Wilkens v. Westby , 931 N.W.2d 229 ( 2019 )

Filed 7/11/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 186
Branden Wilkens, Plaintiff and Appellant
v.
Tarin L. Westby, Deceased, Defendant and Appellee
No. 20180430
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Kirsten M. Sjue, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Jeffrey S. Weikum, Bismarck, ND, for plaintiff and appellant.
Nils J.D. Eberhardt (argued) and Jerry W. Evenson (on brief), Bismarck, ND,
for defendant and appellee.
Wilkens v. Westby
No. 20180430
McEvers, Justice.
[¶1] Branden Wilkens appeals from a district court judgment and order dismissing
his complaint against Tarin L. Westby without prejudice, concluding service under
N.D.C.C. § 39-01-11 was improper. We affirm.
I
[¶2] On February 14, 2012, Wilkens and Westby were involved in a car accident
in North Dakota, resulting in Westby’s death on the day of the accident. In February
2018, Wilkens served a summons and complaint asserting a claim of negligence
against Westby upon the director of the Department of Transportation (“the
Department”) under N.D.C.C. § 39-01-11, which allows residents to serve legal
process upon the director of the Department when the party being served is (1) a
resident absent from the state continuously for at least six months following an
accident, or (2) a nonresident. In March 2018, an attorney answered on Westby’s
behalf, asserting affirmative defenses. The attorney moved to dismiss the complaint,
arguing personal jurisdiction was lacking and service under N.D.C.C. § 39-01-11 was
improper, because Westby, a deceased person, did not fit into the definition of
“nonresident,” under the statute and was not “absent from the state” by virtue of his
death. Wilkens opposed the motion and a hearing was held. The district court issued
its findings at the hearing on the record, concluding Westby was neither a
“nonresident,” nor “absent from the state” by virtue of his death for purposes of
service under N.D.C.C. § 39-01-11. The court granted Westby’s motion to dismiss
without prejudice, basing its decision on lack of jurisdiction, but recognized the
practical effect, based on the statute of limitations, would be a dismissal with
prejudice. Wilkens appeals from the court’s order dismissing his claim.
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II
[¶3] Ordinarily, an order dismissing a complaint without prejudice is not
appealable, however, such an order may be final and appealable “if the dismissal has
the practical effect of terminating the litigation in the plaintiff’s chosen forum.”
James Vault & Precast Co. v. B&B Hot Oil Serv., Inc., 2018 ND 63, ¶ 10, 908
N.W.2d 108. A dismissal without prejudice is appealable where the statute of
limitations has run because a dismissal without prejudice in that case effectively
forecloses litigation. Id. Here, there is no dispute the statute of limitations has
expired. The practical effect of the district court’s order dismissing Wilkens’ claim
was to terminate the litigation. Therefore, the court’s order without prejudice is
considered final and appealable.
[¶4] The district court’s order ruled on the issue of personal jurisdiction which is
fully reviewable on appeal:
“Analysis of a [district] court’s ruling regarding personal
jurisdiction is a question of law, and we use the de novo standard of
review for legal conclusions and a clearly erroneous standard for
factual findings.” Bolinske v. Herd, 2004 ND 217, ¶ 7, 689 N.W.2d
397. A finding of fact is clearly erroneous if it is not supported by any
evidence, if, although some evidence supports the finding, a reviewing
court is left with a definite and firm conviction a mistake has been
made, or if the finding is induced by an erroneous conception of the
law. Id.
Spirit Prop. Mgmt. v. Vondell, 2017 ND 158, ¶ 16, 897 N.W.2d 334.
III
[¶5] There is no factual dispute process was served on the director of the
Department. On appeal, Wilkens argues N.D.C.C. § 39-01-11 enables him to serve
the director of the Department when initiating a suit against the deceased, Westby,
because the term “absent” in the statute contemplates a resident’s absence from the
state caused by death. North Dakota’s nonresident motorist statute, N.D.C.C. § 39-
01-11, states:
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The use and operation by a resident of this state or that person’s
agent, or by a nonresident or that person’s agent, of a motor vehicle
upon or over the highways of this state must be deemed an appointment
by such resident when that person has been absent from this state
continuously for six months or more following an accident or by such
nonresident at any time, of the director of the department of
transportation of this state to be the person’s true and lawful attorney
upon whom may be served all legal process in any action or proceeding
against the person growing out of the use or operation of the motor
vehicle resulting in damages or loss to person or property, whether the
damage or loss occurs upon a public highway or upon public or private
property, and such use or operation constitutes an agreement that any
such process in any action against the person which is so served has the
same legal force and effect as if served upon the person personally, or,
in case of the person’s death, that such process has the same legal force
and effect as if served upon the administrator of the person’s estate.
Service of the summons in such case may be made by delivering a copy
thereof to the director with a fee of ten dollars.
(Emphasis added.) Wilkens argues Westby was a North Dakota resident at the time
of the accident but that since his death, he “has continually been absent from this state
for more than six months.” The attorney for Westby argues the death of a resident
does not make the resident continually absent from the state for six months for
purposes of N.D.C.C. § 39-01-11. The issue of service on a deceased resident under
N.D.C.C. § 39-01-11 is a matter of first impression for this Court.
[¶6] Issues regarding interpretation and application of statutes are questions of law
and are fully reviewable on appeal. Johnston Land Co., LLC v. Sorenson, 2018 ND
183, ¶ 10, 915 N.W.2d 664. When interpreting statutes:
Our primary goal . . . is to ascertain the intent of the legislature, and we
first look to the plain language of the statute and give each word of the
statute its ordinary meaning. When the wording of the statute is clear
and free of all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit. If, however, the statute is ambiguous
or if adherence to the strict letter of the statute would lead to an absurd
or ludicrous result, a court may resort to extrinsic aids, such as
legislative history, to interpret the statute. A statute is ambiguous if it
[is] susceptible to meanings that are different, but rational. We
presume the legislature did not intend an absurd or ludicrous result or
unjust consequences, and we construe statutes in a practical manner,
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giving consideration to the context of the statutes and the purpose for
which they were enacted.
Riemers v. Jaeger, 2018 ND 192, ¶ 11, 916 N.W.2d 113 (citations omitted). “Words
in a statute are given their plain, ordinary, and commonly understood meaning, unless
defined by statute or unless a contrary intention plainly appears.” Great W. Bank v.
Willmar Poultry Co., 2010 ND 50, ¶ 7, 780 N.W.2d 437 (citation omitted). “Our
interpretation of a statute must be consistent with legislative intent and done in a
manner which will accomplish the policy goals and objectives of the statutes.”
Haugenoe v. Workforce Safety & Ins., 2008 ND 78, ¶ 8, 748 N.W.2d 378 (citation and
quotation omitted).
[¶7] The statute covers two classes of prospective defendants: (1) North Dakota
residents who have been continuously absent from the state for at least six months
post-accident, and (2) nonresidents at any time. Wilkens cites a dictionary definition
of “absent” as “not present or attending, not existing,” arguing a person who has died
is absent by definition. Wilkens further argues that because the statute does not
specify the reason for the resident’s absence, the cause of the absence—even if
death—is irrelevant.
[¶8] Because “absent” is not a defined term in statute, we interpret it in its ordinary
sense. N.D.C.C. § 1-02-02. A dictionary may provide a reliable starting point in
determining the meaning of a word not previously defined. Cossette v. Cass Cty.
Joint Water Res. Dist., 2017 ND 120, ¶ 19, 894 N.W.2d 858. Using dictionaries close
in time to the enactment of a statute is helpful in determining substantive meaning.
Id. When originally enacted in 1935, North Dakota’s nonresident motorist statute
only covered one class of individuals: nonresidents. S.B. 85, ch. 174, § 1, 24th Leg.
Ass. (1935). Amendments in 1951 added the second class of individuals: residents
who have been absent from the state for six months or more following an accident.
S.B. 42, ch. 202, § 1, 32nd Leg. Ass. (1951). The definition of “absent” at the time
of the 1951 amendments was, in relevant part: “1. Being away from a place;
withdrawn from a place; not present . . . 2. Not existing; lacking.” Webster’s New
International Dictionary 8 (2nd ed. 1950). A more current definition of “absent,” the
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version Wilkens appears to rely upon in his argument, states: “1. not present or
attending . . . 2. not existing.” Merriam-Webster’s Collegiate Dictionary 4 (11th ed.
2005). Because the term has multiple meanings, the dictionary definitions of “absent”
are not helpful to resolve the question whether a resident is “absent” for purposes of
North Dakota’s nonresident motorist statute due to his death.
[¶9] Wilkens also argues the statute specifically contemplates service upon the
director when a person dies, by using the phrase, “or, in case of the person’s death,
that such process has the same force and effect as if served upon the administrator of
the person’s estate.” N.D.C.C. § 39-01-11. Under the interpretation advanced by
Wilkens, any time North Dakota residents are involved in vehicular accidents
resulting in the death of a potential tortfeasor, instead of initiating probate
proceedings or petitioning for the appointment of a personal representative, a plaintiff
claiming negligence against the deceased tortfeasor could initiate his suit by simply
serving the director of the Department through our nonresident motorist statute. This
interpretation does not align with the purpose of the statute. Wilkens’ position fails
to acknowledge that the statute only provides that the director may only be appointed
the lawful attorney for service of process for a resident absent from the state
continuously for six months post-accident or for a nonresident.
[¶10] We have previously discussed the genesis of North Dakota’s nonresident
motorist statute, N.D.C.C. § 39-01-11, as follows:
With the development of automobiles and highways the proper
use of them became an important matter. Negligent operation of cars
became a great source of danger. Some measures protective of local
residents seemed necessary. All of the states and the District of
Columbia have enacted nonresident motorist statutes along the lines of
the one in question. The wording, however is different in many of them
and the interpretations of the courts have varied. The purpose of those
laws is to give the resident of the state the same protection against
nonresident drivers of automobiles on the highways as against the
resident drivers. It is to give local residents access to local courts in
actions against nonresident tort feasors. It saves them the necessity
and expense of bringing suit in another state which they, perhaps, could
not or would not do because of many practical, financial and
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geographical obstacles. The nonresident assumes that liability for the
privilege of using the roads improved at the expense of local residents.
A primary purpose of statutory construction, is to ascertain the
intention of the legislature. In determining this intent courts consider
the language used, the evil to be remedied and the object to be attained.
Such construction is favored which tends most fully to promote
the object of the statute. In this case that is service on the nonresident
owner of the car.
The purpose of Section 28-0611, 1953 Supp. NDRC 1943 [now
N.D.C.C. § 39-01-11], is to give the local courts jurisdiction of such
nonresident. It is a remedial statute providing the procedure for
acquiring jurisdiction and does not involve the question of the liability
of such nonresident.
An analysis of Section 28-0611, 1953 Supp. NDRC 1943, shows
that the service upon any nonresident in any action for damages
growing out of the use and operation of a motor vehicle on the
highways or public or private property within the State of North Dakota
by him or his agent may be made by service upon the State Highway
Commissioner.
Austinson v. Kilpatrick, 82 N.W.2d 388, 391-92 (N.D. 1957) (internal citations and
quotations omitted) (emphasis added). The purpose of the statute benefits local
residents harmed by non-local tortfeasors by removing the geographical obstacle and
expense associated with bringing suit out-of-state or serving process on someone out-
of-state who may be difficult to locate. When a resident located within the state dies,
the geographical obstacle of out-of-state service does not arise. In addition, our
statutes provide a method that plaintiffs like Wilkens can use to preserve claims
against the deceased. Section 30.1-17-14(2), N.D.C.C., states that a special
administrator may be appointed:
In a formal proceeding by order of the court on the petition of any
interested person and finding, after notice and hearing, that appointment
is necessary to preserve the estate or to secure its proper administration,
including its administration in circumstances in which a general
personal representative cannot or should not act. If it appears to the
court that an emergency exists, appointment may be ordered without
notice.
Westby relied on Muhammed v. Welch, 2004 ND 46, ¶ 11, 675 N.W.2d 402, for this
Court’s holding that in instances where a prospective defendant is deceased with no
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probate proceedings initiated and no personal representative of the estate, “the proper
procedure is for a claimant to initiate probate proceedings in order to present a claim
against the estate.”
[¶11] Other states considering whether a person’s death makes the person
continuously absent from the state have also concluded that being dead is not the
same as being absent. See Zahler v. Manning, 295 N.W.2d 511, 513 (Minn. 1980)
(discussing nonresident motorist statute and concluding a person’s death is not
tantamount to being continuously absent from the state for six months); Schor v.
Becker, 263 A.2d 324, n.4 (Penn. 1970) (stating substituted service on a deceased
person was without validity where he was neither a nonresident nor a resident who
becomes a nonresident or who conceals his whereabouts).
IV
[¶12] We hold that N.D.C.C. § 39-01-11 applies only to nonresidents or residents
continuously absent from the state for six months or more post-accident, and for
purposes of this statute, death does not make a resident absent from the state. We
agree with the district court that Wilkens could not initiate an action by serving the
director of the Department under N.D.C.C. § 39-01-11 when Westby, a resident of
North Dakota, died in-state as a result of the vehicular accident precipitating the
negligence claim. Therefore, we affirm the district court’s judgment and order
dismissing Wilkens’ action.
[¶13] Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Jon J. Jensen
Gerald W. VandeWalle, C.J.
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