Let me say it again: An overwhelming majority of jurisdictions permit the assignment of a bad faith claim when coupled with a covenant not to execute.Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524 (Iowa 1995) (landmark case); Gray v. Grain Dealers Mut. Ins. Co., 871 F.2d 1128 (D.C. Cir.1989) (landmark case); J J Farmer Leasing, Inc. v. Citizens Ins. Co. of America, All Mich. 353, 696 N.W.2d 681 (2005); Wangler v. Urol, 670 N.W.2d 830 (N.D. 2003); Guillen ex rel. Guillen v. Potomac Ins. Co., 203 Ill.2d 141, 271 Ill.Dec. 350, 785 N.E.2d 1 (2003); Stateline Steel Erectors, Inc. v. Shields, 150 N.H. 332, 837 A.2d 285 (2003); Pinto v. Allstate Ins. Co., 221 F.3d 394 (2nd Cir.2000); Kobbeman v. Oleson, 574 N.W.2d 633 (S.D. 1998); Ayers v. C D General Contractors, 269 F.Supp.2d 911 (W.D.Ct.Ky.2003); Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990); Franco v. Selective Ins. Co., 184 F.3d 4 (1st Cir.1999) (applying Maine law); Gainsco Ins. Co. v. Amoco Prod. Co., 53 P.3d 1051 (Wyo. 2002); Tip's Package Store, Inc. v. Commercial Ins. Managers, Inc., 86 S.W.3d 543 (Tenn.Ct.App. 2001); Campione v. Wilson, 422 Mass. 185, 661 N.E.2d 658 (1996); McLellan v. Atchison Ins. Agency Inc., 81 Hawai'i 62, 912 P.2d 559 (App. 1996). The rule followed by most courts is to consider a covenant not to execute "merely a contract and not a release."

First, applying general principles of issue preclusion under North Dakota law, defendant would not be bound by what was decided in the action brought by plaintiffs against the Furmanski Estate, including the judgment, since defendant was neither a party to that action nor in privity with the Furmanski Estate. See, e.g., Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 383-84 (N.D. 1992) (setting forth the necessary elements for application of claim and issue preclusion under North Dakota law). Plaintiffs have failed to cite any authority for why these general principles are not applicable under the circumstances presented by this case. Second, the North Dakota Supreme Court in Wangler v. Lerol, 2003 ND 164, 670 N.W.2d 830 concluded under somewhat analogous circumstances that the defendant insurance agent in that case was not bound by a judgment entered against the person claiming to have been insured pursuant to what is often referred to in North Dakota as a Miller-Shugart settlement. The facts of that case were the following: Wangler suffered injuries while he was working for Pine Ridge Company ("Pine Ridge"), a company engaged in turkey farming. Wangler sued Pine Ridge, which, according to the court's opinion, did not carry workers compensation insurance.

And here, the North Dakota Supreme Court is likely to find persuasive the conclusion reached by others that a settlement with the particular features described above advances this policy because it provides a mechanism for achieving settlement, albeit a partial one, when a tortfeasor has both primary and excess coverage.Cf. Wangler v. Lerol, 2003 ND 164, ¶¶ 21-23, 670 N.W.2d 830 (noting that the North Dakota Supreme Court has embraced Miller v. Shugart settlement agreements and the policy reasons expressed in Miller v. Shugart, 316 N.W.2d 729 (Minn.1982) for why such settlement agreements should be given effect); Bartels v. City of Williston, 276 N.W.2d 113 (N.D. 1979) (embracing Pierringer releases as recognized by the Wisconsin and Minnesota courts in part because they advance the policy of the underlying statutory scheme of encouraging settlements). If partial settlements with the primary carrier are not permitted, one commentator with substantial tort and insurance litigation experience has noted the following as being the conseqeunce:

[¶7] There is a split of authority on the issue of whether waiver and estoppel can extend coverage to risks that are not included in the terms of an insurance policy. See Wangler v. Lerol, 2003 ND 164, ¶ 12, 670 N.W.2d 830; see also 46 C.J.S. Insurance § 1155 (March 2023 update). The majority rule is that waiver and estoppel cannot operate to extend coverage.

See, e.g., Lacey v. Maricopa Cnty., 693 F.3d 896, 927–28 (9th Cir.2012); United States v. Pennsylvania Shipbuilding Co., 473 F.3d 506, 516–17 (3d Cir.2007); Young v. Mount Ranier, 238 F.3d 567, 572–73 (4th Cir.2001); In re Crysen/Montenay Energy Co., 226 F.3d 160, 162 (2d Cir.2000); Dunn v. Air Line Pilots Ass'n, 193 F.3d 1185, 1191 n. 5 (11th Cir.1999); Davis v. TXO Prod. Corp., 929 F.2d 1515, 1518 (10th Cir.1991); National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Servs. Grp., Inc., 171 Cal.App.4th 35, 89 Cal.Rptr.3d 473, 478–79 (2009); Prayson v. Kansas City Power & Light Co., 847 S.W.2d 852, 859–60 (Mo.Ct.App.1992); Wangler v. Lerol, 2003 ND 164, ¶¶ 26–27, 670 N.W.2d 830;Surgical Inst. of S.D., PC v. Sorrell, 2012 SD 48, ¶¶ 22–23, 816 N.W.2d 133. “A dismissal is on the merits when it is with prejudice or based on some legal barrier other than want of specificity or particularity.” Pennsylvania Shipbuilding, 473 F.3d at 516.

See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir.2001); see also 6 Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 1476 (3d ed.2011 update) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified.”). Despite this rule, courts have determined that a “plaintiff need not replead dismissed claims in an amended complaint to preserve the right to appeal the dismissal.” Wangler v. Lerol, 670 N.W.2d 830, 840 (N.D.2003) (citing Young v. City of Mount Ranier, 238 F.3d 567, 572–73 (4th Cir.2001); In re Crysen/Montenay Energy Co., 226 F.3d 160, 162 (2d Cir.2000); Dunn v. Air Line Pilots Assn., 193 F.3d 1185, 1191 n. 5 (11th Cir.1999); Parrino v. FHP, Inc., 146 F.3d 699, 704 (9th Cir.1998); USS–POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, 31 F.3d 800, 811–12 (9th Cir.1994); Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517–18 (10th Cir.1991); Wilson v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir.1978), vacated on other grounds,444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979); 35A C.J.S. Federal Civil Procedure § 445 (2003)).