author: VANDE WALLE, Chief Justice.

text:
    2001 ND 45
    Kathleen A. LOHSTRETER, n/k/a Kathleen A. Heintz, Plaintiff, Appellee, and Cross-Appellant, v. Bruce A. LOHSTRETER, Defendant, Appellant, and Cross-Appellee.
    No. 20000094.
    Supreme Court of North Dakota.
    March 5, 2001.

      Charles L. Chapman, Chapman & Chapman, Bismarck, ND, for plaintiff, appellee and cross-appellant.
    Arnold V. Fleck, Fleck Law Office, Bismarck, ND, for defendant, appellant and cross-appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Bruce Lohstreter appealed a second amended judgment ordering him to pay $16,700 in spousal support and $12,000 in attorney fees. Kathleen Heintz cross-appealed claiming the trial court erred in reducing Bruce’s child support payment, the trial court erred by not considering gifts from Bruce’s parents as income for purposes of calculating child support, and the trial court abused its discretion in failing to require Bruce to pay all of the minor child’s uninsured medical expenses. We affirm.

I

[¶ 2] Bruce and Kathleen married on March 14, 1975, and divorced on April 23, 1997. They have four children. One child is still a minor. Kathleen appealed the original divorce decree, challenging the visitation terms, division of debt, and the denial of spousal support and attorney fees. This Court affirmed the visitation terms, modified the division of debt, and reversed the denial of spousal support and attorney fees. Lohstreter v. Lohstreter, 1998 ND 7, ¶¶ 1, 37, 574 N.W.2d 790. The spousal support award was remanded for a “determination of Kathy’s educational expenses to frame an appropriate award of rehabilitative spousal support.” Id. at ¶ 28. Concerning attorney fees, this Court directed the trial court to determine an award of attorney fees to Kathleen for the trial and appeal “based on the financial status of the parties, her need, and Bruce’s ability to pay.” Id. at ¶ 37.

[¶ 3] On remand, the trial court entered an “Order For Judgment On Remit-titur” on April 2, 1998. This order did not specify the amount of spousal support or attorney fees but, without specific findings and conclusions, simply reiterated the directives of Lohstreter.

[¶ 4] Bruce failed to pay his $1,063 per month child support and was ordered incarcerated in March 1999. Upon payment of $10,872.33 received from his mother, Bruce was released on March 23, 1999.

[¶ 5] On April 1, 1999, Bruce filed a motion to amend the judgment seeking modification of his child support obligation because his income had decreased substantially. Kathleen opposed the motion to modify child support and filed a cross-motion seeking an award of $18,000 in spousal support, $24,000 for attorney fees, and sought an order requiring Bruce to pay all or a share of the medical expenses of the children. A hearing was held on November 29,1999.

[¶ 6] Bruce earned $50,000 a year as an investment broker at the time of the original divorce trial in September 1996, but lost that job and two subsequent jobs. At the time of the November 1999 hearing, Bruce worked as a general laborer grossing $1383 a month. Bruce was planning to take a job selling insurance with a projected annual income of $20,000, once he reinstated his license to sell insurance. Bruce received money from his parents totaling $25,100 in 1997, $6,115 in 1998, and $22,000 in 1999.

[¶ 7] Kathleen obtained $16,700 in loans to fund her nursing education. Her attorney fees for the divorce trial and appeal totaled $24,000. Kathleen obtained her nursing degree and was working as a nurse earning $29,000 a year at the time of the November 1999 hearing. Kathleen remanded on June 12,1999.

[¶ 8] The trial court issued a second amended judgment on January 21, 2000. The trial court reduced Bruce’s child support obligation from $1,063 to $441 for April, May and June of 1999, when their third child graduated from high school. The obligation was further reduced to $330 per month from July 1999 until the youngest child graduates from high school or turns 19 years old. The trial court awarded Kathleen spousal support of $500 a month for a total of $16,700, an amount equal to the loans taken to pay for education costs for her nursing degree, and awarded attorney fees of $12,000, half of Kathleen’s total attorney fees of $24,000. The trial court also ordered the parents to share equally the costs of uninsured medical expenses of the minor children.

II

[¶ 9] Bruce argues the trial court erred by ordering him to pay spousal support of $500 per month until he paid the sum of $16,700. Bruce claims there has been a material change of circumstances that justifies a change in spousal support because Kathleen is remarried and is working as a nurse and earning more than Bruce earns.

[¶ 10] A trial court’s determination regarding a material change in circumstances warranting a modification of spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Greenwood v. Greenwood, 1999 ND 126, ¶ 15, 596 N.W.2d 317. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191.

[¶ 11] We long ago rejected the rule that remarriage automatically terminates the obligation to pay spousal support, Nugent v. Nugent, 152 N.W.2d 323, 327 (N.D.1967), especially for rehabilitative support. Rustand v. Rustand, 379 N.W.2d 806, 807 (N.D.1986). When the circumstances are appropriate, rehabilitative spousal support may continue after the remarriage of the disadvantaged spouse. Mahoney v. Mahoney, 1997 ND 149, ¶ 31, 567 N.W.2d 206; Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985). In Ma-honey, we held the trial court’s extension of rehabilitative spousal support after remarriage was supported in part by the disadvantaged spouse’s continued rehabilitative needs for a two-year internship to secure a license to practice as a psychiatric nurse. Mahoney, 1997 ND 149, ¶ 32, 567 N.W.2d 206. In Bullock, 376 N.W.2d at 31, we affirmed the continuance of rehabilitative spousal support after remarriage that was intended to pay expenses for teaching re-certification.

[¶ 12] Kathleen has already incurred the rehabilitative expense of obtaining her nursing degree. This expense was incurred near the end of the marriage. In Lohstreter v. Lohstreter, 1998 ND 7, ¶ 24, 574 N.W.2d 790, we determined “since Kathy’s rehabilitation is being accomplished at her own expense, she should receive some rehabilitative spousal support to help retire her educational debt and to embark on employment.” We reversed the trial court’s denial of spousal support because we were “left with a definite and firm conviction that a mistake has been made in saddling Kathy with her entire educational debt and denying her any spousal support.” Id. at ¶ 27. Kathleen’s subsequent remarriage does not affect our holding that Bruce needs to reimburse Kathleen for the rehabilitation expenses she incurred prior to the divorce that were not equitably shared. See Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶20, 563 N.W.2d 377.

[¶ 13] Bruce also contends the trial court erred by awarding Kathleen spousal support because Kathleen’s underdeveloped earning capacity has been restored while his income has declined substantially. Spousal support payments may be modified only upon a showing of a material change of circumstances which justifies a modification. Pearson v. Pearson, 2000 ND 20, ¶ 12, 606 N.W.2d 128. A “material change” is something which substantially affects a party’s financial abilities or needs, and the reason for changes in income must be examined as well as the extent the changes were originally contemplated by the parties. Id. Not every financial change in circumstances justifies a modification, and when the change is self-induced no modification is warranted. Greenwood v. Greenwood, 1999 ND 126, ¶ 16, 596 N.W.2d 317.

[¶ 14] In Lohstreter, 1998 ND 7, ¶ 18, 574 N.W.2d 790, we stated this family’s financial instability was largely attributable to Bruce’s actions such as his frequent changes in employment resulting from alcohol abuse and overspending. By the time of the divorce trial in September 1996, Bruce had changed employers at least ten times in a few years, decreasing from his career-high earnings in excess of $72,000 to an annual salary of $50,000. Id. at ¶ 18. After the trial, Bruce lost his job in October 1996, he lost his next job in November 1997, and in January 1999, he lost another job. Bruce was working as a general laborer at the time of the trial in November 1999, but plans to work selling life insurance, annuities and trust products once his license to sell insurance, which lapsed because of Bruce’s failure to maintain continuing education credits, is reinstated. Kathleen’s spousal support is in the nature of reimbursement for past expenses incurred to enable Kathleen to live without future support from Bruce. Bruce’s current income is not indicative of his ability to earn income. Under these circumstances, we conclude the trial court was not clearly erroneous in ordering Bruce to pay rehabilitative spousal support of $16,700 to reimburse Kathleen for education expenses.

Ill

[¶ 15] Bruce argues the trial court abused its discretion by awarding Kathleen one-half of her attorney fees because Bruce no longer has the ability to pay and Kathleen no longer has the need for such support.

[¶ 16] An award of attorney fees is within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. Weigel v. Weigel, 2000 ND 16, ¶ 16, 604 N.W.2d 462. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when its decision is not the product of rational mental process. Id. In deciding whether to award attorney fees in a divorce action, the trial court must balance one party’s needs against the other party’s ability to pay. Id.

[¶ 17] This Court directed the trial court to determine an award of attorney fees to Kathleen for the trial court proceedings and for the earlier appeal under N.D.C.C. § 14-05-23, based on the financial status of the parties, her need, and Bruce’s ability to pay. Lohstreter, 1998 ND 7, ¶ 37, 574 N.W.2d 790. The trial court found Kathleen incurred $24,000 in attorney fees through the trial and the appeal. Finding Kathleen’s need for attorney fees was moderate and Bruce’s ability to pay was ample, the trial court ordered Bruce to pay one-half, or $12,000, of Kathleen’s attorney fees. Our analysis of the spousal support issue is applicable to the issue of attorney fees. The trial court was not arbitrary, unreasonable, or unconscionable. The trial court did not abuse its discretion by awarding Kathleen one-half of her attorney fees. We affirm the award of attorney fees of $12,000 to Kathleen.

IV

[¶ 18] Kathleen argues the trial court erred in reducing Bruce’s child support because there is no evidence to support the finding Bruce was not underemployed, there is no evidence to support the trial court’s projection of Bruce’s income, and the trial court erred by failing to consider money received from his parents as in-kind income for purposes of calculating child support. The trial court found Bruce was not underemployed as defined by N.D. Admin.Code § 75-02-04.1-07(2) and therefore did not impute income to Bruce. Kathleen argues that despite the guidelines, the court should impute income to Bruce based on his true earning capacity under N.D. Admin.Code § 75-02-04.1-07(3).

[¶ 19] Section 14-09-09.7(1), N.D.C.C., authorizes the Department of Human Services to establish child support guidelines and subsection three of that statute creates a rebuttable presumption that “the amount of child support that would result from the application of the child support guidelines is the correct amount of child support.” N.D.C.C. § 14-09-09.7(3). Child support amounts are determined by applying the calculations required by the regulations, and these calculations result in an amount of child support which is presumptively correct. Montgomery v. Montgomery, 481 N.W.2d 234, 235 (N.D.1992).

[¶ 20] Child support determinations" involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the clearly erroneous standard of review, and, in some limited areas, may be matters of discretion subject to the abuse of discretion standard of review. Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450.

[¶ 21] A court errs as a matter of law when it fails to comply with the requirements of the child support guidelines in determining an obligor’s child support obligation. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450. Thus, the trial court must clearly set forth how it arrived at the amount of income and level of support. Id. The trial court’s findings of fact in making its child support determination are overturned on appeal only if they are clearly erroneous. Richter v. Houser, 1999 ND 147, ¶3, 598 N.W.2d 193. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made. Id. In reviewing findings of fact, we give due regard to the trial court’s opportunity, to assess the credibility and observe the demeanor of the witnesses. Wagner v. Wagner, 2000 ND 132, ¶ 12, 612 N.W.2d 555. We do not re-weigh evidence or reassess credibility where there is evidence to support a trial court’s findings. Tishmack v. Tishmack, 2000 ND 103, ¶ 7, 611 N.W.2d 204. The trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Id.

[¶ 22] A trial court is authorized to impute income to an obligor only if the obli-gor is unemployed or underemployed. N.D. Admin.Code § 75-02-04.1-07(3); Berg v. Ullman, 1998 ND 74, ¶35, 576 N.W.2d 218. An obligor is presumed to be underemployed if gross income from earnings is less than “[s]ix-tenths of prevailing amounts earned in the community by persons with similar work history and occupational qualifications; or [o]ne hundred sixty-seven times the federal hourly minimum wage.” N.D. Admin.Code § 75-02-04.1-07(2).

[¶ 23] Here the trial court finds it is highly unlikely Bruce will work again as an investment broker. As a result the trial court found his income will likely be commensurate with that of other insurance sales agents. Testimony at the hearing by individuals in the investment industry supported this conclusion. The trial court found, according to a North Dakota wage survey, insurance agents in central North Dakota earn approximately $33,000 a year. Six-tenths of $33,000 is $19,800; therefore if Bruce’s income is less than $19,800 he is presumed to be underemployed. Bruce estimates his annual income will be $20,000 and he is willing to have his child support obligation based on that amount. The trial court’s finding was not clearly erroneous.

[¶ 24] Kathleen argues money received from Bruce’s parents were gifts not loans and therefore should be included in the calculation of Bruce’s gross income. Bruce testified he received from his parents $25,100 in 1997, $6,115 in 1998, and $22,000 in 1999. Both he and his mother testified these amounts were loans, not gifts.

[¶ 25] The definition of gross income under the child support guidelines is very broad and does specifically include “gifts and prizes to the extent they annually exceed one thousand dollars in value” and “value of in-kind income received on a regular basis.” N.D. Admin.Code § 75-02-04.1-01(5). However, loans are not included in the definition of gross income. In Cook v. Eggers, 1999 ND 97, ¶ 11, 593 N.W.2d 781, we reversed and remanded, directing the trial court to include the value of a regular spending allowance of $200 to $250 per week from Cook’s boyfriend and the value of living rent-free in his house in the child support calculation. In contrast to this case, Cook admitted the weekly allowance was a gift and she was living rent-free. Id. at ¶ 8. Bruce testified the money received from his parents is a loan, the money was used to make up for past shortcomings in his income to pay living expenses and child support, and therefore, it was not relevant to the projection of future income. The trial court’s decision to not include the money received from Bruce’s parents in Bruce’s gross income was not clearly erroneous.

V

[¶ 26] Kathleen argues the trial court abused its discretion by ordering the parents to share equally the medical expenses not covered by insurance. Kathleen contends Bruce should be responsible for the medical expenses for their son’s hockey injury which occurred during a time there was no insurance coverage because Bruce had let the coverage lapse in January 1999, and did not inform her of the lack of coverage until March 1999.

[¶ 27] The divorce order stated Bruce must maintain health insurance for the minor children so long as it was available to him at no or nominal cost. Bruce maintained health insurance coverage for the children through January 1999. He argues he was not required to maintain coverage because he was unemployed and insurance was no longer available to him at no or nominal cost. Kathleen argues she would have obtained health insurance coverage for the children if Bruce had informed her of his decision to not maintain coverage. The trial court found both arguments had merit and ordered the uncovered medical expenses be shared equally. Under these circumstances the trial court did not abuse its discretion by ordering the parents to equally share the uncovered medical expenses of the minor children.

[¶ 28] We affirm.

[¶ 29] SANDSTROM, NEUMANN, MARING, KAPSNER, JJ., concur.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2001 ND 48
    Greg FETCH, Personal Representative of the Estate of Waylin Fetch, Plaintiff and Appellant, v. Kelly M. QUAM, Defendant, v. American Hardware Mutual Insurance Company, Intervenor and Appellee.
    No. 20000256.
    Supreme Court of North Dakota.
    March 7, 2001.

      Deborah J. Carpenter, Carpenter Law Offices, Bismarck, ND, for plaintiff and appellant.
    David E. Reich, Pearce & Durick, Bismarck, ND, for intervenor and appellee.
   KAPSNER, Justice.

[¶ 1] As personal representative of the estate of Waylin Fetch, Greg Fetch appeals the district court’s summary judgment for American Hardware Mutual Insurance Company (“American Hardware”) and order dismissing Fetch’s complaint that American Hardware breached an implied covenant of good faith and fair dealing with Fetch. We affirm.

I

[¶ 2] On May 31, 1988, Waylin Fetch was driving a motorcycle which collided with a pickup driven by Kelly Quam, resulting in a fractured vertebra in Fetch’s neck. Fetch hired an attorney within days of the accident. In March 1989, American Hardware, the insurance provider for Fetch’s father whose policy covered Fetch, settled the property damage claim on Fetch’s motorcycle. In April 1990, American Hardware received notification that Fetch was now represented by a different attorney. Fetch commenced a personal injury lawsuit against Quam in November 1990, seeking $450,000 damages. Quam was uninsured at the time of the accident and did not answer the complaint. In December 1990, American Hardware filed a motion to intervene, as a provider of uninsured motorist coverage to Fetch under his father’s insurance policy.

[¶ 3] In August 1991, Fetch filed a motion to amend the complaint against Quam to add a bad faith claim against American Hardware for “unreasonably and arbitrarily denying coverage to [Fetch] and by intervening in this lawsuit and defending [Quam], with whom they have no contractual or other relationship.”

[¶ 4] In September 1991, the district court determined Quam was in default and allowed Fetch to amend his complaint, but severed the bad faith action against American Hardware until Fetch’s claim against Quam was resolved. The court also limited American Hardware’s appearance to the questions of whether there was negligence on the part of Quam and the extent and amount of damages resulting from the accident. Since Quam was in default, the district court decided contributory negligence would not be in issue at the hearing, because it is an affirmative defense which is waived if not raised by an answer.

[¶ 5] Waylin Fetch died from leukemia in October 1991. His brother and personal representative, Greg Fetch, was substituted as plaintiff in the lawsuit.

[¶ 6] In March 1994, after the restricted default hearing, the district court entered judgment for Fetch against American Hardware in the amount of $125,000 for Fetch’s injuries, pain, and suffering and $10,697 for Fetch’s medical costs. On appeal, we reversed and remanded in Fetch v. Quam, 530 N.W.2d 337 (N.D. 1995), concluding American Hardware was an intervenor of right and should have been allowed to show comparative fault by Fetch. On remand, a jury found Fetch 40% at fault for the accident and Quam 60% at fault. The jury awarded Fetch $30,000 in damages. After allocation based on fault, judgment was entered for $18,000, and American Hardware paid the judgment within six weeks.

[¶ 7] Fetch filed a motion in April 1999 to reinstate the severed bad faith claim against American Hardware, arguing American Hardware breached its implied covenant of good faith and fair dealing by unreasonably and arbitrarily denying coverage to Fetch and by intervening in Fetch’s lawsuit against Quam and defending Quam. The district court permitted Fetch to proceed and set the trial date for July 2000. In May 2000, American Hardware moved for summary judgment, which the district court granted and dismissed Fetch’s bad faith complaint. The district court ruled American Hardware’s intervention was not evidence of bad faith because this Court had already determined the intervention was proper. The court rejected Fetch’s bad faith claim that American Hardware failed to deliver a copy of the insurance policy for a period of days and failed to negotiate a settlement in good faith. The district court held, as a matter of law, an insurance company is not guilty of bad faith for denying a claim when the claim is fairly debatable or if there is a reasonable basis for denying the claim or delaying payment. The court found that over the years American Hardware had made offers of settlement in line with the verdict. In addition, the court determined Fetch did not present any information suggesting American Hardware improperly denied coverage, investigated in bad faith, or fraudulently induced Fetch to delay filing a motion for default judgment against Quam; moreover, the trial court noted, those arguments were anticipated by American Hardware and effectively refuted. Fetch appeals.

II

[¶ 8] Summary judgment is a procedure for promptly and expeditiously resolving a controversy, without a trial, if the evidence shows there is no genuine issue as to any material fact, or the inferences to be drawn from undisputed material facts, and if the evidence shows any party is entitled to a judgment as a matter of law. See Mandan Educ. Ass’n v. Mandan Pub. Sch. Dist. No. 1, 2000 ND 92, ¶ 6, 610 N.W.2d 64; see also ND.R.Civ.P. 56(c). Summary judgment is also appropriate if only questions of law are involved or if the law is such that resolving disputed facts will not change the result, because the facts in issue are not material facts. Umpleby v. State, 347 N.W.2d 156, 159 (N.D.1984). Issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts. Mandan, at ¶ 6. The evidence presented must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. Whether the trial judge properly granted summary judgment is a question of law which is reviewed de novo. Garofalo v. Saint Joseph’s Hosp., 2000 ND 149, ¶ 6, 615 N.W.2d 160.

[¶ 9] The party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding a material fact. Grinnell Mut. Reinsurance Co. v. Farm & City Ins. Co., 2000 ND 163, ¶ 18, 616 N.W.2d 353. In response, the party opposing the motion may not simply rely on unsupported and conclusory allegations or denials in the pleadings but must set forth specific facts showing there is a genuine issue for trial. Id.; see also N.D.R.Civ.P. 56(e). The opposing party must present competent admissible evidence, by affidavit or other comparable means, which raises a question of material fact. Grinnell, at ¶ 18; see also Norwest Mortgage., Inc. v. Nevland, 1999 ND 51, ¶ 4, 591 N.W.2d 109 (determining affidavits which contain conclusory statements, unsupported by specific facts, are insufficient to raise a material factual dispute). If appropriate, the opposing party must draw the court’s attention to relevant evidence in the record by setting out the page and line in the evidence raising the material fact issue, because neither the trial court nor appellate court has a duty to search the record for evidence opposing the motion for summary judgment. Smith v. Land O’Lakes, Inc., 1998 ND 219, ¶ 10, 587 N.W.2d 173.

Ill

[¶ 10] Fetch argues the trial court erred in granting American Hardware’s motion for summary judgment because there was a genuine issue about material facts, as the record shows American Hardware acted in bad faith by denying insurance coverage in an effort to hinder Fetch’s filing of a claim; intervening in the lawsuit between Fetch and Quam, which created a conflict of interest; investigating in bad faith by procuring witnesses against its own insured; delaying action on the claim in an attempt to avoid liability; refusing to pay Fetch’s medical bills until ordered to do so; failing to negotiate a settlement in good faith; and serving untimely a motion for summary judgment. Fetch asserts these actions by American Hardware were so numerous as to establish they were pervasive in American Hardware’s handling of Fetch’s insurance claim.

A

[¶ 11] Fetch argues there is a material factual dispute that American Hardware acted in bad faith by unreasonably and arbitrarily denying Fetch had insurance coverage for his motorcycle and by failing to give Fetch a copy of the policy until he was out of the hospital, which hindered Fetch in filing his claim for personal injuries and property damage. Fetch also contends American Hardware acted in bad faith by refusing to pay Fetch’s medical bills after a court determination of liability and damages until ordered to do so.

[¶ 12] An insurer has a duty to act fairly and in good faith in its contractual relationship with its policyholders. Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶29, 571 N.W.2d 363. This duty of good faith imposed on an insurer, which has its genesis in the contractual relationship between the insurer and its policyholders, is implied by law to include a duty of fair dealing in paying claims, providing defense to claims, negotiating settlements, and fulfilling all other contractual obligations. See generally Midwest Cas. Ins. Co. v. Whitetail, 1999 ND 133, ¶ 9, 596 N.W.2d 341; Hanson, at ¶ 29; Dvorak v. Am. Family Mut. Ins. Co., 508 N.W.2d 329, 331-32 (N.D.1993); N.D.C.C. § 26.1-04-03 (listing unfair methods of competition and defining unfair or deceptive practices in the insurance business including unfair claim settlement practices if performed with a frequency indicating a general business practice). The gravamen of the test for bad faith is whether the insurer acts unreasonably in handling an insured’s claim. Hanson, at ¶ 29. Whether an insurer has acted in bad faith is ordinarily a factual question to be determined by the trier of fact. Corwin Chrysler-Plymouth, Inc. v. Westchester Fire Ins. Co., 279 N.W.2d 638, 643-44 (N.D.1979).

[¶ 13] An insurer acts unreasonably by failing to compensate the insured for a loss covered by the policy, unless the insurer has a proper cause for refusing payment. Hanson, 1997 ND 230, ¶ 29, 571 N.W.2d 363. In Hanson, we concluded the insurer had proper cause to refuse compensation to an insured, and thus acted reasonably, because the insured’s policy had lapsed and he failed to comply with requirements for reinstatement of the policy, despite notice from the insurer. Id. at ¶ 30. Viewing the evidence in the light most favorable to the insured, we affirmed the trial court’s determination the insurer did not act in bad faith and upheld the award of summary judgment. Id. Conversely, in Corwin, we affirmed a trial court’s finding of bad faith by the insurer who had no valid ground to continue to deny liability and refuse compensation under the policy. 279 N.W.2d at 644. We concluded the insurance company’s legal defense, formulated only in the late stages of the dispute, was unreasonable because the policy language foreclosed any possibility that insurer Westchester would prevail if litigation ensued. Id. We further stated: “We hasten to add that this is not a case in which an insurer, from the outset of the claim controversy, has relied in good faith on an arguable legal defense.” Id. We emphasized that an insurer who resists and litigates a claim made by its insured is not at peril of breaching its duty to act fairly and in good faith simply by losing the suit or suffering a judgment against it for a larger amount than it offered in payment on the policy. Id. at 645.

[¶ 14] An insurer also acts unreasonably by failing to defend an insured who is covered by the policy, unless the insurer has proper cause for refusing to defend. See Hanson, 1997 ND 230, ¶ 29, 571 N.W.2d 363. Ordinarily, an insurer has a duty to defend an underlying action against its insured if the allegations in the complaint give rise to potential liability or a possibility of coverage under the insurance policy. Whitetail, 1999 ND 133, ¶ 9, 596 N.W.2d 341. In Whitetail, we affirmed the trial court’s determination the insurer would be required to defend and indemnify both the insured and a person driving with her permission in a tort action against them, based on the insurance policy provisions. Id. at ¶¶ 7, 9; see also Hart Constr. Co. v. Am. Family Mut. Ins. Co., 514 N.W.2d 384, 391-92 (N.D.1994) (holding the insured had a direct contractual duty to defend the insured and remanding for the trial court to consider the merits of the insured’s bad faith claim against the insurer). However, a liability insurer’s duty to defend its insured exists only if it would be bound to indemnify the insured in case the injured person prevailed on the allegations of the complaint. Hanneman v. Continental W. Ins. Co., 1998 ND 46, ¶ 45, 575 N.W.2d 445. That is, an insurer has no duty to provide a defense in an action that would yield no possibility of liability to its insured. Ohio Cas. Ins. Co. v. Horner, 1998 ND 168, ¶ 11, 583 N.W.2d 804. In Horner, we affirmed the trial court’s holding that the insurer had no duty to defend or indemnify the insured against any action brought against them because the insured’s actions were intentional, thereby excluding coverage under the policy. Id. at ¶¶ 8, 14; see also Mead v. Farmers Union Mut. Ins. Co., 2000 ND 139, ¶¶ 21-22, 613 N.W.2d 512 (concluding the district court did not err in ruling the insurer had no duty to defend an insured whose acts were intentional, when the policy contained an exclusion of liability for intentional acts and when the issue of whether the insured acted intentionally was res judicata); Hanneman, at ¶ 45 (indicating the insurer had no duty to provide a defense in an action that would yield no possibility of liability to its insured due to an agreement releasing the insured from the liability of having to satisfy a judgment for damages).

[¶ 15] Here, the record establishes American Hardware provided Fetch with an additional copy of the insurance policy after his approximately 10-day hospitalization, and American Hardware extended an offer to settle the property damage claim on Fetch’s motorcycle in June 1988, one month after the accident. Subsequently, American Hardware settled the property damage claim on March 22, 1989. On the undisputed facts, American Hardware did not act unreasonably in handling the property damage claim.

[¶ 16] Regarding Fetch’s personal injury claim, a chronological review of the evidence shows American Hardware did not unreasonably deny insurance coverage or hinder Fetch’s filing of his claim. According to the testimony of a police officer, Quam told the officer he was insured at the time of the accident on May 31, 1988. Within days of the accident, Fetch’s first attorney met with American Hardware’s adjuster, and the attorney indicated a desire to locate Quam to present a claim to his insurance carrier. The adjuster had a suspicion Quam may be uninsured, but had nothing to substantiate that suspicion. In July and August 1988, the adjuster interviewed three eyewitnesses, who all indicated Fetch’s motorcycle was speeding at the time of the accident. The police report also indicated the motorcycle had left a 70-foot skid mark prior to impact. Although Fetch’s attorney stated he had witnesses who would testify the motorcycle was not speeding, he never disclosed their identity nor responded to American Hardware’s June 1988 and February 1989 offers to settle the property damage claim on the motorcycle. In November 1988, Fetch’s father wrote to American Hardware, indicating Fetch’s attorney was checking out Quam’s insurance. Over a year later, in March 1990, American Hardware received a letter from Fetch’s attorney indicating an intention to make a claim under the uninsured motorist coverage of Fetch’s policy. However, in a follow-up telephone conversation the attorney admitted to American Hardware he had no basis for asserting Quam was uninsured, other than the fact he could not be located. American Hardware informed the attorney by letter that American Hardware had no basis to indicate Quam was uninsured and the accident investigation indicated Fetch’s negligence exceeded that of Quam.

[¶ 17] In April 1990, Fetch’s new attorney told American Hardware’s adjuster that Fetch had nothing to substantiate the allegation that Quam was uninsured, and the attorney was going to attempt to locate Quam to determine whether he was uninsured. The attorney stated he “did not see where American Hardware was involved at all at that point.” In July 1990, the attorney telephoned the adjuster to say he had located Quam, believed he was uninsured, and intended to commence an action against Quam and obtain a default judgment. One week later, the adjuster wrote to the attorney asking for Quam’s address so American Hardware could confirm whether he was uninsured, but the attorney responded by threatening a claim against American Hardware of collusion and bad faith interference with Fetch’s lawsuit against Quam. A subsequent letter from Fetch’s attorney indicated to American Hardware, “The only way we will know [that Quam was uninsured] ... is to sue Mr. Quam and see who comes to his defense” and invited a settlement offer from American Hardware, “subject to an investigation determining that [Quam] was actually uninsured at that time.”

[¶ 18] We conclude reasonable persons could draw but one conclusion from these undisputed facts showing American Hardware initially had no basis to indicate Quam was uninsured, which would trigger American Hardware’s coverage under the uninsured motorist provision of Fetch’s father’s policy, and American Hardware’s investigation indicated Fetch’s negligence exceeded that of Quam so that Fetch’s claim would likely be denied if it was determined Quam was uninsured. Fetch’s counsel took the position he would investigate, and that Fetch would not cooperate with the insurer to determine whether Quam was insured; instead, Fetch threatened American Hardware if the insurer continued its investigation. See Gullickson v. Torkelson Bros., Inc., 1999 ND 165, ¶¶6, 10, 598 N.W.2d 503 (affirming summary judgment when reasonable persons could draw but one conclusion from the number of undisputed facts and other evidence, as issues of fact may become issues of law for the court to determine, if reasonable persons could reach only one conclusion from the facts). We agree with the trial court that as a matter of law, an insurance company is not guilty of bad faith for denying a claim when the claim is fairly debatable or if there is a reasonable basis for denying the claim or delaying payment. See Hanson, 1997 ND 230, ¶29, 571 N.W.2d 363 (stating the test for bad faith is whether the insurer acts unreasonably in handling an insured’s claim, such as failing to compensate the insured, without proper cause, for a loss covered by the policy); see also Corwin, 279 N.W.2d at 644 (concluding the insurer acted unreasonably and in bad faith, but hastening to add this was not a case in which the insurer had relied in good faith on an arguable legal defense).

[¶ 19] Regarding Fetch’s allegations that American Hardware refused to pay Fetch’s medical bills until court ordered to do so, Fetch supports this allegation by referring to a letter from American Hardware. However, this letter merely indicated the medical records revealed the amount of Fetch’s medical expenses were $9,830; Fetch suffered no permanent impairment from the accident; and nothing in the medical records linked Fetch’s leukemia to the accident. Because of these facts and the results of the accident investigation, which indicated a substantial amount of causal fault would likely be attributed to Fetch, American Hardware offered $15,000 in settlement. Conclusory allegations of bad faith do not provide sufficient proof that a material fact is still at issue. See Smith v. Land O’Lakes, Inc., 1998 ND 219, ¶ 10, 587 N.W.2d 173 (requiring a party opposing summary judgment to draw the court’s attention to relevant evidence by setting out the page and line in the evidence raising the material fact in dispute); see also Norwest Mortgage, Inc. v. Nevland, 1999 ND 51, ¶ 4, 591 N.W.2d 109 (deeming conclusory statements, unsupported by specific facts, insufficient to raise a genuine issue of material fact). The letter offered by Fetch provides no factual support for Fetch’s assertion American Hardware delayed payment of Fetch’s medical expenses.

[¶ 20] Viewed in the light most favorable to Fetch, we conclude the evidence, and all favorable inferences which reasonably can be drawn from the evidence, show no relevant unresolved factual issues as to American Hardware acting in bad faith by allegedly denying insurance coverage or compensation to Fetch or by hindering Fetch’s submission of a claim.

B

[¶ 21] Fetch argues there is a material factual dispute that American Hardware acted in bad faith by delaying action on the claim until it intervened “in the shoes of the defaulting defendant Quam” to avoid liability. Fetch insists American Hardware’s intervention in the lawsuit between Fetch and Quam creates a conflict of interest by allowing American Hardware “to argue on both sides of the [liability] fence.” American Hardware hired counsel to represent Fetch and separate counsel to intervene. Fetch asserts American Hardware investigated in bad faith by procuring only witnesses and evidence against its own insured Fetch and by “tracking down and promising help to [Quam] who defaulted on [Fetch’s] claim.”

[¶ 22] We addressed and resolved Fetch’s concerns regarding intervention and the conflict of interest implicit in an insurer contesting its own insured’s claim when we decided Fetch v. Quam, 530 N.W.2d 337 (N.D.1995). Notwithstanding such inherent conflict of interest, we held our procedural rules authorize an intervention of right to protect an interest in the subject of an action. Id. at 339; see also N.D.R.Civ.P. 24(a) (permitting anyone to intervene in an action if a statute confers an unconditional right to intervene or if the applicant claims an interest relating to the action, the disposition of which may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties). We concluded that, of course, conflicts of interest exist if an insurer intervenes in an action between its insured and an uninsured motorist and presses all the defenses of the uninsured motorist, but we stated this is similar to the common situation where the carrier has coverage on two insureds involved in the same accident. Fetch, at 340. We held the trial court abused its discretion in limiting American Hardware’s scope of intervention by refusing to allow inquiry into Fetch’s comparative fault. Id. at 341. We reasoned unrestricted intervention was appropriate because American Hardware had a right to protect its own interests on the issues of liability and damages arising under the uninsured motorist’s provisions of its insurance policy. Id. at 338.

[¶ 23] Furthermore, the previous chronological review of the record disclosed no bad faith investigation by American Hardware. Initial reports indicated Fetch’s negligence exceeded that of Quam, and American Hardware was acting to protect its interests. American Hardware’s investigator interviewed Quam before his deposition, but Quam testified American Hardware never promised him anything for his cooperation in the litigation, other than a statutory witness fee and mileage.

[¶ 24] The record also demonstrates American Hardware did not seek to delay Fetch’s action. On November 7, 1990, Fetch’s attorney sent to American Hardware a draft of the summons and complaint, which was subsequently served to Quam on November 21, 1990. However, American Hardware did not receive notice of service to Quam until December 18, 1990. American Hardware requested an extension of time to respond, and Fetch agreed to a two-day extension, which was subsequently extended an extra day until December 21, 1990. American Hardware served its motion to intervene on December 20,1990.

[¶ 25] Our examination of the evidence and inferences from the record, viewed in the light most favorable to Fetch, demonstrates no relevant unresolved factual issues as to American Hardware acting in bad faith by investigating the accident, procuring witnesses in defense of the uninsured motorist Quam, or intervening in the lawsuit. See Fetch, 530 N.W.2d at 338-39 (determining American Hardware had a right to protect its own interests on the issues of liability and damages arising under the uninsured motorist’s provisions of its insurance policy). An insurer does not act in bad faith by a reasonable investigation of a claim which is fairly debatable. See Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶29, 571 N.W.2d 363 (defining the test for bad faith as whether the insurer acts unreasonably in handling an insured’s claim). Nor does an insurer act in bad faith by requesting a two-day delay to respond to a complaint, in order to protect its interests under an uninsured motorist policy.

C

[¶ 26] Fetch argues American Hardware failed to negotiate in good faith regarding settlement. Again, a chronological review of the settlement offers extended by American Hardware, in addition to the subsequent jury verdict, demonstrate the lack of substance in Fetch’s arguments.

[¶ 27] Fetch’s complaint dated November 7, 1990 requested damages in the amount of $450,000. On December 19, 1990, Fetch made a settlement demand of $250,000. On July 15, 1991, Fetch made his last settlement demand prior to amending his complaint to allege bad faith in the amount of $175,000. In making these settlement demands, Fetch insisted the leukemia was related to the accident, but could not produce any medical support for his contention. Fetch did not abandon this position until after the 1994 default hearing when the court dismissed his claim for leukemia-related damages. Furthermore, American Hardware’s investigation indicated at least a substantial percentage of fault for the accident should be attributed to Fetch. Medical records reported Fetch’s special damages for medical expenses were $10,700, and he had made a good recovery from injuries sustained in the accident. American Hardware did make settlement offers to Fetch of $15,000 in July 1991, $25,000 in November 1991 and January 1993, and $35,000 in January 1994, all of which Fetch rejected.

[¶ 28] Under these circumstances, we conclude there is no genuine issue of material fact that American Hardware acted in bad faith by refusing to pay the $175,000 demanded by Fetch to settle his personal injury claims. See, e.g., Dvorak v. Am. Family Mitt. Ins. Co., 508 N.W.2d 329, 331-32 (N.D.1993) (concluding there is an implied duty of insurers to negotiate a good faith settlement); Smith v. Am. Family Mitt. Ins. Co., 294 N.W.2d 751, 756-58 (N.D.1980) (discussing an insurer’s duty to accept reasonable settlements, as included in the implied covenant of good faith and fair dealing between an insurer and insured). We agree with the trial court that in light of the jury verdict awarding damages to Fetch of $30,000, American Hardware had a good faith basis for resisting Fetch’s demands for settlement ranging from $450,000 to $175,000. See Cont'l Cas. Co. v. Kinsey, 513 N.W.2d 66, 69 (N.D.1994) (concluding an insurer did not breach its implied duty to settle a case when the insurer had a right to reimbursement from the insured). An insurer does not act in bad faith by reasonably refusing to settle a claim, which is fairly debatable as to liability, for amounts demanded by an insured which are not supported by facts regarding damages. See Hanson v. Cincinnati Life Ins. Co., 1997 ND 230, ¶ 29, 571 N.W.2d 363 (defining the test for bad faith as whether the insurer acts unreasonably in handling an insured’s claim).

D

[¶ 29] Fetch’s final basis for arguing American Hardware breached its duty of good faith and fair dealing is that American Hardware untimely served a motion for summary judgment of dismissal after a deadline for such motions was proposed by both parties. However, as the district court noted, the parties were required to submit proposed scheduling orders to the district court, but neither party submitted a proposal with a signature line for the court and the proposals were not in the form of a motion. Thus, the district court stated the clerk did not provide the proposals to the district court. The court conceded it should have reviewed the file and entered an order, but failed to do so, and neither party requested an order. The record establishes the timing of American Hardware’s motion for summary judgment did not violate any court order, but only proposed scheduling orders of the parties, and the motion was filed sufficiently in advance of trial to allow Fetch reasonable time to respond. Thus, we conclude no genuine issue of material fact was raised that American Hardware filed its motion in bad faith. See Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, ¶ 22, 561 N.W.2d 273 (considering a claim by an insured that an insurer’s pleadings and legal strategies evidenced bad faith, because an insurer’s unreasonable defense may evidence bad faith).

IV

[¶ 30] The judgment of the trial court, granting American Hardware’s motion for summary judgment and ordering dismissal of Fetch’s complaint, is affirmed in all respects.

[¶ 31] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ, JOHN C. McCLINTOCK, Jr., D.J., concur.

[¶ 32] John C. McCLINTOCK, D.J., sitting in place of SANDSTROM, J., disqualified.

      . Unfair methods of competition and unfair or deceptive practices involving claim settlement are defined in N.D.C.C. § 26.1-04— 03(9), which provides in pertinent part:
      Unfair claim settlement practices. Committing any of the following acts, if done without just cause and if performed with a frequency indicating a general business practice:
      a. Knowingly misrepresenting to claimants pertinent facts or policy provisions relating to coverages at issue.
      b. Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under insurance policies.
      c. Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies.
      d. Not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims submitted in which liability has become reasonably clear.
      e. Compelling insureds to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered.
      j. Failing to affirm or deny coverage of claims within a reasonable time after proof of loss has been completed.


author: SANDSTROM, Justice.

text:
    2001 ND 61
    Laura Rae ALBRECHT, Plaintiff and Appellant, v. METRO AREA AMBULANCE and Kent Hummel, Defendants and Appellees.
    No. 20000226.
    Supreme Court of North Dakota.
    March 20, 2001.

      David Boeck, Protection and Advocacy Project, Bismarck, ND, for plaintiff and appellant.
    Tracy Vigness Kolb, Zuger Kirmis & Smith, Bismarck, ND, for defendants and appellees. Appearance by Lance D. Schreiner.
   SANDSTROM, Justice.

[¶ 1] Laura Albrecht appealed from a judgment dismissing, with prejudice, her action for damages against Metro Area Ambulance (“Metro”) and Kent Hummel for negligently transporting her to a medical facility. We hold the trial court erred in concluding it could not, as a matter of law, award noneconomic damages without evidence of economic damages. We reverse the judgment and remand for a new trial on the merits.

I

[¶ 2] On September 25, 1994, Al-brecht’s treating doctor requested emergency transport of Albrecht to the Med-center One psychiatric unit. The police responded first and found Albrecht intoxicated and asleep in her vehicle parked in a lot near her home. According to the police, Albrecht became very combative and resistant when they woke her, and to protect her and themselves they handcuffed Albrecht’s hands behind her back. When Metro attendants arrived, they strapped Albrecht facedown onto a stretcher board located on a cot and placed her into the ambulance for transport to the medical facility. Albrecht claims she suffered severe pain and trauma during the ambulance ride, caused by her facedown position on the stretcher board and her hands being tightly cuffed behind her back. Al-brecht also claims attendant Hummel sat on her handcuffed arms during the ride, causing her pain and injury to the left wrist, which eventually required surgery.

[¶ 3] Albrecht sued Metro and Hum-mel, seeking damages for their negligent transport of her to the medical facility. The case was tried to the court. At the close of Albrecht’s case, Metro’s counsel moved for judgment as a matter of law under N.D.R.Civ.P. 50(a). After initially denying the request, the court, after hearing one defense witness, granted the motion, stating there was no evidence of damages upon which the court could grant relief.

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

II

[¶ 5] In dismissing Albrecht’s action, the trial court made the following finding of fact:

[IV] [Albrecht] offered no evidence, medical or otherwise, that the alleged tortious act of Defendant Hummel proximately caused her alleged injuries.

Albrecht moved for a new trial, specifically objecting to this finding and requesting the court to correct it:

The findings, conclusions, and order should include a statement that [Al-brecht] presented a prima facie case on the issues of duty, breach, and causation. They should also contain a statement, consistent with the Court’s announced decision, that [Albrecht] presented evidence that she sustained injuries from the Defendants’ breach of duty but not sufficient evidence for the Court to establish the amount of damages.
Paragraph IV of Defendants’ proposed findings is incorrect. Defendants made this argument but the Court did not adopt it as a finding in open court.

The trial court denied the motion for new trial and refused to amend or delete this finding.

[¶ 6] A trial court’s findings of fact will not be set aside unless clearly erroneous. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, is left with a definite and firm conviction a mistake has been made. Cox v. Cox, 2000 ND 144, ¶ 9, 613 N.W.2d 516.

[¶ 7] Albrecht testified she has a back injury and during the transport by Metro her back “hurt very bad.” She said she tried to free her ankle from the restraining strap so she could turn onto her side to take pressure off her back, but when she freed her ankle Hummel replaced the strap and then “got up and he sat on my handcuffed wrists and into my back.” She later testified:

A. When I first saw it after the handcuffs were removed, my wrist was very bruised, very swollen. It had some color like purple and red. It was very sore. It was in both wrists, however, the right wrist — after a day or less of ice, the right wrist completely was fine. My left wrist I lost some of the mobility into my thumb. I just continued to apply ice — although I requested an x-ray — and I worked it myself.
Q. And how was that injured?
A. I believe it was definitely injured when my handcuffs were sat upon.
Q. So, how long did it take you to regain full use of your thumb?
A. I still don’t have full use of my thumb today.
Q. Have you seen anybody about it?
A. Yes, I have.
Q. And what’s the remedy for it?
A. I had surgery once. I had a bone graft. They took bone from my hip and grafted it right here, just a little bit lower.

The trial court found Albrecht “offered no evidence ... the alleged tortious act of Defendant Hummel proximately caused her alleged injuries.” This finding is inconsistent with the foregoing testimony. Albrecht clearly testified the conduct of the Metro attendants in transporting her in a restrained facedown manner caused her pain and anxiety and attendant Hum-mel’s conduct in sitting on her during transport caused her additional pain and injury to the thumb and left wrist. We conclude the court’s finding there is “no evidence” of negligence causing injury is clearly erroneous.

III

[¶ 8] At the close of Albrecht’s case, counsel for Metro moved for judgment as a matter of law under N.D.R.Civ.P. 50(a), which provides:

(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim, or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any tune before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. (Emphasis added.)

In granting the motion, the trial court stated:

[Ijnterpreting the evidence in the light most favorable to [Albrecht], it’s possible that there could ultimately be established some kind of tort on the part of the defense.
However, even if that were to happen, I’ve concluded there is absolutely nothing in the record to establish damages in this case, and that there must be some fundamental showing of damages in the case-in-chief in order for the Court to deny the motion that was made by the defense here. As I go through the record, I see nothing at all to show a measure of damages. The possibility that the wrist injury, again, concluding that it might have been caused by something that the defendants did, there is nothing in the record to show loss of earnings, any other kind of economic damages, nothing on which the Court could base an award. There is no evidence of medical bills, anything like that.
[S]o I’m going to reverse myself in terms of my earlier ruling and grant your motion based strictly on the total failure of the record to this point to show damages.

Regarding this issue, the trial court made the following written finding:

Even if the court found a tortious act by Defendants, [Albrecht] offered absolutely no evidence establishing damages, and it would require speculation, conjecture, and surmise by the court to order an award of damages.

[¶ 9] The explanatory note to N.D.R.Civ.P. 50 explains that in 1994 the terminology of this rule was revised:

Rule 50 was revised, effective March 1, 1994, to track the 1991 federal revision. The revision abandons the terminology “directed verdict” and “judgment notwithstanding the verdict.” Instead, the terminology “judgment as a matter of law” is substituted. In determining whether to grant judgment as a matter of law, the standard remains the same as the standard for determining whether a directed verdict or judgment notwithstanding the verdict should be granted.

This Court has held that a motion under this rule is improper in a bench trial. Larson v. Unlimited Business Exchange of North Dakota, Inc., 330 N.W.2d 518, 521 (N.D.1983). The rule, by its express terms, applies “during a trial by jury.” Metro’s motion was therefore inappropriate. However, Albrecht did not object to the motion being unavailable in a bench trial, and the trial court granted the motion on its merits. We will, therefore, address the court’s ruling on the motion.

[¶ 10] In Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450, we explained our procedure for reviewing a court’s decision on a motion brought under N.D.R.Civ.P. 50:

The trial court’s decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion.... In determining if the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which support the verdict. The trial court’s decision on a motion for judgment as a matter of law is fully reviewable on appeal. (Citations omitted.)

[¶ 11] The trial court concluded, as a matter of law, it could not award noneconomic damages in the absence of some evidence of economic damages suffered by the plaintiff. This is an erroneous view of the law. Under N.D.C.C. § 32-03.2-04, damages in a civil tort action for personal injury may be awarded by the trier of fact as “compensation for economic damages” and as “compensation for non-economic damages.” The statute states noneconomic damages include “damages arising from pain, suffering, inconvenience ... mental anguish, emotional distress, fear of injury ... humiliation, and other nonpeeuniary damage.” Metro has not cited any authority requiring a tort victim seeking damages in a negligence action for personal injury to prove economic damages, such as loss of earnings or medical expenses, as a prerequisite to being awarded noneconomic damages for pain and suffering and similar injury. Section 32-03.2-04, N.D.C.C., does not impose any such prerequisite to an award of noneco-nomic damages.

[¶ 12] “[T]he determination of damages for pain and suffering and comparable losses is not susceptible of an arithmetical calculation. Its ascertainment must, to a large degree, depend upon the common knowledge, good sense, and practical judgment” of the factfinder. Dahlen v. Landis, 314 N.W.2d 63, 68 (N.D.1981). See also Reisenauer v. Schaefer, 515 N.W.2d 152,157 (N.D.1994).

[¶ 13] In Clark v. Josephson, 66 N.W.2d 539, 547 (N.D.1954), this Court held medical testimony is not a prerequisite to an award of damages for personal injuries suffered by a defendant’s negligent conduct. In Clark, the defendant driver argued an award of $1300 to the plaintiff, who claimed she suffered injuries in a two-car collision, was “not based on any evidence” because “there was no medical testimony pertaining to her personal injuries.” Id. at 547. In upholding the damage award, this Court stated:

There is no fixed rule by which compensation for pain and suffering may be measured. Human suffering is not a commodity; it has no price, and therefore, it was left to the best judgment and sound discretion of the jury to determine compensation for the injuries sustained ... and the pain and suffering arising therefrom....
Medical testimony may be used for the purpose of increasing or minimizing the amount of damages. We have not found, nor has appellant pointed to any cases holding that substantial damages may not be awarded in absence of medical testimony. (Citation omitted.)

Id. at 548. See also Lake v. Neubauer, 87 N.W.2d 888, 891 (N.D.1958).

[¶ 14] Under N.D.C.C. § 32-03.2-04, evidence of economic damages is not required for the factfinder to award noneco-nomic damages in a tort action for personal injury. Our statute is consistent with the summarized statement of the law in 2 Dan B. Dobbs, The Law of Torts, 1050-51 (2001):

The plaintiff is entitled to recover for all forms of suffering proximately caused by tortious injury, including future suffering. The pain for which recovery is allowed includes virtually any form of conscious suffering, both emotional and physical.... Expert testimony can address pain, but frequently the physical injury itself and the kind of medical attention needed, permit or require an inference that the plaintiff suffered physically or emotionally.

IV

[¶ 15] We conclude the trial court dismissed Albrecht’s claim under a misconception of the law, that a factfinder cannot award damages for pain and suffering or other noneconomic loss unless the plaintiff offers proof of economic damages. Reviewing the evidence in the light most favorable to Albrecht, and accepting the truth of the evidence presented by Al-brecht and all reasonable inferences from the evidence that supports her claim, we conclude the evidence was sufficient to create a fact issue whether Albrecht is entitled to an award of damages for pain, suffering, and other noneconomic loss caused by Metro’s negligence in transporting her. We hold the trial court erred in granting Metro’s motion under N.D.R.Civ.P. 50(a), and we therefore reverse the judgment and remand for a new trial on the merits.

[¶ 16] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.


author: MARING, Justice.

text:
    2001 ND 58
    Thomas K. OVERBOE, Plaintiff and Appellant, v. FARM CREDIT SERVICES OF FARGO, and Neal Sundet, Defendants and Appellees.
    No. 20000236.
    Supreme Court of North Dakota.
    March 20, 2001.

      David A. Overboe, Fargo, ND, for plaintiff and appellant.
    Roger J. Minch, Serkland Law Firm, Fargo, ND, for defendants and appellees.
   MARING, Justice.

[¶ 1] Thomas K. Overboe appealed from a summary judgment dismissing his negligence and breach of contract action against Farm Credit Services of Fargo and Neal Sundet. We conclude the trial court did not err in ruling Overboe’s claims are barred as a matter of law by the statute of limitations, and we affirm.

I

[¶ 2] Overboe farmed in Richland and Cass counties, and obtained operating loans and crop insurance from Farm Credit Services, through its loan officer and insurance agent, Sundet. According to Overboe, in 1991 Sundet agreed to obtain multi-peril crop insurance for Overboe’s Richland and Cass County farmland, but Sundet obtained the insurance only for Overboe’s Richland County property. In 1992, Overboe suffered crop damage in Cass County, resulting in a $9,024 loss.

[¶ 3] In 1993, Overboe again suffered crop damage and he received insurance and federal disaster payments for losses to his sunflower and corn crops. Under federal regulations, Overboe was then required to carry multi-peril crop insurance on both his sunflower and corn crops for the 1994 crop year. According to Overboe, Sundet agreed to provide multi-peril insurance on Overboe’s sunflower and corn crops, but did not do so. On April 3, 1995, the Cass County Farm Service Agency informed Overboe he had to repay $19,619.71 in 1993 federal disaster payments he had received because he did not have multi-peril crop insurance on his 1994 sunflower crop. Overboe appealed the Farm Service Agency decision through federal administrative channels, and the agency decision was ultimately upheld in September 1996.

[¶4] Overboe commenced this action on April 23, 1997, alleging Sundet and Farm Credit Services were liable for damages for negligence and breach of contract arising from Sundet’s failure to acquire for him appropriate multi-peril crop insurance during the 1992 and 1994 crop years. Ov-erboe moved for summary judgment on his claims for negligence and breach of contract. The defendants brought a cross-motion for summary judgment, alleging Overboe’s action was barred by the two-year statute of limitations contained in N.D.C.C. § 26.1-26-51(1). The trial court ruled the action was barred by the statute of limitations and dismissed Overboe’s claims without reaching the merits of Ov-erboe’s motion for summary judgment. Ov-erboe appealed.

II

[¶ 5] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for promptly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Dan Nelson Construction, Inc. v. Nodland & Dickson, 2000 ND 61, ¶ 13, 608 N.W.2d 267. A party seeking summary judgment has the burden of clearly demonstrating there is no genuine issue of material fact. Egeland v. Continental Resources, Inc., 2000 ND 169, ¶ 8, 616 N.W.2d 861.

[¶ 6] The statute of limitations for actions against licensed insurance agents is set forth in N.D.C.C. § 26.1-26-51:

A civil action for the recovery of damages resulting from negligence or breach of contract brought against any person licensed under this chapter by any person claiming to have been injured as a result of the providing of insurance services or the failure to provide insurance services by a licensee may not be commenced in this state after July 31, 1995, unless the action is commenced on or before the earlier of:
1. Two years from the date the alleged act, omission, or neglect is discovered or should have been discovered by the exercise of reasonable diligence; or
2. Six years after performance of the service for which the claim for relief arises, unless discovery was prevented by the fraudulent conduct of the licensee.

This legislation was approved and filed on April 4, 1995, and became effective August 1, 1995, see 1995 N.D. Sess. Laws ch. 282, § 1, after Overboe’s claim had accrued and before Overboe commenced the action.

[¶ 7] Overboe did not argue to the trial court he met the two-year statute of limitations applicable under the circumstances. Rather, Overboe argued N.D.C.C. § 26.1-26-51 cannot be applied retroactively because there is no evidence the Legislature intended the statute to be applied retroactively, and therefore, the general six-year statute of limitations in N.D.C.C. § 28-01-16 governs his claim.

[¶ 8] A statute is not to be retroactively applied “unless it is expressly declared to be so.” N.D.C.C. § 1-02-10. Consequently, we do not retroactively apply statutes unless directed to do so by the Legislature. See In re D.F.G., 1999 ND 216, ¶ 11 n. 2, 602 N.W.2d 697. A statute need not contain the word “retroactive” for it to be applied to facts occurring before the effective date of the statute. See State v. Davenport, 536 N.W.2d 686, 688 (N.D.1995); In Interest of W.M.V., 268 N.W.2d 781, 783 (N.D.1978). The general rule of nonretroactivity codified in N.D.C.C. § 1-02-10 “is merely one of statutory construction.” Davenport, 536 N.W.2d at 688.

[¶ 9] The interpretation of a statute is fully reviewable on appeal. Peterson v. Traill County, 1999 ND 197, ¶ 10, 601 N.W.2d 268. Our primary objective in construing a statute is to ascertain the intent of the Legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. State ex rel. Heitkamp v. Family Life Services, Inc., 2000 ND 166, ¶ 7, 616 N.W.2d 826. Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. In re Juran and Moody, Inc., 2000 ND 136, ¶ 6, 613 N.W.2d 503.

[¶ 10] We need not look beyond the plain language of the statute to resolve this issue. By its plain language, N.D.C.C. § 26.1-26-51 applies to actions “commenced in this state after July 31, 1995.” To “commence” an action means to “begin, institute or start” an action. Black’s Law Dictionary 268 (6th ed.1990). There is no stated exception for causes of action accruing before July 31, 1995. Nor can an exception be implied. If the statute were applied only to causes of action accruing after July 31, 1995, the Legislature’s use of the phrase “may not be commenced in this state after July 31, 1995,” would be rendered meaningless because the statute would apply only to actions accruing after its effective date of August 1, 1995. Obviously, an action cannot be commenced before a cause of action accrues. If possible, each word of a statute must be given effect. Resolution Trust v. Dickinson Econo-Storage, 474 N.W.2d 50, 53 (N.D.1991). The only way to give meaning to the specific date set forth in the statute is to apply the statute to claims accruing before and after July 31, 1995. We conclude N.D.C.C. § 26.1-26-51, by its plain language, is retroactive and applies to causes of action accruing before July 31, 1995.

[¶ 11] Overboe attempts to argue that his claim regarding Sundet’s failure to secure multi-peril insurance on his 1994 sunflower crop did not accrue until he had exhausted his federal administrative remedies, and because a final unfavorable determination was not received until September 4, 1996, this claim is not barred by the statute of limitations. However, Overboe did not raise this issue before the trial court. We do not consider questions that were not presented to the trial court and that are raised for the first time on appeal. Robert v. Aircraft Inv. Co., Inc., 1998 ND 62, ¶ 14, 575 N.W.2d 672. Because Overboe did not resist the defendants’ motion for summary judgment on this ground in the trial court, the issue is not reviewable on appeal. See, e.g., American State Bank v. Sorenson, 539 N.W.2d 59, 63 (N.D.1995); Resolution Trust Corp. v. Gosbee, 536 N.W.2d 698, 702 (N.D.1995); State ex rel. Industrial Comm’n v. Harlan, 413 N.W.2d 355, 357 (N.D.1987).

[¶ 12] In support of his argument that the Legislature did not intend N.D.C.C. § 26.1-26-51 to apply retroactively, Over-boe cited in both his trial court brief and appellate brief Adams & Freese Co. v. Kenoyer, 17 N.D. 302, 306,116 N.W. 98, 99 (1908), for the proposition a “creditor would be deprived of his property rights in such causes of action without due process of law” if the Legislature did not supply a reasonable time within which to file suits for parties having causes of action already subject to previous statutes of limitations. The defendants apparently interpreted Ov-erboe’s argument to be a constitutional due process challenge to the statute, and fully briefed the due process issue before the trial court and this Court. The trial court also interpreted Overboe’s argument as a due process challenge to the statute, and ruled the retroactive application of the statute “comports with due process.”

[¶ 13] We conclude Overboe’s single fleeting reference to “due process” in one sentence of his trial court and appellate briefs, made in connection with an argument about legislative intent, is insufficient to raise for our consideration the constitutional validity of N.D.C.C. § 26.1-26-51 under the due process clause. Absent authority and a reasoned analysis to support it, the mere assertion of unconstitutionality is insufficient to adequately raise a constitutional question. N.D. Guar. Student Loan Program v. Voigt, 513 N.W.2d 64, 66 (N.D.1994); Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236, 241 (N.D.1988); Schwarting v. Schwarting, 354 N.W.2d 706, 710 (N.D.1984). Courts cannot be expected to search through the record and applicable caselaw to discover deprivations of a constitutional magnitude when the party attempting to claim a constitutional violation has not bothered to do so. See Lund v. North Dakota State Highway Dept., 403 N.W.2d 25, 29 (N.D.1987). Overboe’s argument lacks the “heavy artillery” necessary to raise a constitutional issue. Southern Valley Grain Dealers v. Bd. of County Comm’rs, 257 N.W.2d 425, 434 (N.D.1977). Overboe insufficiently raised his constitutional claim in the trial court and in this Court. Consequently, we do not decide the issue in this case.

[¶ 14] We note, however, that there is authority in this jurisdiction addressing when the retroactive application of a shortened statute of limitations may create constitutional due process problems. In Kenoyer, 17 N.D. at 307-08, 116 N.W. at 100, an amendment to a statute, which suspended the running of the statute of limitations during a defendant’s absence from the state, exempted real estate mortgage foreclosures beginning July 1, 1905. Recognizing the Legislature must fix a reasonable time before existing causes of action could be barred by retroactive legislation, this Court said:

But conceding that the Legislature in enacting the statute intended to make it retroactive as well as prospective in its operation, and also intended to and did fix the time between its enactment and the date of its taking effect, July 1st, for the institution of proceedings on existing mortgages, still the time thus fixed was, as a matter of law, unreasonable, and hence the statute cannot be held to apply to foreclosure proceedings under mortgages which had matured prior to the enactment thereof. The time between these dates was but 3 months and 21 days. In that short space of time it would be almost an utter impossibility, even if they, in fact, acquired knowledge of such law on the day it was enacted, for all persons, including residents and nonresidents, owning real estate mortgages on property in this state under which causes of action had accrued, to cause foreclosure proceedings to be instituted on all such mortgages. In considering the validity of such statute when applied to existing causes of action, it is both just and reasonable to assume, what we all know to be true as a matter of common knowledge, that a large per cent of such persons, especially nonresidents of the state, would not, in that short period of time, acquire knowledge that such a vitally important statute to them had been enacted.

Kenoyer, 17 N.D. at 309, 116 N.W. at 100-01. Overboe neither referred us to, nor placed any reliance on this portion of the Kenoyer decision. Although the time period between the enactment and the effective date of N.D.C.C. § 26.1-26-51 is essentially the same as the time period found by the Kenoyer Court to be unreasonable as a matter of law, we decline to rule on the issue until it has been sufficiently raised and briefed in an appropriate case.

III

[¶ 15] The summary judgment is affirmed.

[¶ 16] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur.


text:
    2001 ND 60
    James HORSLEY, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and Strategic Telecommunications, Inc., Respondent.
    No. 20000237.
    Supreme Court of North Dakota.
    March 20, 2001.
    Bruce A. Schoenwald, Moorhead, MN, for claimant and appellant.
    Jacqueline Sue Anderson, Special Assistant Attorney General, Fargo, ND, for ap-pellee.
   SANDSTROM, Justice.

[¶ 1] James Horsley appealed a judgment affirming, in part, a North Dakota Workers Compensation Bureau order and remanding for further evidence. We conclude the judgment must be vacated because the court did not order entry of a judgment, and we dismiss the appeal.

I

[¶ 2] Horsley was injured on June 12, 1998, when he fell while employed by Strategic Telecommunications, Inc., in Fargo. Horsley, who previously had total hip replacements, injured his head and was admitted to a Fargo hospital, where x-rays revealed fractures of both thighbones. Horsley was transferred to St. Mary’s Hospital at Rochester, Minnesota, for surgery. Before Horsley could undergo surgery, he had to have seven abscessed teeth removed to prevent the possibility of infection at the site of his hip surgery. On June 19, 1998, surgery was performed on Horsley’s left hip. After that surgery, Horsley was unable to bear weight on his right leg. Horsley had surgery on his right hip on August 7, 1998. Horsley needed nursing home care during his recovery.

[¶ 3] The Bureau accepted liability for the injuries to Horsley’s head and left hip. The Bureau found the evidence did not show Horsley’s abscessed teeth and right hip problems were caused by his work injury and ordered it was “not liable for claimant’s abscessed teeth and right hip problems.” The Bureau notified Horsley it was not liable for his right hip injury and would, therefore, “accept liability for nursing home coverage from August 14, 1998 until your discharge date at 50 percent liability.”

[¶ 4] At Horsley’s request, a hearing was held before a temporary administrative law judge on June 16, 1999. Before the hearing, Horsley requested evidence from his surgeon. He received a letter, two days after the hearing, in which his surgeon, Robert T. Trousdale, said:

I would suggest that the fall that you sustained was a contributing factor [in] your hip problems in a sense that before the fall you were able to bear full weight on the legs and after the fall you were unable to bear weight on the legs. I agree completely that the postoperative care would have been virtually the same with or without the right leg operation.

On June 18, 1999, Horsley requested this evidence be entered in the record, noting he did “not have an attorney and did not realize I could request that the hearing record be left open for a period of time to obtain the letter.” The Bureau objected to Horsley’s request, and the administrative law judge denied it. The administrative law judge recommended finding treatment for Horsley’s abscessed teeth and his “right hip problems ... were caused by the June 12, 1998, work injury.” The administrative law judge recommended the following order:

IT IS ORDERED that claimant is entitled to payment of medical expenses regarding his abscessed teeth and payment of all workers compensation benefits relating to his right hip problems, including but not limited to, payment of 100 percent of his nursing home stay from August 14,1998, until his discharge date.

[¶ 5] In its final order, the Bureau found extraction of Horsley’s abscessed teeth was required prior to surgery on his left hip, there was no evidence Horsley’s abscessed teeth were caused by the work injury, and the Bureau was not liable for restorative dental treatment. The Bureau found “the need for claimant’s right hip prosthetic revision was not caused by the June 12, 1998 work injury, nor was the work injury a substantial accelerating factor.” The Bureau concluded extraction of Horsley’s abscessed teeth was reasonable and necessary treatment for his work injury, but subsequent restorative dental treatment was not, and the Bureau was not liable for it. The Bureau concluded Horsley was not entitled to payment for any treatment related to his right hip. The Bureau concluded it paid for nursing home care for 62 days, and thereafter “appropriately paid nursing benefits on an aggravation basis.” The Bureau ordered payment for extracting Horsley’s abscessed teeth and ordered his “nursing home/convalescent care be paid on a 50% basis pursuant to the aggravation provisions found in section 65-05-15.”

[¶ 6] Horsley appealed to the district court. In his specifications of error, Hors-ley asserted there was an insufficient basis for the Bureau’s conclusions about his restorative dental treatment, his right hip, and his nursing home care. Horsley also specified the following issue:

The Bureau improperly took an adversarial role in the proceedings by refusing to allow the admission of relevant medical evidence in the form of a letter from his treating orthopedic surgeon which arrived too late for the hearing and which claimant sought to introduce into the proceedings.

Horsley filed an in forma pauperis petition and an affidavit with the district court. The district court found Horsley was indigent and ordered the filing fee and the cost of preparing and filing the record be waived.

[¶ 7] In a memorandum opinion and order, the district court upheld the Bureau’s denial of benefits for restorative dental work and upheld the Bureau’s determination that Horsley’s light hip injury was unrelated to his work injury. The court recognized “it is not uncommon for the medical record in workers compensation cases to be held open for a short period of time to allow for clarification of medical issues.” The court noted “the Bureau objected to relevant evidence that would have addressed one of the fundamental issues in the case.” The court ruled:

[T]he Court finds that the failure of the Claimant to ask that the record be held open for a short period [of] time to supplement the medical record constitutes plain error justifying the application of the “plain error doctrine,” that the Bureau assumed an improper adversarial role in objecting to receipt of Dr. T[r]ousdale’s supplemental report and that the error in refusing to receive the supplemental report cannot be held to be harmless as a matter of law. As to this sub-issue the Court remands to the Bureau with instructions that the report of Dr. T[r]ousdale shall be received into evidence and that the Bureau shall be afforded the opportunity to reopen the record to present such further evidence on the issue of apportionment of benefits for nursing services as may be appropriate and admissible under the rules of procedure and evidence.

The court noted there was no evidence for apportioning Horsley’s nursing services:

Horsley’s nursing home care was paid for on a fifty percent basis by the North Dakota Workers Compensation Bureau because there was no competent evidence in the record from which it could determine what portion of the nursing home services were attributable to the compensable left leg injury and what portion of those services were attributable to the noncompensable right leg injury. Dr. T[r]ousdale’s opinion goes to the heart of this question.

The court held Horsley’s failure to request the record be held open for supplemental evidence from Dr. Trousdale was plain error that affected substantial rights, because the only evidence on the issue was from Dr. Trousdale and Horsley was deprived of a meaningful opportunity to have this issue fully considered.

[¶ 8] The court said the Bureau’s course of action was improper, and “amounted to a decision to advocate for a position inconsistent with what the evidence would have supported had Horsley not committed plain error.” The Court held “the issue as to whether or not the nursing services should be paid on a 50 percent aggravation basis should be remanded to the Bureau for further consideration,” and directed the Bureau to receive the opinion of Dr. Trousdale. The district court ordered:

IT IS HEREBY ORDERED that the Final Order of the North Dakota Workers Compensation Bureau is in all things AFFIRMED EXCEPT AS IS PROVIDED in the further order below;
IT IS FURTHER ORDERED that the failure to hold open the record for the supplemental medical report of Dr. T[r]ousdale was plain error on the part of Horsley and that the objections of the Bureau to the receipt of the evidence was improper. IT IS FURTHER ORDERED that the determination of the Bureau that nursing services should be paid on a 50 percent aggravation basis is REVERSED AND REMANDED WITH FURTHER INSTRUCTIONS. On remand the Bureau shall receive into evidence the supplemental report of Dr. T[r]ousdale. If the Bureau concludes that further evidence on the issue of the applicability of section 65-05-15 of the North Dakota Century Code is necessary, including consultation with an independent expert, the record shall be re-opened and further proceedings held upon proper notice and identification of the issue to be redetermined.

The court did not order entry of judgment, but the Bureau had a judgment entered by the Clerk of District Court on June 12, 2000. Horsley appealed to this Court.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06, 28-32-15, and 65-10-01. Horsley’s appeal was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const. art. VI, § 2.

II

[¶10] Rule 58(a), N.D.R.Civ.P., provides, in part:

(a) Entry of Judgment. Upon the filing of an order for judgment, the prevailing party shall submit to the clerk an appropriate form of the judgment. The clerk shall sign and file the judgment and make an entry of it in the register of civil actions, at which time the judgment becomes effective.

The rule “contemplates entry of judgment only upon filing an order for judgment. Before a valid judgment can be entered, an order for judgment is required.” Fahlsing v. Teters, 552 N.W.2d 87, 89 (N.D.1996).

[¶ 11] An appeal may be taken from a judgment entered without an order for entry of judgment if the trial court intended to dispose of the case and intended that a judgment be entered and if “an order for judgment is implicit in the trial court’s memorandum opinion.” Lang v. Bank of Steele, 415 N.W.2d 787, 789 (N.D. 1987). A judgment is void if the court did not direct judgment to be entered and an order for judgment is not implicit in the court’s order. Fahlsing, 552 N.W.2d at 89. Here, there was no explicit order for entry of judgment, and the judgment from which this appeal was taken must be vacated unless we determine “an order for judgment is implicit in the trial court’s memorandum opinion.” Lang, at 789.

[¶ 12] In an appeal from an administrative agency decision, N.D.C.C. § 28-32-18 authorizes a district court to receive and consider additional or excluded evidence:

If an application for leave to offer additional testimony, written statements, documents, exhibits, or other evidence is made to the court in which an appeal from a determination of an administrative agency is pending, and it is shown to the satisfaction of the court that the additional evidence is relevant and material and that there were reasonable grounds for the failure to offer the evidence in the hearing or proceeding, or that the evidence is relevant and material to the issues involved and was rejected or excluded by the agency, the court may order that the additional evidence be taken, heard, and considered by the agency on terms and conditions as the court may deem proper. After considering the additional evidence, the administrative agency may amend or reject its findings of fact, conclusions of law, and order, and shall file with the court a transcript of the additional evidence together with its new or amended findings of fact, conclusions of law, and order, if any, which constitute a part of the record with the court.

Under N.D.C.C. § 28-32-18, a party on appeal from an administrative agency decision may apply for leave to offer additional evidence, which the court may order “taken, heard and considered on terms and conditions as it deems proper.” Otto v. North Dakota Workers Comp. Bureau, 533 N.W.2d 703, 705 (N.D.1995). Section 28-32-18, N.D.C.C., “specifically requires that the agency file a transcript of any additional evidence and any amended findings, conclusions, or decision with the district court.” Luithle v. Burleigh County Social Services, 474 N.W.2d 497, 499 (N.D.1991). “Section 28-32-18, N.D.C.C., evinces a clear legislative intent that the district court retain jurisdiction when the matter is remanded for the limited purpose of considering additional, rejected, or excluded evidence.” Luithle, at 499-500.

[¶ 13] “If the agency has an opportunity to correct its own errors, a judicial controversy may be mooted or, at a minimum, piecemeal appeals may be avoided.” Johnson v. Traynor, 1998 ND 115, ¶ 20, 579 N.W.2d 184 (quoting Medcenter One, Inc. v. North Dakota State Bd. of Pharmacy, 1997 ND 54, ¶ 11, 561 N.W.2d 634). We have a “long-standing policy against piecemeal appeals.” Sickler v. Kirkwood, 1997 ND 40, ¶5, 560 N.W.2d 532. “Where unsettled issues are evident and are linked to those brought for review, piecemeal appeals should not be encouraged without appropriate reason.” Sprunk v. North Dakota Workers Comp. Bureau, 1998 ND 93, ¶ 16, 576 N.W.2d 861 (quoting Justice Meschke’s concurring opinion in In re Estate of Stuckle, 427 N.W.2d 96, 103 (N.D.1988)). A decision favorable to a claimant on remand to the Bureau may “obviate[ ] the need for further appellate review, thus satisfying our policy against piecemeal appeals as well as furthering judicial economy.” Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, ¶ 19, 616 N.W.2d 844.

[¶ 14] The district court affirmed the Bureau’s decision in part. It treated Horsley’s specification of issues as a request for consideration of evidence excluded by the Bureau and held the administrative law judge’s failure to consider additional medical evidence from Dr. Trousdale was plain error, which deprived Horsley “of a meaningful opportunity to have his nursing services fully considered.” The court ordered the matter of payment for nursing services reversed, and remanded the matter for consideration of additional evidence, which Hors-ley had sought before the hearing, but which did not become available until two days after the hearing. The court also gave the Bureau an opportunity to consider other additional evidence if it chose to do so. The court did not order entry of judgment.

[¶ 15] The incompleteness of the district court’s order, its provisional nature, and the court’s failure to order entry of judgment indicate a final decision had not been made. Fahlsing v. Teters, 552 N.W.2d at 90. The district court’s remand for consideration of the excluded medical evidence comports with our longstanding policy against piecemeal appeals and promotes judicial economy, inasmuch as a decision favorable to Horsley on remand to the Bureau may obviate the need for further appellate review. Under these circumstances, we conclude the district court’s memorandum opinion does not contain an implicit order for entry of judgment. Because the record contains no explicit or implicit order for entry of judgment, the judgment entered must be vacated.

III

[¶ 16] We vacate the judgment, dismiss the appeal, and remand for completion of the proceedings pending below.

[¶ 17] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.