MSC, lists the various

The district court concluded, without explanation, that the Hiland MSC 4

“cannot be described as a motor carrier contract, and Missouri Basin was not acting

as a motor carrier” on October 18, 2011.

-10-
minimum insurance requirements that the different types of contractors or vendors

who sign a master service contract with Hiland must maintain. Exhibit A lists 26

types of contractors and vendors, including carpenters, electricians, gate guards,

surveyors, and welders. The required insurance coverage includes coverage any

contractormight be expected tomaintain, such as worker’s compensation, employer’s

liability, comprehensive general liability, and automobile liability, but no insurance

a motor carrier might be expected to maintain, such as cargo liability insurance. 

In contrast, the B&B MSC—a contract that was undisputedly a motor carrier

transportation contract—specifically identified B&Bas an “authorized for-hiremotor

carrier with the necessary authority and licenses to operate in interstate and/or

intrastate commerce, and is otherwise qualified, competent and available to provide

the transportation services required by Missouri Basin and Customer.” In the MSC,

B&B agrees to a number of conditions relevant to being a contract for-hire motor

carrier, including that it will comply with all laws “regarding the provision

of . . . transportation services,” that it will ensure “its vehicles and drivers fully

comply with the Federal Motor Carrier Safety Regulations established by the DOT,”

that it would have “the sole and exclusive care, custody and control of each tendered

shipment from the time it is delivered . . . for transportation until delivered,” and that

it assumed “the liability of a common carrier under 49 U.S.C. § 14706.”

Unlike the B&B MSC, the Hiland MSC lacks express language identifying it

as a contract covering “the transportation of property for compensation or hire by the

motor carrier,” or “a service incidental to” such activity. We conclude the Hiland

MSC, which covered multiple services not limited to transportation, is not a “motor

carrier transportation contract” under North Dakota law. Because it is not, N.D. Cent.

Code § 22-02-10 does not apply. Accordingly, honoring the Oklahoma choice-of-law

provision in the Hiland MSC does not violate a fundamental public policy of North

Dakota. 

-11-
B. Rule 59(e) motions

Following the court’s entry of summary judgment, Missouri Basin and the

Chapmans both filed Rule 59(e) motions to alter or amend the judgment. The court

denied Missouri Basin’s motion but granted the Chapmans’ motion. Missouri Basin

appeals both rulings. District courts enjoy broad discretion to alter or amend

judgments under Rule 59(e), and we reverse only for a clear abuse of discretion. 

Matthew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 863 (8th Cir. 2011). 

“Federal Rule of Civil Procedure 59(e) was adopted to clarify a district court’s

power to correct its own mistakes in the time period immediately following entry of

judgment.” Innovative Home Health Care, Inc. v. P.T.–O.T. Assocs. of the Black

Hills, 141 F.3d 1284, 1286 (8th Cir. 1998). Federal courts generally use Rule 59(e)

“to support reconsideration of matters properly encompassed in a decision on the

merits.” White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 451 (1982). “An abuse

of discretion will only be found if the district court’s judgment was based on clearly

erroneous factual findings or erroneous legal conclusions.” Matthew, 639 F.3d at 863

(quoting Innovative Home Health Care, 141 F.3d at 1286). 

In its order granting the Chapmans summary judgment, the district court

ordered Missouri Basin to indemnify the Chapmans “for all sums that have been paid

or will be paid” as a result of the Chapmans’ settlement with Hiland. In their Rule

59(e) motion, the Chapmans requested the court issue a supplemental judgment

stating a sum certain. The court granted the Chapmans’ request, clarifying that by

using the language “all amounts that have been paid or will be paid,” it intended “that

Missouri Basin indemnify the Chapmans for the full amount of the settlement,

including those amounts paid by Hiland’s insurers.” The court explained that by

rejecting Hiland’s tender of defense and request for indemnification, Missouri Basin

lost its right to control the litigation and became obligated to reimburse the

Chapmans, as assignees of Hiland and its insurers, for the full settlement to which

-12-
Hiland and its insurers had agreed—$10 million. That judgment was not clearly

erroneous. See Muskogee Title Co. v. First Nat’l Bank & Trust Co. of Muskogee, 

894 P.2d 1148, 1151 (Okla. Civ. App. 1995) (holding that a partially subrogated

insurer and its insured may join as co-plaintiffs in an action to recover the entire loss

from a third party); Kelly-Springfield Tire Co. v. Mobil Oil Corp., 551 P.2d 671, 675

(Okla. Civ. App. 1975) (“[I]n Oklahoma[,] . . . where the indemnitor denies liability

under the indemnity contract and refuses to assume the defense of the claim, then the

indemnitee is in full charge of the matter and may make a good faith settlement

without assuming the risk of being able to prove absolute legal liability or the actual

amount of the damage.”) (internal quotation omitted); see also Okla. Stat. tit. 15,

§ 427.5 (“If, after request, the person indemnifying neglects to defend the person

indemnified, a recovery against the latter, suffered by himin good faith, is conclusive

in his favor against the former.”). The district court did not abuse its discretion in

granting the Chapmans’ Rule 59(e) motion. 

Missouri Basin also argues the district court erred in denying its Rule 59(e)

motion, in which it sought reconsideration of the district court’s orders granting

summary judgment in favor of B&B and the Chapmans. Missouri Basin argued that

the two orders were erroneous and contradictory. The district court found the motion

untimely, but concluded that, even if it was not untimely, the Rule 59(e) motion was

an impermissible attempt to raise new arguments that could have been raised earlier

and, because the orders were not inconsistent, lacked merit. 

Federal Rule of Civil Procedure 59(e) allows any party aggrieved by a

judgment to file a motion to alter or amend the judgment “no later than 28 days after”

the judgment has been entered. Fed. R. Civ. P. 59(e). Courts are not allowed to

extend the twenty-eight day deadline. Fed. R. Civ. P. 6(b)(2). The district court

entered judgment on April 24, 2015. Missouri Basin filed a motion for leave to file

documents under seal on May 22, 2015, attaching its Rule 59(e) motion and

memorandumin support, and the clerk docketed the motion as well asthe attachments

-13-
on May 22, 2015. The court granted Missouri Basin’s motion for leave to file under

seal on May 26, 2015, and Missouri Basin filed the Rule 59(e) and memorandum in

support on May 29, 2015. Missouri Basin asserts that all the rules require is that the

Rule 59(e) motion and memorandum be delivered to the clerk and so its Rule 59(e)

motion was timely. See Fed. R. Civ. P. 5(d)(2) (explaining that “[a] paper is filed by

delivering it . . . to the clerk”). B&B assertsthat the motion was untimely because the

request that the documents be filed was in the memorandum rather than the motion. 

Neither party has directed us to a local rule or local practice indicating whether a

motion docketed as an attachment to a motion to file under seal is considered “filed”

in the United States District Court of North Dakota. For purposes of this appeal, we

assume without deciding that a motion and memorandum docketed as attachments to

a motion to file under seal are “filed” on the day the attachments are docketed, and

we proceed to the merits. 

In its Rule 59(e) motion, Missouri Basin shifted focus to the B&B MSC,

arguing that its claim against B&B for indemnity was within the scope of the

indemnification provision of the B&B MSC. That contract provided indemnity for

claims “directly or indirectly . . . related to the performance of” the B&B MSC, and

Missouri Basin newly contended that its indemnity obligation to Hiland is an indirect

claim that is within the scope of the B&B MSC indemnity provision. B&B counters

that this argument is an inappropriate attempt to raise a new argument that Missouri

Basin could have made in opposition toB&B’s partialmotion for summary judgment. 

See United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)

(Rule 59(e) “motions cannot be used to introduce new evidence, tender new legal

theories, or raise arguments which could have been offered or raised prior to entry of

judgment.” (quoting Innovative Home Health Care, 141 F.3d at 1286)). 

Missouri Basin concedes that it did not raise this argument until its Rule 59(e)

motion, but argues that it could not do so until after the district court issued its April

23, 2015, ruling on the Chapmans’ motion for summary judgment because, according

-14-
to Missouri Basin, the ruling was inconsistent with its prior order on B&B’s motion

for partialsummary judgment. But nothing about the district court’s orders prevented

Missouri Basin from asserting in its earlier filings that its indemnity obligation to

Hiland was an indirect claim within the scope of the B&B MSC. In any event, the

rulings—which examined two separate contracts, one governed by North Dakota law,

and one by Oklahoma law—are not inconsistent. The district court did not abuse its

discretion in denying Missouri Basin’s Rule 59(e) motion. See Matthew, 639 F.3d

at 863. 

III. Conclusion

For the reasons set forth above, we affirm the district court’s grant ofsummary

judgment to the Chapmans on their third-party complaint and its orders granting the

Chapmans’ Rule 59(e) motion and denying Missouri Basin’s Rule 59(e) motion. 

______________________________

-15-