author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

text:
    2004 ND 173
    Josiah FLATT, by and through his Natural Guardians Anita FLATT and James Flatt, Plaintiff and Appellant, v. Sunita A. KANTAK, M.D., MeritCare Hospital, and State of North Dakota, Defendants and Appellees.
    No. 20030285.
    Supreme Court of North Dakota.
    Sept. 3, 2004.

      Zenas Baer, Zenas Baer & Associates, Hawley, MN, for plaintiff and appellant.
    Angela Elsperger Lord (argued) and Jane C. Voglewede (on brief), Vogel Law Firm, Fargo, for defendant and appellee, Sunita A. Kantak, M.D.
    Douglas A. Bahr, Solicitor General, Attorney General’s Office, Bismarck, for defendant and appellee State of North Dakota.
   VANDE WALLE, Chief Justice.

[¶ 1] Josiah Flatt, by and through his natural guardians Anita and James Flatt, appealed from an order denying his motion for a new trial and from an amended judgment entered upon a jury verdict finding Dr. Sunita Kantak was not negligent in obtaining Anita Flatt’s informed consent for the circumcision of Josiah Flatt. We affirm.

I

[¶ 2] James and Anita Flatt are the parents of Josiah Flatt, who was born on March 6, 1997, at Meritcare Hospital in Fargo. On March 7, 1997, Dr. Kantak performed a circumcision on Josiah Flatt. Josiah Flatt’s medical records, which were signed by Dr. Kantak and dated March 6, 1997, state, “RISKS OF LOCAL ANESTHESIA AND CIRCUMCISION DISCUSSED. PROCEDURE DESCRIBED. PARENT EXPRESSES UNDERSTANDING.” According to Dr. Kantak, her discussion about circumcision with a parent typically includes a statement that circumcision is not medically recommended but is a choice, lidocaine is used for anesthesia with a risk of hemorrhage or seizure, circumcision is a minor surgery but is a surgery with risks such as bleeding, infection, trauma to the penis, and uretal meatus, and a benefit of circumcision includes less risk of urinary tract infection. Dr. Kantak testified it was not her standard practice to discuss with a parent every reported risk of circumcision. According to Meritcare’s records, Anita Flatt was given written materials, including a booklet entitled “Infant Care,” which discussed circumcision, and a booklet entitled “Should Your Infant Boy Be Circumcised?” Anita Flatt denied receiving any written materials or booklets while she was at the hospital. She recalled speaking ■with Dr. Kantak before the circumcision, but she denies being told by Dr. Kantak about any risks of circumcision, except for pain. On March 6, 1997, Anita Flatt signed a form documenting her consent for Josiah Flatt’s circumcision. The form stated that her doctor had explained the nature and purpose of the surgery, other methods of treatment, risks involved, and the possibility of complications, and that she understood those risks and options.

[¶ 3] According to Anita and James Flatt, they later learned of other risks of circumcision and what the procedure entailed. They claimed Anita Flatt would not have consented to the procedure if there had been adequate disclosure. Josiah Flatt, by and through Anita and James Flatt, sued Dr. Kantak and Meritcare, alleging Dr. Kantak failed to obtain Anita Flatt’s informed consent before performing the circumcision. Flatt also sued the State of North Dakota, alleging N.D.C.C. § 12.1-36-01, the female genital mutilation law, violated the equal protection provisions of the federal and state constitutions.

[¶ 4] The trial court dismissed Josiah Flatt’s federal and state constitutional challenges, concluding he lacked standing to challenge N.D.C.C. § 12.1-36-01. The court dismissed Flatt’s claims against Mer-itcare before submitting the case to a jury, and the jury returned a verdict finding Dr. Kantak was not negligent in obtaining Anita Flatt’s consent for the circumcision. The court denied Flatt’s motion for a new trial, and a judgment, with costs and disbursements, was entered dismissing the action.

II

[¶ 5] Flatt argues the trial court erred in preventing his experts, Dr. Christopher Cold and Dr. Robert S. Van Howe, from testifying on the standard of care for obtaining informed consent for an elective medical procedure on an infant. He argues expert'testimony is necessary to establish the degree of skill and care required of a physician and whether specified acts fall below that standard. He argues the trial court erred in excluding his experts’ testimony, “ruling as a matter of law that the ‘standard of care’ is a legal issue.”

[¶ 6] “The doctrine of informed consent is essentially the duty of a physician to disclose sufficient information to permit a patient to make an informed and intelligent decision on whether to submit to a proposed course of treatment or surgical procedure.” Koapke v. Herfendal, 2003 ND 64, ¶ 14, 660 N.W.2d 206. If a physician fails to obtain a patient’s informed consent, the physician may be found negligent. Jaskoviak v. Gruver, 2002 ND 1, ¶ 13, 638 N.W.2d 1. “A plaintiff in an informed-consent case must establish breach of a physician’s duty of disclosure, causation, and injury.” Id. An integral part of a physician’s duty to a patient is the disclosure of available choices for treatment and the material and known risks involved with each treatment. Winkjer v. Herr, 277 N.W.2d 579, 587 (N.D.1979).

In Winkjer, 277 N.W.2d at 587, we recognized that a majority of courts have related a physician’s duty of disclosure to a subjective standard of the custom of physicians practicing in the community, while a growing number of jurisdictions have adopted an objective standard for measuring the performance of a physician’s duty of disclosure based on conduct that is reasonable under the circumstances. We said the jurisdictions adopting the objective standard have stated that a patient’s right of self-determination in a particular treatment requires a standard set by law for physicians rather than a subjective standard that physicians may impose upon themselves, and expert testimony on the standard of disclosure is generally allowed as relevant evidence, but that testimony supplements and does not define a physician’s legal duty to inform. Id. at 587-88. We acknowledged that expert medical testimony may not be required to establish the existence of a duty to disclose risks under the objective standard, but under either the objective or subjective standard, expert medical testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives, especially when that information is outside the common knowledge of laypersons. Id. at 588. In Winkjer, at 588-89, we concluded the plaintiff had failed to produce expert testimony to refute the defendant’s showing there was no genuine issue of fact regarding disclosure of a known risk. Although we recognized a growing number of jurisdictions had adopted the persuasive reasoning of the objective standard, we did not specifically decide whether the standard for disclosure is measured by “the custom of the physician practicing in the community,” or by what is “reasonable under the circumstances.” Winkjer, at 587-89. See Lemke v. United States, 557 F.Supp. 1205, 1212 (D.N.D.1983); Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D.1983). See also Laurel R. Hanson, Note, Informed Consent and the Scope of a Physician’s Duty of Disclosure, 71 N.D. L.Rev. 71, 77-80 (2001).

[¶ 8] In Jaskoviak, 2002 ND 1, ¶¶ 17-19, 638 N.W.2d 1, without explicitly adopting either the subjective or objective standard of disclosure, we discussed common ground under both standards:

In acquiring a patient’s informed consent to a medical procedure, a physician should disclose a number of things:
It is sometimes said that the physician should disclose the diagnosis, the general nature of the contemplated procedure, the material risks involved in the procedure, the probability, of success associated with the procedure, the prognosis if the procedure is not carried out, and the existence and risks of any alternatives to the procedure.
1 [Dan B.] Dobbs, [The Law of Torts ], § 251 [2001]. See also Steven E. Pegalis, American Law of Medical Malpractice 2nd § 4:1, pp. 186-88 (1992), noting the American Hospital Association Risk Management Handbook advises disclosing the nature and purpose of the proposed test or- treatment, the probable risks and benefits of the proposed intervention, alternative forms of care and their probable risks and benefits, remote or unusual risks involving severe injury, disability, or death, and the risks of refusing care or diagnostic tests.
Assessing the materiality of a risk involves a two-pronged analysis: (1) “an examination of the existence and nature of the risk and the probability of its occurrence”; and (2) “a determination by the trier of fact of whether the risk is the type of harm which a reasonable patient would consider in deciding on medical treatment,” Guidry [v. Neu], 708 So.2d [740,] 744 [(La.Ct.App.1997)]. The materiality of information about the risk of a potential injury is a function of the severity of the potential injury and of the likelihood it will occur. 2 [J.D. Lee and Barry A. Lindahl,] Modem Tort Law, § 25:46 [(Rev. ed.1989)]; 1 Dobbs, supra, at § 251. A physician is not required to inform a patient of risks that are so remote as to be negligible even where the consequences may be severe, and is not required to inform the patient of a very minor consequence even though the probability is high. 2 Modem Tort Law, supra, at § 25:46. Thus, as this Court recognized in Winkjer, 277 N.W.2d at 588:
A duty to disclose can arise only if the physician knew or should have known of the risks to be disclosed. Comfeldt v. Tongen, [262 N.W.2d '684 (Minn.1977)]. Also, a physician is not required to disclose all possible risks and dangers of the proposed procedure but only those that are significant in terms of them seriousness and likelihood of occurrence. There is no need to disclose risks of little consequence, those that are extremely remote, or those that are common knowledge as inherent in the treatment. Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d [1,] 11 [(Cal.1972)].
Ultimately, a “trier of fact must determine whether a reasonable person in the plaintiffs position would attach significance to the specific risk.” Guidry, 708 So.2d at 744. “The disclosure require^ ment is in essence a requirement of conduct prudent under the circumstances.” 2 Modem Tort Law, supra, at § 25:47.
“[E]xpert medical testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives.” Winkjer, 277 N.W.2d at 588. “The necessity for expert testimony is particularly so when such information is outside the common knowledge of laymen.” Id. “Expert testimony may be necessary under the lay standard, at least to establish the existence of a risk, its likelihood of occurrence, and the type of harm in question; after that, however, expert evidence may not be required.” 2 Modem Tort Law, supra, at § 25:46. “However, experts may be required to show both that material information existed and that the defendant should reasonably have known about it.” 1 Dobbs, at 656.

[¶ 9] Under both the subjective and objective standards, a physician must disclose material risks involved in a procedure, but the physician need not disclose all possible risks and dangers of a proposed procedure, and expert medical testimony is generally necessary to identify the material risks of treatment, their likelihood of occurrence, their gravity, that the physician reasonably should have known of the risk, and reasonable alternatives. Jaskoviak, 2002 ND 1, ¶18, 638 N.W.2d 1; Winkjer, 277 N.W.2d at 588. See also Koapke, 2003 ND 64, ¶ 15, 660 N.W.2d 206.

[¶ 10] To the extent Flatt claims the applicable legal standard for informed consent requires the disclosure of all risks for an elective procedure for a minor, he- has not cited any caselaw to support that claim. His reliance on isolated language from Jaskoviak that “all risks potentially affecting the decision must be unmasked” is misplaced. In Jaskoviak, 2002 ND 1, ¶ 16, 638 N.W.2d 1 (quoting Canterbury v. Spence, 464 F.2d 772, 786-87 (D.C.Cir.1972)), we said a physician need not disclose all possible risks to the patient, rather the physician is required to disclose those risks that would be material to a reasonable patient’s decision. See Canterbury, at 786 (declining to require “full” disclosure by a physician; stating it is unrealistic to expect a physician to discuss every risk of proposed treatment no matter how small or remote and “full” disclosure requires something less than “total” disclosure).

[¶ 11] In order to resolve and provide context to Flatt’s argument about the trial court’s decision on his experts’ testimony, we quote extensively from Flatt’s citations to the court’s ruling. During Flatt’s direct examination of Dr. Cold, the following questioning occurred:

Q And you mentioned a term this morning, “proxy consent.” Is the duty when you’re obtaining proxy consent different than when you are obtaining express consent?
MS. LORD: Your Honor, I object to that question as far as requesting an instruction on the law for a witness who’s not qualified to do so.
THE COURT: Sustained.
Q (Mr. Baer continuing) Are you familiar with the duty of a physician when obtaining proxy consent?
A Yes, I am.
Q Could you describe that duty?
A Proxy consent—
MS. LORD: Same objection, Your Honor.
THE COURT: Sustained. It’s a matter of law. The Court will be instructing the jury on this. Please move on, Mr. Baer.
Q Now, when performing elective surgeries, what is the obligation of a medical doctor in disclosing risks? What type of risks need to be disclosed?
A Basically all the risks.
MS. LORD: I request that that answer be stricken from the record. It is— I object to the form of the question. Mr. Baer has been instructed not to request instructions on the law from this witness, and that is a question that was inappropriate.
MR. BAER: May we approach the bench, Your Honor?
THE COURT: Yes.
(Discussion at the bench, out of the hearing of the jury and the court reporter.)
THE COURT: The objection is sustained.
Q Okay. Then the next paragraph [of the “Infant Care” booklet] deals with consent.
A Right. “The written and verbal consent of one, or preferably both parents, is required.” I think that’s critical because both parents are involved in this decision. So I would agree with that.
MS. LORD: Your Honor, I request that the answer be stricken. This witness is again being asked questions about the state of the law, which he’s not qualified to answer, and only the Court can give the jury the instruction on the law.
THE COURT: Sustained. The jury is admonished that the last response is stricken. You’re not to consider it as evidence.

[¶ 12] After the court sustained those objections to Dr. Cold’s testimony, the following colloquy occurred outside the presence of the jury:

MR. BAER: There are two issues I would like to address to the Court at this time, and the one is to put on the record the discussion we had at the bench during the testimony of Dr. Cold. And it dealt with the line of questioning of what the duty is of a doctor to disclose certain risks or benefits of a procedure.
And I believe that the context was that I was attempting to establish that the duty to disclose on an elective procedure is a different duty than is on a medically indicated procedure, and the Court did not allow inquiry into establishing that duty. I believe the Court indicated that the Court would give the duty. It seems to me that that misreads what the law is in North Dakota, that a plaintiff must establish through expert witnesses what the duty is of a medical doctor.
And in this case, I have been attempting to establish that duty of the elements and the extent of disclosure required in an elective procedure. And the case that I would point to is the Jaskoviak case, which holds for the proposition that you need expert testimony to establish what the risks are and what risks must be disclosed for a particular procedure.
And I think it is extremely prejudicial to the plaintiffs case to disallow the expert witness to testify as to the duty associated with an elective procedure versus one of a medically indicated procedure. Thank you.
THE COURT: Defense.
MS. LORD: Your Honor, Mr. Baer was eliciting questions on the legal standard. We have no objection to questions being asked about the standard of care or whether the standard of care was met in this case, or what the material risks of the procedure are or if they’re minor or significant, the benefits of the procedure. Those are all issues that go to informed consent. We had no objection to that line of questioning.
But when Mr. Baer is asking a witness on what the law requires for the duty of disclosure, that’s something that the Court instructs the jury. And even though he needs expert testimony to state what the standard of care is, the expert cannot testify as to what the law will be at the close of the case.
THE COURT: It’s my recollection that I did sustain their objection.
MR. BAER: Yes, you did.
THE COURT: That is on the record. So have you made your record?
MR. BAER: I made my record. I would like to know whether that is the ruling of the Court.
THE COURT: The ruling of the Court is that the objection is sustained.
MR. BAER: I want to make sure that I understand it. I don’t recall me asking the expert witness any question about what the legal standard was. I only asked about what the duty was in a nonmedically indicated procedure. Not what the legal standard was. And I got to that question, their objection was raised that it invades the province of the Court. I don’t see that as being the case. I want to be able to explore that with the expert witness.
THE COURT: I think the danger is that the jury could assume that that is the legal standard, even though you didn’t say legal standard or legal duty. And I believe I did say to the jury that I would be giving them instructions. Did I say that?
MR. BAER: I don’t think so.
MS. VOGLEWEDE: You did.
THE COURT: If you want me to reiterate that again, I will do that, but the law has to come from the Court. You might have a difference of opinion with me, and I respect that, but I don’t want the jury to be misled and think that any witness can tell them what the law is, because that’s got to come from the Court.
MR. BAER: I certainly was not attempting to elicit from this expert what the law is.
THE COURT: You asked what is the duty. And that goes to what the law says they have to tell.
MR. BAER: Well, it is a standard.
THE COURT: I am not going to argue with you. That’s what I understood you to ask. What is the duty, what must a physician — what’s the duty of a physician. That goes to what is the duty that the law has to — the Court has to instruct on the law. You can ask about the risks, the benefits, those kinds of things, but the duty is something that is written in the law, and that’s for the Court. And that’s my decision in that regard.

[¶ 13] During Flatt’s direct examination of Dr. Robert Van Howe, the following questioning occurred:

Q When a medical doctor talks about informed consent and obtaining informed consent, are there certain things, if that medical doctor is meeting the standard of care, that they must obtain and assess of a patient or a surrogate before they can get an informed consent?
A There are basically three elements. And this document lists it as four, although I think of the second and third as being one. First, there has to be disclosure.
MS. VOGLEWEDE: Your Honor, I am going to object to this again. It’s attempting to have the witness state what the legal requirements are for the duties of informed consent.
THE COURT: Mr. Baer, we have discussed this before. I have ruled accordingly before. And this is a matter of the law, the law comes from the Court.
THE WITNESS: Actually, I think this is ethical.
THE COURT: I’m sorry, don’t argue with me.
THE WITNESS: I’m sorry.
THE COURT: So the objection is sustained.
Q (Mr. Baer continuing) Okay. Are you familiar, Dr. Van Howe, with the standard of practice of pediatricians to obtain informed consent?
A Yes, sir, I am.
Q And in order to meet that standard, what must a physician obtain?
A The physician needs to provide disclosure of information that the decision maker needs in order to make an informed decision. He needs to assess whether the receiver of the information understood the information and is competent to make the decision. And the third is that the decision is made voluntarily, without coercion.
Q Does the AAP statement on informed consent address the issue about the duty of a physician to a child patient?
A Yes, it does.
Q And does it say that the medical professional has a legal and ethical duty to their child patient to render competent medical care based on what that patient needs, not what somebody else expresses?
A That is correct.
MS. VOGLEWEDE: Objection.
THE COURT: When there’s an objection, do not answer because I need to make a ruling.
MS. VOGLEWEDE: Objection, leading, and objection on the same grounds that it calls for an apparent explanation of what the legal duty is as opposed to accepted medical practice.
THE COURT: Sustained.
Q (Mr. Baer continuing) The AAP statement does address the issue of problems with proxy consent; is that correct?
A That is correct.
Q What are the problems that the AAP statement addresses?
MS. VOGLEWEDE: Your Honor, I’m not sure where the examination is leading, but it seems to me all of these deal with legal issues, about the capacity of the parent to consent. I will object to the entire line of questioning.
THE COURT: Sustained.
Q (Mr. Baer continuing) As a pediatrician, is there a central guiding principle that you use in providing care to infants who cannot speak to you?
A Yes, you want to provide them the best care possible. You don’t want to cause any unnecessary harm.
Q Are you familiar, Dr. Van Howe, with the standards of informed consent as it applies to medically indicated procedures or elective procedures or proxy consent procedures?
A Yes, I am.
Q Could you describe what the difference is between the standard for informed consent on a medically indicated versus a nonmedically indicated procedure?
MS. VOGLEWEDE: Your Honor, I will object to the form of the question. If he’s asking about accepted medical practice as opposed to legal standard, I have no objection. If he’s asking for the legal standard, I object on the grounds stated earlier.
THE COURT: What are you asking?
MR. BAER: I’m asking for the accepted medical practice between those.
THE COURT: Okay. Objection is overruled. You may answer.

[¶ 14] Later, Flatt called Dr. Robert Montgomery, a medical director at Merit-care, as an adverse witness for cross-examination. Dr. Montgomery was involved with reviewing complaints by Anita and James Flatt. The defense objected to Flatt’s questions about the standard of care for pediatric physicians, arguing Dr. Montgomery had not been disclosed as an expert witness and his involvement in the ease had been in his capacity as a medical director to review treatment concerns raised by Anita Flatt. In the context of precluding Dr. Robert Montgomery from testifying about the standard of care for informed consent for a pediatric patient, the court explained:

THE COURT: What I’m trying to convey — and perhaps I’m not very clear— that the elements of a claim for failure to obtain informed consent are legal elements, they’re in the law, and those are the elements that the Court gives to the jury. That comes from me and not anybody else.
If you want to have someone testify about those elements and what it means to give informed consent, what it means — what you should disclose in a case such as this, then you have to have expert testimony to do that. If you want to inquire of Dr. Montgomery how he reached those conclusions in the letter, then you can do that. But that’s not what you were doing. You were asking him what is the — what is a pediatrician required to tell a patient to get informed consent, or something to that effect. You see, that’s invading the province of the Court and the jury.
MR. BAER: I would like to explore that and—
THE COURT: I’m not going to change my ruling. I have ruled this — I have ruled this way many times.
MR. BAER: Judge, I don’t mean to even imply that you should change your ruling. I just want to understand where my limitations are. And as I understand the law under Jaskoviak and Winkjer v. Herr, in order for the plaintiff to even come into court to sustain a claim of lack of informed consent, I need to have expert witness testimony to establish what that standard of care is that’s required. So I have the burden of proving what the standard of care is from the medical side of it.
I’m not trying to invade the Court’s province of giving the elements from a legal basis of an informed consent claim. All I’m trying to do is establish through my witnesses what that standard of conduct is for physicians in the pediatric practice. And we have had testimony that — and I think Dr. Kantak in her deposition even says that the AAP policy statements do provide essentially the standard of care.
And so I just want to make sure that the record is clear that what I am trying to do is to meet my burden; and, that is, to prove what the standard of care is for physicians, AAP members, in the care and treatment of infants. And that may be something totally different than the legal requirement for an informed consent case, but that’s the Court’s province.
But from a plaintiffs standpoint, I need to be able to prove what that standard of care is, because one of the instructions that the Court is going to have for the jury at the end is, Did the plaintiff prove the standard of care, No. 1, and, No. 2, was it breached? So that is my burden. And I’m not meaning to invade the province of the Court at all, nor get into the law aspect of it. I’m simply trying to establish what that standard of care is.
THE COURT: Ms. Voglewede.
MS. VOGLEWEDE: Your Honor, that is the role of expert testimony, and Mr. Baer had the opportunity to disclose experts to address those issues. Dr. Montgomery was not one of those people. Furthermore, there’s no indication in this case that Dr. Montgomery was even asked to address that concern or that that was a concern that Anita Flatt had about informed consent. So it’s clearly beyond his role in this case.
THE COURT: Well, what I will allow you to do, Mr. Baer, is to cross-examine Dr. Montgomery on those — is it one or two letters? Two letters?
MR. BAER: Two letters.
THE COURT: Okay. And to get into that because they are in evidence. But you have not disclosed him as an expert witness. So my objections to your asking him about the standard of care with informed consent with a pediatric patient are sustained. I am not going to change that ruling.

[¶ 15] We review a trial court’s ruling on evidentiary issues pertaining to expert testimony under the abuse-of-discretion standard. Rittenour v. Gibson, 2003 ND 14, ¶ 29, 656 N.W.2d 691. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process. Anderson v. A.P.I. Co., 1997 ND 6, ¶ 18, 559 N.W.2d 204.

[¶ 16] Here, in response to Flatt’s direct examination of Dr. Cold about a physician’s “duty” or “obligation,” the trial court stated it understood the questions to address “what the law says” physicians have to tell patients. Although perhaps inartfully stated, the court’s decision did not preclude Flatt from introducing evidence about the accepted medical practice for a physician in obtaining informed consent. Rather, the court precluded Flatt from eliciting testimony about what the court perceived as the legal standard of informed consent. The court explained the jury could assume Flatt’s questions were asking about a legal standard even though he did not say legal standard or duty, which the court concluded would invade the province of the court to instruct the jury on the law. This record further reflects Flatt ultimately introduced expert testimony from Dr. Cold and Dr. Van Howe about their opinions on the medical standard of care for a physician’s duty of disclosure of all known risks under these circumstances and on the risks and benefits of circumcision. Although some of the court’s statements during an objection to Dr. Montgomery’s testimony may suggest the court sustained objections to questions about the acceptable medical standard of care as opposed to the legal standard for informed consent, those statements were in the context of the court’s ruling that Dr. Montgomery had not been disclosed as an expert and therefore was precluded from testifying about a physician’s standard of care. The court’s explanation of its ruling, as a whole, did not preclude Flatt from introducing expert testimony about the accepted medical practice for obtaining informed consent. Under these circumstances, we conclude the trial court did not abuse its discretion in ruling on the admission of Flatt’s experts’ testimony.

Ill

[¶ 17] Flatt argues the trial court erroneously excluded relevant, non-prejudicial evidence, including circumcision tools, a cireumstraint, photos of an intact penis, minutes of hospital and clinic committee meetings, and videotapes showing different circumcision procedures. He also argues the trial court denied him the opportunity to cross examine expert witnesses.

[¶ 18] Under N.D.R.Ev. 103(a), error may not be predicated on a ruling that excludes evidence unless a substantial right of the party is affected. Generally, relevant evidence is admissible and irrelevant evidence is inadmissible. N.D.R.Ev. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. N.D.R.Ev. 401. Under N.D.R.Ev. 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 403, N.D.R.Ev., vests the trial court with discretion to control the introduction of evidence, and we review a trial court’s decision on the admissibility of evidence to determine whether the court abused its discretion. Williston Farm Equip., Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545, 548-49 (N.D.1993). A court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner, or misinterprets or misapplies the law. Anderson, 1997 ND 6, ¶ 18, 559 N.W.2d 204.

A

[¶ 19] The trial court excluded videotapes describing commonly used circumcision procedures, concluding their probative value was substantially outweighed by a danger of confusion of the issues or misleading the jury. The court also excluded a number of surgical instruments, surgical equipment, and photographs of an intact penis, concluding they were not relevant and would be a waste of time. Flatt argues the exhibits would have provided information that reasonable parents would want to know before deciding whether or not to circumcise their child. We agree with the trial court that those exhibits were not necessarily probative of the risks and benefits for circumcision in an informed consent case, and we conclude the court’s exclusion of those exhibits was not arbitrary, capricious, or unreasonable, and was not a misapplication or misinterpretation of the law. We therefore conclude the court did not abuse its discretion in excluding those exhibits.

B

[¶ 20] The trial court excluded meeting minutes of hospital and clinic committees, which Flatt claims dealt directly with Meritcare’s development of the booklet entitled “Should Your Infant Boy Be Circumcised?” Flatt claims those minutes do not reflect authorization to distribute the booklet and are relevant to whether Meriteare had a booklet on circumcision when Josiah Flatt was born in March 1997. He argues the court erred in excluding evidence about the development of the booklet to show a lack of informed consent. The booklet stated an initial publication date of December 1996, and a revised publication date of January 1997. The trial court concluded the minutes were cumulative evidence about when the booklet was published. Flatt has not cited any reference in the proffered minutes to dispute the publication date, or the availability of the booHet for distribution. We conclude the trial court’s exclusion of those minutes was not arbitrary, capricious, or unreasonable, and was not an abuse of discretion.

C

[¶ 21] Flatt argues the trial court erred in permitting Dr. Theodore Sawchuk to testify about whether or not Josiah Flatt would need further surgery and whether or not he was injured as a result of the circumcision. Flatt claims the court erred in allowing Dr. Sawchuk to offer expert opinion testimony that was not previously disclosed. However, Dr. Sawchuk was a physician who saw Josiah Flatt as a result of Anita Flatt’s post-surgery complaints to Meriteare, and Dr. Sawchuk testified as a treating physician. Under N.D.R.Ev. 701, witnesses are permitted to give testimony in the form of opinions or inferences that are rationally based on the perceptions of the witness and helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Dr. Sawchuk testified regarding his examination of Josiah Flatt and his findings and recommendations in August 1997. Dr. Sawchuk’s opinion that he did not consider Josiah Flatt to have an injury from the circumcision and would not need any surgery in the future was opinion testimony within the scope of his care as a treating physician. We conclude the trial court did not abuse its discretion in admitting Dr. Sawchuk’s testimony.

D

[¶ 22] Flatt argues the trial court erred in limiting his examination of Dr. Robert Montgomery. When a motion for a new trial is made to the trial court, the movant is limited on appeal to a review of the grounds presented to the trial court. Andrews v. O’Hearn, 387 N.W.2d 716, 728 (N.D.1986). Flatt did not raise this issue in his motion for a new trial, and he is precluded from raising this issue on appeal.

IV

[¶23] Flatt argues the jury-instructions, as a whole, were misleading and prejudicial. Jury instructions must fairly and adequately inform the .jury of the applicable law. Huber v. Oliver County, 1999 ND 220, ¶ 10, 602 N.W.2d 710. Although a party is entitled to instructions which present that party’s theory of the case, a trial court is not required to instruct the jury in the exact language sought by that party if the court’s instructions correctly and adequately inform the jury of the applicable law. Olson v. Griggs County, 491 N.W.2d 725, 729 (N.D.1992); Wasem v. Laskowski, 274 N.W.2d 219, 226 (N.D.1979). On appeal, we review jury instructions as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient. Olson, at 729.

A

[¶ 24] Flatt argues the court’s instruction about a physician’s duty of disclosure erroneously blended the reasonable patient standard and the professional standard. Relying on language in Jaskoviak, 2002 ND 1, ¶ 16, 638 N.W.2d 1, he argues the court’s instructions on the physician’s duty to disclose were directly contrary to the reasonable patient standard, which he claims requires that “all risks potentially affecting the decision must be unmasked.” However, as we have previously said, Flatfis reliance on isolated language in Jaskoviak is misplaced because that decision requires disclosure of material risks, not all risks. See also Koapke, 2003 ND 64, ¶ 15, 660 N.W.2d 206; Winkjer, 277 N.W.2d at 588.

- [¶ 25] Flatt’s requested instruction on a physician’s duty of disclosure provided:

A physician has a duty to disclose to the patient the available treatment alternatives, including no treatment, and the material and known risks potentially involved in each alternative. A patient’s right of self-determination in a particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves. A physician has a duty: to disclose to the patient the available treatment alternatives, including no treatment, and the material and known risks potentially involved in each alternative. The test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked. A duty to disclose can arise only if the physician knew or should have known of the risks to be disclosed. A physician has no duty to disclose all possible risks and dangers of the proposed treatment but only those that are significant in terms of their seriousness and likelihood of occurrence. It is for you the jury to determine whether a risk is the type of harm which a reasonable patient would consider in deciding on consenting to medical treatment.

[¶ 26] The trial court instructed the jury on a physician’s duty of disclosure:

A physician has a duty to disclose to the patient, or in the case of a child, to his parent, the available alternatives and the material and known risks potentially involved in each alternative. A duty to disclose can arise only if the physician knew or should have known of the risk to be disclosed. A physician is not required to inform a patient of risks that are so remote as to be negligible even where the consequences may be severe, and is not required to inform the patient of a very minor consequence even though the probability is high. A physician has no duty to disclose all possible risks and dangers of the proposed procedure but only those that are significant in terms of their seriousness and likelihood of occurrence. A doctor should not be required to give a patient a detailed technical, medical explanation that in all probability the patient would not understand. There is no need to disclose risks of little consequence, those that are extremely remote, or those that are common knowledge as inherent in the treatment.

The trial court also instructed the jury:

Disclosure to a patient which would be made by doctors of good standing, under the same or similar circumstances, is relevant and material to the determination of whether the doctor has fulfilled the duty to disclose.
A risk is material if a reasonable patient would attach significance to the specific risk. Significance is based on the existence and nature of the risk and the probability of its occurrence.

[¶ 27] Flatt cannot complain about language in the court’s instructions which tracked language in his requested instruction. Moreover, contrary to Flatt’s claim, the court’s instructions on the duty of disclosure did not relate a physician’s duty of disclosure to the custom of physicians practicing in the community. Rather, the court’s instructions effectively tracked language about materiality from our decisions in Koapke, 2003 ND 64, ¶¶ 14-15, 660 N.W.2d 206, Jaskoviak, 2002 ND 1, ¶¶ 17-18, 638 N.W.2d 1, and Winkjer, 277 N.W.2d at 587-89. See also Wasem, 274 N.W.2d at 226. Under Jaskoviak, and Winkjer, a physician is required to disclose material risks, not all risks. The court’s instructions further defined materiality based on whether the risk was the type which a reasonable patient would consider in deciding on medical treatment. Under these circumstances, we reject Flatt’s claim the instructions erroneously blended the subjective and objective standards for disclosure. Although we agree the reasonable patient standard is the appropriate standard, we conclude the trial court was not required to instruct the jury in the language sought by Flatt.

B

[¶ 28] Flatt argues the instructions erroneously told the jury “there is no claim for you to consider that the procedure was done wrong or that Dr. Kantak was negligent in performing the circumcision procedure.” He argues the instruction is directly contrary to significant medical testimony indicating that undisclosed risks of adhesions and asymmetry were the cause of Flatt’s complaints. However, Flatt’s complaint did not allege the actual circumcision procedure was improperly or negligently performed, his proposed jury instructions did not include an allegation the procedure was improperly or negligently performed, and he has cited no expert testimony in this record to establish the medical standard of care for performing a circumcision.

C

[¶ 29] Flatt argues the trial court- erred in not instructing the jury in language tracking N.D.C.C. § 23-12-13, which authorizes parents to consent to health care for their minor children. That statute requires the parent to determine, in good faith, that the minor would have consented to the proposed health care, and if such a determination cannot be made, the decision to consent to the proposed health care may be made only after determining the proposed health care is in the minor’s best interest. Flatt argues “[a] parent who, without adequate information, makes a decision to allow a medical doctor to surgically amputate the most erogenous tissue of the male body for no therapeutic reason, could be viewed to be acting contrary to the best interests of the child.”

[¶ 30] Flatt’s proposed instruction provided:

It is the law in the State of North Dakota that before a medical doctor may treat a minor patient, the medical doctor must obtain informed consent. Before a parent is authorized to provide informed consent, she must first determine in good faith that the patient, if not incapacitated, would consent to the proposed health care. If such a determination can be made, the decision to consent to the proposed health care may be made only after determining that the proposed health care is in the patient’s best interests.

[¶ 31] We believe Flatt’s proposed instruction addresses issues about Anita Flatt’s fault, and the jury did not reach that issue because it determined Dr. Kan-tak was not negligent. We conclude any claimed error in the court’s failure to give that instruction was harmless.

D

[¶ 32] Flatt argues the court erred in submitting a special verdict form with a question about Anita Flatt’s comparative fault. The jury did not address Anita Flatt’s fault because it determined Dr. Kantak was not negligent, and we conclude any claimed error in the special verdict form was harmless.

V

[¶33] Flatt argues the cumulative effect of the multiple errors deprived him of the substance of a fair trial. Flatt did not raise this issue in his motion for a new trial, and he is precluded from raising this issue on appeal. See Andrews, 387 N.W.2d at 728.

VI

[¶ 34] Flatt. argues the trial court abused its discretion in taxing costs in favor of Dr. Kantak' and Meritcare. Flatt argues the notice of entry of judgment in this case did not include the statement of costs and disbursements as án attachment as required by N.D.R.Civ.P. 54(e), which provides that “[a] copy of the [verified] statement [of costs and disbursements] must accompany the notice of entry of judgment.” Dr. Kantak and Meritcare served Flatt with a verified statement of costs and disbursements of $64,580.57 almost a month before the notice of entry of judgment was served, and Flatt had notice of the costs claimed by Dr. Kantak and Meritcare. Although Dr. Kantak and Meritcare subsequently offered to serve both documents together, the trial court did not require them to do so, and under these circumstances, we reject Flatt’s claim that all costs should be denied for that reason.

[¶ 35] Flatt had notice of the statement of costs and disbursements and objected to costs and disbursements. After a hearing, the court reduced the award of costs and disbursements to $58,506.20. A trial court’s decision on fees and costs under N.D.C.C. § 28-26-06 will not be reversed on appeal unless an abuse of discretion is shown. Patterson v. Hutchens, 529 N.W.2d 561, 567 (N.D.1995). We conclude the trial court did not abuse its discretion in its award of costs and disbursements to Dr. Kantak and Meritcare.

VII

[¶ 86] Flatt argues the trial court erred in concluding he did not have standing to bring an equal protection challenge to N.D.C.C. § 12.1-36-01, the female genital mutilation law. The trial court concluded Flatt did not suffer an injury in fact and lacked standing to challenge the constitutionality of that statute. Flatt argues he has standing to challenge the statute under the equal protection provisions of the federal and state constitutions because he has suffered an injury. Flatt’s argument is that his parents should have been prohibited from consenting to the circumcision. This is not an argument recognized under the equal protection clauses.

[¶ 37] Section 12.1-36-01, N.D.C.C., which criminalizes surgical alteration of female genitalia but not male genitalia, provides:

1. Except as provided in subsection 2, any person who knowingly separates or surgically alters normal, healthy, functioning genital tissue of a female minor is guilty of a class C felony.
2. A surgical operation is not a violation of this section if a licensed medical practitioner performs the operation to correct an anatomical abnormality or to remove diseased tissue that is an immediate threat to the health of the female minor. In applying this subsection, any belief that the operation is required as a matter of custom, ritual, or standard of practice may not be taken into consideration.

[¶ 38] The existence of standing is a question of law, which we review de novo. Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, ¶ 12, 676 N.W.2d 752. In State v. Carpenter, 301 N.W.2d 106,107 (N.D.1980), we said:

The question of standing focuses upon whether the litigant is entitled to have the court decide the merits of the dispute. It is founded in concern about the proper — and properly limited — role of the courts in a democratic society. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 [1974]. Without the limitation of the standing requirements, the courts would be called upon to decide purely abstract questions. As an aspect of justiciability, the standing requirement focuses upon whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to justify exercise of the court’s remedial powers on his behalf. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The inquiry is twofold. First, the plaintiff must have suffered some threatened or actual injury resulting from the putatively illegal action. Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). Secondly, the asserted harm must not be a generalized grievance shared by all or a large class of citizens; the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties.

[¶ 39] Flatt’s reliance on Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987) and Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), to support his under-inclusive challenge to N.D.C.C. § 12.1-36-01 is misplaced. In Orr, at 270-71, 99 S.Ct. 1102 a former husband objected to paying his ex-wife alimony and challenged Alabama statutes that required husbands, but not wives, to pay alimony upon divorce. The United States Supreme Court rejected the argument “that the only ‘proper plaintiff would be a husband who requested alimony for himself, and not one who merely objected to paying alimony.” Id. at 272-73, 99 S.Ct. 1102. The Court concluded the former husband bore a burden he would not bear if he were a female, because the state law imposed an alimony obligation on him and his alimony obligation was sufficient to establish standing. Id. at 273, 99 S.Ct. 1102.

[¶ 40] In Ragland, 481 U.S. at 223-25, 107 S.Ct. 1722 the publisher of a general interest magazine made a First Amendment challenge to an Arkansas sales tax that exempted proceeds derived from the sale of newspapers, and religious, professional, trade, and sports journals. The United States Supreme Court rejected the Tax Commissioner’s argument that the publisher failed to assert an injury that could be addressed by a favorable court decision, concluding the publisher had standing to claim that others similarly situated were exempt from a state law that required the publisher to pay a tax. Id. at 227, 107 S.Ct. 1722. The Court said the publisher’s “ ‘constitutional attack holds the only promise of escape from the burden that derives from the challenged statute].’ ” Id. (quoting Orr, 440 U.S. at 273, 99 S.Ct. 1102).

[¶ 41] In both Orr and Ragland, the challenged statutes imposed obligations on the challengers either to pay alimony or a tax. In Linda R.S. v. Richard D., 410 U.S. 614, 615, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), the mother of an illegitimate child challenged the constitutionality of a Texas criminal statute that subjected any parents who failed to support their children to. prosecution. The Texas courts had construed the statute to apply solely to parents of legitimate children and not to parents of illegitimate children, and the Texas prosecuting attorney had refused to prosecute the alleged father of the mother’s illegitimate child. Id. at 615-16, 93 S.Ct. 1146. The United States Supreme Court said the mother had suffered an injury from the alleged father’s failure to pay support. Id. at 618, 410 U.S. 614. The Court concluded, however, that abstract injury was not sufficient to establish standing, because parties who invoke judicial power must show they have sustained, or are in immediate danger, of sustaining, some direct injury as a result of a statute’s enforcement. Id. at 618, 93 S.Ct. 1146. The Court concluded the mother did not have standing because she had not shown her failure to secure support resulted from the nonenforcement of the statute. Id.

[¶ 42] We conclude Flatt has not alleged an injury traceable to N.D.C.C. § 12.1-36-01. Although N.D.C.C. § 12.1-36-01 may benefit female minors, it does not impose an obligation on Flatt. The statute does not restrict Flatt’s right to make medical decisions' and has not imposed any burdens or obligations on him. A decision by a parent or guardian to have a minor boy circumcised is not controlled by that statute. Although the statute may prohibit minor females from having their genital tissue surgically altered, the statute has not burdened or injured Flatt in the sense that would ■ confer standing on him. Flatt was circumcised because, through Anita Flatt, he consented to the procedure, and he has not demonstrated his circumcision resulted from the statute. We conclude Flatt lacks standing to challenge the constitutionality of N.D.C.C. § 12.1-36-01.

VIII

[¶ 43] Because we have concluded the trial court committed no reversible, error in the proceedings leading up to the judgment, we also conclude the court did not abuse its discretion in denying Flatt’s motion for a new trial. See Ali by Ali v. Dakota Clinic, Ltd., 1998 ND 145, ¶ 5, 582 N.W.2d 653.

IX

[¶ 44] We affirm the judgment and the order denying Flatt’s motion for a new trial.

[¶ 45] WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., and EVERETT NELS OLSON, S.J.

[¶ 46] The Honorable EVERETT NELS OLSON, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.

SANDSTROM, Justice,

concurring specially.

[¶ 47] The patient or parents must be clearly informed of factual information about the medical procedure and its short-term and long-term consequences that might reasonably result in a patient’s or parent’s electing not to have the procedure performed. Koapke v. Herfendal, 2003 ND 64, ¶¶ 14, 15, 660 N.W.2d 206; Jaskoviak v. Gruver, 2002 ND 1, ¶¶ 18, 14, 638 N.W.2d 1; Bartal v. Brower, 268 Kan. 195, 993 P.2d 629, 634 (1999); N.D.C.C. § 23-12-13(l)(e). I understand the majority to agree with this proposition, and I concur in it.

[¶ 48] Although the trial court is afforded wide discretion in deciding whether to admit or exclude evidence, Brandt v. Milbrath, 2002 ND 117, ¶13, 647 N.W.2d 674, I remain concerned that the cumulative effect of the trial court’s decision limiting the plaintiffs’ evidence may have denied them a fair trial, see Kingdon v. Bybrant, 158 N.W.2d 863, 869 (N.D. 1968), but I cannot say that my concern rises to a conviction that a new trial need be ordered.

[¶ 49] DALE V. SANDSTROM, J.


source: Caselaw Access Project

author: KAPSNER, Justice. MARING, Justice,

license: Public Domain

text:
    2004 ND 174
    NODAK MUTUAL INSURANCE COMPANY, Plaintiff and Appellee v. Corey WAMSLEY, Jeff Wamsley, Joe Wamsley, Craig Wamsley, Kimberly Kinev and Jamie Pfau, Defendants and Appellants.
    No. 20030374.
    Supreme Court of North Dakota.
    Sept. 13, 2004.

      Duane H. Ilvedson (argued) and Telly Jerome Meier (on brief), Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Fargo, N.D., for plaintiff and appellee.
    Anne G. Biby (argued), Hash & O’Brien, Kalispell, MT, and Gerald A. Kuhn, Law Office of Gerald A. Kuhn, PC, Napoleon, N.D., for defendants and appellants.
   KAPSNER, Justice.

[¶ 1] Corey Wamsley, Jeff Wamsley, Joe Wamsley, Craig Wamsley, Kimberly Kinev, and Jamie Pfau (‘Wamsley heirs”) appealed from a declaratory judgment entered in an action brought by Nodak Mutual Insurance Company (“Nodak”) to determine Nodak’s obligations under insurance policies. We conclude the district court properly ruled this case is governed by North Dakota law and we affirm.

I

[¶ 2] While riding in their Chrysler in Montana, Alan and Sharon Wamsley, the Wamsley heirs’ parents, were involved in a collision when a vehicle operated by Lester Stanton crossed the median and struck the Wamsleys’ vehicle, which was then struck by a motor home. Stanton and the Wams-leys were killed in the collision. Stanton’s insurer paid its policy limits of $25,000 per person to the Wamsleys’ estate.

[¶ 3] At the time of the accident in Montana, the Wamsleys owned three vehicles and each was insured by a policy issued by Nodak: a Chrysler (policy number AU-217749), an Oldsmobile (policy PAND 000318684), and a Dodge pickup (policy number PAND 000405922). Each policy provided underinsured motorist coverage (“UIM”) of $100,000 per person, per accident. Nodak paid $200,000 to the co-personal representatives of the Estate of Alan and Sharon Wamsley under the Chrysler policy and secured a partial release of UIM claims.

[¶ 4] On May 22, 2003, Nodak’s attorney, Duane Ilvedson, recommended Nodak “bring a Declaratory Judgment action in North Dakota” and “took over further handling of the file.” Between June 4 and June 18, 2003, Nodak served a summons and complaint dated June 4, 2003, upon each of the Wamsley heirs for a judgment declaring, among other things, “that the underinsured motorist coverages of Policy No. PAND 000318684 and Policy No. PAND 000405922 do not apply to the August 8, 2002, accident and cannot be stacked.” The Wamsley heirs sued Stanton’s estate and Nodak in Montana district court on June 23, 2003. On June 25, 2003, Nodak filed in North Dakota district court the summonses and complaints it had served on the Wamsley heirs.

[¶ 5] On July 9, 2003, the Wamsley heirs filed a motion to dismiss for forum non conveniens and for failure to state a claim upon which relief may be granted. The Wamsley heirs’ attorney, Anne Biby, supported the motion with her affidavit and documentary exhibits averring, among other things: (1) in a December 19, 2002, letter to Kirk Holmes of Nodak, Biby requested payment of $200,000 for UIM coverage on one of the Wamsley policies, while reserving the “right to assert a ‘stacking’ claim for underinsured coverage amounts for the other two vehicles as well,” advising that a case involving the issue of stacking UIM coverage was pending before the Montana Supreme Court, and making a settlement offer; (2) on April 18, 2003, the Montana Supreme Court struck down Montana’s anti-stacking statute, Biby sent Nodak a copy of the decision, and Biby demanded “the entire $600,000.00 in underinsured motorist coverage for the three Wamsley vehicles insured with NoDak,” (3) in a telephone conversation on May 20, 2003, Holmes assured Biby that Nodak “was looking into the matter;” (4) Nodak filed this action, which “it concealed [] from this law firm until after it had served the Wamsley heirs;” and (5) on June 23, 2003, Biby’s “law firm filed a Complaint in Montana against the tortfeasor’s estate and against Nodak Mutual.” In their brief in support of the motion to dismiss, the Wamsley heirs asserted Montana law should be applied. Nodak responded that the matter is governed by North Dakota law, and that North Dakota law and the policies’ provisions prohibit stacking. The trial court denied the Wamsley heirs’ motion to dismiss, noting “[t]he only real issue is whether Nodak will be required to provide additional coverage” and finding “North Dakota has more significant contracts and interest in the issue presented in this case.”

[¶ 6] Nodak moved for summary judgment, which the trial court granted, stating it had already determined North Dakota law applied, the defendants conceded “North Dakota law does not allow stacking of underinsured motorist coverage,” and concluding “that Nodak Mutual is not obligated to pay stacked underinsured motorist benefits.” Judgment was entered providing that the UIM coverages of the policies on the Wamsley vehicles not involved in the accident “do not apply to the August 8, 2002 accident and cannot be stacked,” and the maximum amount of UIM coverage for the deaths of Alan and Sharon Wamsley was the $100,000 for each already paid by Nodak under the policy on the Wamsley vehicle involved in the accident. The Wamsley heirs appealed, contending that Montana law should apply in the resolution of this litigation.

II

[¶ 7] While it might be argued this appeal is premature, we do not agree. Section 32-23-06, N.D.C.C., provides:

“The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. However, the court shall render or enter a declaratory judgment or decree in an action brought by or against an insurance company to determine liability of the insurance company to the insured to defend, or duty to defend, although the insured’s liability for the loss may not have been determined.”

Under the first sentence of N.D.C.C. § 32-23-06, “the trial court’s decision to grant or deny a request for a declaratory judgment is discretionary. The trial court’s decision will not be set aside unless the court has abused its discretion.” Blackburn, Nickels & Smith, Inc. v. National Farmers Union Prop. & Cas. Co., 452 N.W.2d 319, 322 (N.D.1990). The second sentence, however, requires the trial court to render a declaratory judgment to determine coverage and duty to defend. Id. at 323. A declaratory judgment in such a case must be issued even though there has not been a judgment determining the insured’s liability, id. at 323, thus resulting in the prospect of piecemeal litigation. Here, Nodak is not seeking to determine if it has any responsibility to defend or if the policies cover underinsured motorists, and the second sentence of N.D.C.C. § 32-23-06 is, therefore, inapplicable. We are unable to conclude that the trial court abused its discretion under the first sentence of N.D.C.C. § 32-23-06. Midwest Med. Ins. Co. v. Doe, 1999 ND 17, ¶ 7, 589 N.W.2d 581, where we concluded an insurer’s request for declaratory relief was premature and inappropriate, does not require a similar conclusion here. That case involved a conceded duty to defend and unresolved factual issues bearing on the issue of indemnity. Here, the underlying tort issues do not affect the insurance issue, and there are no unresolved fact issues precluding resolution of the legal question about whether the policies involved can be stacked.

III

[¶ 8] We have recently addressed our review in an appeal from a summary judgment:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Tar-navsky v. McKenzie County Grazing ■Ass’n, 2003 ND 117, ¶7, 665 N.W.2d 18. “Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343 (quoting Wahl v. Country Mut. Ins. Co., 2002 ND 42, ¶6, 640 N.W.2d 689). On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Keator v. Gale, 1997 ND 46, ¶7, 561 N.W.2d 286.

Zuger v. State, 2004 ND 16, ¶7, 673 N.W.2d 615.

IV

[¶ 9] This case presents a choice-of-law issue. Under North Dakota law, coverages under the policies may not be stacked. Under Montana law as declared by the Montana Supreme Court, the coverages may be stacked. “When an accident occurs in a state other than that in which the policy was issued, the difficulty in determining the right to stack uninsured/under-insured motorist benefits escalates considerably.” 12.Lee R. Russ and Thomas F. Segalla, Couch on Insurance 8d § 169:22, at 169-51 (1998). “The trend in resolving choice of law issues is to apply the law of the state with the most significant relationship to the dispute.” 4 Eric Mills Holmes, Holmes’ Appleman on Insurance 2d § 21.11, at 325 (1998).

[¶ 10] “ ‘In general, it is fitting that the state whose interests are most deeply affected should have its local law applied.’ ” Apollo Sprinkler Co. v. Fire Sprinkler Suppliers & Design, Inc., 382 N.W.2d 386, 390 (N.D.1986) (quoting Restatement (Second) of Conflict of Laws § 6, comment f (1971)). However, not all issues arising out of a given claim need to be decided by the same state’s law. 4 Holmes, supra, § 21.2, at 231. “[Different states’ law may be applied to different aspects of the controversy.” Id. § 21.1, at 226. Thus, the determination of which state’s law should be applied in a case may depend on what issue is being considered. See, e.g., Great West Cas. Co. v. Hovaldt, 1999 SD 150, ¶ 8, 603 N.W.2d 198 (“To determine which state’s law to apply, we consider the nature of the action. This suit sounds in contract. Policy coverage, not tort liability, is the question.”). See also Vigen Constr. Co. v. Millers Nat’l Ins. Co., 436 N.W.2d 254, 257 (N.D.1989) (noting importance of contacts significant to the underlying construction contract “is greatly diminished when the question is whether to apply North Dakota law to a liability insurance contract which might be available to cover” losses arising out of the construction involved). With regard to the nature of the action involved here, the dissent inappropriately melds tort and contract issues. Availability of stacking is a contract issue for purposes of conflict of laws analysis. 12 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 169:22, at 169-52 (1998).

[¶ 11] In Issendorf v. Olson, 194 N.W.2d 750, 756 (N.D.1972), this Court abandoned the lex loci delicti (law of the place where the wrong occurred) doctrine and adopted the significant contacts approach in resolving choice of law questions in tort cases. The court recognized the premise articulated by the New York Court of Appeals:

Justice, fairness and the “best practical result” (Swift & Co. v. Bankers Trust Co., 280 N.Y. 135, 141, 19 N.E.2d 992, 995, supra) may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation.

Issendorf, 194 N.W.2d at 754 (quoting Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279, 283 (1963)). The court quoted with approval the choice-influencing considerations of predictability of results, maintenance of interstate and international order, simplification of the judicial task, advancement of the forum’s governmental interests, and application of the better rule of law enunciated in Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 282 (1966). Issendorf, at 755.

[¶ 12] This ■ Court applied the significant contacts approach in Apollo Sprinkler Co., 382 N.W.2d at 389, a contracts case, because both parties agreed that approach was appropriate. In Plante v. Columbia Paints, 494 N.W.2d 140, 141 (N.D.1992), which was a declaratory judgment action brought to determine the coverage provided by an insurance policy for injuries occurring in an explosion in North Dakota, this Court held “[t]he significant contacts approach is ... appropriate in contract cases with multistate factual contacts.” The court noted that “[t]he relative importance” of Leflar’s five choice-influencing considerations “‘varies according to the area of the law involved.’” Id. (quoting Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L.Rev. 267, 282 (1966)). The court noted: “North Dakota’s contacts are primarily related to the underlying tort claims. The contacts related to the insurance contract between Hartford and Columbia are primarily Washington contacts. ‘[T]he most significant contacts are those bearing upon the contractual relationship.’ ” Plante, 494 N.W.2d at 142 (quoting Apollo Sprinkler Co., 382 N.W.2d at 390).

[¶ 13] In deciding what law to apply in a case presenting multistate contacts, our significant contacts test for deciding choice-of-law questions requires a two-pronged analysis. Daley v. American States Preferred Ins. Co., 1998 ND 225, ¶ 10, 587 N.W.2d 159. “Initially, we determine all of the relevant contacts which might logically influence the' decision of which law to apply.” Id. at ¶ 12. Secondly, we apply Leflar’s choice-influencing considerations “to determine which jurisdiction has the more significant interest with the issues in the case.” Id.

[¶ 14] The Wamsley heirs point to the following Montana contacts: (1) the accident occurred in Montana; (2) the parties in two of the three vehicles involved in the collision were Montanans; (3) Montana authorities responded to the accident; (4) all witnesses were Montanans; (5) medical bills were incurred in Montana; (6) a Mon--tana laboratory determined the tortfea-sor’s blood alcohol content; and (7) a tort action is proceeding in Montana. We note that the contacts the Wamsley heirs- rely • on are significant to the underlying tort action, but are less significant to the insurance contract claim.

[¶ 15] Nodak relies on the following North Dakota contacts: (1) Alan and Sharon Wamsley were North Dakota residents; (2) Nodak is a North Dakota company issuing only North Dakota policies and does not issue automobile insurance policies in Montana; (3) the three polices issued by Nodak covered three North Dakota vehicles and were negotiated and issued in North Dakota; (4) the Wamsieys- applied for the policies in North Dakota through North Dakota insurance agents, and the applications were signed, processed, accepted and delivered in North Dakota; (5) the Wamsieys paid the premiums in North Dakota, added or deleted vehicles in North Dakota, and changed or renewed coverage in North Dakota; (6) the policies contain forms and endorsements approved by the North Dakota Insurance Commissioner; (7) four of the Wamsieys’ children live in North Dakota; (8) Corey Wamsley and Jeff Wamsley, both North Dakotans, have been appointed co-personal representatives of the estates of Alan and Sharon Wamsley in North Dakota.

[¶ 16] Having determined the contacts which might influence the decision of which state’s law to apply, we next apply Leflar’s choice-influencing considerations to determine which state has the more significant interest in the issues involved in this case.

A. Predictability of results

“Predictability of results includes the ideal that parties to a consensual transaction should be able to know at the time they enter upon it that it will produce, by way of legal consequences, the same socioeconomic consequences ... regardless of where the litigation occurs[.]” Leflar, American Conflicts Law, § 103, at 290. Simply stated, the objective of the predictability factor is to fulfill the parties’ justified expectations.

Daley, 1998 ND 225, ¶24, 587 N.W.2d 159. In insurance contract cases, we have said this consideration favors application of the law of the state in which the insurance policy was negotiated, issued, and the premiums paid. Id. at ¶ 26; Vigen Constr. Co., 436 N.W.2d at 257; Apollo Sprinkler Co., 382 N.W.2d at 390.

[¶ 17] In considering the predictability of results, the Plante court said:

' “ ‘Predictability and uniformity of result are of particular importance in areas where the parties are likely to give advance thought to the legal consequences of their transactions.’ ” Apollo, supra, at 390, quoting Restatement (Second) of Conflict of Laws § 6, comment i (1971) [hereinafter Restatement ]. A liability insurance contract is a transaction to which parties are likely to give advance thought. “[P]arties to a consensual transaction ... should be able to plan their transaction as one with predictable results.” R. Leflar, 41 N.Y.U.L.Rev. 267, 283 (1966). Ideally, the “parties to a consensual transaction should be able to know at the time they enter upon it that it will produce, by way of legal consequences, the same socioeconomic consequences ... regardless of where litigation occurs so that forum-shopping will benefit neither party.” Leflar et al., American Conflicts Law, supra, § 103, p. 290. The purpose of protecting parties’ justified expectations ought to be served “even when the parties do not think about choice of law.” Id. “Since there is usually no fixed place for performance of insurance policies, the law of the place of making has more often been taken as determinative of rights under them than with other types of contracts.” Id., § 153 pp. 433-434_ We conclude Hartford and Columbia are more likely to have thought that the coverage provided would be determined in accordance with the law of Washington, where the contract was negotiated, the policy was delivered, and the premiums were paid, than in accordance with the law of any other state.

Plante, 494 N.W.2d at 142-43. See also 4 Erie Mills Holmes, Appleman on Insurance 2d § 21.11 at 330-31 (1998):

In the automobile liability situation, the law of the state where the policy was negotiated, the premiums were paid, and the insurer and the insured resided provided more significant contacts than the mere occurrence of the accident in another state.... Generally speaking, the site of the accident is not a sufficient contact to require the application of that state’s law in the absence of other interests or contacts.

[¶ 18] The insurance policies involved here provide that if the insured is involved in an accident somewhere other than where the covered auto is principally garaged, and that state or province requires a nonresident to maintain insurance when using a vehicle there, the policy will provide either “at least the required minimum amounts and types of coverage” or “the minimum amounts and types of other coverages required for nonresidents.” Such a provision is enforceable against an insurer. California Cas. Indem. Exch. v. Deardorff 157 Cal.App.3d 548, 203 Cal.Rptr. 725, 727 (1984). However, Montana does not require underinsured motorist coverage.

[¶ 19] It has been said that an insurance company doing business in several states knows an automobile it insures will be driven from state to state, and accepts the risk that the insured may be subject to liability not only in the state where the policy is written, but in other states as well. National Farmers Union Prop. & Cas. Co. v. Nodak Mut. Ins. Co., 528 F.Supp. 1093, 1096 (D.N.D.1981). Nevertheless, we continue to believe that an insurer and an insured are more likely to believe that the law of the state in which a policy was applied for, negotiated, paid for, and issued will be applied than the law of another state. E.g., Daley, 1998 ND 225, ¶ 26, 587 N.W.2d 159; Plante, 494 N.W.2d at 143; Vigen Constr. Co., 436 N.W.2d at 257; Apollo Sprinkler Co., 382 N.W.2d at 390. This consideration favors application of North Dakota law.

B. Maintenance of interstate and international order

[¶ 20] Choice-of-law rules should further harmonious relations between states, facilitate commerce between states, and avoid interstate friction. Apollo Sprinkler Co., 382 N.W.2d at 390. Application of our state’s law would not “manifest disrespect” for Montana’s sovereignty. Daley, 1998 ND 225, ¶27, 587 N.W.2d 159. Nor should application of our law cause interstate friction. Id. at ¶ 29. “We find that maintenance of interstate order does not require application of [Montana] law.” Id. This consideration favors the application of neither state’s law.

C. Simplification of the judicial task

[¶ 21] “ ‘It will usually be easier for the forum court to apply its own law than any other.’ ” Plante, 494 N.W.2d at 143 (quoting Robert A. Leflar, et al., American Conflicts Law § 105, at 294 (4th ed.1986)). However, “[simplification of the judicial task is not a relevant factor in this case because the ... law of either state could be applied without difficulty.” Daley, 1998 ND 225, ¶ 30, 587 N.W.2d 159. Courts in either state will- have the same tasks to perform. This consideration favors the application of neither state’s law.

D. Advancement of the forum’s governmental interests '

A state’s governmental interest in a choice-of-law case is discoverable by (a) identifying the factual contacts which the litigated' transaction had with that state, then (b) determining whether those contacts give rise to real reasons (socioeconomic or political justifications) for applying the state’s law to litigated issues in the case.

Daley, 1998 ND 225, ¶ 31, 587 N.W.2d 159 (quoting Robert A. Leflar, et al., American Conflicts Law § 106, at 295 (4th ed.1986)). We have said that North Dakota can have no substantial governmental interest in regulating the relationship between out-of-state insurance companies and their out-of-state insureds. See Plante, 494 N.W.2d at 143; Apollo Sprinkler Co., 382 N.W.2d at 391. We have the same concern here with applying Montana law. “In this case, North Dakota, not [Montana], has the substantial governmental interest in regulating the relationship between” a North Dakota insurer and its North Dakota insureds. Daley, at ¶ 33. “The fortuitous location of the accident in [Montana] does not change that, absent some other contact with the state:” Id. If Montana law did not offer the prhspect of a greater recovery than North Dakota law, we doubt that the heirs of North Dakota insureds would be seeking the application of Montana law. Compare Jepson v. General Cas. Co. of Wisconsin, 513 N.W.2d 467, 471 (Minn.1994) (“If the law of-North Dakota promised Jepson a greater recovery than Minnesota, we doubt very much that -he would be litigating this coverage dispute in our courts.”). Certainly,. Montana has governmental interests in promoting travel and commerce in Montana, in securing a source of funds for the payment of an insured’s creditors, and in seeking to make sure that insureds injured by underinsured motorists recover all of their damages to the extent possible. Montana’s interest is not so strong that it has mandated UIM coverage, however. See Stutzman v. Safeco Ins. Co. of America, 284 Mont. 372, 945- P.2d 32, 37 (1997) (“there is no statutory mandate for under-insured motorist coverage in Montana”). North Dakota, on the other hand, requires that an “insurer shall also provide underin-sured motorist coverage,” N.D.C.C. § 26.1-40-15.3, but does not allow the limit of liability for underinsured motorist coverage to be stacked upon limits of coverage for other motor vehicles, N.D.C.C. § 26.1-40-15.4. Thus, North Dakota has more clearly than Montana articulated its interest in underinsured motorist coverage by mandating such coverage, and has clearly articulated a limit to such coverage by prohibiting stacking of coverages. “Because all contacts other than the location of the accident occurred in North Dakota, we find that North Dakota’s governmental interests are advanced by application of North Dakota law.” Daley, at ¶ 33. This consideration favors application of North Dakota law.

E. Application of the better rule of law

[¶ 22] ■ “The final consideration is whether North Dakota or [Montana] has, in an objective sense, the better rule of law.” Daley, 1998 ND 225, ¶34, 587 N.W.2d 159. “As the Minnesota Supreme Court has stated, however, ‘[s]ometimes different laws are neither better nor worse in an objective way, just different.’ ” Id. (quoting Jepson v. General Cas. Co., 513 N.W.2d at 473). We need not decide if either Montana or North Dakota has a better rule of law, as the Wamsley heirs have said this factor “cannot be said to have influence here.”

[¶ 23] After considering the relevant state contacts in light of Leflar’s choice-influencing considerations, we conclude North Dakota has the more significant contacts and interest with regard to the issues of insurance- coverage.

V

[¶ 24] The judgment is affirmed.

[¶ 25] GERALD W. VANDE WALLE, C.J., JAMES M. BEKKEN, D.J., and WILLIAM A. NEUMANN, JJ., concur.

[¶ 26] The Honorable JAMES M. BEKKEN, D.J., sitting in place of SANDSTROM, J., disqualified.

MARING, Justice,

dissenting.

[¶27] I respectfully dissent. First, I am of the opinion that this declaratory judgment action is premature and, second, that, even if it is not premature, the Leflar choice-of-law factors have not been appropriately applied.

[¶ 28] In Midivest Med. Ins. Co. v. Doe, 1999 ND 17, 589 N.W.2d 581, a physician’s medical malpractice insurer brought a declaratory judgment action, requesting a declaration that it had no duty to indemnify Dr. Roe for damages that he may become obligated to pay for negligent mishandling of patient transference. Our Court held it was improper for the trial court to grant declaratory relief and vacated the summary judgment. Id. at ¶ 13. The medical malpractice insurer admitted it had an obligation to indemnify Dr. Roe for any damages that he may become obligated to pay the patient, Doe, upon her claims the doctor negligently prescribed medications and negligently failed to refer her to a psychiatrist. Id. at ¶ 6. The only obligation of the medical malpractice insurer at issue was its obligation to indemnify Dr. Roe for liability arising out of his sexual relationship with Doe. Id. We concluded that there were unresolved factual issues and that the insurer had conceded the duty to defend and potential obligation to indemnify. Id. at ¶ 12.

[¶ 29] In the present case, Nodak concedes it has an obligation to pay underin-sured motorist coverage to the Estate of Alan and Sharon Wamsley. The issue is not whether there is underinsured motorist coverage or whether there is a duty to defend. The only issue is whether the underinsured motorist coverage can be stacked: It is the amount of underinsured motorist coverage available that is at issue. The copersonal representatives of the Estate of Alan and Sharon Wamsley have brought an action in Montana against the other deceased driver’s estate and Nodak for damages exceeding $50,000 and for underinsured motorist coverage under all three of their policies with Nodak. Resolution of this declaratory judgment action will not settle the rights, Status, and other legal relations in that underlying action. The issue of the amount of damages, the resolution of which triggers underinsured motorist coverage, will not be eliminated in the underlying litigation by our resolution of this declaratory judgment action. Further, underinsured motorist coverage is first-party coverage and there is no duty to defend against a third-party action like there is when liability coverage is at issue.

[¶ 30] Finally, by deciding the declaratory judgment action, we encourage piecemeal litigation. An insured, who is injured in an automobile accident, should be able to bring one action against both the tort-feasor and the insurer with whom he has underinsured motorist coverage. In North Dakota,, the underinsured motorist insurer has the right to intervene in-the tort action. See Fetch v. Quam, 530 N.W.2d 337 (N.D.1995). This allows the insurer to protect itself on the issue of liability and damages arising under the provisions of the insurance policy.- In Montana, the plaintiff may bring an action against both the tortfeasor and the under-insured motorist insurance carrier in the same action. State ex rel. Gadbaw v. Mont. 8th Judicial Dist. Ct, 316 Mont. 25, 75 P.3d 1238. In the present case, the co-representatives of the Estate of Alan and Sharon Wamsley brought the tort action in Montana where the deceased defendant had resided and where the accident occurred and also named Nodak as a defendant. In the interests of justice, to avoid multiplicity of litigation, to conserve judicial time, and to avoid “the harassment of the insured by the necessity to litigate his rights twice,” both the tort action and insurance claim should be heard together. Fetch, at 338 (quoting Heisner v. Jones, 184 Neb. 602, 169 N.W.2d 606, 611-12 (1969)). Our Court pointed out that “[generally, courts favor intervention and joinder of all parties in one action as a convenient method of settling all related controversies on the same subject.” Fetch, at 338 (citation omitted).

[¶ 31] Therefore, I am of the belief that the majority opinion is an advisory opinion and that the summary declaratory judgment should be vacated.

[¶ 32] In Daley v. American States Preferred Ins. Co., 1998 ND 225, 587 N.W.2d 159, our Court affirmed our use of Leflar’s choice-influencing considerations when deciding a choice-of-laws issue. The majority opinion in the present case recognizes that this is the appropriate analysis. However, the majority opinion then proceeds to apply the Leflar considerations to the significant contacts in a manner that suggests an application of either the lex loci doctrine, which our Court abandoned in Issendorf v. Olson, 194 N.W.2d 750, 756 (N.D.1972), or a “strong territorial approach,” which we clarified in Daley, at ¶¶ 18-19.

[¶ 33] We specifically adopted the significant contacts test and the Leflar choice-influencing factors for application in contract cases. See Plante v. Columbia Paints, 494 N.W.2d 140 (N.D.1992). Importantly, we said, “A court’s obligation is to be true to the method rather than to seek merely factual analogies between cases and import wholesale the choice of law analysis contained in those cases.” Daley, 1998 ND 225, ¶ 21, 587 N.W.2d 159.

[¶ 34] I have no argument with the list of contacts in the majority opinion. I do, however, believe that the majority has failed to appropriately determine the significance of those contacts upon application of Leflar’s five choice-influencing factors and, thus, has failed to correctly determine which state has the more significant interest in the issues raised.

[¶ 35] Although our Court has applied the Leflar choice-of-law factors to questions involving commercial liability insurance and subrogation between insurers, it has never before applied the Leflar choice-of-law factors to a question arising under an uninsured motorist/underinsured motorist provision in an automobile policy. See Plante, 494 N.W.2d 140; Apollo Sprinkler Co., Inc. v. Fire Sprinkler Suppliers & Design, Inc., 382 N.W.2d 386 (N.D.1986); and Daley, 1998 ND 225, 587 N.W.2d 159.

[¶ 36] In concluding that North Dakota law is favored under this factor, the majority opinion relies exclusively on where the contract was negotiated, the policy delivered, and the premiums paid. If this mechanical approach is applied in every contract case, the outcome is predictable in most automobile policy disputes. I do not believe that these contacts are intended to be the exclusive determining contacts in all contract cases. -The majority fails to consider other relevant contacts and state interests which favor the application of Montana law in this case.

[¶ 37] The majority opinion fails to recognize non-contract contacts, such as the nature of the insurance contract, the location medical bills were incurred, and the strong public policy of Montana protecting financially those injured within its borders in its application of the Leflar choice-of-law considerations and fails to give them proper weight. Under the majority opinion’s analysis, you do not need judges applying the Leflar factors to significant contacts in contract cases. All you need for a choice-of-law decision is to know where the parties entered into the automobile policy, where the premiums are paid, and where the vehicle is principally garaged. Our Court has never applied the “significant contacts” test and Leflar choice-of-law factors in that manner. Instead, it is our Court’s responsibility to consider not only the contract contacts, but the place of injury, the place of medical treatment, the foreseeability of the presence of the insured in another state, the adhesory and portable nature of automobile insurance contracts, the interests of the state where the accident occurred, and the purpose and policies underlying that state’s law. See Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); Hime v. State Farm Fire & Cas. Co., 284 N.W.2d 829 (Minn.1979); Hague v. Allstate Ins. Co., 289 N.W.2d 43 (Minn.1978), ajfd on reh’g; Abramson v. Aetna Cas. & Sur. Co., 76 F.3d 304 (9th Cir.1996).

[¶ 38] I, therefore, respectfully dissent.


author: SANDSTROM, Justice.

text:
    2004 ND 176
    STATE of North Dakota, Plaintiff and Appellee v. Christopher LEE, Defendant and Appellant.
    No. 20030336.
    Supreme Court of North Dakota.
    Sept. 15, 2004.

      Lonnie Olson, State’s Attorney, Devils Lake, ND 58301, for plaintiff and appellee; submitted on brief.
    Coral J. Mahler, Sheyenne, ND, for defendant and appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Christopher Lee appeals from a judgment of conviction entered after a jury found him guilty of criminal mischief, a class B misdemeanor. Concluding Lee failed to object to the admission of evidence, we affirm the judgment of conviction.

I

[¶ 2] The State charged Lee with criminal mischief for allegedly breaking the passenger-side window of Melissa Verkon-ski’s vehicle, and with interference with a telephone during an emergency call for allegedly taking Verkonski’s cellular phone out of her hand, after she had dialed 911, and throwing it on top of the post office roof.

[¶ 3] The State subpoenaed Verkonski to testify against Lee, but she failed to appear for the trial.

[¶ 4] At trial, after laying foundation by testimony from the 911 dispatcher, the State offered as an exhibit a tape-recording of two 911 calls. Lee’s attorney responded, “No objection.” The exhibit was received and played for the jury. The evidence reflected that on June 1, 2003, between midnight and 1:00 a.m., the 911 dispatcher received two telephone calls from Melissa Verkonski. The first call was a hang-up call from a cellular phone; the second call was placed by Verkonski using a friend’s cellular phone. Both 911 calls were received and recorded by the 911 dispatcher on duty. During the second call, Verkonski told the 911 dispatcher that Lee had broken her passenger-side car window, that he had thrown her cellular phone on top of a building while she was dialing 911, and that he had a protection order against him.

[¶ 5] A Devils Lake police officer testified that after he and another officer responded to the 911 call, he spotted Lee running down an alley and apprehended him. With no objection from Lee, the State introduced two photographs of Ver-konski’s car, taken by one of the responding police officers on the night of the incident, showing the broken glass and Verkonski’s retrieved cellular phone displaying 911 on the call screen.

[¶ 6] After the State rested, Lee moved for a Rule 29, N.D.R.Crim.P., judgment of acquittal. The district court denied the motion, stating the 911 call was admissible under the imputed utterance exception to the hearsay rule, and the testimony and photographs of the broken window and cellular phone could lead a reasonable jury to find Lee guilty of the charges. The jury found Lee guilty of criminal mischief but not guilty of interference with an emergency call. Lee appealed.

[¶ 7] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.RApp.P. 4(b), and this Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 8] Lee argues the district court erred in denying the motion to acquit, because the 911 tape was hearsay and he was denied his Sixth Amendment right to confront his accuser in light of Crawford v. Washington, — U.S.-, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

A

[¶ 9] A touchstone for an effective appeal on any issue raised is that the issue was first properly objected to at trial, thus allowing the court to effectively rule on the objection. Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 7, 646 N.W.2d 681; State v. Freed, 1999 ND 185, ¶ 13, 599 N.W.2d 858; State v. Moore, 286 N.W.2d 274, 283 (N.D.1979). Rule 103(a), N.D.R.Ev., provides:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]

[¶ 10] A party may not later take advantage of irregularities that occur during a trial unless the party objects at the time they occur, allowing the court to take appropriate action, if possible, to remedy any prejudice that may result. Anderson v. Otis Elevator Co., 453 N.W.2d 798, 801 (N.D.1990). “‘The initiative is placed on the party, not on the judge,’ ” to object to offered evidence. City of Fargo v. Erickson, 1999 ND 145, ¶ 22, 598 N.W.2d 787 (Sandstrom, J., concurring specially) (quoting Charles McCormick, McCormick on Evidence § 52, at 200-201 (4th ed.1992)). A party’s failure to object, therefore, is a waiver upon appeal of any ground of complaint against its admission. Id.; Piatz, 2002 ND 115, ¶ 7, 646 N.W.2d 681.

[¶ 11] We have said the reason for this rule is “obvious, for, if it were otherwise, it would behoove a defendant to sit by and invite error in the hope that if he did not prevail the first time, he would prevail upon appellate review of invited error.” Moore, 286 N.W.2d at 283.

[¶ 12] In this case, Lee did more than not object to the admission of the tape; he explicitly responded that he had no objection when the State offered the tape into evidence. The State played the tape in open court only after Lee said he did not object to its admittance and it was received into evidence,

[¶ 13] Because Lee did not object to the admission of the tape during trial, our standard of review requires a showing of “ ‘obvious error which affects substantial rights of the defendant.’ ” State v. Jones, 557 N.W.2d 375, 378 (N.D. 1996) (quoting State v. Thiel, 411 N.W.2d 66, 70 (N.D.1987)); N.D.R.Crim.P. 52(b). The defendant has the burden of establishing that an error was obvious by “showing (1) error, (2) that is plain, and (3) that affects substantial rights.” State v. Hirschkorn, 2002 ND 36, ¶ 6, 640 N.W.2d 439. An error is not obvious unless there is a “clear deviation from an applicable legal rule under current law.” Id. We determine whether there has been obvious error by examining “the entire record and the probable effect of the alleged error in light of all the evidence.” State v. Johnson, 2001 ND 184, ¶ 12, 636 N.W.2d 391. “We exercise our power to consider obvious error cautiously and only in ‘exceptional situations where the defendant has suffered serious injustice.’ ” State v. Ash, 526 N.W.2d 473, 482 (N.D.1995) (quoting State v. Smuda, 419 N.W.2d 166, 168 (N.D.1988)).

[¶ 14] Lee’s argument that the trial court admitted the 911 tape improperly, because Verkonski was not unavailable, is misplaced. Lee argues the State never properly proved Verkonski was unavailable, only that she failed to appear at the trial to testify. Lee cites Rule 804, N.D.R.Ev., to define the unavailability of a witness as including situations in which someone persistently refuses to testify despite an order from the court to do so. The excited utterance exception to the hearsay rule, however, is under Rule 803, N.D.R.Ev., which does not require that a witness be unavailable.

[¶ 15] The admittance of the 911 tape as an excited utterance was not a clear deviation from an applicable legal rule under the current law at the time of the ruling. Several states have held that a statement made during a 911 call can be admitted as an excited utterance. See State v. Taylor, 650 N.W.2d 190 (Minn.2002); Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996); State v. Augustine, 458 N.W.2d 859 (Iowa Ct.App.1990); Bowling v. Commonwealth, 12 Va.App. 166, 403 S.E.2d 375 (1991); People v. Slaton, 135 Mich.App. 328, 354 N.W.2d 326 (1984).

[¶ 16] The United States Supreme Court had not yet decided Crawford v. Washington, — U.S.-, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), at the time of the hearing, so any effect that case may have on hearsay exceptions cannot be considered.

[¶ 17] We conclude the error, if it was error, alleged by Lee was not an obvious error under N.D.R.Crim.P. 52(b), because it was not in conflict with applicable legal rule under current law.

B

[¶ 18] Lee argues that a recent United States Supreme Court case, Crawford v. Washington, — U.S.-, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), now bars out-of-court testimonial statements unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine those witnesses. Because Lee failed to object to the admission of the tape during trial, and because we conclude the alleged error was not obvious, we need not decide whether Crawford would have applied.

Ill

[¶ 19] The judgment of the district court is affirmed.

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