193196P.pdf   03/10/2021  Lukeus Scott  v.  Key Energy Services, Inc.
   U.S. Court of Appeals Case No:  19-3196
   U.S. District Court for the District of North Dakota - Bismarck   
   [PUBLISHED] [Shepherd, Author, with Benton and Kelly, Circuit Judges] 
   Civil case - Products Liability. Plaintiff was injured when a Hydra-Walk 
   system he was operating for Key, his employer, overturned; he obtain 
   workers' compensation benefits from Key and then sued Key and Hydra-Walk 
   alleging the system was defective and unreasonably dangerous; Key, which 
   had purchased Hydra-Walk five years before plaintiff was injured, moved 
   for summary judgment , asserting that workers' compensation was 
   plaintiff's exclusive remedy. Held: Hydra-Walk is not a third-party 
   tortfeasor for purposes of determining whether plaintiff may pursue a 
   remedy; Hyrda-Walk no longer exists under North Dakota law and plaintiff 
   cannot maintain a claim against it; North Dakota's Supreme Court has never 
   allowed an employee to successfully recover against an employer where the 
   employee was injured by equipment manufactured by another company prior to 
   that company's merger with the employer and the injury occurred 
   post-merger; without further indication that the North Dakota Supreme 
   Court would be receptive to application of the dual persona doctrine, the 
   court is unwilling to apply it for the first time to plaintiff's claims; 
   nor would North Dakota Supreme Court recognize the dual capacity exception 
   to the exclusive remedy rule. Judge Kelly, dissenting.