author:
MARING, Justice. McCULLOUGH, District Judge,
      SANDSTROM, Justice,

text:
    2008 ND 78
    Robert N. HAUGENOE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Earl’s Electric, Respondent.
    No. 20070099.
    Supreme Court of North Dakota.
    April 22, 2008.

      Paul A. Sortland, Minneapolis, MN, for claimant and appellant.
    Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, N.D., for appellee.
   MARING, Justice.

[¶ 1] Robert Haugenoe appeals from a district court judgment affirming an agency order granting Workforce Safety and Insurance (“WSI”) a subrogation interest in a legal malpractice settlement. The legal malpractice action concerned Hauge-noe’s attorney’s failure to properly prosecute a medical malpractice claim related to a physician’s aggravation of a work-related injury suffered by Haugenoe. Haugenoe asserts that N.D.C.C. § 65-01-09, the sub-rogation provision of the workforce safety and insurance law, does not grant WSI a subrogation interest in the legal malpractice settlement. We agree. We hold that N.D.C.C. § 65-01-09 does not grant WSI a subrogation interest in an injured worker’s legal malpractice claim against a third-party tortfeasor. We, therefore, reverse the order of WSI and the district court judgment.

I

[¶ 2] Robert Haugenoe suffered a work-related injury in May 1999 while employed by Earl’s Electric in Williston. He filed a claim for WSI benefits, and WSI accepted the claim. Haugenoe retained a lawyer to represent him in a medical malpractice lawsuit after he concluded that his physician had failed to properly treat his injury. As part of Haugenoe’s representation, his lawyers agreed with WSI to represent its statutory subrogation interest in any damages recovered from the physician.

[¶ 3] Haugenoe’s attorneys failed to properly prosecute his claims against the physician, and a significant part of his claims against the physician were dismissed. Haugenoe retained other legal counsel to represent him for the prosecution of his remaining claims against the physician and for the prosecution of any claims against his former lawyers. Hau-genoe settled his legal malpractice claims against his former lawyers. After Hauge-noe settled the legal malpractice claims, WSI issued an order asserting it had a subrogation interest in the settlement.

[¶4] Haugenoe requested a rehearing of WSI’s order asserting a subrogation lien in the legal malpractice settlement. An administrative hearing followed. The administrative law judge (“ALJ”) recommended on November 15, 2006, that WSI had a subrogation interest in the legal malpractice damages recovered by Hauge-noe. WSI issued its final order on December 13, 2006. WSI’s final order adopted the ALJ’s recommended findings, conclusions, and order in their entirety except for one conclusion of law, which was stricken. Haugenoe appealed. The district court affirmed WSI’s final order. Hauge-noe appeals to this Court, arguing N.D.C.C. § 65-01-09 does not grant WSI a subrogation interest in his legal malpractice settlement.

II

[¶ 5] On appeal from a district court judgment in an appeal from an agency order, we review the agency order in the same manner as the district court. N.D.C.C. § 28-32-49. A district court must affirm the order of an administrative agency unless the district court determines that any of the following are present:

1. The order is not in accordance with the law.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its finding of fact.

N.D.C.C. § 28-32-46. We do not make independent findings of fact or substitute our judgment for that of the administrative agency. Aga v. Workforce Safety and Ins., 2006 ND 254, ¶ 12, 725 N.W.2d 204. We determine only “whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.” Id.

[¶ 6] Questions of law are fully reviewable on appeal from an administrative order. Forbes v. Workforce Safety and Ins., 2006 ND 208, ¶ 10, 722 N.W.2d 536. Questions of statutory interpretation are questions of law. Rojas v. Workforce Safety and Ins., 2006 ND 221, ¶ 13, 723 N.W.2d 403. “Unless otherwise provided, statutes in effect on the date of an injury govern WSI benefits.” Rodenbiker v. Workforce Safety and Ins., 2007 ND 169, ¶ 16, 740 N.W.2d 831. Thus, the Workforce Safety and Insurance statute in effect in May 1999 governs Haugenoe’s benefits and provides the statutory provisions relevant to our consideration of this case.

Ill

[¶ 7] This case presents a question of first impression for this Court, resolution of which requires us to interpret N.D.C.C. § 65-01-09, the statutory provision subro-gating WSI to injured workers’ recoveries against certain third parties. The particular issue we address is whether WSI is subrogated to an injured worker’s cause of action against an attorney for legal malpractice in prosecuting a medical malpractice action against a physician who aggravated the worker’s injury.

[¶ 8] Our primary objective in statutory interpretation is to determine the legislature’s intent. Rojas, 2006 ND 221, ¶ 13, 723 N.W.2d 403. To determine the legislature’s intent, we look at the language of the statute itself and give it its plain, ordinary, and commonly understood meaning. Overboe v. Farm Credit Services, 2001 ND 58, ¶ 9, 623 N.W.2d 372. “Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute.” Id. We harmonize statutes when possible to avoid conflict between them. Rojas, 2006 ND 221, ¶ 13, 723 N.W.2d 403. Our interpretation of a statute “must be consistent with legislative intent and done in a manner which will accomplish the policy goals and objectives of the statutes.” Id. “We presume the Legislature did not intend an unreasonable result or unjust consequence.” Id.

[¶ 9] The purpose of our workforce safety and insurance law is to provide “sure and certain relief’ to injured workers “regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation.” N.D.C.C. § 65-01-01. In turn, the law abolishes “all civil actions and civil claims for relief for those personal injuries” suffered by injured workers. Id. While the law relieves employers from liability for the workers’ work-related injuries, it does not reheve third-party tortfeasors from liability for such injuries. See Polucha v. Landes, 60 N.D. 159, 233 N.W. 264, 269 (1930). Instead, it “expressly provides measures for realizing upon that liability, both in the interest of making the fund whole on account of the award and in the interest of the employee.” Id.

[¶ 10] The statute allows WSI to realize upon the liability of third-party tortfeasors through its subrogation provision. See id. Section 65-01-09, N.D.C.C., grants WSI a subrogation interest in injured workers’ recoveries against certain third parties:

When an injury or death for which compensation is payable under provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee, or the employee’s dependents may claim compensation under this title and proceed at law to recover damages against such other person.

N.D.C.C. § 65-01-09 (1999). WSI’s sub-rogation rights are intended “to reimburse the fund, to the extent possible, at the expense of the persons at fault.” Blaskowski v. N.D. Workmen’s Comp. Bureau, 380 N.W.2d 333, 335 (N.D.1986). The legislature intended this provision to create an incentive for workers to pursue and litigate third-party claims. Lawson v. N.D. Workmen’s Comp. Bureau, 409 N.W.2d 344, 347 (N.D.1987).

[¶ 11] We already established in Polu-cha, 60 N.D. 159, 233 N.W. 264, that an injured worker is entitled to benefits for the aggravation of his work-related injury due to the mistake of a physician which occurs in the course of treating the injury. See id. at 268. We also established that WSI is subrogated to an injured worker’s cause of action against a physician for aggravation of a work-related injury occasioned by the physician’s malpractice. See id. at 269. Like the 1999 version of the WSI subrogation statute, the then-applicable version of the WSI subrogation statute provided that WSI was granted a subrogation interest in injured workers’ recoveries against third parties “ ‘[w]hen an injury or death for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the North Dakota workmen’s compensation fund a legal liability to pay damages in respect thereto....’” See id. (quoting Section 396a20 of the 1925 Supplement to the Compiled Laws of 1913). We held that the subrogation provision “subrogates the fund to any cause of action against a third person for a compen-sable injury.” Polucha, 233 N.W. at 269. We reasoned that “the injury, if any, caused by the malpractice of the physician is regarded as resulting from the original injury and is compensable under the law.” Id.

[¶ 12] Now we must determine whether WSI’s statutory subrogation interest also extends to an injured worker’s cause of action against an attorney for the attorney’s failure to properly prosecute a medical malpractice claim against a physician whose treatment of the injured worker aggravated the worker’s injury. The conclusions reached by other courts that have considered this issue are decidedly mixed. Some have held that the workers’ compensation insurer is entitled to a subrogation interest in legal malpractice proceeds. See Frazier v. N.J. Mfrs. Ins. Co., 142 N.J. 590, 667 A.2d 670 (1995); Williams v. Katz, 23 F.3d 190 (7th Cir.1994) (interpreting Illinois law); Nicholas v. Morgan, 58 P.3d 775 (Okla.2002); Tallerday v. Delong, 68 Wash.App. 351, 842 P.2d 1023 (1993); Graham v. Liberty Mut. Group, 1998 WL 961376 (E.D.Pa. Dec.15, 1998); Poole v. Workers’ Comp. Appeal Bd., 570 Pa. 495, 810 A.2d 1182 (2002); Toole v. EBI Cos., 314 Or. 102, 838 P.2d 60 (1992); Bongiorno v. Liberty Mut. Ins. Co., 417 Mass. 396, 630 N.E.2d 274 (1994). Others have held that the insurer is not entitled to such proceeds. See Head v. Continental Casualty Co., 931 So.2d 1192 (La.Ct.App.2006); ATS, Inc. v. Listenberger, 111 S.W.3d 495 (Mo.Ct.App.2003); Mosier v. Warren E. Danz, P.C., 302 Ill.App.3d 731, 235 Ill.Dec. 823, 706 N.E.2d 83 (1999); Eastman v. Messner, 302 Ill.App.3d 526, 236 Ill.Dec. 204, 707 N.E.2d 49 (1998); Woodward v. Pratt, Bradford & Tobin, P.C., 291 Ill.App.3d 807, 226 Ill.Dec. 32, 684 N.E.2d 1028 (1997); Sladek v. K Mart Corp., 493 N.W.2d 838 (Iowa 1992); Smith v. Long, 178 Wis.2d 797, 505 N.W.2d 429 (1993); In re Worker’s Comp. Lien, 231 Mich.App. 556, 591 N.W.2d 221 (1998); Va. Municipal Group Self-Ins. Assn. v. Crawford, 2004 WL 3132010 (Va.Cir.Ct. Nov.24, 2004); Travelers Ins. Co. v. Bree se, 138 Ariz. 508, 675 P.2d 1327 (Ct.App.1983); Fink v. Dimick, 179 F.Supp. 354 (D.Conn. 1959); Mt. Pleasant Special Sch. Disk v. Gebhart, 378 A.2d 146 (Del.Ch.1977); Soliz v. Spielman, 44 Cal.App.3d 70, 118 Cal. Rptr. 127 (1974).

IV

[¶ 13] Haugenoe asserts that WSI does not have a subrogation interest in the legal malpractice settlement. He contends N.D.C.C. § 65-01-09 does not give WSI a lien over his legal malpractice settlement award because there is no compensation payable for legal malpractice under Title 65, N.D.C.C. Moreover, Haugenoe asserts the benefits WSI paid him were not for harm suffered because of Haugenoe’s attorney’s negligence.

[¶ 14] Haugenoe insists that WSI only obtains a lien when the third party at issue has liability relating to the worker’s physical injury. Haugenoe contends that his former attorney was liable for his failure to pursue the medical malpractice claim, which is separate from the compensable physical injury suffered by Haugenoe. Haugenoe further argues that the obligation of the attorney arose separately from and subsequent to the third-party tortfeasor physician’s obligation to compensate Haugenoe for aggravating his physical injury.

[¶ 15] WSI argues that it has a statutory subrogation interest in the legal malpractice settlement award. WSI contends the purpose of statutorily granting WSI subrogation rights in injured employees’ damage awards arising from third-party actions is to reimburse the WSI fund at the expense of the persons at fault. WSI argues that the term “legal liability” should be broadly construed.

[¶ 16] WSI contends it is not necessary for settlement damages to arise out of the initial work injury or an aggravation of the initial physical injury before WSI can assert a subrogation interest in the damages. WSI asserts it should have a subrogation interest in the damages Haugenoe recovered from his attorney because those damages are the same as the damages he would have recovered from the physician that aggravated his work-related injury had the lawyer not been negligent. This argument relies on an application of the “case-within-a-case” doctrine.

[¶ 17] The “case-within-a-case” doctrine provides that ‘“a legal malpractice claimant must prove two claims: first, the one that was lost, and also that his attorney’s negligence caused that loss.’ ” Dan Nelson Construction, Inc. v. Nodland & Dickson, 2000 ND 61, ¶ 14, 608 N.W.2d 267 (citation omitted). The implication is that, in order to succeed in the legal malpractice action, “the employee must demonstrate not merely an injury as a result of the malfeasance of his previous counsel, but also the malfeasance of the original tortfeasor which resulted in the underlying injury.” Poole, 810 A.2d at 1184. Other courts have held that an insurer may rely upon the injured worker’s legal malpractice action to fulfill any subrogation statute requirement that the compensable injury be caused by a third party. See, e.g., id. at 1185.

V

[¶ 18] We hold that N.D.C.C. § 65-01-09 does not grant WSI a subrogation interest in an injured worker’s legal malpractice claim against an attorney who committed malpractice in handling the injured worker’s claim against a third-party tortfeasor. Thus, WSI does not have a subrogation interest in Haugenoe’s legal malpractice settlement award.

[¶ 19] The plain language of N.D.C.C. § 65-01-09 (1999) creates a condition precedent to WSI’s subrogation. WSI is sub-rogated to the rights of the injured employee only “[w]hen an injury or death for which compensation is payable under provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto.” Id. In Polucha, we interpreted this provision as subrogating the fund to “any cause of action against a third person for a compensable injury.” 233 N.W. at 269 (emphasis added).

[¶20] “Compensable injury” is a defined term under title 65, N.D.C.C. A “compensable injury” is an “injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings.” N.D.C.C. § 65-01-02(11) (1999). The statute lists numerous types of injuries that do and do not constitute “compensable injuries” under the statute. See id. The import of these lists is that only physical injuries suffered by workers in the course of their employment while conducting lawful activities and caused by the employment are compensable under the statute. See id.

[¶ 21] Although an injured worker is required by the case-within-a-case doctrine to demonstrate the malfeasance of the original tortfeasor resulting in the worker’s underlying injury in order to recover damages in a legal malpractice claim, the injured worker’s claim against his attorney is unlike an injured worker’s underlying third-party claim. As a Missouri appellate court noted, a physical injury is “distinguishable from the strictly economic loss compensated by a legal malpractice claim.” See ATS, Inc., 111 S.W.3d at 499. We will not ignore the language of the subrogation statute and grant WSI a subrogation interest in a legal malpractice claim simply because a legal malpractice plaintiff is required to satisfy this standard of proof.

[¶ 22] Moreover, an injured worker’s claim against Ms attorney is independent to the initial third-party claim in which WSI is granted a subrogation interest. The worker’s claim against the attorney would not have arisen except for the worker’s hiring of an attorney. As a California appellate court remarked, if an employee is not liable to a workers’ compensation insurer for not pursuing a claim against a third-party tortfeasor, then he is not liable where his failure to prosecute a claim was due to the negligence of an attorney. See Soliz, 118 Cal.Rptr. at 128.

[¶ 23] Our holding does not deny WSI a remedy for damages suffered as a result of an attorney’s malpractice in the prosecution of a claim against a third-party tortfeasor. WSI is free to assert its own claim against an attorney who has committed malpractice while representing WSI’s subrogation interest.

VI

[¶ 24] Here, the condition precedent to WSI’s subrogation was not met because Haugenoe did not recover from a third party who caused or aggravated his physical injury. Rather, Haugenoe’s recovery is from an attorney who had nothing to do with his physical injury. The damage suffered by Haugenoe as a result of his attorney’s legal malpractice is not a “compensa-ble injury.” Once Haugenoe’s attorney failed to properly prosecute his medical malpractice claim, he was forever barred from recovering from the physician for the aggravation of his compensable injury; thus, there is no possibility of a literal application of the subrogation statute to his legal malpractice settlement. Hauge-noe recovered for the loss of a legal right, not a physical injury as contemplated by the statute.

[¶ 25] We, therefore, hold that WSI does not have a subrogation interest in Haugenoe’s legal malpractice settlement.

VII

[¶ 26] In the alternative, Haugenoe argues that his settlement with his attorney was structured in a manner that exempted the settlement award from any subrogation interest WSI may have in the award. Haugenoe further argues that, even if WSI has a subrogation interest, WSI waived that interest by not participating in the legal malpractice action. We do not reach these issues because we hold that N.D.C.C. § 65-01-09 does not grant WSI a subrogation interest in the legal malpractice settlement.

VIII

[¶ 27] We hold that N.D.C.C. § 65-01-09 does not grant WSI a subrogation interest in an injured worker’s legal malpractice claim against an attorney who committed malpractice in handling the injured worker’s claim against a third-party tort-feasor. We, therefore, reverse the order of WSI and the district court judgment.

[¶ 28] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., concur.

[¶ 29] The Honorable STEVEN E. McCullough, d.j., sitting ⅛ place of CROTHERS, J., disqualified.

McCULLOUGH, District Judge,

concurring.

[¶ 30] I must respectfully only concur in the result reached in the majority opinion.

[¶ 31] As the majority correctly notes, this case involves the issue of whether WSI has a subrogation interest in Hauge-noe’s legal malpractice settlement. The starting point for this analysis is section 65-01-09 of the North Dakota Century Code. This statute grants WSI a subrogation interest in a covered worker’s recovery from a third party for a compensable injury. N.D.C.C. § 65-01-09. The Code defines “compensable injury,” in part, as follows:

“Compensable injury” means an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical fundings.

N.D.C.C. § 65-01-02(10). Further, the Code provides several situations which are specifically exempted from the term “com-pensable injury.” N.D.C.C. § 65-01-02(10)(b). Thus a “compensable injury” does not include: “A nonemployment injury that, although acting upon a prior com-pensable injury, is an independent intervening cause of injury.” N.D.C.C. § 65-01 — 02(10)(b)(8). A common sense reading of this provision leads inescapably to the conclusion that a non-employment injury which is not an independent intervening cause is a “compensable injury.” If a covered worker receives a recovery from a third party for such a compensable injury, WSI may assert its subrogation interest in the recovery. I believe the majority and I are in agreement as to this general proposition. The majority and I part company, however, over how WSI erred in deciding it was entitled to a subrogation interest in Haugenoe’s legal malpractice recovery. In order to understand my difference with the majority it is important to understand the state of the record below.

[¶ 32] The Agency found Haugenoe sustained three distinct injuries in this case. The ALJ’s Recommended Findings of Fact, Conclusions of Law and Order provide, in part, that “Robert Haugenoe sustained three separate and distinct, although related injuries.” Those injuries are: 1) the injury which resulted from his initial fall; 2) the injury which resulted from the medical malpractice; and 3) the injury which resulted from the legal malpractice. The Agency then concluded, as a matter of law, that “[e]ach of those injuries is compensable within the meaning of the statute.” In so ruling, the Agency necessarily concluded, as a matter of law, that the medical malpractice was not an independent intervening cause of Haugenoe’s injuries.

[¶ 33] Haugenoe did not contest whether WSI had a right of subrogation in the proceeds of the medical malpractice settlement. Therefore, WSI’s right of subrogation in the proceeds of the medical malpractice settlement is not at issue in this appeal. The issue before this Court is solely whether WSI has a right of subrogation in the proceeds of the settlement of the third recognized injury, the legal malpractice. In my view, however, whether medical malpractice is, as a matter of law, an intervening cause is decisive as to whether WSI has a right of subrogation to the settlement proceeds from legal malpractice claim because of the ease-within-a-case doctrine. See Dan Nelson Constr., Inc. v. Nodland & Dickson, 2000 ND 61, 608 N.W.2d 267. If the Agency erred in concluding as a matter of law that the medical malpractice was not an intervening cause, and hence a compensable injury for which its right of subrogation attached, then this error taints its further legal conclusion that WSI has a right of subrogation to the legal malpractice settlement. Because I believe WSI so erred, like the majority I believe a reversal of the Agency’s decision is warranted because the Agency’s order is not in accordance with the law. See N.D.C.C. § 28-32-46(1).

[¶ 34] The majority cites Polucha v. Landes, 60 N.D. 159, 233 N.W. 264 (1930), for the proposition that as a matter of law the medical malpractice was a compensa-ble injury. The majority then concludes because the legal malpractice is not a “physical injury” it is not a compensable injury, and hence, WSI does not have a right of subrogation in the proceeds of the legal malpractice settlement. I believe concluding the medical malpractice was not an intervening cause as a matter of law is error. This error impermissibly underlies both the majority’s opinion and the Agency’s decision that it had a right of subrogation to the legal malpractice settlement proceeds. I would, therefore, reverse the Agency decision without needing to reach the issue of whether the legal malpractice is a “physical injury.”

[¶ 35] I do not believe Polucha has any continued precedential value in North Dakota. Not only do statutory enactments and decisional law cast doubt on its continued vitality, but I believe Polucha is contrary to well established common law principles in North Dakota and lacks a sufficient rationale to warrant further adherence.

[¶ 36] In order to understand the decision in Polucha it is imperative to review general common law principles related to causation. Under the common law, the issue of whether a cause of injury was intervening or superseding has always been governed by concepts of foreseeability of harm. Thus, well over a century ago, this Court explained the standard for determining the existence of an intervening cause was if the jury could “with some reasonable degree of certainty determine the question whether the result could reasonably have been expected to occur in light of the circumstances.” Boss v. Northern Pac. Ry. Co., 2 N.D. 128, 49 N.W. 655, 658 (1891). Over five decades later, this Court described this standard as follows:

The determination of whether an intervening force is the efficient cause of an injury involves a number of considerations including whether or not the intervening cause is an extraordinary one or one which might be normally expected by a reasonable person in view of the situation existing at the time of its intervention. ... The foreseeability of the act of the unknown person in this case is the crucial point of the sufficiency of the evidence.

State v. Columbus Hall Ass’n, 75 N.D. 275, 27 N.W.2d 664, 668 (1947) (citation omitted). This same standard retains its vitality today. This Court stated in 2005:

To relieve a defendant of the consequences of his negligence, an intervening cause must be both independent and unforeseeable.... The intervening negligence of another cannot be a superseding cause that extinguishes a tortfeasor’s liability if that negligence was a foreseeable consequence of the situation created by the tortfeasor.

Miller v. Diamond Resources, Inc., 2005 ND 150, ¶ 13, 703 N.W.2d 316 (citations omitted).

[¶ 37] Just as consistently, this Court has stated issues of causation and foreseeability are generally questions of fact, not matters of law. See Miller, 2005 ND 150, 703 N.W.2d 316 (in case in which defendant’s alleged negligence in obtaining mineral interest was followed by plaintiffs alleged fault in failure to independently follow statute to obtain mineral interests the court reversed a grant of summary judgment for the defendant, stating: “[t]he determination of whether certain conduct is a superseding, intervening cause is a question of fact”); Stewart v. Ryan, 520 N.W.2d 39 (N.D.1994) (in dram shop action where obviously intoxicated individual shot a police officer the court reversed a grant of summary judgment for the defendant, holding the district court erred in finding a superseding, intervening cause as a matter of law instead of submitting issue to the jury for its factual determination); Champagne v. United States, 513 N.W.2d 75 (N.D.1994) (in case in which certified question of whether a court should compare the fault of a mental health provider who had discharged a patient with the fault of the patient who then committed suicide the court stated the comparison should be made generally by the trier of fact); Jones v. Ahlberg, 489 N.W.2d 576 (N.D.1992) (in case in which police officers’ negligence in hot pursuit of suspect was followed by suspect’s erratic driving, all of which resulted in an automobile accident which injured a passenger in suspect’s vehicle, the court rejected the argument the suspect’s action constituted a superseding, intervening cause as a matter of law, instead ruling reasonable minds could differ on the foreseeability of the accident); Lang v. Wonnenberg, 455 N.W.2d 832 (N.D.1990) (in case in which upstream landowner’s actions in draining land without authorization was followed by township’s alleged negligence in raising downstream road without allowing drainage through the road the court stated the district court did not err in rejecting the contention that the act of the township was an intervening cause as a matter of law); Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334 (N.D.1983) (in case in which negligence of company supervising construction of plant was followed by alleged negligence of company operating plant before completion of construction the court found the lower court’s factual findings on foreseeability and causation were not clearly erroneous); Steckler v. Miller & Holmes, Inc., 303 N.W.2d 560 (N.D. 1981) (in case in which alleged negligence of fuel tanker company in overflowing gas station’s storage tank was combined with gas station’s negligence in maintaining cap measuring port of storage tank the court rejected the claim the fuel tanker company’s actions were an intervening cause because of the disputed factual basis underlying the issue); Brauer v. James J. Igoe & Sons Constr., Inc., 186 N.W.2d 459 (N.D. 1971) (in case in which utility company was allegedly negligent in determining placement of gas line and in efforts to notify contractor of location of gas line and where road construction contractor snagged line the court affirmed a jury verdict for the plaintiff who was injured by subsequent gas explosion, stating the issue of intervening cause was properly for jury determination because the evidence was such the jury could have reasonably found the intervening negligence to be foreseeable); Wolff v. Light, 156 N.W.2d 175 (N.D.1968) (in case in which defendant’s negligence in driving automobile through plate glass window was followed by plaintiff police officer’s attempt to knock down hanging broken glass pieces, ultimately resulting in injury to the police officer, the court reversed the entry of summary judgment in favor of the defendant, stating: “whether the conduct of the plaintiff was a sufficient intervening cause ... should be left to the jury” and “[wjhether the defendant should have foreseen the probable consequences of his negligent act ... is for a determination of the jury”); Vick v. Fanning, 129 N.W.2d 268 (N.D.1964) (in case in which plaintiff negligently operated defective truck hoist in the manner he was negligently instructed the court rejected the contention a jury verdict in favor of the plaintiff should be set aside on the basis of the alleged intervening cause of plaintiffs own actions, stating the issue as “[cjould reasonable men have drawn these conclusions from the evidence in this case”); Chicago, M., St. P. & Pac. Ry. Co. v. Johnston’s Fuel Liners, Inc., 122 N.W.2d 140 (N.D.1963) (in case involving question of whether acts of bulk fuel storage company or fuel tanker company constituted intervening cause of fire the court stated since “the evidence was such that reasonable minds could differ, the case properly was one for the jury to decide”); Gravseth v. Farmers Union Oil Co., 108 N.W.2d 785 (N.D.1961) (in case in which defendant negligently got his vehicle stuck in roadway and failed to put out warning flares behind vehicle and plaintiff subsequently ran into back of defendant’s vehicle the court rejected defendant’s argument the plaintiffs negligence was, as a matter of law, an intervening and superseding cause of injury and instead held issue was properly for jury); Olson v. Cass County Elec. Coop., 94 N.W.2d 506 (N.D.1959) (in case in which power company negligently maintained a power line and plaintiff was injured after swather he was operating ran into the guy wire of a pole and the power subsequently came into contact with the swather the court rejected an argument the plaintiff’s conduct was an intervening cause of the accident, instead after examining all of the particular circumstances involved in the case held the issue to be properly one of fact for determination by the jury); State v. Columbus Hall Ass’n, 75 N.D. 275, 27 N.W.2d 664 (1947) (in case in which negligence of property owner in locating coal shute opening near area where tenants could walk and in failing to properly maintain coal shute was followed by an unknown third party’s act of opening the coal shute into which the plaintiff fell the court held it was for the jury to determine whether the property owner could have reasonably foreseen someone might negligently or maliciously remove the coal shute lid and leave the hole an open pitfall); Boss v. Northern Pac. Ry. Co., 2 N.D. 128, 49 N.W. 655 (1891) (in case in which railroad company negligently designed, installed and maintained switch arm which struck plaintiff while he was riding on lower step of caboose because of being forced down to that step by fellow riders the court rejected the argument that since the facts were undisputed the issue of whether the other riders’ conduct was an intervening and superseding cause was properly a matter of law, stating: “[t]he action of the court in refusing to take the question of proximate cause from the jury was entirely correct”); Gram v. Northern Pac. Ry. Co., 1 N.D. 252, 46 N.W. 972 (1890) (in case in which railroad company started prairie fire and wind switched causing the fire to go onto plaintiffs property the court rejected the argument the wind switch was an intervening cause, stating it “was a matter of pure fact for the jury to decide” and “[t]he question was one about which intelligent men might reasonably and honestly differ, and therefore the trial court very properly declined to invade the province of the jury”).

[¶ 38] In contrast to this veritable mountain of cases, with all their variable fact situations, this Court has only on the most limited of occasions held an intervening cause exists as a matter of law. I am able to find only three decisions in North Dakota which create broad categories in which intervening causation is treated as a matter of law. McLean v. Kirby Co., 490 N.W.2d 229 (N.D.1992); First Trust Co. v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5 (N.D.1988); and Polucha v. Landes, 60 N.D. 159, 233 N.W. 264 (1930).

[¶ 39] Both McLean and First Trust Co. involve underlying torts which include foreseeability of the kind of future harm that came to pass as an element of the torts themselves. For example, in McLean the underlying tortious conduct of the defendant was the negligent failure to properly conduct a background check and screen a door-to-door salesman who later assaulted the plaintiff. McLean, 490 N.W.2d at 232. This Court found the inherent nature of the action precluded the application of superseding intervening cause. Id. at 242. The Court reasoned that in finding the existence of the tort the fact-finder had, by definition, already determined the latter injury-causing conduct was foreseeable. Id. (quoting Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 915-16 (Minn.1983)). Thus, for that entire type of claim, the subsequent assaultive acts of a negligently-screened salesman could not, as a matter of law, serve as an intervening cause.

[¶ 40] Similarly, in First Trust Co. the underlying tortious conduct was negligent entrustment of a dangerous weapon. First Trust Co., 429 N.W.2d at 7. Quoting Prosser & Keeton, this Court stated: “Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence.” Id. at 9 (quoting Prosser & Keeton on Torts, ch. 7, pp. 303-04 (5th ed.1984)). Thus, this Court stated upon remand the jury “should be further instructed that if there is negligent entrustment by the defendant Scheels Hardware & Sports Shop, Inc., a foreseeable misuse of the chattel by the person to whom it is entrusted cannot be a superseding cause.... ” First Trust Co., 429 N.W.2d at 9.

[¶ 41] The only other case which creates such a broad form category in which intervening cause is determined as a matter of law, and not as a matter of fact, is Polucha. Unlike, these negligent entrustment/failure to screen cases, however, the original underlying tortious conduct in Po-lucha does not carry with it an element of foreseeability. Instead of looking back to the action of the original tortfeasor, the Court looked forward to the conduct of the intervening party and made a sweeping generalization which in my mind is not now warranted, if it ever was. In order to understand this, a more detailed analysis of Polucha is warranted.

[¶ 42] In Polucha the plaintiff, Szymon Polucha, fractured his ankle while working in a mine. Polucha, 233 N.W. at 265. Mr. Polucha received compensation for his initial injuries from the Workmen’s Compensation Board. Id. A little over a year after receiving his workmen’s compensation award, Mr. Polucha commenced an action against his doctor, alleging medical malpractice in the diagnosis and treatment of, and operation for, his ankle injury. Id. The defendant doctor asserted Mr. Polu-cha had no viable claim because any such claim was “by operation of law assigned to the compensation bureau which has become subrogated to any rights” Mr. Polu-cha might have had against him. Id. The trial court excluded much of the proof offered in support of this defense and the jury returned a verdict in favor of Mr. Polucha, upon which a judgment was entered. Id. at 266. This Court reversed, finding Mr. Polucha, by receiving the workmen’s compensation award, passed any cause action against the doctor to the Board. Id. at 270. This Court thus ordered the case be dismissed. Id. at 271.

[¶ 43] In so holding, this Court analyzed the issue along lines of causation. Id. at 266. If the subsequent medical malpractice were considered an independent intervening cause then the Workmen’s Compensation Board would not be subro-gated and Mr. Polucha would be entitled to his claim for damages. Id. If, on the other hand, the subsequent medical malpractice were not an independent intervening cause then Mr. Polucha would be entitled to bring the claim, as the Board would not have had the claim assigned to it by operation of law. In making its determination this Court referred to what it believed were general principles of common law, stating: “There is no reason why one rule of causation should be applied in negligence cases at common law and another rule in compensation cases.” Id. at 267. The specific ruling of the Court on this point was stated as follows:

At common law one liable to respond in damages, as employers frequently were for personal injuries sustained by employees, is held liable in damages for the injury, including any aggravation thereof due to the mistake of the physician or surgeon selected by the injured person in the exercise of due care for the purpose of treating the injuries and thus minimizing the damages. The aggravation in such cases is not deemed to be the fault of the injured person, but is regarded in law as a consequence of the original fault of the defendant. It is, therefore, not such an independent, intervening act of a third party as to break the chain of causation between the primary injury and the ultimate consequence or result.

Id. at 266 (emphasis added). In support of this ruling, the Court cited several cases from other jurisdictions and one North Dakota decision. See Pyke v. City of Jamestown, 15 N.D. 157, 107 N.W. 359 (1906).

[¶ 44] While the cases from the other jurisdictions may have supported the proposition that subsequent malpractice may be categorically considered intervening causation (therefore negating the need for any factual analysis of foreseeability), the decision in Pyke did not. In Pyke the plaintiff had been injured after falling on a defective city sidewalk. Id. at 359. The jury found in the plaintiffs favor. Id. The City of Jamestown appealed, claiming it was error for the trial court to refuse to hold, as a matter of law, that the cause of the injury was the intervening act of the plaintiffs own negligence. Id. at 363. This Court restated the general rule that questions of causation are generally ones of fact for the jury. Id. More importantly, this Court ruled that “[ujnder the circumstances, it cannot be said that but one conclusion can be drawn. The jury found that she exercised reasonable care, and we cannot say, upon the facts above stated, that there is no basis for that conclusion.” Id. Thus, not only did Pyke not state the broad rule for which it was cited but the actual ruling in the case was that based upon the facts presented the issue of causation was properly one of fact for the jury. The broad generalization of the state of the common law made in Polucha does not seem to be warranted by the announced decisions of this Court prior to Polucha.

[¶ 45] In the McLean and First Trust Co. decisions an understandable rationale was enunciated for the rule that in those categories of torts (negligent entrustment and negligent screening) subsequent acts were not intervening causal acts. The rationale is those torts contain foreseeability of the future wrongful act as an element inherent in the tort. By finding liability under the tort, the jury has already found foreseeability of the future harm. It would be logically inconsistent, and therefore legally impossible, to find both that the tort existed and that the future harm was not reasonably foreseeable. As a matter of law the subsequent act cannot be an intervening cause. No such rationale is set forth in Polucha. Instead, in Polucha a categorical rule is simply pronounced. Instead of an articulated rationale, the Po-lucha rule substitutes an assumption I am not willing to make. This assumption is that in all cases it is probable a doctor will commit negligence.

[If 46] As set forth above, the crucial issue in determining whether an act subsequent to the initial wrongdoing is an intervening cause is whether the act is foreseeable. This Court described this standard in State v. Columbus Hall Ass’n as whether the subsequent act is “one which might be normally expected by a reasonable person in view of the situation existing at the time of its intervention.” State v. Columbus Hall Ass’n, 27 N.W.2d at 668. In Mourn, this Court similarly described the standard as follows:

Thus a party is not chargeable with all possible consequences of his negligent act, and he is not responsible for a consequence which is possible according to occasional experiences. His is liable only for the consequences which are probable according to the ordinary, usual experiences of mankind.

Moum, 201 N.W.2d at 403. Therefore, the improper, implicit assumption in Polucha is it is probable, as a matter of law, doctors commit malpractice. I do not believe this sweeping generalization is any more warranted for professional negligence than it is for regular negligence. For example, I do not believe it is inherently any more foreseeable a physician will commit malpractice, see Polucha, 60 N.D. 159, 233 N.W. 264, than it is a suspect fleeing the police at a high rate of speed and driving erratically will be involved in an accident, see Jones, 489 N.W.2d 576, or than it is the wind might switch on the prairies of North Dakota, see Gram, 1 N.D. 252, 46 N.W. 972. Certainly such an assumption of foreseeability was not made for any of the various factual situations set forth in the litany of prior North Dakota cases in which this Court allowed the jury to determine that issue. Like almost every type of case in North Dakota (excluding the negligent entrustment/screening type of cases), I believe the issue of intervening cause is one properly for the finder of fact, dependent upon the circumstances of the case. To the extent Polucha holds to the contrary, I believe it is a vestigial remnant of an earlier day, and should now be totally excised from the body of the law.

[¶ 47] Further, the sole stated reason this Court gave in Polucha for adopting the rule that medical malpractice is as a matter of law foreseeable, and thus not an intervening cause, is no longer extant. The Court in Polucha stated the reason to adopt this rule in the workers compensation area was because that same rule allegedly applied in regular negligence cases. Polucha, 233 N.W. at 267. Since Polucha was decided, however, the general rule in negligence cases has changed 180 degrees. See Haff v. Hettich, 1999 ND 94, 593 N.W.2d 383.

[¶ 48] As this Court explained in Haff, when the legislature adopted comparative fault in North Dakota it effectively overruled the Polucha rule that an original tortfeasor is responsible for subsequent malpractice as a matter of law in the general law. Haff, 1999 ND 94, ¶ 18, 593 N.W.2d 383. This Court stated:

We decline to construe the “[l]egal requirements of causal relation” in N.D.C.C. § 32-03.2-01 to impose liability on an original tortfeasor for an intervening cause like medical malpractice that the original tortfeasor was deemed to foresee under common law, because that interpretation would render meaningless the language for determining the percentage of fault and damages attributable to each person and for allocating several liability to each party for the amount of damages attributable to the percentage of fault of that party.

Id. There is no longer operative any general common law rule that subsequent malpractice of a physician is, as a matter of law, foreseeable and hence, not an independent cause. If anything, the interests of consistency now favor abandonment of the outdated Polucha rule in workers compensation cases.

[¶ 49] A broad reading of the changes enunciated in Haff, combined with the rather vague standard set forth in Section 65 — 01—02(10)(b)(8) (which simply incorporates general standards of causation into the workers compensation arena), could support the conclusion Polucha has already been totally abandoned by this Court, even in the workers compensation setting. However, to the extent this Court has not expressly recognized the broad categorical rule in Polucha is no longer good law in workers compensation cases, I believe it should expressly now so state. While I doubt the propriety of the Polucha rule since its very inception, I do not doubt that at least since the Haff decision was rendered the rule in Polucha has simply not been good law. Any reliance upon Polucha by either the Agency or the majority is, in my view, error. Therefore, when the Agency concluded as a matter of law that subsequent acts of malpractice were compensable injuries, it did so in a manner not in accord with the law of North Dakota. This error impermissibly tainted its decision WSI had a subrogation interest in the proceeds of Haugenoe’s legal malpractice settlement. This error warrants reversal. For this reason I can concur only with the result reached by the majority.

[¶ 50] STEVEN E. McCULLOUGH, D.J.

SANDSTROM, Justice,

dissenting.

[¶ 51] I respectfully dissent. The Workforce Safety and Insurance order is consistent with the statute.

[¶ 52] Workforce Safety and Insurance paid nearly a quarter of a million dollars in benefits for Haugenoe, including the costs incurred because of the medical malpractice. The legal malpractice recovery represents what should have been recovered in the medical malpractice action. WSI seeks fifty percent of the legal malpractice recovery, reduced by attorney’s fees and its share of expenses.

[¶ 53] Although some states allow sub-rogation of legal malpractice claims arising out of medical malpractice in connection with a compensable workplace injury, and some states do not allow such subrogation, the determination usually turns on the wording of the state statute. See In Re Worker’s Compensation Lien, 231 Mich. App. 556, 591 N.W.2d 221, 224 (1998); Virginia Municipal Group Self-Insurance Ass’n, 66 Va. Cir. 236, 2004 WL 3132010 (Va.Cir.Ct. Nov. 24, 2004). In North Dakota, our statute supports subrogation:

When an injury or death for which compensation is payable under provisions of this title shall have been sustained under circumstances creating in some person other than the fund a legal liability to pay damages in respect thereto, the injured employee, or the employee’s dependents may claim compensation under this title and proceed at law to recover damages against such other person. The fund is subrogated to the rights of the injured employee or the employee’s dependents to the extent of fifty percent of the damages recovered up to a maximum of the total amount it has paid or would otherwise pay in the future in compensation and benefits for the injured employee. The organization’s subrogation interest may not be reduced by settlement, compromise, or judgment.

N.D.C.C. § 65-01-09 (1999).

[¶ 54] There was “an injury” caused by the malpractice in treating the original workplace injury, for which compensation was payable and paid by WSI. It was under circumstances which created in some person other than WSI “a legal liability to pay damages in respect thereto.” The circumstances of this case, legal malpractice, created in the lawyer a duty to pay damages “in respect” to the damages caused by the medical malpractice in treating the claimant’s injuries.

[¶ 55] North Dakota’s worker’s compensation agency has had subrogation rights since the worker’s compensation fund was established in 1919. State v. Clary, 389 N.W.2d 347, 348 (N.D.1986). The purpose of those subrogation rights “is to reimburse the fund, to the extent possible, at the expense of the persons at fault.” Blaskowski v. North Dakota Workmen’s Compensation Bureau, 380 N.W.2d 333, 335 (N.D.1986). Under the concept of subrogation, WSI “stands in the shoes” of the claimant for any recovery. See Ness v. St. Aloisius Hospital, 313 N.W.2d 781, 783 (N.D.1981). In this case, there was no dispute that as a result of the alleged medical malpractice, WSI paid additional benefits to the claimant. The legal malpractice precluded recovery on the medical malpractice, and the legal malpractice recovery was “with respect to” the medical malpractice.

[¶ 56] Haugenoe’s legal malpractice claim is directly derived from the medical malpractice claim against the doctor. I would affirm the district court judgment affirming the order of WSI.

[1167] DALE V. SANDSTROM

      . As will be explained in more detail herein, independent causation is governed by the concept of foreseeability. See ¶ 36, infra. When winding one’s way through the many-layered thicket of negatives and double negatives found in the obtuse language of the WSI statutes, keeping in mind the following tautological formulas can be quite useful:
      foreseeable = no intervening cause = com-pensable injury = subrogation not foreseeable = intervening cause = no compensable injury = no subrogation.

      . Although the summation of these three types of injuries is found in the second Conclusion of Law, the ALJ (and therefore by adoption the Agency) identified each of these injuries in separate Findings of Fact. Recommended Findings of Fact, Conclusions of Law, and Order at Findings of Fact ¶¶ 1 (injury from the fall), 2 (injury from the medical malpractice) and 5 (injury from the legal malpractice).

      . The Agency adopted the ALJ's Recommended Findings of Fact, Conclusions of Law, and Order verbatim, with the exception of one conclusion of law not relevant to these proceedings. It is this document, therefore, to which I will refer when speaking of the Agency’s decision.

      . The Agency’s adopted Findings include no discussion of intervening cause. Undoubtedly the Agency, like the majority, simply relied upon Polucha v. Landes, 60 N.D. 159, 233 N.W. 264 (1930), as support for the proposition it could decide the issues of whether the subsequent acts of malpractice were independent intervening causes as a matter of law. As set forth herein, I believe this is not in accordance with the proper state of the law in North Dakota, and therefore, mandates reversal. N.D.C.C. § 28-32-46.

      . This Court has described its decision in Mourn v. Maercklein, 201 N.W.2d 399 (N.D. 1972) as one in which intervening causation was properly decided as a matter of law. Stewart v. Ryan, 520 N.W.2d 39, 48 (N.D. 1994) (citing Mourn for the proposition some acts are so unforeseeable and independent they are, as a matter of law, not the legal cause of harm). In Mourn, however, this Court engaged in a review of the facts adduced at trial to determine if reasonable minds could differ on whether alleged intervening cause was reasonably foreseeable and éame to the conclusion that reasonable minds could not differ. Moum, 201 N.W.2d at 404. This Court merely held the evidence adduced at the trial in that particular case was insufficient to support the finding of fact made by the jury. This Court in Mourn did not, unlike the three cases cited above, create a general rule that, henceforth, in a broad category of cases there no longer need be a factual analysis of whether a subsequent act was foreseeable in order to determine the existence of intervening causation.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2008 ND 79
    Catherine MANSKE, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and Northern States Power Company a/k/a Xcel Energy, Respondent.
    No. 20070173.
    Supreme Court of North Dakota.
    April 28, 2008.
    David C. Thompson (argued), David C. Thompson, P.C., Grand Forks, ND, and Jeanette T. Boechler (on brief), Boechler Law Firm, Fargo, ND, for claimant and appellant.
    Douglas W. Gigler, Special Assistant Attorney General, Fargo, ND, for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Catherine Manske appealed a district court judgment affirming a decision by Workforce Safety and Insurance (“WSI”) which denied her application for death benefits for the death of her husband, Robert Manske. We reverse and remand for further proceedings in accordance with this opinion.

I.

[¶ 2] Robert Manske was employed by Northern States Power Company as a mechanic’s helper from 1959 to 1963, a meter reader from 1963 to 1970 and a lineman from 1970 to 1995. He was exposed to asbestos at work, although the parties dispute the degree of exposure. Robert Manske also smoked somewhere between one and a half to three packs of cigarettes per day. He died from lung cancer on November 28, 2000. On November 25, 2002, Catherine Manske filed an application for death benefits, alleging Robert Manske died from lung cancer caused by occupational asbestos exposure.

[¶ 3] In May 2003, WSI determined Catherine Manske failed to show asbestos exposure was a substantial cause of her husband’s lung cancer and denied her claim. A hearing with an administrative law judge (“ALJ”) was held in January 2006. Depositions of Robert Manske and co-workers, taken during prior litigation against asbestos manufacturers, establish heavy exposure to asbestos from 1959 to 1963. Robert Manske testified to reading meters from 1963 to 1970, with 60% of the meters located indoors. From 1970 to 1995, he worked as a lineman and was exposed to insulation from insulated wiring but was unsure if the wiring and cloth tape he used contained asbestos. Ninety-nine percent of his work was outdoors at this time.

[¶ 4] Dr. Brian Dolan testified for Catherine Manske and Dr. Donald Mat-thees and Dr. Michael Graham testified for WSI. All agreed heavy asbestos exposure causes asbestosis, which in turn increases one’s lung cancer risk, and that a lung biopsy, which was not done, is the standard way to diagnose asbestosis.

[¶ 5] Dr. Dolan used four secondary factors to nonetheless diagnose asbestosis in Robert Manske: 1) an alleged history of occupational asbestos exposure for approximately 35 years; 2) several years of dysp-nea on exertion; 3) bilateral pleural plaques on a chest X-ray; and 4) small airway obstructive disease on pulmonary function testing. Dr. Graham stated that asbestosis is a pre-requisite to finding asbestos-related lung cancer and rejected Dr. Dolan’s use of the four secondary factors to diagnose asbestosis. Dr. Matthees rejected Dr. Dolan’s asbestosis diagnosis after reviewing a CT scan report and prior medical records. Dr. Matthees and Dr. Graham also disputed Dr. Dolan’s use of a “history of occupational asbestos exposure for approximately 35 years” in his asbestosis diagnosis. Dr. Dolan had characterized Robert Manske’s exposure as heavy from 1959 to 1963, intermittent and light to moderate while a meter reader and intermittent and light while a lineman.

[¶ 6] Dr. Matthees and Dr. Graham opined that the absence of asbestosis meant Robert Manske’s asbestos exposure was not heavy after 1963. While Dr. Mat-thees conceded Robert Manske’s diagnosis of pleural plaque might result in some increase in his lung cancer risk, he testified the increased risk is impossible to quantify. Dr. Graham did not believe pleural plaque resulted in an increased lung cancer risk. Both concluded Robert Manske’s heavy smoking habit was the primary cause of his lung cancer. Dr. Dolan testified that Robert Manske’s asbestos exposure was a significant contributor to his fatal lung cancer, coupled with his smoking habit.

[¶ 7] The ALJ concluded Catherine Manske failed to prove the lung cancer was the “direct result” of Robert Manske’s asbestos exposure. WSI adopted the ALJ’s findings and fact and recommendations and denied the claim in May 2006. Catherine Manske appealed to the district court, which affirmed WSI’s decision.

II.

[¶ 8] An administrative agency decision must be affirmed unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
8. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32-46.

[¶ 9] Catherine Manske argues WSI applied an erroneous analysis of whether Robert Manske’s occupational asbestos exposure was “the sole cause” of his lung cancer. A claimant has the burden of proving by a preponderance of the evidence that he suffered a compensable injury and is entitled to worker’s compensation benefits. N.D.C.C. § 65-01-11. In order to carry this burden, a claimant must prove by a preponderance of the evidence that the medical condition for which he seeks benefits is causally related to a work injury. Swenson v. Workforce Safety & Ins. Fund, 2007 ND 149, ¶ 24, 738 N.W.2d 892. We have said, in a long line of cases, that a worker’s employment need not be the sole cause of an injury to be compensable. See, e.g., Negaard-Cooley v. N.D. Workers Comp. Bureau, 2000 ND 122, ¶ 8, 611 N.W.2d 898; Hust v. N.D. Workers Comp. Bureau, 1998 ND 20, ¶ 12, 574 N.W.2d 808; McDaniel v. N.D. Workers Comp. Bureau, 1997 ND 154, ¶ 12, 567 N.W.2d 833; Lang v. N.D. Workers Comp. Bureau, 1997 ND 133, ¶15, 566 N.W.2d 801. Nor must a claimant prove the work-related injury is a primary cause of the work injury. Holtz v. N.D. Workers Comp. Bureau, 479 N.W.2d 469, 471 (N.D. 1992). It is sufficient if a work condition is a substantial contributing factor to the disease. McDaniel, at ¶ 12 (citations omitted).

[¶ 10] The language contained in WSI’s decision indicates that WSI applied the wrong standard in his analysis of the causal connection between Robert Manske’s asbestos exposure and his lung cancer. In the conclusions of law, WSI noted Catherine Manske must establish, by a preponderance of the evidence, that Robert Manske’s death “was a direct result” of a compensable work injury and that the evidence failed to show the lung cancer “was primarily caused” by his asbestos exposure. WSI concluded that smoking “was the more likely cause” of Robert Manske’s lung cancer and noted that Dr. Dolan’s testimony was “equivocal, stating only that Manske’s asbestos exposure, ‘along with cigarette smoking’ was a ‘significant contributor’ to Manske’s lung cancer.” Finally, WSI concluded Catherine Manske failed to show the lung cancer was the “direct result” of Robert Manske’s asbestos exposure. WSI never discusses the “substantial contributing factor” standard in its findings of fact and recommendations nor analyzes the evidence in that context.

[¶ 11] WSI appeared to analyze whether Robert Manske’s smoking habit or his asbestos exposure was the primary or direct cause of his lung cancer. WSI should also have determined whether the asbestos exposure was a substantial contributing factor. It is possible that the smoking and the asbestos exposure were both substantial contributing factors in Robert Manske’s lung cancer.

[¶ 12] In other jurisdictions with a similar requirement, courts have held that a work injury can be found to be a “significant causal factor” even if other non-work-related factors also make significant contributions, or were significant causal factors. See, e.g., Gibson v. Little Cotton Mfg. Co., 73 N.C.App. 143, 325 S.E.2d 698, 700-01 (1985); Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359, 369-70 (1983); Vause v. Vause Farm Equipment Co., 233 N.C. 88, 63 S.E.2d 173, 176 (1951). Although New Jersey has held that a petitioner is not required to “prove that the nexus between the disease and the place of employment is certain” the petitioner nonetheless has the burden of demonstrating by a preponderance of the evidence that his work injury was a substantial contributing cause of his occupational disease. Lindquist v. City of Jersey City Fire Dept., 175 N.J. 244, 814 A.2d 1069, 1080 (2003). The fact that an employee may have physical conditions or personal habits which make him or her more prone to such an injury does not constitute a sufficient reason for denying a claim. Satrom v. N.D. Workmen’s Comp. Bureau, 328 N.W.2d 824, 831 (N.D.1982). To the contrary, the work injury need only be a “substantial contributing factor.” Id. (citation omitted).

[¶ 13] While Robert Manske’s smoking habit may be a cause of his lung cancer, the analysis should focus on whether his asbestos exposure is a substantial contributing factor. Testimony from the treating physician raises the question of whether the occupational exposure to asbestos was a substantial contributing factor in the development of his lung cancer.

[¶ 14] Although WSI initially denied Catherine Manske’s claim because she failed to show asbestos exposure was a substantial cause of her husband’s lung cancer, the ALJ did not analyze the evidence in light of the “substantial contributing factor” standard. WSI adopted the findings of fact and recommendations of the ALJ, which are before us on appeal. Those findings of fact do not sufficiently address whether Robert Manske’s asbestos exposure was a substantial contributing factor to his lung cancer. See N.D.C.C. § 28-32-46(7).

[¶ 15] We reverse and remand for WSI to make a determination using the correct “substantial contributing factor” analysis.

[¶ 16] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, JJ., ALLAN L. SCHMALENBERGER, D.J., concur. I concur in the result. DALE V. SANDSTROM, J.

[¶ 17] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of CROTHERS, J., disqualified.


author: SANDSTROM, Justice.

text:
    2008 ND 80
    Ronald WARD, Ron Stensgard, and Duane Dumas, Plaintiffs and Appellants v. James R. BULLIS, Defendant and Appellee Bruce Hager, ProEquities, Inc., and Michael Volk, Defendants.
    No. 20070188.
    Supreme Court of North Dakota.
    April 25, 2008.

      Benjamin J. Hasbrouck (argued) and Todd E. Zimmerman (on brief), Dorsey & Whitney, Fargo, N.D., for plaintiffs and appellants.
    Steven J. Lies, Lies & Bullís, Wahpeton, N.D., for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Ronald Ward, Ron Stensgard, and Duane Dumas (“plaintiffs”) appeal from a summary judgment dismissing their lawsuit against James Bullís for state securities law violations and fraud claims. The plaintiffs claim they suffered damages as a result of misrepresentations in connection with the sale of securities. We reverse the dismissal of the plaintiffs’ Securities Act claims because we conclude there is a genuine issue of material fact about whether Bullís is an agent and is liable for violations of the Securities Act, but affirm the dismissal of plaintiffs’ common law fraud claims.

I

[¶ 2] In 1998, Intellisol, Inc., a technology company, hired Michael Volk. Volk was granted an option to purchase Intelli-sol stock as part of his employment agreement. In 2000, Volk hired Bullís, an attorney licensed to practice in North Dakota, to help him exercise the option because Volk did not have funds available to purchase the stock. Bullís advised Volk he could raise money to exercise the option by purchasing stock at the option price and then selling some of the stock to other investors at a higher price.

[¶ 3] Bulks set up a limited liability company, Softech Venture Group, LLC, to act as a holding company of Intellisol stock and to raise money to fund the stock purchase. Bulks eventually set up two more limited liability companies, Softech Venture Group Series B, LLC, and Softech Venture Group Series C, LLC, with the same purpose and to allow for more investors. Investors in the Softechs became part-owners of a company that owned In-telksol stock. The Softechs did not have any other assets. The Softech membership units were sold for a higher price than the option price for Intellisol stock, and the value of a Softech membership unit was equivalent to the value of an Intellisol share. The Softechs did not have any employees, offices, or bank accounts; all the investment funds received were deposited in and disbursed through Bullis’s law firm trust account; and investment documents identified the Softechs’ address as that of Bulks’s law office.

[¶ 4] Bulks also set up two other limited liability companies, HiTech Ventures, LLC, and Midwest Technology Investment Group, LLC, to act as holding companies for Volk’s stock. Volk exercised his option to purchase Intellisol stock through these two companies, and a majority of the stock purchased was subsequently transferred to the Softechs. The Intellisol stock and Sof-tech membership units were not registered under the North Dakota Securities Act.

[¶ 5] Bruce Hager, a Fargo stock broker and a registered representative of ProEquities, Inc., was hired to find potential investors. Hager initially solicited the investors, including the plaintiffs, but payment for the Softech membership units was made to Bulks’s law firm, and Bulks issued the shares or units. Hager and Bulks each received 5% of the gross Sof-tech sales and 5,000 shares of Intellisol stock. Bulks also received a flat or hourly fee for his legal work. There was evidence Hager received $129,469 in commission for his role in the sale of the Softech securities. The exact amount Bulks received is disputed, but there is evidence Bulks received payments on the same days and in amounts identical to Hager’s payments, except on a few occasions when Bullis received a greater amount. Bullis disbursed the payments to Hager and himself from the funds in his firm’s trust account. Volk testified in a deposition that he did not control or approve the disbursement of funds from the account. The Softech subscription agreements stated the subscription was not effective and purchase of the membership interest was not complete until the company accepts, which was in the company’s discretion, and the agreement stated Volk’s signature as President of the Softechs was evidence of the acceptance. Volk did not sign the agreements, and there is evidence Bullis accepted the agreements without getting Volk’s approval.

[¶ 6] In 2000, the plaintiffs invested in the Softechs. Stensgard invested $100,000 in Softech Venture Group. Dumas invested $95,500 in Softech Venture Group. Ward invested $133,800 in Softech Venture Group Series C. All three plaintiffs completed prospective investor questionnaires, which stated the membership interests would only be sold to individuals who were accredited investors and required the investor to verify that he is an accredited investor. An individual qualified as an accredited investor if he had an individual annual income of more than $200,000, or with his spouse had a joint annual income of more than $300,000, or had an individual or joint net worth of more than $1,000,000. The plaintiffs also completed a subscription agreement, which also required the investor verify that he is an accredited investor. All three plaintiffs verified that they were accredited investors, although Ward and Dumas did not meet the requirements. There is some dispute about why the plaintiffs verified they were accredited investors. The plaintiffs allege Hager or Bullis or both told Ward and Dumas it did not matter that they were not accredited investors and to certify that they were accredited investors. Bullis sent the plaintiffs certificates for the Sof-tech membership units they purchased.

[¶ 7] In 2002, Intellisol ceased operations and the Softechs’ Intellisol stock became worthless. The plaintiffs suffered a total loss of their investments.

[¶ 8] In June 2002, the plaintiffs sued Bullis, Hager, ProEquities, Inc., and Volk for violations of state securities law, fraud, and other claims related to the securities they purchased. The plaintiffs claimed the securities transactions violated the Securities Act, N.D.C.C. ch. 10-04, because the securities were not registered or exempt from registration under N.D.C.C. § 10-04-04, the securities were sold through an unregistered securities “dealer” or “agent” in violation of N.D.C.C. § 10-04-10, and the sales violated anti-fraud provisions of N.D.C.C. § 10-04-15. The plaintiffs also alleged common law fraud claims.

[¶ 9] Hager and ProEquities settled with the plaintiffs. Volk failed to answer in the case, and the court found he was in default and entered judgment against him.

[¶ 10] Plaintiffs moved for partial summary judgment against Bullis, alleging there were no genuine issues of material fact that N.D.C.C. ch. 10-04 was violated and Bullis is liable for damages. The plaintiffs agreed to dismiss their fraud claims if their motion for summary judgment was granted.

[¶ 11] Bullis also moved for summary judgment, claiming he was only performing as an attorney involved in securities work and the plaintiffs are unable to provide any evidence that his action caused them to invest or to lose their investment.

[¶ 12] The district court granted Bul-lis’s motion for summary judgment and denied the plaintiffs’ motion in its entirety. The court decided the plaintiffs did not raise any genuine issues of material fact about their fraud claims. The court ruled Bullís did not personally violate N.D.C.C. ch. 10-04 by offering for sale or selling securities in violation of the Securities Act. The court also concluded Bullís was not liable as an agent under N.D.C.C. § 10-04-17 because he did not effect or attempt to effect purchases or sales of securities and the plaintiffs did not raise a genuine issue of material fact under which Bullís would qualify as an agent. The court concluded there were no genuine issues of material fact to indicate that Bullís is liable under N.D.C.C. ch. 10-04.

[¶ 13] The district court had subject matter jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The plaintiffs’ appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 14] Summary judgment is appropriate when either party is entitled to judgment as a matter of law, and no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or resolving the factual disputes would not alter the result. Luallin v. Koehler, 2002 ND 80, ¶ 7, 644 N.W.2d 591. “[A] court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn from that evidence to determine whether summary judgment is appropriate.” Hurt v. Freeland, 1999 ND 12, ¶ 8, 589 N.W.2d 551. On appeal, this Court decides whether there are genuine issues of fact and whether the district court correctly applied the law. Luallin, at ¶7. Questions of law are fully reviewable. Id. The evidence is viewed in a light most favorable to the opposing party, and the opposing party must be given the benefit of all favorable inferences. Hurt, at ¶ 7. The party opposing the motion may not rely upon the pleadings or unsupported, eonclusory allegations, but must present competent admissible evidence by affidavit or other means that raises an issue of material fact, and must draw the court’s attention to relevant evidence in the record that raises an issue of material fact. Id. at ¶ 8. “ ‘Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.’ ” In re Estate of Richmond, 2005 ND 145, ¶ 12, 701 N.W.2d 897 (quoting Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615).

A

[¶ 15] The plaintiffs claim the district court improperly dismissed their claims under the Securities Act, because the Securities Act’s registration and anti-fraud provisions were violated and Bullís is hable because he is an agent of the seller who participated or aided in the sale.

[¶ 16] Section 10-04-17(1), N.D.C.C., lists the remedies available when any provision of the Securities Act is violated and imposes joint and several liability on a seller and on a seller’s agent who participates or aids in a sale in violation of the Act:

Every sale or contract for sale made in violation of any of the provisions of this chapter, or of any rule or order issued by the commissioner under any provisions of this chapter, shall be voidable at the election of the purchaser. The person making such sale or contract for sale, and every director, officer, or agent of or for such seller who shall have participated or aided in any way in making such sale shall be jointly and severally liable to such purchaser who may sue either at law or in equity to recover the full amount paid by such purchaser,....

Section 10-04-02(1), N.D.C.C., defines agent as “an individual, other than a broker-dealer, who represents a broker-dealer or an issuer or is self-employed in effecting or attempting to effect purchases or sales of securities.”

[¶ 17] Relying on 1999 amendments to N.D.C.C. ch. 10-14, the plaintiffs argue the word “agent” in N.D.C.C. § 10-04-17 is not limited by the statutory definition of agent, but also includes common law agents. The plaintiffs argue common law agents are included under the current version of the statute because the 1999 amendments were not substantive, the statute previously included common law agents, and the amendments were not intended to narrow the scope of investor remedies. The plaintiffs also claim the statutory definition of agent does not apply to N.D.C.C. § 10-04-07, because it cannot be sensibly read into N.D.C.C. § 10-04-07 and the context and subject matter of the statute require using the common law definition of agent. The plaintiffs argue the statutory definition of agent cannot be sensibly read into N.D.C.C. § 10-04-17(1), because that statute imposes liability on anyone who participated or aided in any way, and if liability is limited to those who effected or attempted to effect a sale, the scope of the statute will be narrowed and the words “participated or aided in any way” will be effectively struck from the statute.

[¶ 18] In interpreting a statute, we first look to the language of the statute. Amerada Hess Corp. v. State ex rel. Tax Comm’r, 2005 ND 155, ¶ 12, 704 N.W.2d 8. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless specifically defined in the code. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-09.1. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05.

“A statute is ambiguous if it is susceptible to meanings that are different, but rational.” This Court “presume[s] the Legislature did not intend an absurd or ludicrous result or unjust consequences,” and “construe[s] statutes in a practical manner and give[s] consideration to the context of the statutes and the purposes for which they were enacted.”

Amerada Hess, at ¶ 12 (citations omitted).

[¶ 19] “[T]here is no common law in any case where the law is declared by the code.” N.D.C.C. § 1-01-06. Section 10-04-02, N.D.C.C., states the definitions in that section, including the definition of agent, are to be used in this chapter, “unless the context or subject matter otherwise requires[.]” We conclude the language of N.D.C.C. ch. 10-04 clearly and unambiguously defines agent in language that is applicable to N.D.C.C. § 10-04-17, and therefore an individual must meet the statutory definition of agent to be held liable as an agent for violations of the Securities Act. We hold Bullís is liable for sales or contracts for sales made in violation of the Securities Act if he meets the statutory definition of an agent and he participated or aided in any way in the sale of the securities. See Luallin, 2002 ND 80, ¶21, 644 N.W.2d 591.

[¶ 20] This Court has not addressed whether an attorney may be liable for violations of securities laws, but other courts, applying similar statutory definitions of an agent, have considered similar arguments and held an attorney is not liable as an agent unless the attorney:

act[s] in a manner that goes beyond legal representation. The definition of “agent” ... does not include attorneys who merely provide legal services, draft documents for use in the purchase or sale of securities, or engage in their profession’s traditional advisory functions. To rise to the level of “effecting” the purchase or sale of securities, the attorney must actively assist in offering securities for sale, solicit offers to buy, or actually perform the sale.

Baker, Watts & Co. v. Miles & Stockbridge, 95 Md.App. 145, 620 A.2d 356, 368 (1993).

[¶ 21] In Excalibur Oil, Inc. v. Sullivan, 616 F.Supp. 458, 460 (N.D.I11.1985), an attorney was hired to prepare title opinions for an investment in oil and gas wells and was informed the investment would not occur without an assurance that the property leases were unencumbered. The plaintiffs alleged the attorney failed to prepare the title opinions, but incorrectly assured the investor that the leases were unencumbered. Id. at 460-61. Under the applicable West Virginia securities laws, an agent is liable if the agent materially aids in the sale, and an agent is an individual other than a broker-dealer who represents the broker-dealer or issuer in effecting or attempting to effect the purchase or sale of securities. Id. at 467. The court denied the attorney’s motion for dismissal for failure to state a claim, concluding the attorney could be liable as an agent because the plaintiffs alleged the attorney made face-to-face and direct telephonic representations to the buyer that materially aided in effecting the sale. Id.

[¶ 22] In Rendler v. Markos, 154 Wis.2d 420, 453 N.W.2d 202 (Ct.App.1990), investors in fourteen limited partnerships sued an attorney and his law firm for securities law violations. The attorney represented the promoters of the limited partnerships, advised the promoters on the need for securities registration, and drew up documents used by promoters to sell the limited partnership interests. Id. at 206. Under Wisconsin securities laws, an agent who materially aids in the act or transaction constituting the violation is liable for the violation, and an agent is “any individual other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect transactions in securities.” Id. The court concluded the attorney was not liable because:

The definition of “agent” in [Wisconsin securities law] does not include attorneys who merely render legal advice or draft documents for use in securities transactions. The definition covers persons who assist directly in offering securities for sale, soliciting offers to buy, or performing the sale, but who do not fit the definition of broker-dealer. It is not intended to cover professionals such as attorneys engaging in their traditional advisory functions.

Id. The court concluded the complaint failed to state a claim and the attorney was not liable for violations of state securities laws because there were no allegations the attorney did anything other than provide legal services. Id. at 207.

[¶ 23] In CFT Seaside Inv. Ltd. P’ship v. Hammet, 868 F.Supp. 836 (D.S.C.1994), investors sued an attorney who provided legal services in a real estate investment project, alleging violations of South Carolina securities law. The attorney provided legal services on matters concerning real estate law and developmental approval issues, including providing an opinion letter to the investors and an updated memorandum, which was completed at the investors’ request on the eve of the investment. Id. at 839. Under South Carolina securities laws, every agent who materially aids in the sale of securities that violates securities laws is liable, and an agent is “any individual, other than a broker-dealer, who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities....” Id. at 843-44. The court said the attorney was not liable as an agent, because the definition of an agent “does not include attorneys who merely render legal advice or draft documents for use in securities transactions.” Id. at 844. The court said the definition of an agent is not intended to cover attorneys engaging in their traditional advisory functions, rather it is intended to cover individuals who assist directly in offering securities for sale, solicit offers to buy, or perform the sale, but who do not fit the definition of a broker-dealer. Id.

[¶ 24] In Johnson v. Colip, 658 N.E.2d 575 (Ind.1995), an attorney was retained to incorporate and represent a corporation established to serve as a general partner in several limited partnerships and draft a prospectus used to solicit investors in the partnership. The attorney also attended meetings of prospective investors. Id. at 578. The plaintiffs claimed the prospectus contained misleading and untrue statements of material fact, or omitted material facts. Id. at 575. The Indiana Securities Act provides a private cause of action against every agent of a seller who materially aids in the sale or purchase, and defines agent as “[a]ny individual, other than a broker-dealer, who represents a broker-dealer or issuer in effecting or attempting to effect purchasers [sic] or sales of securities.” Id. at 576. The Indiana Supreme Court held there was a material issue of fact about whether an attorney’s conduct at the meetings with prospective investors constituted an attempt to effect the sale of securities by making it more likely than not that investors would purchase the securities, and therefore summary judgment was not appropriate. Id. at 579.

[¶ 25] We agree with the approaches taken by the courts in these cases. We hold that an attorney may be liable for violations of the Securities Act if he is an agent representing the broker-dealer, issuer, or is self-employed and effects or attempts to effect the purchase or sale of securities, and he participates or aids in any way in the sale or contract for sale made in violation of the Securities Act. An attorney who merely provides legal services, drafts documents used in the purchase or sale of the security, or engages in the legal profession’s traditional advisory functions is not an agent within the meaning of N.D.C.C. § 10-04-02(1). To be liable as an agent, the attorney must do more than act as legal counsel, the attorney must actively assist in offering securities for sale, solicit offers to buy, or actually perform the sale. The question of whether an attorney is an agent who aided or participated in any way in the sale is a question of fact unless the evidence is such that reasonable persons can draw only one conclusion from the evidence. See Weidner v. Engelhart, 176 N.W.2d 509, 518 (N.D.1970).

[¶26] In this case, there is a genuine issue of material fact about whether Bullis’s conduct constituted an attempt to effect the purchase or sale of the securities. The plaintiffs claim Bullís planned or assisted in the planning of the investment scheme, hired stockbroker Hager, traveled to Australia and Arizona to assist in purchasing the stock, acted as the “secretary” of at least one of the limited liability companies, drafted the investment documents and was responsible for making sure they were filled out and returned, accepted the investment documents without Volk’s signature, received the investment funds into his firm’s trust account and disbursed the funds, received 5% of the sales in addition to a flat or hourly fee for his legal services, issued the investors’ shares or units, and advised Ward that he was an “accredited investor” when Ward questioned whether he could purchase the stock because he was not an accredited investor. Ward also testified in his deposition that he talked to Bullís about the price of the stock and whether he could get a better price. While Bullís did not initially solicit the plaintiffs’ purchases of the securities, there was evidence that, if believed, established his role in the investment scheme was more than that of an attorney who merely provided legal services and drafted documents. We conclude that whether Bullis’s conduct constituted an attempt to effect the sale of the securities is a genuine issue of material fact, and therefore summary judgment was not appropriate.

B

[¶ 27] The plaintiffs claim the district court erred in granting Bullís summary judgment on their fraud claims because Bullís is liable for fraud under an acting-in-concert theory. The plaintiffs alleged and provided evidence that the solicitations were induced through false statements of material fact and material omissions. The plaintiffs claim Dumas was told his investment was in Intellisol, Hager had inside information and said In-tellisol was performing well and doing-well financially, the investment would increase in value three or four times or as much as nine or ten times, the risk was minimal, Hager was investing a “ton of money,” and Dumas should certify that he was an accredited investor even though he was not. The plaintiffs claim Stensgard was told his investment was in Intellisol, within six to eight months he would receive a return of at least three or four times his investment, Intellisol was a safe investment, Hager was investing $200,000, and Stensgard’s request to see Intellisol’s financial records was denied because he was told they contained inside information. The plaintiffs claim Ward was told his investment was in Intellisol, the investment would triple in value in a very short period of time and could increase in value by ten times, Intellisol would be bought out or conduct an initial public offering soon, and he should certify that he was an accredited investor even though he told Hager, Volk, and Bullís that he was not. The plaintiffs also claim, and there was evidence, Intellisol lost over $7 million in 2000, it was a risky investment, and the company needed venture capital from high risk, institutional investors to continue operating. The plaintiffs admit the only fraudulent statement Bullís made to any of the plaintiffs was his statement to Ward that he was an accredited investor, even though Ward was not. They concede that Hager made all the other fraudulent statements and omissions, but argue Bullís is liable because he was acting in concert with Hager and Volk. The plaintiffs also claim Bullís is liable for fraud under the Securities Act because there was a violation of N.D.C.C. § 10-04-15, Bullís was an agent under N.D.C.C. § 10-04-17, and therefore he is liable for any violations of the act.

[¶ 28] The district court improperly granted summary judgment on the plaintiffs’ fraud claims under N.D.C.C. ch. 10-04. There is a fact issue about whether Bullís is an agent and can be held liable for violations of the Securities Act. Whether Bullís personally violated N.D.C.C. § 10-04-15 does not matter. Section 10-04-17, N.D.C.C., states if there is a violation of any provision of the act, “[t]he person making such sale or contract for sale, and every director, officer, or agent of or for such seller who shall have participated or aided in any way in making such sale shall be jointly and severally liable to such purchaser who may sue either at law or in equity to recover the full amount paid by such purchaser,.... ” If Hager violated N.D.C.C. § 10-04-15 by making fraudulent statements and omitting material information in connection with the offer, sale, or purchase of the securities, and Bullís is an agent, Bullís is liable for the violation under N.D.C.C. § 10-04-17. Whether Bullís is an agent is a genuine issue of material fact, and summary judgment on the plaintiffs’ fraud claims under N.D.C.C. § 10-04-15 was not appropriate.

[¶ 29] However, the plaintiffs failed to provide any evidence that Bullís is liable under a common law fraud theory, because there was no evidence Bullís either made fraudulent statements or was acting in concert. While N.D.C.C. § 1-01-06 states that “there is no common law in any case where the law is declared by the code,” N.D.C.C. § 10-04-17(4) provides that “[njothing in this chapter shall limit any statutory or common-law right of any person in any court for any act involved in the sale of securities.” This Court has recognized the Securities Act does not limit a person’s common law rights for any act involved in the sale of securities. Adams v. Little Missouri Minerals Ass’n, Inc., 143 N.W.2d 659 (N.D.1966); Weidner, 176 N.W.2d at 513. However, to support a claim of common law fraud, we have said the acts must support actionable fraud without the assistance of the N.D.C.C. § 10-04-15:

To support an action for recovery based on the general statutory or common-law fraud, the acts must be such as would support actionable fraud in and of themselves without the assistance of Section 10-04-15, N.D.C.C. The acts may also be violations of the Securities Act but they must be such acts that, by themselves, constitute actionable fraud.

Weidner, 176 N.W.2d at 513.

[¶ 30] While fraud actions are not generally suited for disposition by summary judgment, fraud must be proven by clear and convincing evidence, and “the actual quantum and quality of proof necessary to support liability must be considered in determining whether a genuine factual issue as to fraud exists.” Richmond, 2005 ND 145, ¶¶ 12-13, 701 N.W.2d 897. Actual fraud is defined in N.D.C.C. § 9-03-08. “[A]ny persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault.” N.D.C.C. § 32-03.2-02. This Court has said “N.D.C.C. § 32-03.2-02 does not create an independent basis of liability, rather it deals with the allocation of damages among those already at fault.” Hurt, 1999 ND 12, ¶21, 589 N.W.2d 551. However, to find concerted action, other jurisdictions have followed the Restatement (Second) of Torts § 876, which states a person is subject to liability for another’s tortious conduct if he:

(a) does a tortious act in concert with the other or pursuant to a common design with him,
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

See also Hurt, at ¶ 22. We have said, “the doctrine [of § 876] appears to be reserved for application to facts which manifest a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result ....” Id. at ¶ 23 (quoting Olson v. Ische, 343 N.W.2d 284, 288 (Minn.1984)).

[¶ 31] To constitute a concerted action, the plaintiffs needed to present evidence of a common plan to commit a tortious act, the participants knew of the plan and its purpose, and the participants took substantial affirmative steps to encourage the achievement of the result. See Schneider v. Schaaf, 1999 ND 235, ¶ 23, 603 N.W.2d 869. The plaintiffs failed to present any evidence to raise a genuine issue of material fact that there was a common plan to commit fraud or that Bullís knew Hager was making fraudulent statements and omitting material information in soliciting investors.

[¶ 32] We conclude the district court properly granted summary judgment dismissing the plaintiffs’ common law fraud claims, but did not properly grant summary judgment on the plaintiffs’ fraud claims under N.D.C.C. § 10-04-15. We remand for trial of the plaintiffs’ claims for violations of the Securities’ Act.

Ill

[¶ 33] We conclude there is a genuine issue of material fact and the district court improperly granted summary judgment on the plaintiffs’ Securities Act claims. We affirm the district court’s dismissal of plaintiffs’ common law fraud claims. We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.

[¶ 34] GERALD W. VANDE WALLE, C.J., DONOVAN J. FOUGHTY, D.J., SONNA M. ANDERSON, D.J., and MARY MUEHLEN MARING, JJ., concur.

[¶ 35] The Honorable SONNA M. ANDERSON, D.J., and the Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J. and CROTHERS, J., disqualified.