concurring in result.
I concur in the result of the majority opinion. I write separately to remark on two features of the majority opinion.
The Dvoraks did not rely on the no-fault insurance coverage in this case. Unlike a fault-based plaintiff, a claimant under a no-fault policy is made the insured by law. NDCC 26.1-41-06. If the Dvoraks had claimed that American Family failed to offer no-fault benefits in the first settlement attempt, this case would be controlled by Szarkowski v. Reliance Insurance Company, 404 N.W.2d 502 (N.D.1987). However, the Dvoraks did not make this argument to the trial court or to this court. We do not consider questions not briefed or argued. Olmstead v. First Interstate Bank, 449 N.W.2d 804, 807 (N.D.1989).
I concur with the majority that it is unnecessary in this case to decide whether NDCC Ch. 26.1-04 creates a private civil claim for relief because there was no allegation or showing that the insurer engaged in prohibited conduct “with a frequency indicating a general business practice.” Our refraining from deciding an unnecessary question, however, should not be taken as some unspoken endorsement of the cynical and contradictory federal doctrine, invented in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), that the courts should not enforce a Congressional enactment unless Congress makes it even longer to spell out how the courts should enforce it.
The Eighth Circuit Court of Appeals recently relied upon that Cort v. Ash doctrine, and this court’s «occasional employment of it to construe a federal law, to conclude that this court “would look to the same considerations in assessing a state statute.” Dahl v. ConAgra, Inc., 998 F.2d 619, 621 (8th Cir. 1993). I do not believe that is correct. One component of the customary Cort v. Ash analysis contemplates that an unsuccessful federal-law litigant will often be relegated “to whatever remedy is created by state law,” whenever a civil claim is not implicit or explicit in a parallel federal law. Cort v. Ash, 422 U.S. at 84, 95 S.Ct. at 2091. This federal doctrine does not control our interpretation of laws enacted by the North Dakota legislature. See Fargo Women’s Health v. FM Women’s Help, 444 N.W.2d 683 (N.D.1989). In my view, a federal principle of statutory construction should not regulate whether a private claimant is entitled to relief under a state enactment like NDCC Ch. 26.1-04 on Prohibited Practices in Insurance Business.