Construction Claim Rules in North Dakota

Statutory interest rate

6% / year default (pre-judgment, contract silent); Wall St. Journal prime + 3% floating, rounded up (post-judgment)

Where a contract doesn't specify its own rate, the default legal rate for prejudgment interest on a contract claim is 6% per year. Postjudgment interest instead floats: the State Court Administrator sets it annually by December 20 using the Wall Street Journal prime rate from the first Monday in December, plus 3 points, rounded up to the next half-point.

Compounding: Not stated in the statute; generally treated as simple interest.

Citation: N.D. Cent. Code § 47-14-05 (prejudgment/contract default); N.D. Cent. Code § 28-20-34 (postjudgment)

Source: https://www.ndcourts.gov/state-court-administration/interest-rate-on-judgments

Last checked: 2026-08-25

The postjudgment rate is set each December by the State Court Administrator from the Wall Street Journal prime rate plus three points, rounded up to the next half point, so pull the certified figure rather than a stored one. At the last check, in August 2026, the formula gave about 9.75%.

Accrual: breach of contract claim

From the particular day the right to recover vested, generally the breach/due date

North Dakota's general interest-on-damages statute lets a party whose right to damages certain, or capable of being made certain by calculation, vests on a particular day also recover interest from that day. In practice this is the date payment became due or the date of breach.

Citation: N.D. Cent. Code § 32-03-04

Source: https://law.justia.com/codes/north-dakota/title-32/chapter-32-03/

Accrual: property damage / tort claim

Notable gap: discretionary and available only for non-contract claims involving oppression, fraud or malice

North Dakota's separate discretionary-interest statute allows interest 'in the discretion of the court or jury' for the breach of a non-contractual obligation, but only in cases of oppression, fraud or malice. An ordinary, non-fraudulent negligence-based property-damage claim doesn't appear to fall within this provision at all, meaning North Dakota may have no statutory prejudgment interest right for a typical construction-related property-damage tort claim absent fraud or malice.

Citation: N.D. Cent. Code § 32-03-05

Source: https://law.justia.com/codes/north-dakota/title-32/chapter-32-03/

This is a genuinely significant, easy-to-miss gap; confirm with counsel whether your property-damage claim can be framed to fit within this narrow oppression/fraud/malice category, or whether it's more likely to get no prejudgment interest at all in North Dakota.

Actual Cash Value rule

Broad evidence rule for a partial loss; the valued policy law controls a total loss

The North Dakota Supreme Court held in Butler v. Aetna Insurance Co. that ACV is the sum which, considering all the circumstances, could have been obtained for the property, meaning the amount fair negotiations between a willing seller and a willing buyer would probably reach. The jury may weigh the property's character, age, condition, location, community demand, profitability and salability and jurors may apply their own business experience rather than relying only on expert testimony. North Dakota's separate valued policy law makes the face amount of the policy conclusive for a total loss of real property, so Butler governs partial losses.

Citation: Butler v. Aetna Ins. Co., 64 N.D. 764, 256 N.W. 214 (N.D. 1934); N.D. Cent. Code § 26.1-39-05 (valued policy law, total losses only)

Source: https://law.justia.com/cases/north-dakota/supreme-court/1934/64-nd-764.html

Some sources spell the party name Etna, which makes the case hard to find. It is Aetna.

ACV statute or regulation

No North Dakota statute or regulation defines an ACV calculation method or restricts depreciating labor.

North Dakota's unfair claims practices statute, N.D. Cent. Code 26.1-04-03, lists prohibited claims handling conduct but contains no valuation formula and nothing on labor versus materials. No administrative rule defining ACV, comparable to Ohio's 3901-1-54, exists. North Dakota's ACV rule is the common law fair market value approach from Butler v. Aetna Insurance Co.

Citation: N.D. Cent. Code 26.1-04-03 (reviewed; contains no ACV or labor-depreciation provision)

Source: https://codes.findlaw.com/nd/title-26-1-insurance/nd-cent-code-sect-26-1-04-03/

Recoverable depreciation holdback

No North Dakota statute or regulation governs the timing of a recoverable depreciation holdback or the depreciation of labor, so the policy terms control.

A published survey reports that the North Dakota Department of Insurance confirmed no statute, administrative rule or case law addresses this question. Read the policy's replacement cost provisions.

Source: https://www.mwl-law.com/state/north-dakota/

“No damages for delay” clause enforceability

Enforceable, with an active-interference exception; a construction manager's directive on work methods was enough to trigger it

The North Dakota Supreme Court held a no-damages-for-delay clause enforceable and effective to exculpate an owner from liability for ordinary delay, even alongside a time-is-of-the-essence provision, while recognizing an active-interference exception. In the case establishing this, the owner's construction-manager agent directed the contractor to change its steel-erection methods in a way that unreasonably impeded the work, which was active interference; the court apportioned delay responsibility (roughly 47% to the owner's active interference, 53% to industry-inherent delay for which the general contractor bore the cost) rather than an all-or-nothing result. The court rejected arguments that the clause was ambiguous or unconscionable.

Citation: C&C Plumbing & Heating, LLP v. Williams County, 2014 ND 128, 848 N.W.2d 709 (N.D. 2014)

Source: https://law.justia.com/cases/north-dakota/supreme-court/2014/20130297.html

Construction contract filing deadline

6 years for a written contract claim

North Dakota's limitations period for an action upon a contract, obligation, or liability founded upon an instrument in writing is 6 years from accrual, covering an ordinary written construction-contract claim. Two deadlines sit in front of that one on most construction claims. A mechanic's lien and a payment bond claim each run on their own, far shorter clock, counted from last furnishing rather than from breach and missing either one removes the security while leaving the contract claim alive but unsecured. Check those dates first. Accrual is the other half of the question: the period runs from breach, which on a payment dispute is usually the date payment came due rather than the date the work was done.

Citation: N.D. Cent. Code § 28-01-16

Source: https://codes.findlaw.com/nd/title-28-judicial-procedure-civil/nd-cent-code-sect-28-01-16/

State unemployment insurance (SUTA)

New employer rate 1.00% (positive-balance, non-construction) or 6.07% (negative-balance); construction new employers pay a flat 9.67%. Taxable wage base is $46,600 for 2026.

Job Service North Dakota sets new-employer rates by industry and reserve-ratio status. For 2026, non-construction new employers pay 1.00% if assigned a positive balance or 6.07% if assigned a negative balance; new construction employers pay a flat 9.67% regardless of balance. Established employers are experience-rated within two schedules: positive-balance rates range from 0.07% to 1.10% and negative-balance rates range from 6.07% to 9.67%. The taxable wage base for 2026 is $46,600 per employee, calculated as 70% of the statewide average annual wage and recalculated each year.

Citation: Job Service North Dakota, 2026 UI Tax Rate Schedule

Source: https://www.jobsnd.com/sites/default/files/documents/jsnd-documents/uitaxrateschedules2026.pdf

Last checked: 2026-08-26

New construction employers pay a flat 9.67% regardless of balance, against 1.00% for a positive-balance non-construction employer. Use the construction figure on a construction payroll and reconfirm both the rate schedule and the wage base each year.

Workers' compensation rating

Monopolistic state. Employers must purchase workers' compensation exclusively through the state fund, North Dakota Workforce Safety & Insurance (WSI); no private insurance option exists for in-state employment.

North Dakota is one of four states (with Ohio, Washington and Wyoming) where workers' compensation coverage is a state monopoly. In-state employers cannot buy a private workers' comp policy, including from NCCI-affiliated carriers; coverage must be purchased directly from North Dakota Workforce Safety & Insurance (WSI), a state agency that also administers claims and sets premium rates and class codes for the state.

Citation: North Dakota Workforce Safety & Insurance (WSI)

Source: https://www.workforcesafety.com/employers

Prevailing wage law

North Dakota has no state prevailing-wage law. The state's own prevailing-wage statute (N.D. Century Code Title 34) was repealed in 1995, so only the federal Davis-Bacon Act applies and only to federally funded or federally assisted contracts.

North Dakota repealed its state prevailing-wage requirement in 1995 and has not reenacted one since. State-funded and local public construction contracts with no federal funding nexus carry no prevailing-wage floor beyond ordinary state minimum-wage law. Contractors on projects with federal funding remain subject to the federal Davis-Bacon Act, which applies independently of state law to covered federal contracts generally exceeding $2,000.

Citation: N.D. Century Code Title 34 (repealed 1995); Davis-Bacon Act, 40 U.S.C. 3141-3148 (federal contracts only)

Source: https://www.dol.gov/agencies/whd/government-contracts/construction

The 1995 repeal comes from industry compliance sources rather than a state legislative record. Confirm it with the Legislative Council before relying on the date in a citation.

Comparative / contributory negligence rule

Modified comparative fault, recovery barred at 50% or more fault

Recovery is reduced in proportion to fault and barred once the worker is 50% or more at fault. A worker exactly 50% at fault recovers nothing.

Citation: N.D. Cent. Code § 32-03.2-02

Source: https://www.legis.nd.gov/cencode/t32c03-2.pdf

Verified against: statute text of N.D. Cent. Code s 32-03.2-02

Non-economic damages cap

No general cap on non-economic damages

Most states cap non-economic damages only in medical malpractice actions, which does not reach a third-party construction claim. Economic losses, medical bills, lost wages, future earning capacity, are not capped by these statutes.

OSHA plan

Full state plan, private + public sector; coordinated with the state's monopolistic workers' comp fund

North Dakota operates a full OSHA-approved state plan, coordinated with Workforce Safety & Insurance (WSI) so that safety violations can affect both regulatory standing and WSI experience ratings simultaneously. A state plan must be at least as effective as federal OSHA and may set stricter standards, so check the state rule before assuming the federal text applies. It also covers state and local government employees, which federal OSHA does not, so a public works injury is inside the state agency's jurisdiction. Citations are issued by the state agency and contested before the state's own review body rather than the federal commission, which changes where the file lives when you go looking for it. Reporting deadlines follow the federal rule: a work-related fatality within 8 hours, an inpatient hospitalisation, amputation or loss of an eye within 24 hours. For a construction claim the inspection file matters more than the citation: photographs, measurements, witness statements and the inspector's narrative are usually obtainable and are often the best contemporaneous record of the site.

Citation: 29 U.S.C. § 667

Source: https://www.osha.gov/stateplans

Weight of an OSHA violation in a negligence case

OSHA standards are evidence of the standard of care in North Dakota, not negligence per se

The North Dakota Supreme Court affirmed a jury instruction stating that OSHA standards could be considered in determining the applicable standard of care but could not constitute negligence per se. Evidence rather than negligence per se means the violation goes to the jury as one fact among several. The worker still proves duty, breach, causation and damages in the ordinary way and the defendant can argue the standard did not apply to it, that the cited condition did not cause this injury, or that the citation was contested or withdrawn. The reverse is also true: compliance with OSHA is not a defence, since the standards are a floor rather than a definition of reasonable care.

Citation: Praus ex rel. Praus v. Mack, 2001 ND 80, ¶ 35, 626 N.W.2d 239, 250

Source: https://law.justia.com/cases/north-dakota/supreme-court/2001/20000106.html

Third-party contribution against the employer

Immunity runs to a contributing employer, meaning one that pays into the state fund. A company that did not pay premiums for the worker may not be immune.

N.D. Cent. Code § 65-01-08 makes compensation the exclusive remedy against a contributing employer and extends that immunity to staffing agencies and client companies that contribute to the fund. In Cervantes v. Drayton Foods, L.L.C. the North Dakota Supreme Court held that a client company that did not directly pay premiums for a temporary agency worker was not a contributing employer and was not immune. Not every upstream company in a labour supply chain gets protection automatically.

Citation: N.D. Cent. Code § 65-01-08; Cervantes v. Drayton Foods, L.L.C. (N.D. 1998).

Source: https://www.alfainternational.com/compendium/workers-compensation/north-dakota/

Injury-severity gate on contribution claims

Codified narrow exception: an employer remains liable only for an injury caused by an intentional act done with the conscious purpose of inflicting the injury.

N.D. Cent. Code § 65-01-01.1 states the sole exception to employer immunity is an action for an injury caused by the employer's intentional act done with the conscious purpose of inflicting the injury , a narrow, actual-intent standard, not mere recklessness or safety violations. In practice exclusivity takes the direct employer off the tort table entirely, whatever the OSHA file shows. The claim runs against the other parties on the site: the general contractor, the owner, another subcontractor, an equipment manufacturer. The employer or its carrier then asserts a lien against whatever the worker recovers from those parties, so the figure the worker actually keeps is the recovery less the lien, the fee and the costs. Whether the lien is reduced for the cost of obtaining the recovery is a separate state question worth asking early, because it moves the net more than most people expect.

Citation: N.D. Cent. Code ch. 65-01, § 65-01-01.1; Bartholomay v. Plains Grain & Agronomy, LLC, 2016 ND 138, 881 N.W.2d 249.

Source: https://unicourt.github.io/cic-code-nd/transforms/nd/ocnd/r81/gov.nd.code.title.65.html

Distinctive state doctrine

Statutory-employer immunity for owners/GCs covering an uninsured sub's employees, plus a construction-specific penalty for using a sanctioned subcontractor

An owner or general contractor is liable to pay workers' comp benefits to a subcontractor's employee where the subcontractor failed to provide coverage and can then argue it is itself an employer immune from third-party actions under the exclusive remedy rule as a result. Separately, under N.D. Cent. Code § 65-04-27.2, a general contractor or subcontractor that willfully uses the services of a subcontractor operating under a WSI cease-and-desist order (issued for lacking required coverage) is subject to its own penalty of $5,000 plus $100 per day for each day the violation continues. North Dakota is also one of only four states (with Ohio, Washington and Wyoming) with an exclusive, monopolistic state workers' comp fund; no private policy, regardless of limits, substitutes for WSI coverage for work performed in the state.

Citation: N.D. Cent. Code § 65-04-27.2

Source: https://www.workforcesafety.com/employers/insurance-coverage-information/coverage-requirements