Similarly, in Keller v. Vermeer Mfg. Co., 360 N.W.2d 502 (N.D. 1984), the recitation of the facts reveals that the trial court applied the Wisconsin rule, but again that ruling was not challenged on appeal and the supreme court noted that it did not review the issue. 360 N.W.2d at 503, 504, n. 1. Finally, in Keyes v. Amundson, 359 N.W.2d 857 (N.D. 1984) (Keyes II, issued the same day as Keller), the instant issue was certified to the supreme court by a state district court, but the supreme court declined to rule for lack of ripeness. 359 N.W.2d at 858, 859. After reviewing the North Dakota case law this court concludes that the present issue has been recognized by the North Dakota Supreme Court as being a completely open question unaffected by precedent in the law of this state.
Our recent decisions have repeatedly said we will not answer a certified question of law unless the disposition of the case depends wholly or principally upon the construction of the law as it is determined by the answer to the question, regardless of whether we answer the question in the affirmative or the negative. Butz v. World Wide, Inc., 472 N.W.2d 757 (N.D. 1991); Gelinske v. Farmers Grain Trading Co., 446 N.W.2d 261 (N.D. 1989); Bellemare v. Gateway Builders, Inc., 399 N.W.2d 308 (N.D. 1987); Keyes v. Amundson, 359 N.W.2d 857 (N.D. 1984); State v. Lebus, 339 N.W.2d 564 (N.D. 1983). Here, depending on the answers to the certified questions, issues of liability and damages may remain for disposition in the trial court.
We have repeatedly said that a certified question will not be considered by this court unless the disposition of the case depends wholly or principally upon the construction of law determined by the answer, regardless of whether the answer is in the negative or affirmative. Bellemare v. Gateway Builders, Inc., 399 N.W.2d 308, 309 (N.D. 1987); Keyes v. Amundson, 359 N.W.2d 857, 859 (N.D. 1984); State v. Lebus, 339 N.W.2d 564, 566 (N.D. 1983); Bumann v. Maurer, 188 N.W.2d 740, 743 (N.D. 1971). In Bumann v. Maurer, supra, 188 N.W.2d at 743-44, this court declined to answer two certified questions, one of which was whether the proper measure of damages in the case was to be determined by the provisions of NDCC ยง 32-03-13.
Historically, we have construed these statutes to require that a certified question will be considered by this Court if the result of the action depends wholly, or at least principally, upon the construction of the law as it will be determined by the answers to the questions certified, regardless of whether answered in the negative or affirmative. Keyes v. Amundson, 359 N.W.2d 857, 859 (N.D. 1984); State v. Lebus, 339 N.W.2d 564, 566 (N.D. 1983); Bumann v. Maurer, 188 N.W.2d 740, 743 (N.D. 1971); Vantine Paint Glass Co. of Dickinson v. Kudrna, 186 N.W.2d 127, 128 (N.D. 1971); Scranton Grain Co. v. Lubbock Machine Supply Co., 175 N.W.2d 656, 658 (N.D. 1970); School Board of Eagle Public School District No. 16 of Richland County v. State Board of Public School Education, 126 N.W.2d 799, 802 (N.D. 1964); Meckle v. Hoffman, 78 N.W.2d 166, 170 (N.D. 1956). See also Trinity Medical Center v. North Dakota Board of Nursing (Civil No. 11,257, January 8, 1987) ___ N.W.2d ___ (N.D. 1987).