Manitoba Public Insurance Corp. v. Dakota Fire Insurance Co.

2007 ND 206, 743 N.W.2d 788, 2007 N.D. LEXIS 208, 2007 WL 4442462

Opinions

SANDSTROM, Justice.

[¶ 1] Manitoba Public Insurance Corporation appeals from summary judgment in favor of Dakota Fire Insurance Company in Manitoba Public’s attempt to seek a court order directing Dakota Fire to enter into binding intercompany arbitration under N.D.C.C. § 26.1-41-17. Because Manitoba Public is seeking only a procedural remedy, which has been repealed, we affirm.

I

[¶ 2] On August 6, 2000, a motor vehicle driven by Heather Unrau was struck by a motor vehicle driven by Kasha Chris-tianson on County Road 1 in Pembina County. At the time of the accident, Un-rau had basic no-fault insurance coverage from Manitoba Public, and Christianson had liability coverage from Dakota Fire. Following the accident, Manitoba Public paid no-fault benefits to Unrau. The payments continued until August 2006. Manitoba Public then sought reimbursement for the payments from Dakota Fire under N.D.C.C. § 26.1-41-17, which provided:

Equitable allocation of losses among insurers. A basic no-fault insurer may recover no-fault benefits paid to or for the benefit of an injured person from the motor vehicle liability insurer of a secured person if:

1. The injured person has sustained a serious injury; or

2. The injury results from an accident involving two or more motor vehicles, at least one of which is a motor vehicle weighing more than six thousand five hundred pounds [2948.35 kilograms] unloaded.

The right of recovery and the amount thereof must be determined on the basis of tort law without regard to section 26.1-41-08 by agreement between the insurers involved, or, if they fail to agree, by binding intercompany arbitration under procedures approved by the commissioner. The amount of recovery under this section may not exceed the limits of liability of the secured person’s motor vehicle liability insurance policy or other security, reduced by the amount of the liability for tort claims against the secured person covered by the policy or other security.

[¶ 3] In April 2005, the North Dakota legislature repealed N.D.C.C. § 26.1-41-17, to be effective August 1, 2005. On August 1, 2006, Manitoba Public sent a fax and e-mail to EMC Insurance Companies¹ demanding binding intercompany arbitration under N.D.C.C. § 26.1-41-17. Dakota Fire didn’t respond to the demand for arbitration. Thereafter, on August 3, 2006, Manitoba Public filed a district court action seeking binding intercompany arbitration under N.D.C.C. § 26.1-41-17.

[¶ 4] Dakota Pire moved for summary judgment, asserting Manitoba Public failed to file a proper request for binding inter-company arbitration before the repeal of N.D.C.C. § 26.1-41-17. Manitoba Public also moved for summary judgment, claiming it was entitled to binding intercompany arbitration under N.D.C.C. § 26.1-41-17, because it began making payments of no-fault benefits prior to the repeal of N.D.C.C. § 26.1-41-17. The district court granted summary judgment in favor of Dakota Fire. The court found Manitoba Public did not file a claim for binding intercompany arbitration under Rule 19 of the “North Dakota Auto Accident Reparations Act Binding Intercompany Arbitration Rules and Procedures Manual” prior to August 1, 2005. The court concluded Manitoba Public was not entitled to binding intercompany arbitration under N.D.C.C. § 26.1-41-17.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Manitoba Public’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 6] “ ‘Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not alter the result.’ ” University Hotel Development, LLC v. Dusterhoft Oil, Inc., 2006 ND 121, ¶ 8, 715 N.W.2d 153 (quoting Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46). Summary judgment is appropriate against a party who fails to establish the existence of a factual dispute on an essential element of a claim on which it will bear the burden of proof at trial. Hopfauf v. Hieb, 2006 ND 72, ¶ 6, 712 N.W.2d 333. Whether a district court properly grants summary judgment is a question of law, which is reviewed de novo on the entire record. Johnson v. Nodak Mutual Ins. Co., 2005 ND 112, ¶ 9, 699 N.W.2d 45.

Ill

[¶ 7] Manitoba Public argues it was entitled to binding intercompany arbitration as a matter of law under N.D.C.C. § 26.1-41-17 because it began making no-fault payments to its insured prior to August 1, 2005. To begin an arbitration proceeding under N.D.C.C. § 26.1-41-17, an insurer had to follow the procedure as established by the insurance commissioner. The procedure to begin an arbitration proceeding was contained in Rule 19 of the “North Dakota Auto Accident Reparations Act Binding Intercompany Arbitration Rules and Procedures Manual,” which stated:

Commencement. An arbitration proceeding is commenced by the local representative of an insurer filing an arbitration notice (three copies) with the administrator of the Committee. At the same time, three copies of the arbitration notice are to be submitted by the applicant directly to the local'representative of the other involved insurer. If there is more than one respondent in a case, the applicant shall so indicate on the original and all copies of the arbitration notice and send three copies thereof to each respondent.

N.D. Admin. Code § 45-05-08(19)(a). In this case, Manitoba Public did not file a proper request under N.D. Admin. Code § 45-05-08(19)(a). It just sent an e-mail and fax to Dakota Fire demanding arbitration.

[¶ 8] Section 26.1-41-17, N.D.C.C., was repealed on August 1, 2005, and N.D. Admin. Code § 45-05-08 was repealed on January 1, 2006. Section 26.1-41-17, N.D.C.C., did not create a vested right to binding intercompany arbitration upon payment of no-fault benefits. A vested right is an immediate or fixed right to present or future enjoyment that does not depend upon an uncertain event. Sjostrand v. North Dakota Workers Compensation Bureau, 2002 ND 125, ¶ 14, 649 N.W.2d 537. There is no vested right to a specific remedy. Kessler v. Thompson, 75 N.W.2d 172, 178 (N.D.1956). See also Estate of Kjorvestad, 375 N.W.2d 160, 170 (N.D.1985) (“It is axiomatic that procedural modes, as distinguished from substantive rights, are not vested and are subject to repeal, modification or change.”); In re T.F., 2004 ND 126, ¶ 39, 681 N.W.2d 786 (when new rules affect only a remedy and not a vested right, they may be applied to pending litigation (Sandstrom, J., concurring specially)). See Gibson v. Miami Valley Milk Producers, Inc., 157 Ind.App. 218, 299 N.E.2d 631, 641 (Ct.App.1973); see also Perez v. Marshall, 946 F.Supp. 1521, 1530 (S.D.Cal.1996) (finding that no vested right existed in a statutory scheme that defined the scope of relief and that applying a law that changes the type of review does not divest a person of a vested constitutional right); Fowler v. State of Texas, 991 S.W.2d 258, 261 (Tex.Crim.App.1999) (finding that although the right to appeal constitutes a vested and substantive right, the procedure for review is not a vested and substantive right); United States v. Daychild, 357 F.3d 1082, 1106 (9th Cir.2004) (finding that reliance on a former standard of review when making the decision whether to appeal is not substantive enough to warrant protection under the Due Process Clause).

[¶ 9] The dissent argues we are retroactively applying the repeal of N.D.C.C. § 26.1-41-17. Dissent at ¶ 15. We are merely applying the law that existed at the time Manitoba Public filed its suit to compel the remedy of binding inter-company arbitration. “The repeal of remedial statutes is interpreted under the common-law principles of construction, for in those jurisdictions in the United States where general saving statutes do exist, they contemplate only substantive rights and do not operate to save the remedies granted by a statute when that statute is repealed.” 1A Norman J. Singer, Sutherland Statutory Construction, § 23:41 (6th ed.) (collecting cases); see, e.g., People v. Bradley, 64 Cal.App.4th 386, 75 Cal.Rptr.2d 244, 250 (1998) (“The repeal of a statute which provides a remedy to a party is fully prospective and applies to pending actions.”); Kjorvestad, supra, 375 N.W.2d at 170. Manitoba Public sued Dakota Fire on August 3, 2006, over a year after N.D.C.C. § 26.1-41-17 was repealed. Its suit was not even pending at the time of the repeal. Because the remedy of binding intercompany arbitration was unavailable when Manitoba Public’s suit was filed, we are unable to enforce that remedy in favor of Manitoba Public.

[¶ 10] Arguably, the first paragraph of former N.D.C.C. § 26.1-41-17 created a substantive right to recover no-fault benefits that became vested upon payment of the benefits. But Manitoba Public is not seeking a recovery as such of its no-fault benefits paid in this action. It is seeking only binding intercompany arbitration, a procedural remedy that has been repealed. Manitoba Public never sought as relief a recovery of its no-fault benefits. Therefore, we need not address whether Manitoba Public had a substantive right to recov er its no-fault benefits under N.D.C.C. § 26.1-41-17.

IV

[¶ 11] We affirm the summary judgment.

[¶ 12] GERALD W. VANDE WALLE, C.J., DONOVAN J. FOUGHTY, D.J., concur. [¶ 13] The Honorable DONOVAN J. FOUGHTY, District Judge, sitting in place of KAPSNER, J., disqualified.

Footnotes

1

. EMC Insurance Companies is the parent company of Dakota Fire. EMC will hereinafter be referred to as "Dakota Fire.”