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 Grandchamp, and SITE 

Energy (USA) Inc., Defendants 

 and 

QEP Energy Company, Defendant and Appellee 

 v. 

Kinsale Insurance Company, Third-Party Defendant and Appellant 

 and 

Legendary Field Services, LLC, Third-Party Defendant 

No. 20190301 

Appeal from the District Court of McKenzie County, Northwest Judicial 

District, the Honorable Daniel 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 defendant and appellant Kinsale Insurance 

Company. 
1 

Dellinger v. Young Wolf 

No. 20190301 

Tufte, Justice. 

Kinsale Insurance Company (“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 appealable. Kinsale responded, asserting 

the Declaratory Judgment Act provides a statutory basis for the appeal. We 

conclude the Declaratory Judgment Act does not provide a statutory basis for 

the appeal, and we dismiss the appeal for lack of jurisdiction. 

I 

This is a personal injury lawsuit arising from an explosion at a well site 

in McKenzie County. The Plaintiff, Jesse Dellinger, sued multiple defendants, 

including his employer, Legendary Field Services, LLC (“Legendary”), and 

QEP. QEP was the operator of the well site. Legendary was an oil and gas 

service provider. Legendary and QEP had 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 complaint against Kinsale and Legendary 

claiming breach of contract and requesting declaratory relief. QEP moved for 

partial summary judgment, requesting a declaration that Kinsale has a duty 

to defend QEP as an additional insured on the policy. Kinsale opposed the 

motion, invoking various coverage exclusions. The district court granted 

partial summary judgment declaring Kinsale has a duty to defend QEP. 

Kinsale moved to certify the partial summary judgment as final under 

N.D.R.Civ.P. 54(b). Before the district court ruled on Kinsale’s Rule 54(b) 

motion, Kinsale filed a notice of appeal. This Court temporarily remanded the 

case to the district court for the court to decide the Rule 54(b) motion. On 
2 

remand, the district court declined to certify its partial summary judgment 

order as a final judgment. QEP now moves to dismiss the appeal, arguing the 

district court’s partial summary judgment 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 Court 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 just 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 Declaratory Judgment Act provides 

statutory authorization for this appeal. The Declaratory Judgment Act is 

codified at N.D.C.C. ch. 32-23. Section 32-23-06 provides: 

The court may refuse to render or enter a declaratory 

judgment or decree if such judgment or decree, if rendered or 

entered, would not terminate the uncertainty 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 liability 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 Legislature 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 final judgment or decree. 
3 

Kinsale reads these two provisions together as creating immediate 

appealability of decisions concerning insurers’ duty to defend. 

In Ziegler v. Meadowbrook Insurance Group, Inc., 2009 ND 192, 774 

N.W.2d 782, we were presented with the same argument and decided the case 

without a majority opinion. Ziegler requested a declaratory judgment 

determining the defendant insurers had a duty to defend him in a separate 

lawsuit. Id. at ¶ 3. He also brought claims for breach of an insurance contract 

and breach of the duty of good faith and fair dealing. Id. The district court 

granted partial summary judgment, concluding there was a duty to defend, but 

the court did not resolve Ziegler’s other claims against the insurers. Id. at ¶ 6. 

The insurers appealed and then moved for Rule 54(b) certification. Id. at ¶ 30. 

The district court did not decide the Rule 54(b) motion, concluding it lacked 

jurisdiction while the insurers’ appeal was pending. Id.

Two justices concluded the partial 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., concurring). The plurality rejected the 

appellants’ argument that this Court should allow immediate appeals of 

interlocutory decisions about insurance 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 jurisprudence that applies to any other order or 

judgment. Id. at ¶ 10. The plurality then articulated the following analysis for 

determining whether an order is appealable: 

First, the order appealed from must meet one of the 

statutory criteria of appealability set forth in NDCC § 28-27-02. If 

it does not, our inquiry need go no further and 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 may be appealed, all of which are required to be final. 

Id. at ¶¶ 12-13 (“to avoid a longstanding policy against piecemeal appeals, we 

would not entertain appeals under N.D.C.C. § 28-27-02 from orders that were 
4 

not meant to be final”). The plurality interpreted the partial summary 

judgment order as not “intended to be final” because it contemplated further 

discovery and additional proceedings on the duty-to-defend issue. Id. at ¶ 14. 

They concluded the appeal must be dismissed. Id. at ¶ 18. Another justice 

disagreed with the plurality on the statutory interpretation 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 Act provided statutory authorization for 

the appeal. Id. at ¶¶ 32-37 (VandeWalle, C.J., dissenting, joined by Sandstrom, 

J.). 

We find the plurality opinion in Ziegler persuasive in deciding 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 unresolved. The partial 

summary judgment contemplated the case would proceed with further 

discovery and additional proceedings. The district court’s denial of certification 

under N.D.R.Civ.P. 54(b) expressly stated its intent to reconsider the duty-todefend issue after the necessary factual record was developed at trial. We adopt 

the rationale of the Ziegler plurality, concluding that 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 not appealable under N.D.C.C. § 28-27-02, 

we must dismiss for lack of jurisdiction. 

III 

We hold the order granting 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 McEvers 
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VandeWalle, Justice, concurring specially. 

In Ziegler v. Meadowbrook Insurance 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 Judgment 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 this Court construes a statute and the 

Legislature takes no action, it is presumed the Court’s interpretation is in 

accord with the Legislature’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