State guide · Midwest
North Dakota subrogation law guide
A claimant recovers reduced damages only if its fault is less than the combined fault of all other persons who contributed, parties or not; at 50% or more the claim is barred.
North Dakota at a glanceND
- Property damage
- 6 years
- Bodily injury
- 6 years
- Fault rule
- Modified, 50% bar
- Gov. notice
- 180 days
Overview
North Dakota pairs long limitation periods with a strict fault bar. Property damage, personal injury and written contract claims all run six years under N.D.C.C. 28-01-16, which gives a closed-claim review more room than most states. But the fault rule bars a claimant at 50%, measured against the combined fault of everyone who contributed, including nonparties, and liability is several only, so any share assigned to an absent party is lost. North Dakota is also a no-fault auto state. Basic no-fault benefits of $30,000 per person are paid regardless of fault, a secured motorist is exempt from liability for economic loss to the extent of those benefits, and the no-fault insurer's subrogation runs only against persons other than secured persons; the equitable allocation statute between insurers was repealed in 2005. Collision and property recoveries are untouched by no-fault, and section 32-03.2-02.1 shields small two-car property claims from any reduction for the claimant's fault.
Quick reference with citations
- Property damage SOL
- 6 years
- N.D.C.C. 28-01-16 (six years)
- Bodily injury SOL
- 6 years
- N.D.C.C. 28-01-16 (six years; wrongful death is two years under 28-01-18)
- Product liability
- Six years (28-01-16), but no recovery unless the injury or damage occurs within 10 years of initial purchase or 11 years of manufacture (N.D.C.C. 28-01.3-08), with an exception for recalled or known defects; 10-year repose for real property improvements (28-01-44)
- Written contract
- 6 years
- Contract and indemnity recoveries
- Comparative fault rule
- Modified, 50% bar
- N.D.C.C. 32-03.2-02
- Government notice of claim
- 180 days
- Political subdivisions: current N.D.C.C. 32-12.1-10 requires no pre-suit notice, but suit must be commenced within three years, and recovery is capped at $500,000 per person and $2,000,000 per occurrence (32-12.1-03). Claims against the State require written notice to the director of the Office of Management and Budget within 180 days after the injury is or should have been discovered (32-12.2-04).
Fault rule in practice
How North Dakota's rule changes a $50,000 recovery.
A claimant recovers reduced damages only if its fault is less than the combined fault of all other persons who contributed, parties or not; at 50% or more the claim is barred.
Authority: N.D.C.C. 32-03.2-02
| Insured's share of fault | Recoverable in ND | Under pure comparative |
|---|---|---|
| 0% | $50,000 | $50,000 |
| 20% | $40,000 | $40,000 |
| 50% | Barred | $25,000 |
| 60% | Barred | $20,000 |
Doctrines that move the number
North Dakota doctrine checklist.
Made-whole doctrine
North Dakota has not adopted the made-whole doctrine for subrogation generally or for health insurers. For auto injury benefits, N.D.C.C. 26.1-41-16 subrogates the basic no-fault insurer against any person other than a secured person, gives it a lien to the extent of its obligations, and voids any release signed without its consent.
Economic loss doctrine
Cooperative Power Ass'n v. Westinghouse Electric Corp. (1992) bars tort recovery when a product sold commercially damages only itself, and Clarys v. Ford Motor Co. (1999) extended the rule to consumers. Damage to other property remains recoverable in tort.
Joint and several liability
N.D.C.C. 32-03.2-02 makes liability several only: each party pays the damages attributable to its own percentage, and fault can be allocated to nonparties. Joint liability survives only for those who act in concert, aid or encourage the act, or ratify it.
Anti-subrogation and waiver
General rule: no subrogation against the carrier's own insured or co-insureds for the covered loss. Check lease and construction contract waivers of subrogation before demand.
Practice notes
Working North Dakota subrogation files.
- 1
Use N.D.C.C. 32-03.2-02.1 on small collision files. In a two-party motor vehicle accident with direct property damage of $5,000 or less, indirect damage of $1,000 or less, and the other driver more than 50% at fault, the property recovery is not reduced for the insured's fault. Example: $4,200 in repairs after a Fargo collision with the adverse driver at 70% recovers $4,200, not $2,940.
- 2
Above those limits the 50% bar governs. Example: a carrier pays $18,000 on a Bismarck intersection loss. At 30% insured fault it recovers $12,600; at 50% it recovers nothing. Because fault is compared with all other contributors, identify nonparties such as a road contractor with a poorly marked lane closure: their share helps the insured clear the bar but is not collectible.
- 3
No-fault limits auto injury subrogation sharply. A basic no-fault insurer cannot subrogate against a secured person, meaning the owner, operator or occupant of an insured vehicle. Realistic targets are uninsured drivers, product manufacturers, road contractors and other non-motorists. The 26.1-41-16 lien survives any release the insured signs without the carrier's consent, so notify plaintiff counsel early.
- 4
North Dakota's collateral source statute, 32-03.2-06, lets a defendant reduce economic damages by collateral payments but expressly excludes insurance purchased by the party recovering. A property carrier's payment to its insured therefore does not reduce the insured's award, and the subrogated interest stays intact for recovery. Cite the exclusion whenever a defendant moves for a collateral source reduction.
- 5
Ishqkala's Liability Reasoning Engine applies the 32-03.2-02.1 rule automatically. For two-vehicle North Dakota collisions with direct damage at or under $5,000 and adverse fault above 50%, the file is scored at full paid value instead of being discounted for the insured's share, which moves small claims up the work queue.
Key cases
Cooperative Power Ass'n v. Westinghouse Electric Corp.
493 N.W.2d 661 (N.D. 1992)
Held that a manufacturer is not liable in tort for economic loss when a failed component damages only the product itself, leaving the buyer to contract and warranty remedies.
Clarys v. Ford Motor Co.
1999 ND 72
Extended the economic loss doctrine to consumer transactions, so a subrogee needs damage to other property to recover in tort for a product failure.
Inter-company arbitration
North Dakota collision and property subrogation between carriers usually resolves in Arbitration Forums, compulsory for signatories up to $100,000 in total company-paid damages. Arbitrators apply loss-state law, so the 50% bar, several liability and the 32-03.2-02.1 small-claim rule all apply; cite the statute in the filing. With equitable allocation repealed and no subrogation against secured persons, there is little PIP inter-company recovery to arbitrate.
How Ishqkala applies this guide
ND rules, built into every score.
- Opportunities with a North Dakota loss state are calendared against the 6 years property damage period or the 6 years bodily injury period, whichever controls the claim type.
- The insured's estimated fault share is applied under modified, 50% bar before recoverable dollars are scored.
- Files involving a public entity get a 180-day notice deadline that outranks the general SOL in the priority queue.
- Alerts fire at 180, 90, 45 and 15 days before the controlling deadline.
FAQ
North Dakota subrogation FAQ
6 years (N.D.C.C. 28-01-16 (six years)). A subrogating carrier generally takes the insured's claim subject to the same limitation period, usually measured from the date of loss.
Modified, 50% bar (N.D.C.C. 32-03.2-02). A claimant recovers reduced damages only if its fault is less than the combined fault of all other persons who contributed, parties or not; at 50% or more the claim is barred.
Political subdivisions: current N.D.C.C. 32-12.1-10 requires no pre-suit notice, but suit must be commenced within three years, and recovery is capped at $500,000 per person and $2,000,000 per occurrence (32-12.1-03). Claims against the State require written notice to the director of the Office of Management and Budget within 180 days after the injury is or should have been discovered (32-12.2-04).
North Dakota has not adopted the made-whole doctrine for subrogation generally or for health insurers. For auto injury benefits, N.D.C.C. 26.1-41-16 subrogates the basic no-fault insurer against any person other than a secured person, gives it a lien to the extent of its obligations, and voids any release signed without its consent.
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