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Hansen v. Scott6/10/2002
a non-inclusive list of relevant factors for a trial court to consider in deciding a Rule 54(b) certification:
(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Woell, at 238.
[ ] A common thread in our cases reviewing Rule 54(b) certifications is our strong policy against piecemeal appeals, and our aversion to rendering advisory opinions in cases where future developments in the trial court may moot the issues raised for appellate review. See Kosmatka, 2000 ND 210, 10-13, 619 N.W.2d 852; Symington, 1997 ND 93, 8, 563 N.W.2d 400; Wyatt, 551 N.W.2d at 777; Ingalls, 529 N.W.2d at 873; Gessner, 529 N.W.2d at 870; Bulman, 503 N.W.2d at 241-42.
[ ] We have held a trial court does not abuse its discretion in granting a Rule 54(b) certification if the issues raised in the appeal will not be mooted by future developments in the trial court. Symington, 1997 ND 93, 8, 563 N.W.2d 400. In Symington, at 3, an insured sued his agent and his insurer regarding coverage under a farm property policy. The insured alleged the insurer's farm policy provided coverage for a loss and, alternatively, if the policy did not provide coverage, the agent had negligently failed to procure coverage and had misrepresented that coverage had been provided. Id. The trial court granted partial summary judgment for the insurer, concluding the policy did not provide coverage for the insured's loss. Id. at 4. The trial court certified the partial summary judgment on the claim against the insurer under N.D.R.Civ.P. 54(b) without deciding the claim against the agent. We concluded the trial court did not abuse its discretion in granting the Rule 54(b) certification:
No matter how those remaining contingent claims against [the agent] are decided, the coverage issues raised in this appeal will always need to be resolved and will never be mooted by future developments in the trial court. See Wyatt, 551 N.W.2d at 777; Gessner, 529 N.W.2d at 871. Instead, the converse is true. A decision on [the insured's] remaining contingent claims against [the agent] will be unnecessary if there is coverage under [the insurer's] policy. In this posture, our appellate resolution of the coverage issue now will not result in an advisory opinion. Under the framework of Woell, we conclude the trial court did not abuse its discretion in granting Rule 54(b) certification to allow appellate determination of the coverage issue before further proceedings on the contingent claims against [the agent]. Symington, at 8.
[ ] Here, the substantive issues in the daughters' lawsuit involve the determination and allocation of fault for their parents' deaths under our modified comparative fault statutes, N.D.C.C. ch. 32-03.2. Those provisions were enacted in 1987 and significantly revised tort liability in North Dakota, shifting the focus from traditional tort doctrines to the singular inclusive concept of "fault." See Rodenburg v. Fargo-Moorhead Young Men's Christian Ass'n, 2001 ND 139, 25, 632 N.W.2d 407; Haff v. Hettich, 1999 ND 94, 14, 593 N.W.2d 383; Hurt v. Freeland, 1999 ND 12, 20, 589 N.W.2d 551; Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D. 1994). Under N.D.C.C. ยง 32-03.2-01, fault incl
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