text:
    2003 ND 92
    Robert N. HAUGENOE and Tracey Haugenoe, Plaintiffs and Appellants, v. William S. BAMBRICK III, M.D., Mercy Medical Center, Defendants and Appellees.
    No. 20020252.
    Supreme Court of North Dakota.
    June 6, 2003.

      Donald L. Peterson, Peterson Law Office, Minot, ND, for plaintiffs and appellants.
    John C. Kapsner, Vogel Law Firm, Bismarck, ND, for defendant and appellee, Mercy Medical Center.
    Lance D. Schreiner (appeared) and Tracy Vigness Kolb (argued), Zuger Kirmis & Smith, Bismarck, ND, for defendant and appellee, William S. Bambrick, III, M.D.
   MARING, Justice.

[¶ 1] Robert and Tracey Hauge-noe appeal from the July 19, 2002, order dismissing their complaint against Dr. William Bambrick and Mercy Medical Center without prejudice. We affirm in part, reverse in part, and remand for proceedings consistent with our opinion.

I

[¶ 2] A dismissal without prejudice is ordinarily not appealable because either party may commence another action. See Community Homes of Bismarck, Inc. v. Clooten, 508 N.W.2d 364, 365 (N.D.1993). “However, a dismissal without prejudice may be final and appeal-able if the ... dismissal has the practical effect of terminating the litigation in the plaintiffs chosen forum.” Rodenburg v. Fargo-Moorhead YMCA, 2001 ND 139, ¶ 12, 632 N.W.2d 407. In this case, where the statute of limitations has run, a dismissal “effectively forecloses litigation in the courts of this state.” Jaskoviak v. Graver, 2002 ND 1, ¶8, 638 N.W.2d 1 (quoting Rodenburg, at ¶ 12). We conclude the December 2, 2002, judgment of dismissal is, therefore, appealable. See Jaskoviak, at ¶ 8.

II

[¶ 3] On May 19, 1999, Robert Hauge-noe was treated at Mercy Medical Center for a severely comminuted compound fracture of his right elbow and a fracture of his right wrist. Dr. William Bambrick performed a surgical open reduction and internal fixation of the elbow. The Hauge-noes claim that after the surgery, Dr. Bambrick assured them the elbow was in proper alignment, when a second opinion from a doctor in Montana revealed the elbow was misaligned and missing bone fragments.

[¶ 4] The Haugenoes commenced an action on May 25, 2001. Their complaint contained three counts. The first count alleged “healthcare negligence” against both Dr. Bambrick and Mercy Medical Center. The Haugenoes alleged that Dr. Bambrick was negligent in his performance of the surgery and follow-up treatment of the right elbow and that Mercy Medical Center was negligent in giving Dr. Bambrick privileges at its facilities. The second count was an informed consent claim against Dr. Bambrick. The Hauge-noes alleged that Dr. Bambrick failed to adequately inform Haugenoe of the risks of the surgery and follow-up treatment. In the third count, the Haugenoes alleged that due to Dr. Bambrick’s “healthcare negligence,” Tracey Haugenoe suffered a loss of her husband’s consortium.

[¶ 5] Mercy Medical Center and Dr. Bambrick filed their answers to the complaint on June 13, 2001, and July 3, 2001, respectively, and served interrogatories on the Haugenoes on June 11, 2001, and July 2, 2001, respectively. Both Mercy Medical Center and Dr. Bambrick specifically inquired as to whether the Haugenoes had obtained an admissible expert opinion as required by N.D.C.C. § 28-01-46. Mercy Medical Center’s interrogatories read as follows:

INTERROGATORY NO. 10: Have you obtained an admissible expert opinion to support your allegations of professional negligence against Mercy Medical Center pursuant to N.D.Cent.Code § 28-01^6?
INTERROGATORY NO. 11: If your answer to the immediately preceding interrogatory is in the affirmative, please attach a copy of the expert opinion affidavit referenced in § 28-01-46.

Dr. Bambrick’s interrogatories read as follows:

INTERROGATORY NO. U: Have you obtained an admissible expert opinion to support your allegations of professional negligence against William S. Bambrick, III, M.D., as required by N.D.C.C. § 28-01-46?
INTERROGATORY NO. 15: If your answer to the foregoing Interrogatory was in the affirmative, state:
a.The expert’s name and address;
b. The expert’s profession, business or occupation, and the field of expertise;
c. The facts upon which you rely to support your contention that this expert’s opinion is “admissible” as that term is used in N.D.C.C. § 28-01-46;
d. Produce the expert’s affidavit containing the information required by § 28-01-46.

Both Mercy Medical Center and Dr. Bam-brick granted the Haugenoes extensions of time to answer the interrogatories and to provide an admissible expert opinion. The record reflects that Mercy Medical Center gave the Haugenoes until November 15, 2001, to respond and that Dr. Bambrick gave the Haugenoes until January 4, 2002, to respond. However, the Haugenoes never provided answers to either of the interrogatories and never provided any admissible expert opinion to either Mercy Medical Center or Dr. Bambrick.

[¶ 6] On February 4, 2002, Dr. Bam-brick filed a motion to dismiss the Hauge-noes’ medical negligence claims because the Haugenoes had not provided an admissible expert opinion as required by N.D.C.C. § 28-01-46. Mercy Medical Center filed a similar motion to dismiss or for summary judgment on February 6, 2002. The Haugenoes filed an answer brief to Dr. Bambrick’s motion to dismiss on February 20, 2002, claiming “N.D.C.C. § 28-01-46 does not apply to the present case where Bambrick misrepresented the condition of the elbow to Haugenoe.” On March 21, 2002, the Haugenoes filed a brief in opposition to Mercy Medical Center’s motion to dismiss or for summary judgment, arguing N.D.C.C. § 28-01-46 was not applicable to the case because Dr. Bambrick’s misrepresentation of the condition of the elbow was an “obvious occurrence” under the statute.

[¶ 7] The trial court attempted to hold a hearing on Mercy Medical Center’s and Dr. Bambrick’s motions. However, a hearing was never held because of repeated cancellations by the Haugenoes. Instead, the parties submitted outlines of their oral arguments, and the court considered the matter based on the outlines. On July 19, 2002, the trial court entered its order dismissing the Haugenoes’ entire complaint without prejudice. The court stated:

It is undisputed that, to date, Hauge-noes have not supplied Bambrick and Mercy with an admissible expert opinion in support of their professional negligence claims. It is also undisputed that: (a) the statutory time period for submitting an admissible expert opinion has long since expired; (b) Haugenoes obtained several extensions of time to answer interrogatories and submit an admissible expert opinion; and, (c) the expert opinion was not forthcoming even after several assurances from Hauge-noes’ counsel that the same would be provided.
The Court further finds that the “obvious occurrence exception” provides no relief to Haugenoes in this situation-as there can be little question that, “An open reduction and internal fixation are beyond the understanding of a layperson and require expert testimony to explain the complicated, technical surgical procedure.”
Accordingly, the Court is left with no alternative but to dismiss Haugenoes’ complaint, without prejudice.

[¶ 8] The Haugenoes filed their notice of appeal on September 16, 2002. The judgment dismissing the complaint without prejudice was filed on December 2, 2002. On appeal, the Haugenoes first contend that the negligence claim against Dr. Bam-brick should not have been dismissed because the alleged healthcare negligence falls within the “obvious occurrence” exception to N.D.C.C. § 28-01-46. They further contend that the informed consent claim should not have been dismissed because N.D.C.C. § 28-01-46 is not applicable to informed consent claims. We disagree with the Haugenoes’ first contention but agree with their second contention.

III

[¶ 9] We need not address the appropriate standard of review under N.D.C.C. § 28-01-46, because the Haugenoes have not met the requirements of the statute as a matter of law. See Larson v. Hetland, 1999 ND 98, ¶ 13 n. 2, 593 N.W.2d 785.

IV

[¶ 10] Section 28-01-46, N.D.C.C., requires a court to dismiss a malpractice action against a physician, nurse, or hospital, “unless the claimant has obtained' an admissible expert opinion to support the allegation of professional negligence within three months of the commencement of the action or at such later date as set by the court for good cause shown by the plaintiff.” The statute attempts to minimize frivolous claims by requiring the plaintiff to produce an expert opinion to support the allegations of negligence in the early stages of litigation. See Larson, 1999 ND 98, ¶ 12, 593 N.W.2d 785. However, expert testimony is not required “to establish a duty, the breach of which is a blunder so egregious that a layman is capable of comprehending its enormity.” Larsen v. Zarrett, 498 N.W.2d 191, 192 (N.D.1993) (quoting Ameson v. Olson, 270 N.W.2d 125, 132 (N.D.1978)). The statute, therefore, does not apply to claims involving “unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or other obvious occurrence.” N.D.C.C. § 28-01-46.

[¶ 11] The Haugenoes argue that their negligence claim against Dr. Bambrick falls within the obvious occurrence exception to N.D.C.C. § 28-01-46, and therefore, they were not required to produce an expert opinion within three months of the commencement of the action. The healthcare negligence alleged against Dr. Bambrick, however, is not the type of claim that falls within the obvious occurrence exception. We have previously explained that technical surgical procedures, like the one performed in this case, are recognized as being beyond the understanding of a layperson. See Larsen, 498 N.W.2d at 195. To establish a prima facie case of medical malpractice under N.D.C.C. § 28-01^46, the Haugenoes needed to produce “expert evidence establishing the applicable standard of care, violation of that standard, and a causal .relationship between the violation and the harm complained of.” Id. at 192 (citations omitted). Because no admissible expert opinion was ever provided by the Hauge-noes, they failed to meet the requirements of N.D.C.C. § 28-01-46 as a matter of law. See Larson, 1999 ND 98, ¶ 13, 593 N.W.2d 785. Therefore, we affirm the trial court’s dismissal of the Haugenoes’ negligence claim against Dr. Bambrick.

V

[¶ 12] The Haugenoes’ complaint also contained a claim against Mercy Medical Center alleging:

That Defendant Mercy Medical Center negligently gave Defendant William S. Bambrick III privileges in its facilities. That Defendant Mercy Medical Center failed to adequately investigate Defendant William S. Bambrick Ill’s history, training and experience before granting him privileges. That despite a number of problems in the medical care provided by Defendant William S. Bam-briek’s [sic], Defendant Mercy Medical Center allowed Defendant William S. Bambrick to remain on staff and retain privileges until May, 2001.

[¶ 13] In the Haugenoes’ brief in opposition to Mercy Medical Center’s motion to dismiss or for summary judgment, they argue: “Mercy obviously granted privileges to an incompetent physician to practice medicine in its facility.” In their outline of oral argument, the Haugenoes assert, “it is obvious that [Mercy Medical Center] should not have been allowed to have a physician with a history such as Dr. Bambrick of prior claims and obvious inadequacies in both ability and veracity.”

[¶ 14] On appeal, the Haugenoes state their issue broadly: “The District Court erred in dismissing this action pursuant to N.D.C.C. § 28-01-46.” In their statement of facts, the Haugenoes merely state: “Mercy Hospital allowed Dr. Bam-brick staff privileges despite four professional liability claims paid in the State of Florida. The State of North Dakota Board of Medical Examiners suspended Dr. Bambrick’s license to practice medicine by stipulation in July, 2000.” There is no argument presented, however, why it was error for the trial court to apply N.D.C.C. § 28-01-46 to the Haugenoes’ claim against Mercy Medical Center. “Issues not briefed by an appellant are deemed abandoned.” Anderson v. Heinze, 2002 ND 60, ¶ 12, 643 N.W.2d 24 (quoting Murchison v. State, 1998 ND 96, ¶ 13, 578 N.W.2d 514). Therefore, we affirm the trial court’s dismissal of the Haugenoes’ negligence claim against Mercy Medical Center.

VI

[¶ 15] The Haugenoes’ final argument on appeal is that the trial court improperly dismissed their informed consent claim against Dr. Bambrick. On July 23, 2002, four days after the trial court had filed its order dismissing the Haugenoes’ entire complaint without prejudice, Dr. Bambrick’s counsel wrote a letter to the trial court, pointing out that although the court had dismissed the Haugenoes’ entire complaint, “the motion we brought on behalf of Dr. Bambrick was for dismissal of the Haugenoes’ medical negligence claim, not the entire complaint. The motion was brought pursuant to N.D.C.C. § 28-01-46 which by its language does not apply to alleged failure to obtain informed consent.” Unsure as to whether the Haugenoes still intended to pursue the informed consent claim, Dr. Bambrick’s counsel sent a copy of this letter to the Haugenoes’ counsel, inviting him to “clarify this matter for the court before a final judgment is entered.” Counsel for Dr. Bambrick also enclosed a proposed order for judgment for the trial court to sign if “the court finds it appropriate to dismiss the entire complaint.”

[¶ 16] On September 16, 2002, the trial court sent another copy of the July 23, 2002, letter to the Haugenoes’ counsel advising, “[i]f any clarification is needed please respond before judgment is entered.” That same day, the Haugenoes filed their notice of appeal. The Hauge-noes never responded to the July 23, 2002, letter from Dr. Bambrick’s counsel or the September 16, 2002, letter from the trial court. On November 22, 2002, the trial court signed the order for judgment that had been drafted by Dr. Bambrick’s counsel. Judgment was entered on December 2, 2002.

[¶ 17] Dr. Bambrick filed a motion to dismiss the negligence claims against him based on the Haugenoes’ failure to disclose an expert witness within three months of the commencement of the action. Dr. Bam-brick never made a motion for summary judgment on the issue of informed consent and admitted his motion to dismiss did not apply to the Haugenoes’ claim of failure to obtain informed consent. Therefore, whether the Haugenoes’ informed consent claim against Dr. Bambrick should be dismissed was never before the trial court on its merits. We do not condone the Hauge-noes’ attorney’s failure to respond to the requests for clarification made by the trial court and opposing counsel. A simple response by the Haugenoes’ attorney may have prevented an appeal on this issue. Nevertheless, we decline to hold that the trial court’s letter asking if there needs to be a clarification of its order raised this issue on the merits. We have previously cautioned against such informal letter practice. See Engh v. Engh, 2003 ND 5, ¶ 2 n. 2, 656 N.W.2d 712.

[¶ 18] By its very language, N.D.C.C. § 28-01-46 “does not apply to alleged lack of informed consent, ...” The trial court in this case clearly erred when it dismissed the Haugenoes’ informed consent claim against Dr. Bambrick based on N.D.C.C. § 28-01-46. Therefore, we reverse the trial court’s dismissal of the informed consent claim against Dr. Bam-brick and remand for further proceedings consistent with our opinion.

[¶ 19] GERALD W. VANDE WALLE, C.J., LAWRENCE A. LECLERC, D.J., WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ, concur.

[¶ 20] The Honorable LAWRENCE A. LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.

      . Although an order for judgment is not ap-pealable, "an attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists.” Koehler v. County of Grand Forlcs, 2003 ND 44, ¶ 6 n. 1, 658 N.W.2d 741. Therefore, we will treat this as an appeal from the December 2, 2002, judgment dismissing the Haugenoes’ claims without prejudice.

      . "[A] fracture in which the bone is splintered or crushed into numerous pieces.” Merriam-Webster’s Medical Desk Dictionary (2002).


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2003 ND 95
    Travis BOSER, Plaintiff and Appellant, v. Jay HANSON, Defendant, and Robert Port, Defendant and Appellee.
    No. 20020206.
    Supreme Court of North Dakota.
    June 17, 2003.
    Ralph A. Vinje (on brief), Vinje Law Firm, Bismarck, ND, for plaintiff and appellant.
    Kraig A. Wilson (on brief), Morley Law Firm, Ltd., Grand Forks, ND, for defendant and appellee.
   MARING, Justice.

[¶ 1] Travis Boser appealed a judgment dismissing his action against Robert Port for damages for injuries sustained in a snowmobile accident. We affirm.

[¶ 2] Boser and Port were snowmobiling south of Minot on February 28, 1998. When Boser’s snowmobile became inoperable, they towed it to a friend’s home. Boser then rode as a passenger on Port’s snowmobile into Minot. Boser was injured in an intersection accident when he was struck by a vehicle operated by Jay Hanson, whose direction of travel was governed by a yield sign. Boser sued Hanson and Port. In its special verdict, the jury found Port was not at fault. A judgment of dismissal was entered, and Boser appealed.

[¶ 8] Boser contends the trial court erred in failing to give the following jury instruction he requested:

No person may operate a snowmobile upon the roadway, shoulder, or inside bank or slope of any road, street, or highway in this state except as provided pursuant to this Chapter. A snowmobile may make a direct crossing of a street or highway provided:
(a) The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
(b) The snowmobile is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
(c) The driver yields the right of way to all oncoming traffic which con- ■ stitutes an immediate hazard.

N.D.C.C. § 39-24-09(2)

It is unlawful for any person to drive or operate any snowmobile in the following ways which are declared to be unsafe and a public nuisance:

(a) At a rate of speed greater than reasonable or proper under all the surrounding circumstances;
(b) In a careless, reckless, or negligent manner so as to endanger the person or property o[f] another or to cause injury or damage to such person or property.

N.D.C.C. § 39-24-09(5)

The trial court explained its refusal to give Boser’s requested instruction:

All right. The court will, I am going to delete this one for a couple of reasons. One, I think there is some merit while it is the law of the state it is directed to situations where the facts are different than we have here. This occurred within a city. One driver had a yield sign. Some said he stopped. Some said he didn’t. He said he stopped. That’s room for argument for the two of you. But I think when we already have the duty of the driver having the right of way and the operator of the motor vehicle in the instructions this one is in a sense cumulative and probably confusing to the jury so it will be deleted.

[¶ 4] Boser has presented no argument about the latter part of the requested instruction, which was based upon N.D.C.C. § 39-24-09(5). “Issues not briefed by an appellant are deemed abandoned.” Anderson v. Heinze, 2002 ND 60, ¶ 12, 643 N.W.2d 24 (quoting Murchison v. State, 1998 ND 96, ¶ 13, 578 N.W.2d 514). Furthermore, the matters contained in that part of the requested instruction, prohibiting operation of a snowmobile at a “speed greater than reasonable or proper under all the surrounding circumstances” and prohibiting operation of a snowmobile in a “manner so as to endanger the person or property o[f] another,” were addressed in other instructions submitted to the jury.

[¶ 5] “Jury instructions must fairly and adequately inform the jury of the applicable law.” Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, ¶ 30, 643 N.W.2d 29 (quoting Praus v. Mack, 2001 ND 80, ¶38, 626 N.W.2d 239). “A party is entitled to instructions which present that party’s theory of the case if justified by applicable law, the evidence and the pleadings.” Beilke v. Coryell, 524 N.W.2d 607, 611 (N.D.1994) (quoting Spieker v. Westgo, Inc., 479 N.W.2d 887, 844 (N.D.1992)). “A trial court is not required to instruct the jury in the exact language sought by a party if the court’s instructions adequately and correctly inform the jury of the applicable law.” Western Nat’l Mut. Ins. Co. v. University of N.D., 2002 ND 63, ¶ 42, 643 N.W.2d 4. A trial court may properly refuse to give the jury an inapplicable or irrelevant instruction. City of Mandan v. Willman, 439 N.W.2d 92, 94 (N.D.1989).

[¶ 6] Section 39-24-09, N.D.C.C., provides in part:

1. No person may operate a snowmobile upon the roadway, shoulder, or inside bank or slope of any road, street, or highway in this state except as provided pursuant to this chapter. No snowmobile may be operated at any time within the right of way of any interstate highway within this state except for emergency purposes.
2. A snowmobile may make a direct crossing of a street or highway provided:
a. The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
b. The snowmobile is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
c. The driver yields the right of way to all oncoming traffic which constitutes an immediate hazard; and
d. In crossing a divided highway, the crossing is made only at an intersection of such highway with another public street or highway.

Section 39-24-08(4), N.D.C.C., provides “governing bodies of cities may, by ordinance, regulate, restrict, and prohibit the use of snowmobiles when operated within the exclusive jurisdiction of cities.” Minot has adopted an ordinance regulating the use of snowmobiles. The trial court instructed the jury in accordance with the ordinance:

Any off-road vehicle is restricted from operating upon any street or segment of the street except for the purpose of leaving the city by the most direct route, departing from the residence of the off-road vehicle operator, or from the place where the off-road vehicle is ordinarily kept while not in use, or the purpose of returning by the same route from outside the city to the point of departure.

[¶ 7] We recently summarized some of our rules of statutory construction:

The interpretation of a statute is a question of law and is fully reviewable on appeal. Our primary objective in construing a statute is to ascertain legislative intent by looking at the language of the statute itself. We harmonize statutes to give meaning to related provisions, and we construe statutory language according to its plain, ordinary, and commonly understood meaning. Although we may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. We give consideration to the context of statutes and the purposes for which they were enacted.

Comstock Constr., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, ¶22, 651 N.W.2d 656 (citations omitted). See generally N.D.C.C. §§ 1-02-02, 1-02-05, 1-02-07, and 1-02-39. Under N.D.C.C. § 1-02-38(3), in construing a statute we presume the legislature intended a just and reasonable result.

[¶ 8] Snowmobiles are generally prohibited from operating on highways, except in limited situations. See, e.g., N.D.C.C. § 89-24-09; August 18, 1981, North Dakota Attorney General’s Opinion 81-85 (citing N.D.C.C. § 39-24-09 and noting “snowmobiles are statutorily barred from operating upon public highways with few exceptions”); State v. Johnson, 289 Minn. 196, 183 N.W.2d 541, 543 (1971) (Construing a 1967 Minnesota statute similar to N.D.C.C. § 39-24-09, the court said: “It is clear that the legislative intent was to prohibit, with but two exceptions, the operation of snowmobiles upon the roadway, shoulder, or inside bank or slope of any trunk or county state aid highway”). Thus, as Boser noted in a response to a motion by Port, “It is clear from [N.D.C.C. § 39-24-09(1) ] that without separate legislation from the City of Minot, snowmobiles could not be operated upon the streets in the city of Minot.”

[¶ 9] We agree with the Commonwealth Court of Pennsylvania’s construction of a statute similar to N.D.C.C. § 39-24-09:

Section 7721(a) provides the general rule against operation of ATVs and snowmobiles on highways: “Except as otherwise provided in this chapter, it is unlawful to operate a snowmobile or an ATV on any street or highway ...” Section 7721(c) ... provides that an ATV (or snowmobile) may “make a direct crossing of a street or highway” upon compliance with very specific requirements, including that of crossing “at an angle of approximately 90 degrees to the direction of the highway....” (Emphasis added.) In the Court’s view, the legislature’s use of the phrase “[to] make a direct crossing” reveals an intent to distinguish that action from “to operate” on a street or highway.
Roads, streets and highways exist for the purpose of permitting transportation along them from one point to another. To operate a motor vehicle on a highway would appear to mean to use it for this intended purpose.
An ATV or snowmobile operator who crosses a road does not use the road for its intended purpose of transportation along it but rather encounters it as an obstacle to be overcome. This Court therefore concludes that when the legislature specifically provided that snowmobiles and later ATVs were permitted to make a direct crossing of a street or highway, the legislature did not intend such action to be within the meaning of operating a vehicle upon a highway.

Pelter v. Commonwealth, 663 A.2d 844, 848-49 (Pa.Commw.Ct.1995).

[¶ 10] In our view, except as otherwise provided, the statutory language employed in N.D.C.C. § 39-24-09(1),(2) prohibits operating a snowmobile on a street or highway except while crossing a street or highway encountered as an obstacle to be overcome, rather than in its intended purpose of transportation along it. Our construction of the statutory language is confirmed by its legislative history. Representative Giffey, a sponsor of H.B. 163, enacted in 1969 (1969 N.D. Sess. Laws ch. 362) and codified as N.D.C.C. ch. 39-24, appeared before the Senate Committee on Transportation on March 7, 1969, and explained that, under the proposed legislation, snowmobiles “cannot travel on the highway[ ] surfaces nor along highways designated as Interstate.” Furthermore, in our view, it would be unreasonable to construe N.D.C.C. § 39-24-09(2) to require a snowmobile operator lawfully operating a snowmobile on a city street to bring the snowmobile to a complete stop at every intersection before crossing, even where that operator’s travel is protected by a yield sign governing the operators of other vehicles approaching the intersection.

[¶ 11] When Port was crossing the intersection in Minot, he was using the street for its intended purpose of transportation, rather than encountering it as an obstacle to be overcome. Therefore, N.D.C.C. § 39-24-09 and its street or highway crossing requirements that a snowmobile operator bring the snowmobile to a complete stop before crossing, yield the right of way to all oncoming traffic constituting an immediate hazard, and make the direct crossing of a street at an angle of approximately 90 degrees at a place where no obstruction prevents a quick and safe crossing, were inapplicable. We, therefore, conclude the trial court did not err in refusing to give Boser’s requested instruction.

[¶ 12] The judgment is affirmed.

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

I concur in the result, DALE V. SANDSTROM, J.

      . Boser and Hanson reached a settlement before trial, and Hanson was released as a defendant.


author: KAPSNER, Justice.

text:
    2003 ND 104
    PUBLIC SERVICE COMMISSION, Petitioner and Appellee, v. WIMBLEDON GRAIN CO., Respondent, v. Mike Clemens, Individually and on Behalf of Other Creditors, Intervenors and Appellants, Employers Mutual Casualty Company, Intervenor and Appellee, and Security State Bank of North Dakota, Intervenor and Appellee.
    No. 20020274.
    Supreme Court of North Dakota.
    June 17, 2003.

      William W. Binek, Special Assistant Attorney General, Bismarck ND, for petitioner and appellee.
    Sarah Vogel (argued), Beth A. Baums-tark (appeared) and Courtney Koebele (on brief), Wheeler Wolf, Bismarck, ND, for intervenors and appellants.
    Lowed P. Bottrell (argued) and Adam W. Hamm (on brief), Anderson & Bottrell, Fargo, ND, for intervenor and appellee Employers Mutual Casualty Company.
    Richard P. Olson (argued) and Wanda L. Fischer (on brief), Minot, ND, for interve-nor and appellee Security State Bank of North Dakota.
   KAPSNER, Justice.

[¶ 1] Mike Clemens, and specified members of the Wimbledon Grain Farmers Group (collectively ‘WGFG”), appealed from a declaratory judgment holding that WGFG members could not participate in a trust fund established after the Wimbledon Grain Company became insolvent and that the Public Service Commission (“Commission”) was not obligated to marshal trust fund assets for their benefit. We conclude the trial court did not abuse its discretion in certifying the judgment as final under N.D.R.Civ.P. 54(b). We further conclude the trial court erred in ruling WGFG members are not “claimants” entitled to participate in the non-bond assets of the trust fund under N.D.C.C. § 60-02.1-30, and in ruling the Commission is not obligated to marshal trust fund assets for their benefit under N.D.C.C. § 60-02.1-34. We reverse and remand.

I

[¶ 2] Wimbledon Graiñ Company (“Wimbledon Grain”) was a North Dakota grain elevator with facilities in Leal and Wimbledon. Wimbledon Grain was licensed by the Commission as a grain buyer under N.D.C.C. ch. 60-02.1, and was licensed by the Farm Service Agency of the United States Department of Agriculture as a grain warehouse under 7 U.S.C. §§ 241-256. On January 11, 2002, Wimbledon Grain released all grain inventories, operating equipment and grain records to the Farm Service Agency, and on January 14, 2002, Wimbledon Grain advised the Commission it was unable to redeem receipts and scale tickets from farmers who had sold it grain. The Commission was appointed by the trial court to be trustee of the trust fund established for claimants under N.D.C.C. § 60-02.1-30. The trial court allowed Security State Bank of North ' Dakota (“Bank”), Wimbledon Grain’s primary lender, and Employers Mutual Casualty Company (“Mutual”), the surety on the bond submitted by Wimbledon Grain for its grain buyer license, to intervene. WGFG, comprised of farmers who had entered into credit-sale contracts with Wimbledon Grain payable beyond 30 days, were also allowed to intervene.

[¶ 3] In response to published notices of Wimbledon Grain’s insolvency, 181 farmers filed claims totaling $4,279,796.47. In April 2002, the United States Attorney filed a complaint in interpleader on behalf of the Farm Service Agency in United States District Court. The Farm Service Agency liquidated Wimbledon Grain’s grain assets and placed the $2,936,140.11 in proceeds in an interest bearing account. Cargill, Inc. was allowed to deposit with the Commission in an interest bearing account $716,718.33 that it owed Wimbledon Grain for purchased grain. Archer Daniels Midland Company was also allowed to deposit with the Commission in an interest bearing account $829,005.15 that it owed Wimbledon Grain for purchased grain.

[¶4] During the course of the state court and federal court proceedings, the Commission grouped claimants into five categories. Category 1 claimants consisted of farmers who made cash sales or who had signed credit-sale contracts with payment due within 30 days of the date of insolvency. Category 2 claimants consisted of farmers who had storage contracts with Wimbledon Grain. Category 3 claimants consisted of farmers who had unsigned or delayed price or deferred payment contracts. Category 4 claimants consisted of farmers who had forged, delayed price or deferred payment contracts. Category 5 consisted of WGFG members who had credit-sale contracts payable beyond 30 days. Category 1 claimants were paid, with interest, by the Commission. Claimants in categories 2, 3 and 4 were paid in full, with interest, through the companion federal court action.

[¶ 5] The Commission refused to recognize WGFG members as valid claimants to the trust fund under N.D.C.C. § 60-02.1-30, because they had sold grain through credit-sale contracts payable beyond 30 days. In its report and recommendation to the trial court, the Commission explained:

The unsecured claims are credit-sale contracts pursuant to which the sale price is to be paid or may be paid more than thirty days after the delivery or release of grain for sale. Credit-sale contracts are not included in the definition of “receipts” under N.D.C.C. §§ 60-02.1-01(8) and 60-02.1-32 to qualify for payment under the trust fund and are not eligible for bond coverage under N.D.C.C. § 60-02.1-08(7).

[¶ 6] WGFG members moved in state court for a declaratory judgment that they were valid claimants to the trust fund and that the Commission was required to marshal the trust fund assets on their behalf. The trial court agreed with the Commission, concluding WGFG members who entered into credit-sale contracts with Wimbledon Grain payable more than 30 days after delivery or release of grain for sale were not “claimants” entitled to the protection of the trust fund, and that the Commission was not obligated to marshal trust fund assets on their behalf. The trial court ordered $472,749.70 plus any accrued interest transferred to the Farm Service Agency’s account in the federal court proceedings, retained jurisdiction over pending issues, and granted WGFG’s request for a N.D.R.Civ.P. 54(b) certification authorizing an immediate appeal of the declaratory judgment ruling. WGFG members appealed.

II

[¶ 7] Rule 54(b), N.D.R.Civ.P., authorizes a trial court to enter a final judgment adjudicating fewer than all of the claims or the rights and liabilities of fewer than all of the parties upon “express determination that there is no just reason for delay” and “express direction for the entry of judgment.” We are not bound by a trial court’s Rule 54(b) certification, and we review the court’s decision under the abuse of discretion standard. Klagues v. Maintenance Eng’g, 2002 ND 59, ¶ 28, 643 N.W.2d 45. A trial court abuses its discretion if it acts in an unreasonable, arbitrary, or unconscionable manner, or if its decision is not the product of a rational mental process, or when it misinterprets or misapplies the law. Id. at ¶ 6.

[¶ 8] A party seeking Rule 54(b) certification must establish extraordinary circumstances or that, absent review, unusual hardship would occur. Nodak Mut. Farm Bureau v. Kosmatka, 2000 ND 210, ¶ 7, 619 N.W.2d 852. Trial courts must consider the strong policy against piecemeal appeals and must delineate the unusual or compelling circumstances requiring interlocutory appellate review. Id. at ¶ 8. Because of our aversion to rendering advisory opinions, a trial court generally abuses its discretion in granting a Rule 54(b) certification if future developments in the trial court may moot the issues raised for appellate review. Hansen v. Scott, 2002 ND 101, ¶¶ 10-11, 645 N.W.2d 223.

[¶ 9] The trial court found the circumstances in this case were “unusual, compelling and out of the ordinary.” The court reasoned, “[t]he legal question of whether or not members of WGFG could be construed to be ‘claimants,’ and thus beneficiaries of the trust fund established under N.D.C.C. 60-02.1-30 is a substantial question affecting broad interests and will constitute a final resolution regarding the status of the members of WGFG.” The court further noted, “the resolution of the question certified will have the effect of settling substantial claims of the WGFG, which will experience substantial hardship with a delayed resolution of the certified question.”

[¶ 10] Mutual argues the trial court erred in granting the Rule 54(b) certification because there is a possibility the issues raised in this appeal could be rendered moot by future developments in the related federal court proceedings. On November 29, 2002, the federal district court requested the Commission, the Farm Service Agency, and WGFG to “prepare supplemental briefing on the issue of whether there is any conceivable way in which [members of WGFG] may be given any priority interest in the res.” Because possible theories might arguably exist under which WGFG members could recover the remaining portion of the res in federal court, Mutual contends the issues in this appeal could become moot.

[¶ 11] The state trial court ruled WGFG members cannot participate in the trust fund established under N.D.C.C. § 60-02.1-30, and the Commission has no duty to marshal the trust fund assets on their behalf. This is a final adjudication of their claims in state court. The res in federal court contains grain proceeds of approximately $500,000, an amount sufficient to satisfy less than one-half of the more than $1 million of claims submitted by WGFG’s 38 members. The grain proceeds constitute only one of a number of categories of assets that can be included in the trust fund and marshaled by the Commission. Even if the res in federal court were ordered to be paid to WGFG members, WGFG members would still have more than $500,000 in unsatisfied claims, and the Commission would have no obligation to attempt to marshal additional trust fund assets on their behalf.

[¶ 12] We agree that dissipation of the trust fund assets will cause unusual and substantial hardship to WGFG members in this case. Payment to WGFG members of the res in federal court would lessen this hardship, but would not eliminate it. Any potential federal court action would not moot the issue of the Commission’s duty to marshal trust fund assets on behalf of WGFG members. Under the circumstances in this case, we conclude the trial court did not abuse its discretion in granting the Rule 54(b) certification. Compare Krank v. A.O. Smith Harvestore Prod., 456 N.W.2d 125, 127 n. 1 (N.D.1990) (holding trial court did not abuse its discretion in granting Rule 54(b) certification after weighing juridical concerns of possible mootness against countervailing equitable factors of substantial hardship).

Ill

[¶ 13] WGFG argues the trial court erred in ruling its members are not “claimants” entitled to the protection of the trust fund and the Commission had no obligation to marshal trust fund assets for their benefit.

A

[¶ 14] A brief summary of the statutory scheme is helpful before addressing the arguments of the parties.

[¶ 15] Grain warehouses that are licensed by the Farm Service Agency of the United States Department of Agriculture under 7 U.S.C. §§ 241-256, must also obtain a license from the Commission under N.D.C.C. ch. 60-02.1 for grain merchandising activities. See N.D.C.C. § 60-02.1-07. Enacted in 1999, N.D.C.C. ch. 60-02.1 authorizes the Commission to exercise general supervision of grain buyers. An insolvency occurs “when the licensee defaults in payment for grain purchased or marketed by the licensee.” N.D.C.C. § 60-02.1-28. Upon the insolvency of a licensee, N.D.C.C. § 60-02.1-29 requires that the Commission apply to the district court of Burleigh County “for authority to take all action necessary to act as trustee of the trust fund described in section 60-02.1-30.”

Trust fund established. Upon the insolvency of any licensee, a trust fund must be established for the benefit of claimants and to pay the costs incurred by the commission in the administration of the insolvency. The trust fund must consist of the following:
1. Nonwarehouse receipt grain of the insolvent licensee held in storage or the proceeds obtained from the conversion of such grain.
2. The proceeds, including accounts receivable, from any grain sold from the time of the filing of the claim that precipitated an insolvency until the commission is appointed trustee must be remitted to the commission and included in the trust fund.
3. The proceeds of insurance policies on destroyed grain.
4. The claims for relief, and proceeds therefrom, for damages upon bond given by the licensee to ensure faithful performance of the duties of a licensee.
5. The claim for relief, and proceeds therefrom, for the conversion of any grain stored in the warehouse.
6. Unencumbered accounts receivable for grain sold prior to the filing of the claim that precipitated an insolvency.
7. Unencumbered equity in grain hedging accounts.
8. Unencumbered grain product assets.

N.D.C.C. § 60-02.1-30. Upon its appointment, the Commission has the duty to “marshal all of the trust fund assets” and “may maintain suits in the name of the state of North Dakota for the benefit of all claimants against the licensee’s bonds, insurers of grain, any person who may have converted any grain, and any who may have received preferential treatment by being paid by the insolvent licensee after the first default.” N.D.C.C. § 60-02.1-34.

[¶ 16] The bond referred to in N.D.C.C. § 60-02.1-30(4), which must be filed by a grain buyer with the Commission before a license will issue, shall “[n]ot accrue to the benefit of any person entering into a credit-sale contract with a grain buyer.” N.D.C.C. § 60-02.1-08(7). A “credit-sale contract” is “a written contract for the sale of grain pursuant to which the sale price is to be paid or may be paid more than thirty days after the delivery or release of the grain for sale and which contains the notice provided in subsection 7 of section 60-02.1-14.” N.D.C.C. § 60-02.1-01(2). Each credit-sale contract must contain “[n]otice in a clear and prominent manner that the sale is not protected by the bond coverage provided for in section 60-02.1-08.” N.D.C.C. § 60-02.1-14(7).

[¶ 17] The Commission is required to publish notice of its appointment and “may notify, by ordinary mail, potential claimants disclosed by the licensee’s records.” N.D.C.C. § 60-02.1-32. The notice “must require claimants to file their claims with the commission along with the receipts or other evidence of the claims required by the commission.” Id. “Receipts” are defined as “scale tickets, checks, or other memoranda given by a grain buyer for, or as evidence of, the receipt, storage, or sale of grain except when such memoranda was received as a result of a credit-sale contract.” N.D.C.C. § 60-02.1-01(8). If claimants do not timely file a claim, the Commission “is relieved of further duty in the administration of the insolvency on behalf of the claimant and the claimant may be barred from participation in the trust fund.” N.D.C.C. § 60-02.1-32. A claimant’s remedies are circumscribed by N.D.C.C. § 60-02.1-33:

Remedy of claimants. No claimant has a separate claim for relief upon any insolvent licensee’s bond, nor for insurance, nor against any person converting grain, nor against any other claimant, except through the trustee, unless, upon demand of five or more claimants, the commission fails or refuses to apply for its own appointment or unless the district court denies the application. Provisions of this chapter do not prohibit any claimant, either individually or in conjunction with other claimants, from pursuing concurrently any other remedy against the person or property of the licensee.

[¶ 18] The Commission must file with the court “a report showing the amount and validity of each claim,” which “must also contain the proposed distribution of the trust fund assets, less expenses incurred by the commission in the administration of the insolvency.” N.D.C.C. § 60-02.1-37. Upon “appropriate notice,” the court must set a hearing “for interested persons to show cause why the commission’s report should not be approved and distribution of the fund be made as proposed.” Id. Following a hearing on the objections of aggrieved persons, “the court shall approve or modify the report and issue an order directing payment of the necessary bond proceeds, distribution of the trust fund, and discharge of the commission from its trust.” Id.

B

[¶ 19] The Commission, Bank, and Mutual (collectively “Commission”) argue that anyone can be a claimant against the trust fund under N.D.C.C. ch. 60-02.1, but the relevant inquiry is whether the person making the claim has a valid claim. Because the definition of “Receipts” under N.D.C.C. § 60-02.1-01(8) specifically excludes memoranda received as the result of a credit-sale contract, the Commission argues claimants who hold credit-sale contracts are precluded from participating in the trust fund. WGFG members argue the trust fund is specifically established for the benefit of “claimants,” rather than “re-ceiptholders,” under N.D.C.C. § 60-02.1-30. Because N.D.C.C. § 60-02.1-32 provides that any claims must be accompanied by “receipts or other evidence of the claims,” WGFG members argue a valid claim is not limited by the definition of “receipts” under N.D.C.C. § 60-02.1-01(8), and therefore can include claims based on credit-sale contracts. WGFG members recognize they are unable to recover from any bond proceeds that may become a part of the trust fund because of the prohibition in N.D.C.C. § 60-02.1-08(7), but argue they are eligible to recover from the other categories of assets that can become part of the trust fund under N.D.C.C. § 60-02.1-30.

[¶20] Issues involving the application and interpretation of statutes are questions of law fully renewable by this Court. Nelson v. Johnson, 1999 ND 171, ¶ 7, 599 N.W.2d 246. In construing N.D.C.C. ch. 60-02.1, our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. N.D.C.C. §§ 1-02-02 and 1-02-03. If statutory language is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit, because the Legislature’s intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05. If statutory language is ambiguous, a court may resort to extrinsic aids, including legislative history, to interpret the statute. N.D.C.C. § 1-02-39. - A statute is ambiguous if it is susceptible to meanings that are different, but rational. Shiek v. North Dakota Workers Comp. Bureau, 2002 ND 85, ¶ 12, 643 N.W.2d 721.

[¶ 21] Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence. Meljie v. North Dakota Workers Comp. Bureau, 2002 ND 174, ¶ 15, 653 N.W.2d 62; Doyle ex rel. Doyle v. Sprynczynatyk, 2001 ND 8, ¶10, 621 N.W.2d 353. We presume the Legislature did not intend an absurd or ludicrous result or unjust consequences. McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666. We construe statutes in a practical manner and give consideration to the context of the statutes and the purposes for which they were enacted. Grey Bear v. North Dakota Dep’t of Human Servs., 2002 ND 139, ¶ 7, 651 N.W.2d 611. The law relating to grain insolvencies was intended for the benefit of claimants, and must be construed with sufficient liberality to effectuate its purpose of settling the legitimate demands of owners of grain delivered to an insolvent elevator without doing injury to those who are liable. See North Dakota Pub. Serv. Comm’n v. Central States Grain, Inc., 371 N.W.2d 767, 779 (N.D.1985); North Dakota Pub. Serv. Comm’n v. Valley Farmers Bean Ass’n, 365 N.W.2d 528, 544 (N.D.1985); State v. Hoover Grain Co., 63 N.D. 344, 352, 248 N.W. 275, 278 (1933).

[¶ 22] The term “claimant” is not defined for purposes of N.D.C.C. ch. 60-02.1. Because “claimant” is not defined in that chapter, we apply the term’s plain, ordinary, and commonly understood meaning. Security State Bank v. Orvik, 2001 ND 197, ¶ 9, 636 N.W.2d 664. A “claimant is one who claims or asserts a right or demand.” Weisgerber v. Workmen’s Comp. Bureau, 70 N.D. 165, 171, 292 N.W. 627, 630 (1940); see also Webster’s Third New International Dictionary 414 (1971); Black’s Law Dictionary 241 (7th ed.1999). This commonly understood meaning is similar to the statutory definition of a “claimant” in N.D.C.C. ch. 60-03, which relates to hay buyers. See N.D.C.C. § 60-03-01(1) (defining “claimant” as “any person claiming to be injured by the default of the licensee in the payment for any hay purchased or marketed by the licensee”). Under the plain meaning of the term, a claimant is a person who asserts a right to payment for grain sold to a licensee, and, in this case, includes WGFG members.

[¶ 23] The Commission agrees anyone can be a claimant, but argues WGFG members cannot be considered claimants entitled to participate in the trust fund because their claims are invalid. See Valley Farmers Bean Ass’n, 365 N.W.2d at 536 (distinguishing between “claimant” and “receiptholder” under N.D.C.C. ch. 60-04, and holding if Commission “has a good faith reasonable belief that a claimant is not a valid receipt holder and that the claim is therefore adverse to the trust, it is under no duty to advocate the asserted interests of that claimant”). The Commission contends that the term claimant should be interpreted to mean a “receipt-holder” as that term is used in N.D.C.C. chs. 60-02 and 60-04. The Commission argues the obvious purpose of N.D.C.C. § 60-02.1-01(8) is to define what may be included as a receipt for purposes of making a valid claim against the trust fund in case of an insolvency. Because credit-sale contracts are specifically exempted from the definition of “receipts” under N.D.C.C. § 60-02.1-01(8), the Commission argues WGFG members have no valid claim against the trust fund and are not valid claimants under the law.

[¶ 24] There are flaws in the Commission’s argument. Although credit-sale contracts do not fall within the definition of “receipts” under N.D.C.C. § 60-02.1-01(8), it is apparent, when other provisions of N.D.C.C. ch. 60-02.1 are considered, that the Legislature did not limit claims to only those claims supported by “receipts.” Under N.D.C.C. § 60-02.1-32, the Commission must give notice and “require claimants to file their claims with the commission along with the receipts or other evidence of the claims required by the commission.” (Emphasis added). The term “or” is disjunctive in nature and ordinarily indicates an alternate between different things or actions. See Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 20, 590 N.W.2d 454. Therefore, by use of the term “or,” the Legislature indicated that a claim may be supported by “receipts,” or, in the alternative, by “other evidence of the claims.”

[¶ 25] The Commission argues that the definitional reference to “receipts” as “other memoranda given by a grain buyer for, or as evidence of, the receipt, storage, or sale of grain” in N.D.C.C. § 60-02.1-01(8) should be read in conjunction with the language requiring claimants to file “receipts or other evidence of the claims” in N.D.C.C. § 60-02.1-32. According to the Commission, it is the definition of “receipts” that excludes persons with credit-sale contracts from participating in the trust fund. The Commission’s argument might be persuasive if N.D.C.C. § 60-02.1-32 stated “receipts or other evidence of receipts,” but the statute says “receipts or other evidence of the claims.” (Emphasis added). The Commission’s argument renders meaningless the language, “or other evidence of the claims” in N.D.C.C. § 60-02.1-32. If the Legislature had intended only “receipts” or other evidence of “receipts” to be eligible to participate in the trust fund, we believe it would have used more precise language to illustrate that point. The ordinary meaning of the statutory language establishes that a claim can be supported by evidence that does not qualify as a receipt under N.D.C.C. § 60-02.1-01(8).

[¶ 26] We reject the Commission’s argument that if credit-sale contract holders are entitled to share in trust fund assets, the language in N.D.C.C. § 60-02.1-01(8) excluding credit-sale contracts from the definition of “receipts” would have no meaning. The Legislature has not said persons who enter into credit-sale contracts are not entitled to participate in the trust fund, but has made it clear that only the bond filed with the commission under N.D.C.C. § 60-02.1-08(7) must “[n]ot accrue to the benefit of any person entering into a credit-sale contract with a grain buyer.” The notice required by N.D.C.C. § 60-02.1-14(7) likewise refers only to a lack of bond coverage for holders of credit-sale contracts. Because the bond constitutes only one of the eight specifically enumerated categories of trust fund assets under N.D.C.C. § 60-02.1-30, we believe the definition of “receipts” in N.D.C.C. § 60-02.1-01(8) comports with the notion that persons entering into credit-sale contracts are entitled to participate in assets of the trust fund other than the bond. We recognize that, under N.D.C.C. § 60-02-25.1, “[g]rain contained in a warehouse, including grain owned by the warehouseman, is subject to a first priority hen in favor of outstanding receiptholders storing, selling, or depositing grain in the warehouse,” and that this lien “shall be preferred to any lien or security interest in favor of any creditor of the warehouseman.” While this statute clarifies that holders of credit-sale contracts have no lien priority over receiptholders, it does not indicate credit-sale contract holders are not entitled to participate in non-bond assets of the trust fund.

[¶ 27] The Commission relies on this Court’s decision in Central States Grain, Inc. to support its contention that unpaid holders of credit-sale contracts cannot be claimants to the trust fund. However, in Central States Grain, Inc., 371 N.W.2d at 778 n. 7, the Commission and the surety on the bond agreed certain credit-sale payments were not covered by the warehouseman’s bond, and this Court did not address whether the district court’s denial of the claims was proper. The issue whether credit-sale contract holders could be valid claimants to non-bond assets of the trust fund was neither raised nor addressed in that case.

[¶ 28] The Commission also relies on legislative history purportedly establishing that the protections available to farmers selling grain under N.D.C.C. ch. 60-02.1 were intended to mirror protections available to farmers under N.D.C.C. chs. 60-02 and 60-04, rather than to expand coverage provided to credit-sale contract holders. We believe the challenged statutes in N.D.C.C. ch. 60-02.1 are clear and unambiguous. “[W]hen a statute is clear and unambiguous it is improper for courts to attempt to go behind the express terms of the provision so as to legislate that which the words of the statute do not themselves provide.” Schaefer v. North Dakota Workers Comp. Bureau, 462 N.W.2d 179, 182 (N.D.1990). See also N.D.C.C. § 1-02-05. In Little v. Tracy, 497 N.W.2d 700, 705 (N.D.1993), this Court said:

Generally, the law is what the Legislature says, not what is unsaid....
It must be presumed that the Legislature intended all that it said, and that it said all that it intended to say. The Legislature must be presumed to have meant what it has plainly expressed. It must be presumed, also, that it made no mistake in expressing its purpose and intent. Where the language of a statute is plain and unambiguous, the “court cannot indulge in speculation as to the probable or possible qualifications which might have been in the mind of the legislature, but the statute must be given effect according to its plain and obvious meaning, and cannot be extended beyond it.”
City of Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653, 657 (1940) (citations omitted). Usually, when the plain meaning of a statute is apparent, it is unwise and unnecessary to delve further.

Consequently, we will not correct an alleged legislative “oversight” by rewriting unambiguous statutes to cover the situation at hand. Selzler v. Selzler, 2001 ND 138, ¶ 18, 631 N.W.2d 564. Because the challenged statutes are unambiguous, we give no deference to the Commission’s interpretation of them. See Sprynczynatyk, 2001 ND 8, ¶¶ 10-12, 621 N.W.2d 353; N.D.C.C. § 1-02-39(6).

[¶ 29] We conclude that WGFG members with unpaid credit-sale contracts with the insolvent grain buyer are “claimants” entitled to participate in the non-bond assets of the trust fund under N.D.C.C. § 60-02.1-30.

C

[¶ 30] Because WGFG members are valid claimants entitled to participate in the non-bond assets of the trust fund, the Commission is obligated to marshal the non-bond trust fund assets for their benefit under N.D.C.C. § 60-02.1-34. We express no opinion on priorities to the non-bond trust fund assets.

IV

[¶ 31] The judgment is reversed and the case is remanded.

[¶ 32] DALE V. SANDSTROM, Acting C.J., WILLIAM F. HODNY, S.J., MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

[¶ 33] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of VANDE WALLE, C.J., disqualified.

      . A trust fund is also established under N.D.C.C. ch. 60-04, which governs insolvent grain warehousemen. Section 60-04-03.1, N.D.C.C., establishes a trust fund "for the benefit of receiptholders of the insolvent warehouseman.” The categories of trust fund assets are similar to those specified in N.D.C.C. § 60-02.1-30, except that the first category consists of ‘‘[t]he grain in the warehouse of the insolvent warehouseman or the proceeds as obtained through the sale of such grain.” N.D.C.C. § 60-04-03.1(1).

        . The 58th Legislative Assembly recently passed, and the Governor signed, H.B. 1197, which amends numerous provisions of N.D.C.C. chs. 60-02.1 and 60-04, and creates a new chapter concerning credit-sale contracts. See 2003 N.D. Sess. Laws ch. 548. Section 3 of the bill amends N.D.C.C. § 60-02.1-30 to replace the term "claimants" with "noncredit-sale receiptholders.” Sections 4, 5, 6, 7, and 8 of the bill amend N.D.C.C. §§ 60-02.1-31, 60-02.1-32, 60-02.1-33, 60-02.1-34, and 60-02.1-35, respectively, to replace reference to "claimants” with "receipt-holders.” Section 11 of the bill amends N.D.C.C. § 60-04-03.1 to add "noncredit-sale” before the term "receiptholders.” Section 12 of the bill creates a "credit-sale contract indemnity fund” funded by an assessment of two-tenths of one percent on the value of all grain sold in this state under a credit-sale contract. Persons are eligible to be reimbursed up to $280,000 from the fund if, after August 1, 2003, the person sells grain to a licensed warehouse or grain buyer in this state under a credit-sale contract, the warehouse or grain buyer becomes insolvent, and the warehouse or grain buyer does not fully compensate the person in accordance with the credit-sale contract.


author: SANDSTROM, Justice.

text:
    2003 ND 101
    In the Interest of I.K. South Central Human Service Center, Petitioner and Appellee, v. I.K., Respondent and Appellant.
    No. 20030131.
    Supreme Court of North Dakota.
    June 17, 2003.

      Jay A. Schmitz, Assistant State’s Attorney, Jamestown, for petitioner and appel-lee.
    Thomas E. Merrick, Jamestown, for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] I.K. appeals from a May 8, 2003, Southeast District Court order vacating an order of dismissal and discharging her from treatment, and a May 13, 2003, Southeast District Court order for continuing alternative treatment for a period of one year or until further order of the court, ordering her to keep all appointments with her psychiatrist and to take her prescribed medication. I.K. argues the district court erred in vacating its earlier order, and, because she is not a “person requiring treatment” as defined in N.D.C.C. § 25-03.1-02(11), erred in ordering continuing alternative treatment. We affirm the May 8, 2003, order vacating the earlier order as proper, and we reverse the May 13, 2003, continuing alternative treatment order because it is not supported by the evidence.

I

[¶2] On August 8, 2002, the district court, following a hearing, ordered continuing alternative treatment for I.K. to undergo outpatient treatment other than hospitalization for nine months through the South Central Human Service Center. I.K. was ordered to follow all recommended treatment and to make herself available to take all medications. She was to reside in a residential setting as directed by a prior guardianship order. On April 8, 2003, the Human Service Center petitioned for a continuing alternative treatment order. On April 28, 2003, the district court held a hearing. At the hearing, I.K. argued the Human Service Center’s petition was not filed according to N.D.C.C. § 25-03.1-22(2), which required the hearing to be scheduled within 14 days. On April 28, 2003, the district court dismissed the Human Service Center’s petition and ordered I.K. to be discharged.

[¶ 3] The Human Service Center moved to vacate the order dismissing the petition and moved for a hearing. The Human Service Center argued that N.D.C.C. § 25-03.1-22 does not govern I.K’s case; rather, the appropriate statute is N.D.C.C. § 25-03.1-31. On May 8, 2003, the district court vacated its April 28, 2003, order and scheduled a hearing for May 12, 2003.

[¶ 4] On May 12, 2003, the district court made its findings of fact, conclusions of law and order on the record. The court issued a consistent written order on May 13, ordering that the “Respondent undergo treatment other than hospitalization as follows: Keep all appointments with Dr. Yakut or a psychiatrist that replaces him or that the Respondent hires and continue to take Seroquel until May 12, 2004[,] a period of one year, or until further order of the Court.” I.K. appeals from the May 8, 2003, and May 13, 2003, orders.

[¶ 5] The district court had jurisdiction under N.D. Const, art. VI, § -8, and N.D.C.C. §§ 27-05-06, 25-03.1-03. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01, 25-03.1-29.

II

[¶ 6] I.K. contends the District Court wrongly vacated its order dismissing the petition for continuing alternative treatment and discharging her from treatment. I.K. argues the Human Service Center’s proper course of action would have been to appeal rather than to move the district court to vacate its order.

[¶ 7] A court may relieve a party from a final judgment under Rule 60(b) for the following reasons:

(i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment.

N.D.R.Civ.P. 60(b).

[¶ 8] “It is within the trial court’s discretion whether to grant or deny a motion to vacate.” Filler v. Bragg, 1997 ND 24, ¶ 9, 559 N.W.2d 225. “Absent an abuse of this discretion, we will not set aside the trial court’s decision on appeal.” Id. “A trial court abuses its discretion if it acts in an arbitrary, capricious, or unreasonable manner, or if it misinterprets or misapplies the law.” Id.

[¶ 9] The South Central Human Service Center argument relates to whether or not the district court correctly applied North Dakota’s mental health statutes in rendering its April 28, 2003, order. Because this is not a case involving a question of jurisdiction, the analysis turns to the remaining grounds for setting aside the judgment under N.D.R.Civ.P. 60(b).

[¶ 10] In Production Credit Ass’n v. Dobrovolny, we surveyed the factors to evaluate whether a trial court abuses its discretion in denying a Rule 60(b) motion, stating:

“An abuse of discretion by the trial court is never assumed and must be affirmatively established. Dvorak v. Dvorak, 329 N.W.2d 868, 870 (N.D.1983); Avco Financial Services v. Schroeder, 318 N.W.2d 910, 912 (N.D. 1982). An abuse of discretion is defined as an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Dvorak, 329 N.W.2d at 870; Avco, 318 N.W.2d at 912. A movant for relief under Rule 60(b) has a burden of establishing sufficient grounds for disturbing the finality of the judgment. Avco, id.; Gajewski v. Bratcher, 240 N.W.2d 871, 886 (N.D.1976). The moving party must also show more than that the lower court made a 'poor’ decision, but that it positively abused the discretion it has in administering the rule. Bender v. Liebelt, 303 N.W.2d 316, 318 (N.D.1981). We will not overturn that court’s decision merely because it is not the one we may have made if we were deciding the motion. [State Bank of Burleigh County Trust v.] Patten, 357 N.W.2d [239] at 242 [ (N.D.1984) ]; [State v.] Red Arrow [Towbar Sales Co.], 298 N.W.2d [514] at 516 [(N.D. 1980) ].
“A 60(b) motion is not to be used to relieve a party from free, calculated, and deliberate choices. Hefty v. Aldrich, 220 N.W.2d [840] at 846 [ (N.D.1974) ].
“A 60(b) motion is not to be used as a substitute for an appeal. Hefty, 220 N.W.2d at 846.”

415 N.W.2d 489, 491-92 (N.D.1987) (quoting First National Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 794-96 (N.D.1986)).

[¶ 11] The district court dismissed the original order for continuing alternative treatment after relying on I.K.’s argument at the hearing that the Human Service Center motion was untimely under N.D.C.C. § 25-03.1-22. The Human Service Center moved for dismissal of the April 28, 2003, order, claiming a mistake was made in the trial court’s order because it was not given notice that I.K. was moving for dismissal under N.D.C.C. § 25-03.1-22, which, it argued, was not the proper governing statute. The Human Service Center argues “surprise” under Rule 60(b)(i), claiming it was not granted an opportunity to prepare a rebuttal. On the basis of the Human Service Center’s motion contending it was not given an opportunity to prepare a rebuttal to I.K.’s argument under N.D.C.C. § 25-03.1-22, the trial court rendered its May 8, 2003, order. The record supports the claim of surprise. The district court did not abuse its discretion by vacating the April 28, 2003, order.

III

[¶ 12] I.K. contends the district court erred in ordering her to “continue to take Seroquel until May 12, 2004[,] a period of one year, or until further order of the Court.” I.K. argues this provision was included in the order even though none of the requirements of N.D.C.C. § 25-03.1-18.1 were followed, and the permissible duration of such an order was exceeded. Before a district court can order a person to be involuntarily treated with medication, four separate factors listed in N.D.C.C. § 25-03.1-18.1 must be proven by clear and convincing evidence. Interest of B.D., 510 N.W.2d 629, 632 (N.D.1994). On appeal, the Human Service Center concedes there is no evidentiary basis to order involuntary treatment with prescribed medication. We, therefore, reverse that portion of the order.

IV

[¶ 13] I.K. argues the district court erred in ordering continuing alternative treatment for her because she is not a “person requiring treatment” as defined in N.D.C.C. § 25-03.1-02(11).

[¶ 14] “The scope of our review ⅛ limited to a review of procedures, findings, and conclusions of the lower court.’ ” Interest of H.G., 2001 ND 142, ¶ 3, 632 N.W.2d 458 (quoting Interest of L.B., 452 N.W.2d 75, 77 (N.D.1990)). “The district court’s decision is to be based upon clear and convincing evidence.” Id. This Court treats the district court’s finding of clear and convincing evidence that a person requires treatment as a finding of fact, and will not set it aside unless it is clearly erroneous. Interest of J.K., 1999 ND 182, ¶ 10, 599 N.W.2d 337. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 15] “The burden of proof in commitment proceedings is on the petitioner to prove by clear and convincing evidence the respondent is a ‘person requiring treatment.’ ” Interest of H.G., 2001 ND 142, ¶ 4, 632 N.W.2d 458. “There is a presumption the respondent does not require treatment.” Id. Section 25-03.1-02(11), N.D.C.C., defines “person requiring treatment” as:

a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
a. Suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care; or
d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors.

[¶ 16] Determining whether an individual is a “person requiring treatment” is a two-step process. Interest of H.G., 2001 ND 142, ¶ 4, 632 N.W.2d 458. First, the court must find that the individual is mentally ill. Second, the court must find there is a reasonable expectation that if the person is not treated, there exists a serious risk of harm to himself, to others, or to property. Id.

[¶ 17] There is no dispute that I.K. is mentally ill. I.K. suffers from schizoaf-fective disorder, bipolar type. That a person is mentally ill, however, does not necessarily mean that he or she is a “person requiring treatment.” Interest of B.D., 510 N.W.2d 629, 631 (N.D.1994). To establish that a mentally ill person is a person requiring treatment, convincing evidence must be presented to show that left untreated, the person poses a serious risk of harm to himself, to others, or to property. Id.

[¶ 18] I.K. argues the Human Service Center has not proven by clear and convincing evidence that a serious risk of harm exists to herself, to others, or to property. She argues the testimony revealed that she is largely self-sufficient, cooperates in her treatment, and is of no harm to herself or to others.

[¶ 19] Two witnesses other than I.K. testified at the May 12, 2003, continuing treatment hearing: I.K.’s primary doctor, Ed Yabut, and her case manager from the South Central Human Service Center, Kimberly Weyer. Dr. Yabut testified I.K. has an exaggerated belief that she has a urinary tract infection and she does not believe that she has responded to the treatment and fails to acknowledge there may be nothing wrong with her. Dr. Ya-but also testified that after he examined I.K. because she complained of swelling in her hands, which would be a side effect of Seroquel, he found no objective evidence of any inflammation.

[¶ 20] Dr. Yabut testified I.K. suffers from schizoaffective disorder, which has a number of associated features. He testified, “Sometimes schizoaffective disorder patients who do not receive treatment are at increased risk for suicide, limitations in social contact, decompensation, becoming full blown psychotic, becoming depressed.” He testified that the drug I.K. is currently taking, Seroquel, controls the symptoms I.K. could have were she not on the drug, and it also has a mood stabilizing component that reduces delusional thinking.

[¶ 21] Weyer testified about an incident in 1998 when she went to I.K.’s house and knocked on the door and there was no answer. She returned sometime later and knocked again, but there was still no answer. She testified that she then noticed I.K. lying in a recliner, and she proceeded to knock. She testified that I.K’s phone was ringing but I.K. did not respond to either the knocking or the ringing, so she contacted the police. Weyer testified that a police officer had to kick the door in to gain entry to the house. She testified that I.K. was unresponsive until Weyer touched her arm, and then I.K. slowly responded.

[¶ 22] After hearing all of the evidence in the district court’s May 12, 2003, treatment hearing, the court stated:

She is taking a very minimal dose, 50 milligrams per day of Seroquel. That’s at the direction of Dr. Yabut. She would like it reduced to 25 milligrams. That’s really an issue between the doctor and the patient, and I don’t have the authority to lower that and I can’t order that.
She is in my mind very clear minded. She’s articulate, seems to me that she knows what’s going on. Some of those medical records that I looked at very briefly may be in conflict with what she believes, but it seems like she has a good understanding of her medical condition. I also get the feeling that she doesn’t really have any opposition to going to Dr. Yabut. She doesn’t have any opposition to taking Seroquel, she doesn’t have any opposition to case management, delivery of medicine. She’s got some concerns about money, but we all have that.

[¶23] We hold the district court was clearly erroneous in finding I.K. is a “person requiring treatment” as provided under section 25-03.1-02(11), N.D.C.C., and we reverse. Weyer’s and Dr. Yabut’s testimonies did not provide enough evidence to the district court to find that I.K. is a person requiring treatment. Dr. Yabut testified that in the five years that I.K. has been treated for her disorder, she has had some delusional behavior about her medical treatment, specifically regarding a urinary tract infection; however, he also testified that he was aware of one doctor in Fargo who had diagnosed her with such an infection. He testified she continues to insist that she has the infection. There was no testimony that her delusions would pose a danger to herself, to others, or to property if she were to go untreated. Dr. Yabut testified generally as to risks to persons with a disorder such as hers, but did not provide evidence specific to I.K. A general statement of what a patient with her disorder could experience is not enough to prove I.K. has a substantial likelihood of developing any of the associated risks and becoming a harm to herself, to others, or to property.

[¶ 24] Weyer’s testimony of I.K.’s behavior of disassociating herself from the world around her was depictive only of how I.K. behaved in 1998. Weyer did not testify that I.K. would revert if she were untreated. Weyer’s testimony was not descriptive of how I.K’s present behavior might indicate that she would be a harm to herself, to others, or to property if left untreated. Conversely, Weyer’s testimony discussed how I.K. has progressed since she first began treatments.

[¶ 25] No witness gave an expert opinion as to whether or not I.K. posed a serious risk of harm to herself, to others, or to property. The district court erred in finding I.K. in need of treatment. See Interest of Rambousek, 331 N.W.2d 548, 549-51 (N.D.1983).

V

[¶ 26] We affirm the district court order vacating its earlier order and reverse the district court’s May 13, 2003, order for continuing treatment.

[¶ 27] GERALD W. YANDE WALLE, C.J., WILLIAM F. HODNY, S.J., CAROL RONNING KAPSNER, and WILLIAM A. NEUMANN, JJ., concur.

[¶ 28] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of MARING, J., disqualified.


text:
    2003 ND 100
    OLANDER CONTRACTING CO., Plaintiff and Appellee, v. GAIL WACHTER INVESTMENTS, Dakota Sand and Gravel, Inc., Defendants, and The City of Bismarck, North Dakota, Defendant and Appellant.
    No. 20020330.
    Supreme Court of North Dakota.
    June 17, 2003.
    Rehearing Denied July 16, 2003.

      David J. Hogue (appeared), Pringle & Herigstad, P.C., Minot, N.D., and Marvin T. Fabyanske, Fabyanske, Westra & Hart, Minneapolis, MN, for plaintiff and appel-lee.
    Randall J. Bakke, Smith Bakke Oppe-gard Porsborg Wolf, Bismarck, N.D., for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] The City of Bismarck (“Bismarck”) appealed an amended judgment that, among other things, awarded Olander Contracting Co. (“Olander”) interest under the prompt payment statute, N.D.C.C. ch. 13-01.1. We conclude the addition of prompt payment interest was not available to Olander under N.D.R.Civ.P. 60(b) after our decision in an earlier appeal became final. We reverse and remand for entry of judgment.

I

[¶ 2] Olander sued Gail Wachter Investments and Bismarck for damages for extra work it claimed it was required to perform to complete a water and sewer construction contract. The jury found Olander performed extra or unforeseen work, for which Bismarck was required to compensate it in the amount of $220,849.67. Bismarck appealed the judgment, and Olander cross-appealed, contending the trial “court erred in interpreting and applying this State’s prompt payment statute in N.D.C.C. ch. 13-01.1.” Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶6, 643 N.W.2d 29 (“Olander ”).

[¶ 3] Section 13-01.1-01, N.D.C.C., provides in part:

Every state agency, political subdivision, or school district, which acquires property or services pursuant 'to a contract with a business shall pay ... if no date for payment is specified by contract, within forty-five days after receipt of the invoice.

Section 13-01.1-02, N.D.C.C., provides for interest on overdue payments. Section 13-01.1-03, N.D.C.C., provides for compounding interest. Section 13-01.1-05, N.D.C.C., provides the chapter is inapplicable when there is a dispute:

If the agency or business fails to timely pay interest as required by sections 13-01.1-02 and 13-01.1-06 and the failure is the result of a dispute ... over the amount due or over compliance with the contract, the provisions of this chapter are inapplicable. If the settlement of a dispute is found in favor of the business, ..., interest must accrue and be paid as provided in section 13-01.1-03.

[¶ 4] In Olander, at ¶¶ 46^47, we disagreed with the trial court’s conclusion that N.D.C.C. ch. 13-01.1 does not apply in this case because the dispute was ended by judgment rather than by “settlement,” and we construed N.D.C.C. ch. 13-01.1:

We construe N.D.C.C. § 13-01.1-05 to mean that N.D.C.C. ch. 13-01.1 is inapplicable while there is a reasonable dispute between the agency and the business over the. amount due or over compliance with the contract. However, once a “settlement of a dispute is found in favor of the business,” which implies a decision-making process about the amount due or compliance with the contract, then interest accrues and is payable in accordance with N.D.C.C. ch. 13-01.1 from that point.

Olander, 2002 ND 65, ¶ 47, 643 N.W.2d 29. Although we disagreed with the trial court’s analysis of the prompt payment statute, we affirmed the judgment, which did not include interest under the prompt payment statute.

[¶ 5] Bismarck, the appellant in Olan-der, petitioned for rehearing. Olander, the cross-appellant in Olander, did not petition for rehearing. We denied Bismarck’s petition for rehearing. After our decision in Olander became final, Olander filed a motion to tax appeal costs or amend the judgment to include interest under the prompt payment statute. Recognizing it had made a' mistake in construing the prompt payment statute, the trial court, relying on N.D.R.Civ.P. 60(b), granted the motion to amend the judgment to include prompt payment interest from the date of the jury verdict.

[¶ 6] Bismarck appealed, contending (1) Olander was not entitled to prompt payment interest, because this Court affirmed the original judgment, which did not include prompt payment interest; (2) interest did not begin to accrue until Bismarck had exhausted its right of appeal; and (3) Olander’s motion was untimely.

II

[¶ 7] Rule 60(a), N.D.R.Civ.P., provides “[clerical mistakes in judgments ... may be corrected by the court.” For other matters, N.D.R.Civ.P. 60(b) provides “the court may relieve a party ... from a final judgment” for any of six reasons:

(i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation; or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment.

[¶ 8] “A trial court’s decision on a Rule 60(b) motion for relief is within the trial court’s sound discretion and will not be overturned absent an abuse of discretion.” Follman v. Upper Valley Special Educ. Unit, 2000 ND 72, ¶ 10, 609 N.W.2d 90 (citing Grinaker v. Grinaker, 553 N.W.2d 204, 207 (N.D.1996)). “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law.” Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., 2003 ND 50, ¶ 51, 658 N.W.2d 363.

[¶ 9] The catch-all clause in N.D.R.Civ.P. 60(b)(vi) gives the court “a grand reservoir of equitable power to do justice in a particular case.” Compton v. Alton Steamship Co., Inc., 608 F.2d 96, 106 (4th Cir.1979) (citations omitted) (construing Rule 60(b)(6), F.R.Civ.P.). We have recognized “N-D.R.Civ.P. 60(b)(vi) provides the ultimate safety valve to avoid enforcement by vacating the judgment to accomplish justice.” Kopp v. Kopp, 2001 ND 41, ¶ 10, 622 N.W.2d 726.

[¶ 10] However, N.D.R.Civ.P. 60(b) does not have an unlimited reach. “Rule 60(b) is not a substitute for an appeal.” Follman, 2000 ND 72, ¶ 10 n. 3, 609 N.W.2d 90. Rule 60(b) may not be used to reheve a party from free, calculated, and deliberate choices. Id. at ¶ 11. “[Jjudgments on the merits of a dispute, once rendered by this Court on appeal, after becoming final, should be set aside under Rule 60(b) only in exceptional circumstances where the application of equitable principles demands that such an extraordinary remedy be used to prevent an injustice from occurring.” Gajewski v. Bratcher, 240 N.W.2d 871, 887 (N.D.1976). This Court has held, N.D.R.Civ.P. 60(b) can be used to relieve a party from a judgment by vacating it, but cannot be used to award additional affirmative relief:

However, while a prior judgment may be set aside upon a N.D.R.Civ.P. 60(b) motion for relief from judgment, N.D.R.Civ.P. 60(b) may not be used to impose further affirmative relief in addition to that already contained in the prior judgment. McKenzie County Soc. Serv. Bd. v. C.G., 2001 ND 151, ¶ 20, 633 N.W.2d 157. The only relief available under Rule 60(b) is merely to set aside a judgment. Id.

Bender v. Beverly Anne, Inc., 2002 ND 146, ¶ 19, 651 N.W.2d 642.

[¶ 11] As we noted in Olander, at ¶ 47 n. 2, the parties did not focus on the question of when the dispute was resolved for the accrual of interest in accordance with N.D.C.C. ch. 13-01.1. Thus, Olander did not establish the point from which prompt payment interest would run. We also did not establish that date. Nor did we reverse and remand for a determination of the proper date. Instead, we affirmed the judgment, which did not include prompt payment interest, and that judgment became final. We conclude additional affirmative relief beyond that contained in the judgment we affirmed in Olander is not available to Olander under N.D.R.Civ.P. 60(b), and the trial court abused its discretion in adding prompt payment interest to the judgment we affirmed in Olander.

Ill

[¶ 12] The amended judgment is reversed, and the matter is remanded for entry of judgment in accordance with our decision in Olander.

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


author: GILBERTSON, Chief Justice.

text:
    2003 SD 52
    AUTO OWNERS INSURANCE COMPANY, Plaintiff and Appellee, v. ENTERPRISE RENT-A-CAR COMPANY-MIDWEST, Defendant and Appellant.
    No. 22588.
    Supreme Court of South Dakota.
    Considered on Briefs March 24, 2008.
    Decided May 14, 2003.
    Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Robert C. Riter, Jr. of Riter, Mayer, Hofer, Wattier & Brown Pierre, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Auto-Owners Insurance Company (Auto-Owners) is the insurer of the operator of a rental car that was involved in a collision. Auto-Owners brought a declaratory judgment action to determine whether it or Enterprise RenL-A-Car (Enterprise) had the duty to provide primary coverage on a vehicle that was operated by one of Enterprise’s customers. The circuit court determined Enterprise had the primary obligation to defend and indemnify. Enterprise appeals and we affirm.

FACTS AND PROCEDURE

[¶ 2.] Enterprise is an automobile rental company, which is licensed and authorized to conduct business in the state of South Dakota. It is registered as a foreign corporation in this state. Enterprise is self-insured and has filed a Certificate of Self-Insurance in the state of South Dakota.

[¶ 3.] William Leopard (Leopard), a resident of South Dakota, rented an automobile from Enterprise on August 17, 2000 in Omaha, Nebraska. Leopard signed a rental agreement that contained the following clause:

Owner does not provide, extend, or afford any insurance coverage to renter, passenger or authorized operator through this agreement. Owner’s financial responsibility is expressly limited to those applicable provisions of the motor vehicle financial responsibility laws of the state in which the vehicle is operated. Renter assumes full responsibility for any damage to, destruction, or loss of property transported by or in the rented vehicle. If there is other valid and collectible automobile liability protection or insurance on any basis available to renter or any other person, and if such protection or insurance satisfies the financial responsibility laws, then no liability protection is afforded by owner. However, if renter is in compliance with the terms and conditions of this agreement and if owner is determined by law to provide liability protection to any renter or authorized driver, such liability protection shall be limited to the minimum financial responsibility limits of the state in which the vehicle is operated.

[¶ 4.] The rental agreement also contained a “Renters Indemnity Provision.” This provision stated:

Upon demand from owner, renter agrees to defend, indemnify and hold owner harmless from all losses, liabilities, damages, injuries, claims, demands, costs and expenses incurred by owner in any manner from this rental transaction or from the use, operation of the rental car by any party, including claims of, or liabilities to, third parties, and agrees to present such a claim to their insurance carrier for all such expenses. If renter has no insurance to cover such events or losses, renter agrees to pay owner for such losses.

[¶ 5.] Ten days later, while Leopard was driving the rental car in Sioux Falls, South Dakota, he was - involved in a ear accident. A civil action for personal injuries was brought against Leopard by the occupants of the other car.

[¶ 6.] Leopard has automobile insurance with Auto-Owners. In the policy that Auto-Owners issued to Leopard, was a clause that provided that liability coverage extended to damages assumed in a “private passenger automobile lease or rental agreement.” Auto-Owners ultimately provided the defense to the civil action after Enterprise denied coverage. Thereafter, a declaratory action was brought by Auto-Owners against Enterprise to determine whether a Certificate of Self-Insurance on a motor vehicle owned by Enterprise requires Enterprise to provide defense and indemnification to Leopard. Both parties filed motions for summary judgment. The circuit court granted Auto-Owners’ motion, finding that despite the language of the rental agreement, Enterprise was responsible for the minimum limits of $25,000/$50,000 as a self-insurer. Therefore, Enterprise owed the primary duty to defend and indemnify Leopard. Enterprise appeals raising the following issue:

Whether Enterprise’s rental agreement, which states it does not have the primary duty to defend and indemnify, violates South Dakota’s insurance statutes.

STANDARD OF REVIEW

[¶ 7.] The trial court’s legal conclusions regarding insurance contract interpretation and statutory construction are reviewed under the de novo standard. Auto-Owners Ins. Co., v. Hansen Housing, Inc., 2000 SD 13, ¶ 10, 604 N.W.2d 504, 509 (citing National Farmers Union Property and Cas. Co., v. Universal Underwriters Ins. Co., 534 N.W.2d 63, 64 (S.D.1995)). When an insurance company relies on a contract exclusion to foreclose coverage, “ ‘the insurer has the burden of proving that the exclusion applies.’ ” Auto-Owners, 2000 SD 13, ¶ 10, 604 N.W.2d at 509 (citation omitted).

ANALYSIS AND DECISION

[¶ 8.] Enterprise first argues that since the rental agreement was executed in Nebraska, that state’s law should apply. However, the rental contract, which was prepared by Enterprise, explicitly states:

Owner’s financial responsibility is expressly limited to those applicable provisions of the motor vehicle financial responsibility laws of the state in which the vehicle is operated, (emphasis added.)

It is undisputed that the auto accident occurred in South Dakota. Therefore, under the plain words of the rental agreement, South Dakota’s law applies.

[¶ 9.] The next step in our analysis is looking to the applicable state statutes. SDCL 32-35-70 was enacted in 1986 and requires all motor vehicle owners to maintain proof of financial responsibility. This statute provides:

An owner’s policy of liability insurance referred to in § 32-35-68 shall insure the person named therein and any other person as insured, using any insured vehicle or vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle or vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interests and costs, with respect to each insured vehicle, as follows: twenty-five thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, fifty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and twenty-five thousand dollars because of injury to or destruction of property of others in any one accident. If the policy complies with the filing and form requirements of Title 58 and has been approved by the Division of Insurance, the driver and owner have complied with this chapter. The policy may exclude liability coverage if the policyholder certifies in writing that the vehicle will not be operated during the policy period. The policy may exclude or limit coverage pursuant to § 58-11-9.3, or for a relative residing in the named insured’s household. Policies issued after January 1, 1987, and owners who have purchased such policies are in compliance with this chapter. Date of compliance does not affect any pending litigation.

This statute clearly requires that an automobile owner provide coverage for those who use the vehicle with either express or implied permission. It is undisputed that Leopard entered into a rental agreement for the use of one of Enterprise’s vehicles in exchange for a fee.

[¶ 10.] Moreover, Enterprise as a self-insured company, pursuant to SDCL 32-35-90, filed a self-insurance certificate with the state of South Dakota. We stated in National Farmers Union Property and Casualty Co. v. Bang, 516 N.W.2d 313, 317 (S.D.1994):

The sole purpose of self-insurance is to relieve self-insurers of the burden of expending their assets on insurance premiums; self-insurance is not a means by which self-insurers may avoid the claims of those individuals for whose protection the insurance laws have been enacted.

(quoting Modesta v. Southeastern Pa. Transp. Auth., 503 Pa. 437, 441-42, 469 A.2d 1019, 1022 (1983)). Furthermore, under SDCL 32-35-113, South Dakota’s financial responsibility statute, if a company receives a certifícate of self-insurance, it “will pay the same amounts that an insurer would have been obligated to pay under an owner’s motor vehicle liability policy if it had issued such a policy to said self-insurer.”

[¶ 11.] Auto-Owners assert that the use of the words “owner’s policy” in the above statute “clearly contemplates the requirements of an owner’s policy” as defined in SDCL 32-35-70. Under that statute, Enterprise would be primarily responsible for coverage for a permissive user of one of its automobiles. We agree with Auto-Owners’ argument. As we stated in Bang, because those who self-insure are obligated to pay the same amount it would be obligated to pay under a motor vehicle liability policy, “self-insurers in South Dakota must provide ... coverage for motor vehicle liability.” 516 N.W.2d at 317.

[¶ 12.] Enterprise next argues that the language of its rental agreement is valid and not contrary to South Dakota’s public policy. In Cimarron Insurance Co. v. Croyle, we held that a “household exclusion” clause in an automobile insurance policy, which conflicted with SDCL 32-35-70, was void to the extent of the mandated minimum coverage. 479 N.W.2d 881, 885 (S.D.1992). After we issued that decision, the legislature immediately amended SDCL 32-35-70 to allow insurance companies to issue liability policies with “household exclusions.” See, e.g., DeSmet Ins. Co. of South Dakota v. Gibson, 1996 SD 102, ¶ 6, 552 N.W.2d 98, 99.

[¶ 13.] The above statutes support a strong public policy consideration. We have previously stated:

We note that placing primary coverage on the owner’s insurer is nothing new. In fact, the general rule is that primary liability is placed -with the insurer of the owner of the vehicle involved in an accident, rather than on the insurer of the operator. [The Insurer] cannot claim an overriding public policy to the contrary.

Union Ins. Co., v. Farmland Ins., Co., 389 N.W.2d 820, 822 (S.D.1986) (internal citations omitted). In Hertz Corp. v. State Farm Mutual Insurance Co., 573 N.W.2d 686, 691 (Minn.1998), the Minnesota Supreme Court held that Hertz, the rental car company’s insurance was primary to the operator’s insurance. That court stated, “Hertz’s self-insurance must provide liability coverage for damages caused by the use of vehicles it owns and offers for rent.” Id. Likewise, we hold that Enterprise is responsible for insuring its rental vehicles.

[¶ 14.] If we were to hold that Enterprise could validly contract itself out of providing insurance for the vehicles that it rents, this would in effect mean that the rules that apply to other owners of automobiles regarding liability would not apply to Enterprise. Enterprise enjoys self-insured status in South Dakota and as such, does not have to pay premiums for insurance, like other auto-owners. South Dakota has made clear that those who choose to self-insure are held to the same duties as those who do not.

[¶ 15.] For the foregoing reasons, we hold that Enterprise must provide primary liability coverage for its vehicles that it owns and leases to customers. In accord with SDCL 32-35-70, Enterprise is responsible for coverage up to the mandatory minimum amounts. Affirmed.

[¶ 16.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.