Sandberg v. American Family Insurance Co.

CROTHERS, Justice,

concurring specially. '

[¶ 19] I specially concur. I agree with the result in this case, but write separately to express respectful concern about the excessive scope in paragraph 10 regarding subrogation, the excessive scope in paragraph 12 regarding legislative history and reduction of coverage, and the apparent blanket conclusion in paragraph 14 that an insurer could never be prejudiced by an unauthorized settlement with WSI.

[¶ 20] Our law proscribes advisory opinions. See Bies v. Obregon, 1997 ND 18, ¶¶ 9-10, 558 N.W.2d 855. This rule exists so that we do not appear to decide collateral matters or matters academically interesting but unnecessary for resolution of the pending case. The rationale underpinning this rule is based on our adversarial system and the idea that competently presented competing claims will secure the truth and lead to “the just, speedy, and inexpensive determination of every action.” N.D.R.Civ.P. 1. See Risch v. North Dakota Workers Compensation Bureau, 447 N.W.2d 308, 312 (N.D.1989) (Meschke, J., concurring) (dicta is “neither dictated by the facts of the cases decided nor derived from adversary presentations”). Stating an apparent conclusion without a controversy pending before the court exposes the judiciary to the danger of improvidently deciding issues and of not sufficiently contemplating ramifications of the opinion. See, e.g., Hovland v. City of Grand Forks, 1997 ND 95, ¶ 8, 563 N.W.2d 384 (“[the *365previous] court’s discussion of N.D.C.C. ch. 53-08 is a dictum, and we are not compelled by stare decisis to follow it here”) and Olson v. Bismarck Parks and Rec. Disk, 2002 ND 61, ¶ 13, 642 N.W.2d 864 (“These statements are dicta, and we are not compelled by stare decisis to follow them. We do not follow the path outlined in the Hovland dicta here because, under the circumstance of this case, we believe there is a close correspondence between the statutory classification and the legislative goals.” (Internal citation omitted.)).

[¶ 21] Because dicta need not be followed in subsequent cases, inclusion of dicta may have the unsalutary effect of misleading judges and lawyers, and may result in litigants incurring considerable expense funding fruitless arguments before the district courts and on appeal. Here, neither I nor the majority knows whether the majority’s dicta will lead to untoward results. But the danger can be avoided by narrowing the scope of the opinion in this case. The majority has not done so, and I therefore respectfully concur in the result only.

[¶ 22] Daniel J. Crothers