New Hope Wesleyan Church v. Ecclesia Construction Company, LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
New Hope Wesleyan Church, )
)
Plaintiff, )
) ORDER GRANTING IN PART AND
vs. ) DENYING IN PART THIRD-PARTY
) DEFENDANTS’ MOTIONS FOR
Ecclesia Construction Company, LLC, ) SUMMARY JUDGMENT
d/b/ Ecclesia Building Strategies, )
)
Defendant and Third-Party ) Case No. 1:23-cv-105
Plaintiff, )
)
vs. )
)
Chief Industries, Inc., d/b/a Chief )
Buildings; Hite Architecture, P.A.; Schultz )
Engineering Group, P.C.; Ironhidez )
Construction LLC, f/k/a Froemming )
Construction; Commercial Exterior )
Specialties, LLC, )
)
Third-Party Defendants, )
)
and )
)
Commercial Exterior Specialties, LLC, )
)
Fourth-Party Plaintiff, )
)
vs. )
)
Sergio Alaya Gomez d/b/a Stucco )
Solutions, )
)
Fourth-Party Defendant. )
______________________________________________________________________________
Before the Court are two motions for summary judgment. Third-Party Defendant Shultz
Engineering Group, P.C. (“Shultz”) filed a motion for summary judgment on November 13, 2025.
See Doc. No. 90. Ecclesia Construction Company, LLC (“Ecclesia”) filed a response in opposition
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to the motion on December 11, 2025. See Doc. No. 94. Shultz filed a reply on December 22, 2025.
See Doc. No. 97. On January 14, 2026, Third-Party Defendant Hite Architecture, P.A. (“Hite”)
filed a motion for summary judgment. See Doc. No. 101. Ecclesia filed a response in opposition
to the motion on February 11, 2026. See Doc. No. 107. Hite filed a reply on February 25, 2026.
See Doc. No. 111. For the reasons set forth below, the motions for summary judgment are granted
in part and denied in part.
I. BACKGROUND
This case arises out of the construction of a renovation and an addition to the New Hope
Wesleyan Church located at 721 26th Street West, Williston, North Dakota, 58801 (“the Project”).
On May 2, 2013, New Hope and Ecclesia entered into a construction agreement for Ecclesia to
perform architectural, structural, civil, mechanical, electrical, fire alarm, and interior design
services for new construction and renovations of the church. Pursuant to the agreement, Ecclesia
agreed to provide all design, labor, material, equipment, and supervision to complete (1) new
construction of a sanctuary, lobby, and adult space, and (2) renovation of the existing building to
convert it to a children’s and youth ministry space. On May 8, 2013, New Hope entered into an
agreement with Western Property Management, LLC (“WPM”) under which WPM agreed to
provide project management and owner’s representative consulting services in support of the
Project. Ecclesia entered into agreements in connection with the Project with Chief Industries, Inc.,
Hite Architecture, P.A., Schultz Engineering, Ironhidez Construction LLC, Commercial Exterior,
and Froemming Construction in 2012 and 2013.
The Project commenced in May 2013 and was constructed in two phases. Phase 1 included
the construction of a new building, including the sanctuary, lobby, and office space. Ecclesia
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completed Phase 1 around May 2014. Phase 2 involved the remodel of the existing church. The
Phase 2 remodel began around June 2014. Ecclesia completed Phase 2 around December 2014.
During Phase 1 of construction, New Hope and Ecclesia became aware of leaks in the roof
of the property in areas constructed by Ecclesia. In December 2013 or January 2014, New Hope
observed water intrusion in several areas of the building. New Hope identified additional concerns,
including missing anchor bolts, HVAC system balancing, missing steel components, concrete
issues, and doors that did not close properly. On December 15, 2015, WPM documented
outstanding concerns at the property in a letter to Ecclesia, including: (1) roof leaks and cold
infiltration into wall cavities; (2) a failed structural connection inspection; and (3) roof drain and
stormwater issues. Other defects were found at later periods, including Ecclesia’s discovery of
structural defects pursuant to its own investigation in 2017 and the discovery of more than forty
leaks in the tower of the church in 2018.
Between 2014 and 2020 Ecclesia and New Hope engaged in ongoing communication
regarding roof repairs. Ecclesia unsuccessfully attempted to repair the roof. On October 7, 2020,
New Hope’s legal counsel sent a letter to Ecclesia stating that New Hope intended to perform the
repair work itself. The letter instructed Ecclesia to cease all direct communication with New Hope
and route all future communication through counsel. New Hope retained American Engineering
Testing, FCI Contractors, Mercer Engineering, PIE Consulting & Engineering, Sylvan Site
Services, and WMP to verify the scope and necessity of the repair work and to complete the repairs.
New Hope started the repair work in the Summer of 2022 and completed it in the Fall of 2022.
After completion, New Hope sent Ecclesia a bill totaling $1,634,235.01 for the cost of the repairs.
On May 2, 2023, New Hope brought claims against Ecclesia in state court for breach of
contract and negligence. See Doc. No. 1-2. Ecclesia removed the action to federal court on May
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30, 2023, on the basis of diversity of jurisdiction. Id. New Hope alleges Ecclesia’s actions in
constructing the project were negligent and breached the parties’ construction agreement. On June
2, 2025, Ecclesia filed a third-party complaint against Chief Industries, Inc., Hite Architecture,
P.A., Schultz Engineering, Ironhidez Construction LLC, Commercial Exterior Specialties, LLC,
and Froemming Construction asserting claims of negligence, breach of contract, breach of
warranties, and indemnification and/or contribution in connection to the construction of the
project. See Doc. No. 2. Ecclesia alleges that any damages New Hope suffered were caused by the
Third-Party Defendants, to the extent that such damages were not caused by New Hope. On June
3, 2025, Commercial Exterior filed a fourth-party complaint against Sergio Alaya Gomez d/b/a
Stucco Solutions, for negligence, breach of contract, breach of warranty, and contribution and/or
indemnification in connection with the construction of the project.
On November 4, 2025, the Court denied summary judgment motions filed by Ecclesia,
Ironhidez Construction LLC, and Shultz. See Doc. No. 89. Schutlz and Hite now request the Court
grant summary judgment as to Ecclesia’s claims against them. The motions have been fully briefed
and are ripe for disposition.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the evidence, viewed in a light most favorable to
the non-moving party, indicates no genuine issues of material fact exist and that the moving party
is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648,
654 (8th Cir. 2007); see Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there are
factual disputes that may affect the outcome of the case under the applicable substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if
the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id. The
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purpose of summary judgment is to assess the evidence and determine if a trial is genuinely
necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The court must inquire whether the evidence presents a sufficient disagreement to require
the submission of the case to a jury or whether the evidence is so one-sided that one party must
prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.
2005). The moving party bears the responsibility of informing the court of the basis for the motion
and identifying the portions of the record which demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The non-
moving party may not rely merely on allegations or denials in its own pleading; rather, its response
must set out specific facts showing a genuine issue for trial. Id.; Fed. R. Civ. P. 56(c)(1). The court
must consider the substantive standard of proof when ruling on a motion for summary judgment.
Anderson, 477 U.S. at 252. If the record taken as a whole and viewed in a light most favorable to
the non-moving party could not lead a rational trier of fact to find for the non-moving party, there
is no genuine issue for trial and summary judgment is appropriate. Matsushita, 475 U.S. at 587.
III. LEGAL DISCUSSION
A. APPLICABLE STATUTE OF LIMITATIONS
The Third-Party Defendants argue Ecclesia’s claims are barred by the statute of limitations.
The Third-Party Defendants argue Ecclesia’s claims fall under the two-year professional
negligence statute of limitations while Ecclesia argues its claims fall under the six-year ordinary
negligence statute of limitations. The Third-Party Defendants argue the two-year professional
negligence statute controls as to Ecclesia’s negligence, breach of contract, breach of warranty, and
indemnification and/or contribution claims. Ecclesia argues that summary judgment is not
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appropriate even if the two-year limitations period applies because the claims’ accrual date is a
factual determination.
In North Dakota, general negligence claims are subject to a six-year statute of limitations
period under N.D.C.C. § 28-01-16. See Lang v. Barrios, 472 N.W.2d 464, 466 (N.D. 1991).
Malpractice claims are subject to a two-year statute of limitations period under N.D.C.C. § 28-01-
18(3). Under Section 28-01-18(3), “[a]n action for the recovery of damages resulting from
malpractice” must be commenced within two years after the claim for relief has accrued.
The North Dakota Supreme Court examined the applicability of the malpractice statute to
professionals in Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606 (N.D. 1992).
Malpractice is defined as “the failure of one rendering professional services to exercise that degree
of skill and learning commonly applied under all the circumstances in the community by the
average prudent reputable member of the profession with the result that injury, loss, or damage
[occurs] to the recipient of those services or to those entitled to rely upon them.” Id. at, 608 (N.D.
1992). “Simply stated, malpractice means professional negligence.” Id. at 609 (citation omitted).
Architects and engineers are professionals for the purposes of Section 28-01-18(3). However, the
professional negligence limitations period does not automatically apply simply because an
individual is a professional. A court must inquiry “whether or not the specific complained of act
or omission was the failure to conform to professional standards of skill and learning.” Id. “In
other words, the question is whether the complained of act or omission is a matter of malpractice
or is simply ordinary negligence.” Id. “[T]he actual nature of the action or the actual nature of the
subject matter” is determinative when applying the two-year statute of limitations. In Sime, the
North Dakota Supreme Court concluded that “the term malpractice refers to those actions where
the fact-finder must evaluate the reasonableness of the defendant's conduct in light of the special
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knowledge and skill he or she is presumed to have as a member of the profession, regardless of
the relationship between the parties.” Id. at 610.
Ecclesia argues its claim is grounded in ordinary negligence and can be assessed by a jury
using ordinary experience. The Court must look at the actual nature of the subject matter and the
factual allegations underlying the claim to determine which statute of limitations applies. See
McMahon v. Sanford, 2025 ND 184, ¶ 14, 27 N.W.3d 478. Although the factual allegations are
sparce in Ecclesia’s complaint, it states that Hite “was to provide architectural services” and
Schultz was to provide “mechanical, electrical, plumbing, and fire protection engineering
services” for the project. See Doc. No. 2, p. 6-8 (emphasis added). Ecclesia alleges that the Third-
Party Defendants “owed a duty to use reasonable care in the provision of labor, goods, and services
in the performance of their work in accordance with any applicable codes, ordinances, regulations,
law, or governmental and/or industry standard.” See Doc. No. 2, p. 8 (emphasis added). Ecclesia
further alleges that it “relied on the Third-Party Defendants’ expertise in connection with the
services the Third-party Defendants were to perform on the Project.” Id. (emphasis added).
The language of the complaint is instructive. Ecclesia hired Schultz and Hite to perform
engineering services and architectural services (i.e. professional services) in connection with the
Project. Ecclesia argues the Third-Party Defendants owed it a duty in performing those services
and relied on their expertise in connection with the services they performed. It is clear that
Ecclesia’s negligence claim relates to the engineering services and architectural services provided,
rather than “basic tasks that any competent provider, professional or not, must perform” (Doc. No.
94, p. 6) as Ecclesia suggests in its brief. Ecclesia argues a jury can assess the Third-Party
Defendants’ conduct based on common experience yet states in its complaint that it “relied on the
Third-Party Defendants’ expertise in connection with the services the Third-Party Defendants were
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to perform.” See Doc. No. 2, p. 8. Common experience is insufficient to assess whether Hite and
Schultz breached their duty in performing professional services when Ecclesia relied on their
professional expertise in the performance of those very services.
Further, Ecclesia alleges the Third-Party Defendants failed to use reasonable care in the
performance of their work in accordance with industry standards. In determining whether specific
claims against engineers and architects are subject to Section 28-01-18(3), the North Dakota
Supreme Court focuses on whether or not the specific complained of act or omission was the failure
to conform to professional standards of skill and learning.” Sime v. Tvenge Assocs. Architects &
Planners, P.C., 488 N.W.2d 606, 609 (N.D. 1992). Here, Ecclesia alleges that Schultz and Hite
failed to conform with industry standards. Ecclesia argues the professional negligence statute of
limitations does not apply because Schultz’s obligations were “acts of performance, not exercises
of specialized engineering discretion. They involve the things a reasonable engineering firm would
do under the circumstances.” See Doc. No. 94, p. 7. This argument is contradictory. Ecclesia
compares Schutlz’s performance to that of an engineering firm yet argues that the jury can assess
the claim based on common experience. Ecclesia’s complaint is sounded in professional
malpractice. See McMahon, 2025 ND at ¶ 14 (finding claims are properly sounded in malpractice
when “factual allegations underlying the claims require proof of the defendants’ deviation from
the applicable standard” of a professional). The Court concludes the two-year professional
malpractice statute of limitations applies to Ecclesia’s claim against Schultz and Hite.
B. ACCRUAL OF CLAIMS
Next, the Court must determine when Ecclesia’s claims accrued. Generally, the statute of
limitations begins to run from the commission of a wrongful act giving rise to the cause of action.
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BASF Corp. v. Symington, 512 N.W.2d 692, 695 (N.D. 1994). However, when an injury only
manifests itself through the passage of time, the North Dakota Supreme Court applies the discovery
rule for determining when the cause of action accrues. “Under the discovery rule, the action does
not accrue and the limitations period does not begin to run until the claimant knows, or with
reasonable diligence should know, that a potential claim exists.” Id. “When the discovery rule
applies, the statute of limitations begins to run when the plaintiff knows, or with reasonable
diligence should know, of (1) the injury, (2) its cause, and (3) the defendant's possible negligence.”
Am. Fam. Ins. v. Waupaca Elevator Co., 2012 ND 13, ¶ 18, 809 N.W.2d 337.
The Third-Party Defendants argue the statute of limitations commenced on October 5,
2020, when Ecclesia sent a letter informing them of the water leaks New Hope experienced. See
Doc. No. 102-2. The letter informed the Third-Party Defendants of Ecclesia’s belief that a lawsuit
from New Hope was forthcoming. Prior to the letter, Ecclesia retained architects from Raths,
Raths, & Johnson, Inc. (“RRJ”) to identify the cause of the leaks and determine what repairs were
necessary. RRJ issued a report pursuant to their investigation, which Ecclesia provided to the
Third-Party Defendants along with the October 5, 2020 letter. The letter informed the Third-Party
Defendants that RRJ identified significant defects in the Third-Party Defendants’ design and
installation work. Id. at 2-3. The Third-Party Defendants argue that the letter shows that Ecclesia
was aware of the injury as of October 5, 2020.
Although the letter notified the Third-Party Defendants of RRJ’s identification of defects
in their work and the estimated cost of completing past repairs and future repairs,1 Ecclesia did not
allege any damages arising out of repair work in its third-party complaint. The complaint does not
reference any repairs that Ecclesia made to fix the Third-Party Defendants’ allegedly negligent
1 Ecclesia did not perform the future repairs it told the Third-Party Defendants they were liable for. The repairs were
completed by different contractors hired by New Hope.
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work. In the compliant, Ecclesia seeks damages for the Third-Party Defendants’ negligence,
breach of contract, and breach of warranty only to the extent that Ecclesia is liable to New Hope.
Ecclesia does not allege it suffered damages directly from the Third-Party Defendants’ negligence,
breach of contract, and breach of warranty. Ecclesia alleges that if it becomes liable to New Hope,
such damages were caused by the Third-Party Defendants’ actions. Ecclesia argues that its letter
to the Third-Party Defendants that put them on notice of New Hope’s potential claims does not
mean that it knew or with reasonable diligence should have known, that a potential claim existed
at the time. Ecclesia contends the date of accrual of its negligence claim is a factual dispute.
“For purposes of applying a statute of limitations, determining when a cause of action
accrues normally presents a question of fact; however, if the material facts are undisputed, the
issue of whether a statute of limitations has run becomes a question of law.” Hysjulien v. Hill Top
Home of Comfort, Inc., 2013 ND 38, ¶ 13, 827 N.W.2d 533. See also Johnson v. Hovland, 2011
ND 64, ¶ 13, 795 N.W.2d 294; Abel v. Allen, 2002 ND 147, ¶ 11, 651 N.W.2d 635. The Court
finds that there are numerous factual issues in dispute that a jury needs to resolve concerning
Ecclesia’s actual knowledge; whether it exercised reasonable diligence to discover the cause and
existence of any injury or damage; causation; and the Third-Party Defendants’ possible negligence
which all preclude the grant of summary judgment at this stage. Therefore, the Court denies the
Third-Party Defendants’ motion for summary judgment as to Ecclesia’s negligence claim.
C. BREACH OF WARRANTY CLAIM
Hite argues that even if Ecclesia’s breach of warranty claim is not time-barred, Ecclesia
cannot prove a breach of warranty because the implied warranty of workmanship does not apply
to architects performing professional services. Although Schultz did not raise this specific
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argument as to the breach of warranty claim, the Court notes that the findings and analysis are
applicable as to Ecclesia’s claim against Schultz. Ecclesia brings a claim against the Third-Party
Defendants for a breach of both express warranties and implied warranties. However, Ecclesia
does not dispute the contention that Hite made no express warranties in its contract with Ecclesia.
Schultz also did not make an express warranty in its contract with Ecclesia. Ecclesia alleges Hite
“impliedly warranted to Ecclesia Construction that their work would be free of construction defects
and deficiencies and would conform to any and all applicable codes, ordinances, regulations or
governmental and/or industry standards applicable at the time, and that their work would be
performed in a workmanlike manner.” See Doc. No. 2, p. 10.
North Dakota has recognized an implied warranty of fitness for the purpose in construction
contracts where:
(1) the contractor holds himself out, expressly or by implication, as competent to
undertake the contract; and the owner (2) has no particular expertise in the kind of
work contemplated; (3) furnishes no plans, designs, specifications, details, or
blueprints; and (4) tacitly or specifically indicates his reliance on the experience
and skill of the contractor, after making known to him the specific purposes for
which the building is intended.
Leno v. K & L Homes, Inc., 2011 ND 171, ¶ 10, 803 N.W.2d 543. The North Dakota Supreme
Court has repeatedly applied implied warranties of workmanship to contractors and builders.
However, the North Dakota Supreme Court has not addressed whether implied warranties apply
to services performed by professionals, such as architects.
The majority of jurisdictions that have addressed the issue have declined to apply implied
warranties in connection with architects and engineers. In City of Mounds View v. Walijarvi, 263
N.W.2d 420 (Minn. 1978), the Minnesota Supreme Court declined to extend the implied warranty
doctrine to vendors of professional services. The court noted that “[t]he majority position limits
the liability of architects and others rendering professional services to those situations in which the
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professional is negligent in the provision of his or her services. With respect to architects, the rule
was stated as early as 1896 by the Supreme Court of Maine.” In reaching its conclusion, the court
said,
[t]he undertaking of an architect implies that he possesses skill and ability,
including taste, sufficient to enable him to perform the required services at least
ordinarily and reasonably well; and that he will exercise and apply in the given case
his skill and ability, his judgment and taste, reasonably and without neglect. But the
undertaking does not imply or warrant a satisfactory result. The reasoning
underlying the general rule as it applies both to architects and other vendors of
professional services is relatively straightforward. Architects, doctors, engineers,
attorneys, and others … are continually called upon to exercise their skilled
judgment in order to anticipate and provide for random factors which are incapable
of precise measurement … Because of the inescapable possibility of error which
inheres in these services, the law has traditionally required, not perfect results, but
rather the exercise of that skill and judgment which can be reasonably expected
from similarly situated professionals.
Id. at 423-24.
Similarly, the Court of Appeals of New Mexico adopted the majority view that “an implied
warranty of sufficiency of plans and specifications will not be imposed against services performed
by professionals, including architects and engineers.” State, ex rel. Risk Mgmt. Div. of Dep't of
Fin. & Admin. v. Gathman-Matotan Architects & Planners, Inc., 1982-NMCA-130, 98 N.M. 790,
793, 653 P.2d 166. The court concluded, “[t]raditionally, architects, along with other professionals
such as doctors and lawyers, do not promise a certain result. The professional is usually employed
to exercise the customary or reasonable skills of his profession for a particular job.” The court
explained that the doctrine of implied warranties was developed, in part, due to “the lack of privity
between the manufacturer and the buyer, the difficulty of proving negligence against a distant
manufacturer using mass production techniques, and the better ability of the mass manufacturer to
spread the economic risks among its consumers.” However, “[t]hese considerations are not
applicable in a contract for professional services.” In Queensbury Union Free Sch. Dist. v. Jim
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Walter Corp., 91 Misc. 2d 804, 806 398 N.Y.S.2d 832 (Sup. Ct. 1977), the court in New York
concluded, “[a]bsent a guarantee of specific results, those engaged in the professions are held only
to the standard generally followed in their particular profession and are required only to use due
care in the performance of the professional services rendered.” The court held that although
architects and engineers may be held responsible for the negligent performance of their
professional services, there is no cause of action against architects for a breach of implied warranty.
The Court agrees with the majority of jurisdictions that the doctrine of implied warranties
does not apply to professional services. Although architects and engineers can be liable for
professional malpractice as discussed above, an implied warranty of workmanship is not intended
to apply to professionals in the performance of professional services. The law requires architects
and engineers to exercise the skill and judgment that can be reasonably expected of their profession
for a particular job, but the undertaking of the professional services does not warrant perfect
results. The Court concludes that the implied warranty of workmanship that has historically been
applied to builders and contractors does not apply to the services of architects and engineers.
Accordingly, Ecclesia cannot maintain a claim for a breach of implied warranty against Hite and
Schultz. The Court grants the Third-Party Defendants’ motion for summary judgment as to
Ecclesia’s warranty claim.
D. CONTRIBUTION CLAIM
Schultz and Hite argue that Ecclesia’s contribution claim must be dismissed because North
Dakota law does not permit a third-party contribution claim absent concerted action or joint and
several liability. Under North Dakota’s comparative fault scheme, liability amongst tortfeasors is
several only, not joint, unless the parties acted in concert. Under North Dakota law,
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When two or more parties are found to have contributed to the injury, the liability
of each party is several only, and is not joint, and each party is liable only for the
amount of damages attributable to the percentage of fault of that party, except that
any 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. Under N.D.C.C. § 32-38-02(2), which governs contribution amongst
tortfeasors:
The right of contribution exists only in favor of a tort-feasor who has paid more
than that tort-feasor's pro rata share of the common liability, and that tort-feasor's
total recovery is limited to the amount paid by that tort-feasor in excess of that tort-
feasor's pro rata share. No tort-feasor is compelled to make contribution beyond
that tort-feasor's own pro rata share of the entire liability.
N.D.C.C. § 32-38-02(2). Accordingly, there is no basis for a third-party contribution claim
without joint and several liability amongst tortfeasors, and liability is several only in the absence
of concerted action.
The North Dakota Supreme Court addressed this concept in Target Stores, a Div. of Dayton
Hudson Corp. v. Automated Maint. Servs., Inc., 492 N.W.2d 899 (N.D. 1992). Target Stores
(“Target”) brought a negligence claim against Automated Maintenance Services, Inc.
(“Automated”) regarding a fire that occurred at a Target store in Grand Forks, North Dakota.
Automated employees were responsible for cleaning the store using propane-powered floor
buffers, which were manufactured by Pioneer/Eclipse Corporation (“Pioneer/Eclipse”).
Automated gave instructions to its propane suppliers to underfill the propane tanks in the floor
buffers because they did not operate properly when overfilled. On the night of the incident, an
Automated employee released propane from two tanks, believing the tanks were overfilled. The
propane ignited when another Automated employee started a floor buffer in the same area. Target
sued Automated in federal court for causing the fire and the resulting damage. Automated then
brought a third-party action against Pioneer/Eclipse, the floor buffer manufacturer, alleging
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negligence. Thereafter, the United States District Court for the District of North Dakota certified
the following question of law to the North Dakota Supreme Court:
In a case involving claims of products liability and negligence, governed by Chapter
32–03.2 of the North Dakota Century Code, where a plaintiff elects not to sue all
potential tortfeasors, and where the non-sued potential tortfeasors did not act in
concert with, aid, encourage, ratify, or adopt the act of a defendant, does Chapter
32–03.2 when read in concert with NDCC § 32–38–01(2), preclude a third party
action by a defendant against a non-sued potential tortfeasor?
Target, 492 N.W.2d at 901.
The North Dakota Supreme Court answered in the affirmative, stating that “[a] non-sued
tort-feasor, who did not act in concert with, nor aid or encourage a sued tort-feasor, nor ratify or
adopt that tort-feasor's act, is not liable for contribution to the sued tort-feasor.” Id. The Supreme
Court concluded that Pioneer/Eclipse could not be held jointly liable to Target and could not be
required to contribute to Automated’s liability because there was no allegation that Pioneer/Eclipse
and Automated “acted in concert, aided or encouraged each other, or ratified or adopted for their
benefit, a tortious act committed by either of them.” “[T]he absence of a claim for concerted action
among concurrent tort-feasors precludes a third-party claim for contribution between them.” The
Supreme Court concluded that “[w]hen liability of a concurrent tort-feasor is statutorily directed
to be several, that directive precludes liability of the tort-feasor for more than a percentage share
of the damages, and precludes a claim for contribution between concurrent tort-feasors.” Id. at
902-03.
In Pierce v. Shannon, 2000 ND 54, 607 N.W.2d 878, the North Dakota Supreme Court
again discussed contribution claims against third parties.
The import of our holding in Target is clear: Absent concerted action, there is no
third-party claim for contribution among tortfeasors. There is no allegation of
concerted action in this case. Because a tortfeasor can now be held liable only for
its own pro rata share of fault under N.D.C.C. § 32–03.2–02, there is no basis for
contribution under N.D.C.C. § 32–38–01(2).
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Id. at ¶ 11. In Reed v. Univ. of N. Dakota, 1999 ND 25, ¶ 34, 589 N.W.2d 880, the North Dakota
Supreme Court “decline[d] to broadly construe the ‘in concert’ language of N.D.C.C. § 32–03.2–
02 to include concurrent negligence, because that construction would effectively render
meaningless the general rule for several liability.”
Ecclesia argues that the motions for summary judgment on the Third-Party Defendants’
contribution claim are premature because factual issues must be resolved by a jury. Ecclesia
contends a jury must first decide how fault should be allocated amongst Ecclesia, Shultz, and Hite.
However, New Hope did not bring claims against Schultz or Hite. Under North Dakota law,
Ecclesia can only be held liable for its pro rata share of fault because its liability is several rather
than joint, absent a showing of concerted action. There is no claim of concerted action in this case.
There is no evidence that Ecclesia and the Third-Party Defendants acted in concert, aided or
encouraged each other, or ratified or adopted for their benefit, a tortious act committed by either
of them. The absence of concerted action among the Third-Party Defendants and Ecclesia
precludes Ecclesia’s claim for contribution. Therefore, the Court concludes that Schultz and Hite
are entitled to summary judgment on Ecclesia’s contribution claim.
E. INDEMNIFICATION CLAIM
The Third-Party Defendants also argue that Ecclesia cannot maintain its indemnity claim.
Ecclesia argues that summary judgment on its indemnity claim is premature. “Indemnity is an
equitable remedy which permits a party to recover reimbursement from another for the discharge
of a liability that, as between the two parties, should have been discharged by the other. An
indemnity action is of a separate and distinct nature from the tort or contract action which underlies
it.” Superior, Inc. v. Behlen Mfg. Co., 2007 ND 141, ¶ 11, 738 N.W.2d 19 (citations omitted).
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Under North Dakota law, a right of indemnity may arise by express agreement or by implication.
Id. at ¶ 12. When there is no express contractual duty to indemnify, indemnity “may be recovered
if the evidence establishes an implied contract or if one party is exposed to liability by the action
of another party who, in law or in equity, should make good the loss of the other.” Grinnell Mut.
Reinsurance Co. v. Ctr. Mut. Ins. Co., 2003 ND 50, ¶ 40, 658 N.W.2d 363. Contract and tort are
the two bases for implied indemnity in North Dakota. Superior, 2007 ND at ¶ 12. Ecclesia’s
indemnity claim relies on implied indemnity because there are no express agreements for
indemnification between Ecclesia and the Third-Party Defendants.
The Third-Party Defendants argue that Ecclesia cannot maintain a claim for tort-based, (or
“common-law”) implied indemnity. Ecclesia argues that factual issues preclude summary
judgment on this matter. A common-law right to indemnification exists when “there is a finding
of great disparity in the fault of the parties and one of the tortfeasors has paid for a loss that was
primarily the responsibility of the other. The apportionment of fault is a question of fact for the
jury to resolve at trial. Whether an implied right of indemnification exists will be an issue for the
Court to resolve post-trial.” Campbell v. BNSF Ry. Co., 756 F. Supp. 2d 1109, 1113 (D.N.D.
2010) (internal citation omitted). Generally, the right to sue for indemnity does not arise “until the
indemnitee has suffered an actual loss through the payment of a judgment or settlement.” Grinnell,
2003 ND at ¶ 47. An exception exists when indemnification is asserted in a third-party action. “[A]
third-party indemnity claim may be filed before it accrues, in order to promote a settlement of all
claims in one action. However, such claim cannot be determined before the underlying claim
establishing liability and damages is determined.” Id. The Third-Party Defendants’ motions for
summary judgment on Ecclesia’s indemnity claim are premature. Liability and damages on New
Hope’s claims against Ecclesia must be determined at trial before the indemnity claim can be
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determined. Therefore, the Court concludes that Ecclesia may maintain a claim for indemnification
at this stage of the proceedings.
IV. CONCLUSION
The Court has carefully reviewed the entire record, the parties’ briefs, and relevant case
law. For the reasons set forth above, the Third-Party Defendants’ motions for summary judgment
(Doc. Nos. 90 and 101) are GRANTED IN PART AND DENIED IN PART as explained herein.
IT IS SO ORDERED.
Dated this 21st day of April, 2026.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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