Filed 6/2/20 by Clerk of Supreme Court


### IN THE SUPREME COURT STATE OF NORTH DAKOTA

2020 ND 112

Jesse Dellinger, Plaintiff

v. Jeremy Young Wolf d/b/a Young Wolf Trenching, Trevor Gr andchamp, and SITE Energy (USA) In c., Defendants
and QEP Energy Company, Defendant and Appellee

v. Kinsale Insurance Company, Thir d-Party Defendant and Appellant
and Legendary Field Services, LL C, Third-Party Defendant

No. 20190301

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Dani el S. El-Dweek, Judge.

DISMISSED.
Opinion of the Court by Tufte, Justice.
Jordan B. Weir (argued) and Robert B. Stock (appeared), Fargo, N.D., for defendant and appellee QEP Energy Company.
Larry L. Boschee (argued) and Jack E. Zuger (appeared), Bismarck, N.D., Nicholas C. Grant (on brief), Dickinson, N.D., and Aaron L. Warren (on brief), Miami, Florida, for third-party defe ndant and appellant Kinsale Insurance Company.1 Dellinger v. Young Wolf No. 20190301
Tufte, Justice.
Kinsale Insurance Compan y (“Kinsale”) appealed from a district court’s partial summary judgment determining Kinsale has a duty to defend QEP Energy Company (“QEP”). QEP moved to dismiss the appeal, arguing the partial summary judgment is not appe alable. Kinsale responded, asserting the Declaratory Judgment Act provides a statutory basis for the appeal. We conclude the Declaratory Ju dgment Act does not prov ide a statutory basis for the appeal, and we dismiss the ap peal for lack of jurisdiction.

I
This is a personal injury lawsuit aris ing from an explosion at a well site in McKenzie County. The Plaintiff, Jesse Dellinger, sued mu ltiple defendants, including his employer, Legendary Fiel d Services, LLC (“Legendary”), and QEP. QEP was the operator of the well site. Legend ary was an oil and gas service provider. Legendary and QEP ha d entered into a master services agreement which required Legendary to maintain a commercial liability insurance policy that named QEP as an additional insured. Legendary purchased such a policy from Kinsale. After the explosion, QEP tendered its defense to Legendary and Kinsale as an additional insured on the policy. Kinsale denied QEP coverage.
QEP filed a third-party complain t against Kinsal e and Legendary claiming breach of contra ct and requesting declarat ory relief. QEP moved for partial summary judgment, requesting a declaration that Kinsale has a duty to defend QEP as an addi tional insured on the po licy. Kinsale opposed the motion, invoking various coverage exclusions. The district court granted partial summary judgment declaring Ki nsale has a duty to defend QEP.

Kinsale moved to certif y the partial summary ju dgment as final under N.D.R.Civ.P. 54(b). Before the district court ruled on Ki nsale’s Rule 54(b) motion, Kinsale filed a noti ce of appeal. This Court temporarily remanded the case to the district cour t for the court to decide the Rule 54(b) motion. On2 remand, the district court declined to certify its partial summary judgment order as a final judgment. QEP now move s to dismiss the appeal, arguing the district court’s partial summary ju dgment order is not appealable.

II
The right of appeal is governed by statute in North Dakota. Jordet v. Jordet , 2015 ND 73, ¶ 13, 861 N.W.2d 154. When there is no statutory basis for an appeal, this Cour t lacks jurisdiction and must dismiss the appeal. Id. Orders that are not final and do not dispose of all the claims in a case are generally not appealable. Bulman v. Hulstrand Constr. Co. , 503 N.W.2d 240, 241 (N.D. 1993); Regstad v. Steffes , 433 N.W.2d 202, 203 (N.D. 1988). If a district court determines there is “no ju st reason for delay, ” it may certify a judgment disposing of fewer than all of the claims as final. N.D.R.Civ.P. 54(b).

However, Kinsale asserts the Decl aratory Judgment Act provides statutory authorization for this appe al. The Declaratory Judgment Act is codified at N.D.C.C. ch. 32-23. Section 32-23-06 provides:
The court may refuse to rend er or enter a declaratory judgment or decree if such judg ment or decree, if rendered or entered, would not terminate the unc ertainty or controversy giving rise to the proceeding . However, the court shall render or enter a declaratory judgment or decree in an action brought by or against an insurance company to determine liabilit y of the insurance company to the insured to defend, or duty to defend, although the insured’s liability for the loss may not have been determined.
(Emphasis added.) The Legi slature added the emphasized language in 1983 in response to our case law to the contrary. Blackburn, Nickels & Smith, Inc. v. Nat’l Farmers Union Prop. & Cas. Co ., 452 N.W.2d 319, 322–23 (N.D. 1990). See also 1983 N.D. Sess. Laws ch. 377, § 1. Kinsale also relies on Section 32- 23-01, N.D.C.C., which provides:
The [court’s] declaration may be either affirmative or negative in form and effect, and such declaration shall have the force and effect of a fi nal judgment or decree.3 Kinsale reads these two provisions together as creating immediate appealability of decisions concerni ng insurers’ du ty to defend.

In Ziegler v. Meadowbrook Insurance Group, Inc. , 2009 ND 192, 774 N.W.2d 782, we were presented with th e same argument and decided the case without a majority opinion. Ziegler requeste d a declaratory judgment determining the defendant in surers had a duty to de fend him in a separate lawsuit. Id. at ¶ 3. He also brought claims fo r breach of an insurance contract and breach of the duty of go od faith and fair dealing. Id. The district court granted partial summary judgment, conclu ding there was a du ty to de fend, but the court did not resolve Ziegler’s other claims against the insurers. Id. at ¶ 6. The insurers appealed and then mo ved for Rule 54(b ) certification. Id. at ¶ 30. The district court did not decide the Ru le 54(b) motion, conc luding it lacked jurisdiction while the insu rers’ appeal was pending. Id.

Two justices concluded the partia l summary judgment order was not appealable because it was not intended to be final and was not appealable under N.D.C.C. § 28-27-02. Ziegler , 2009 ND 192, ¶¶ 1-18, 774 N.W.2d 782 (opinion of Crothers, J.; Maring, J., co ncurring). The plur ality rejected the appellants’ argument that this Cour t should allow immediate appeals of interlocutory decisions about insuranc e coverage under N.D.C.C. ch. 32-23 because under N.D.C.C. § 32-23-07, the Court reviews declaratory judgments according to the same ju risprudence that applies to any other order or judgment. Id. at ¶ 10. The plurality then arti culated the following analysis for determining whether an order is appealable:

First, the order appealed from must meet one of the statutory criteria of ap pealability set forth in NDCC § 28-27-02. If it does not, our inquir y need go no further an d the appeal must be dismissed. If it does, then Rule 54(b), NDRCivP, must be complied with. If it is not, we are without jurisdiction.

Id. at ¶ 11 (quoting Mann v. N.D. Tax Comm’r , 2005 ND 36, ¶ 7, 692 N.W.2d 490). The plurality then explained that N.D.C.C. § 28-27-02 sets out seven categories of orders that ma y be appealed, all of which are required to be final. Id. at ¶¶ 12-13 (“to avoid a longstandingpolicy against piecemeal appeals, we would not entertain appeals under N.D.C. C. § 28-27-02 from orders that were4 not meant to be final”). The plura lity interpreted t he partial summary judgment order as not “intended to be final” because it contemplated further discovery and additional proceedings on the du ty-to-defend issue. Id. at ¶ 14. They concluded the appeal must be dismissed. Id. at ¶ 18. Another justice disagreed with the pluralit y on the statutory interp retation but reached the same result under N.D.R. Civ.P. 54(b), creating a majority for dismissal. Id . at ¶¶ 20-31 (Kapsner, J., concurring in the result). Two justices dissented, concluding the Declaratory Judgment Ac t provided statutory authorization for the appeal. Id. at ¶¶ 32-37 (VandeWalle, C.J., disse nting, joined by Sandstrom, J.).
We find the plurality opinion in Zieglerpersuasive in de ciding this case. As in Ziegler , the district court here entered a partial summary judgment on the duty-to-defend issue, but it left other issues unres olved. The partial summary judgment contemplated the case would procee d with further discovery and addition al proceedings. The district co urt’s denial of certification under N.D.R.Civ.P. 54(b) ex pressly stated its intent to reconsider the duty-todefend issue after th e necessary factual re cord was developed at trial. We adopt the rationale of the Ziegler plurality, concluding th at the partial summary judgment regarding Kinsale’s duty to defend is not immediately appealable under the Declaratory Judgment Act. Because the partial summary judgment was not intended to be final and is no t appealable under N.D.C.C. § 28-27-02, we must dismiss for la ck of jurisdiction.

III
We hold the order granti ng partial summary judgment is not appealable. We dismiss the appeal.

Jerod E. Tufte Daniel J. Crothers Jon J. Jensen, C.J.

I concur in the result. Lisa Fair McEvers5 VandeWalle, Justice, concurring specially.

In Ziegler v. Meadowbrook In surance Group, Inc., 2009 ND 192, 774 N.W.2d 782, as noted in ¶ 8 of the majority opinion, I dissented believing that the amendment of the Declaratory Judgme nt Act provided the basis for appeal to this Court. However, Ziegler was decided more than ten years ago, and the Legislature has not acted. When th is Court construes a statute and the Legislature takes no action , it is presumed the Cour t’s interpretation is in accord with the Legi slature’s intent. City of Bismarck v. Uhden , 513 N.W.2d 373, 376 (1994) (citing Blair v. City of Fargo , 171 N.W.2d 236 (N.D. 1969)).

I therefore concur in the result.

Gerald W. VandeWalle