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Wangler v. Lerol11/13/2003
n, it is expressly overruled. The district court's dismissal of the respondeat superior claim against Farmers Union is properly before this Court. See Security State Bank v. Orvik, 2001 ND 197, 6, 636 N.W.2d 664 (holding non-appealable interlocutory orders, such as partial summary judgments, are reviewable in an appeal from a final judgment).
[ ] Generally, entities are liable for torts committed by their agents while acting within the scope of their employment. Binstock v. Fort Yates Pub. Sch. Dist., 463 N.W.2d 837, 841-42 (N.D. 1990). Section 3-03-09, N.D.C.C., provides "a principal is responsible to third persons for the negligence of the principal's agent in the transaction of the business of the agency, including wrongful acts committed by the agent in and as a part of the transaction of the business." We have concluded the district court improperly dismissed Wangler's negligence claim against Lerol. If Lerol is found to be negligent, there could be a basis for imputing Lerol's negligence to Farmers Union. Therefore, we conclude the court erred in dismissing the respondeat superior claim against Farmers Union.
III.
[ ] We affirm the summary judgment dismissing Wangler's claim that Lerol and Farmers Union are equitably estopped from denying insurance coverage. We reverse the summary judgment dismissing Wangler's negligence action against Lerol and Farmers Union and remand for further proceedings.
[ ] Dale V. Sandstrom
William A. Neumann
William J. Hodny, S.J.
Mary Muehlen Maring
[ ] The Honorable William F. Hodny, Surrogate Judge, sitting in place of Kapsner, J., disqualified.
VandeWalle, Chief Justice, concurring specially.
[ ] I authored the opinion in State Bank of Kenmare v. Lindberg, 471 N.W.2d 470 (N.D. 1991) for the Court. In that case we did review the merits of the argument of the appellants "contained in their original counterclaim even though it was not raised in their amended counterclaim," while citing Dahl v. Winter-Truesdell-Diercks Co., 62 N.D. 351, 243 N.W. 812 (1932) for the proposition ascribed by the majority opinion.
[ ] With one exception I agree with the majority's reliance on the federal cases which refuse to require a plaintiff to replead dismissed claims to preserve the right to appeal the dismissal. My exception concerns whether the defendant understands the plaintiff has not repleaded the dismissed claim solely because it was dismissed and not for other reasons such as a new theory of the cause of action or a concession on the plaintiff's part, that the trial court was legally correct in its reasons for dismissing the claim. While a "rule requiring plaintiffs who file amended complaints to replead claims previously dismissed on their merits in order to preserve those claims merely sets a trap for unsuspecting plaintiffs," Davis v. TXO Production Corp., 929 F.2d 1515, 1518 (10th Cir. 1991), so too may the failure to replead the dismissed claim be a trap for unsuspecting defendants who are led to believe the plaintiffs intend to abandon the dismissed claim by their failure to replead. It is not inconceivable that plaintiffs may abandon a dismissed claim because the trial court was obviously correct in dismissing the claim or that the amended pleading frames a new cause of action which is inconsistent with the continued viability of the dismissed claim. The paramount purpose of a complaint is, after all, to inform the defendant of the nature of the claim being asserted against the defendant by the plaintiff. N.D.R.Civ.P. 7; Vande Hoven v. Vande Hoven, 399 N.W.2d 855 (N.D. 1987).
[ ] There is no assertion here that Lerol and
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