                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2624
                         ___________________________

                                     Amy Hiltner

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                            Owners Insurance Company

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of North Dakota - Fargo
                                    ____________

                            Submitted: October 17, 2019
                               Filed: March 5, 2020
                                    [Published]
                                  ____________

Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges.
                       ____________

PER CURIAM.

      Amy Hiltner was seriously injured after she fell from the trunk of a car driven
by her friend, Samantha Denault. After recovering $25,000 from Denault’s insurer,
Hiltner sued Owners Insurance Company, which had issued a plan to her father, for
underinsured motorist benefits. The district court allocated fault among the parties
after a bench trial. On Owners’s first appeal, we concluded the district court
improperly applied a heightened duty of care to Denault as the designated driver.
Hiltner v. Owners Ins. Co., 869 F.3d 699 (8th Cir. 2017) (Hiltner I). On remand, the
district court stated that it was not applying a heightened standard and did not alter
the fault allocation. Owners timely appeals.

                                           I.

       The facts of this case are recited in Hiltner I and are repeated here only briefly.
In May 2010, Amy Hiltner went to a party with friends in Mayville, North Dakota.
One of the friends, Samantha Denault, agreed to be the designated driver for the
evening and drove the friends home after the party. Josh Jeffries sat in the middle in
the front seat and another friend sat in the front passenger seat. Although there was
room in the car, Hiltner and Xaviera Lone Wolf sat on the trunk, with their backs
against the rear window. Denault implored them to sit inside the car but they refused,
saying they wanted to feel the wind in their hair. Denault drove slowly toward Lone
Wolf’s apartment, but when she went to take the last turn, Jeffries pushed on her right
leg, causing the car to accelerate. Lone Wolf and Hiltner fell off the trunk; Hiltner
hit her head and was seriously injured.

       After a bench trial, the district court found Denault 55% responsible for
Hiltner’s injuries, Jeffries 25% responsible, and Hiltner 20% responsible. Owners
appealed that judgment, and we concluded that the district court had improperly
applied a heightened duty of care to Denault because she was the sober designated
driver. Hiltner I, 869 F.3d at 702. We therefore vacated the judgment, including the
damages award, and remanded for new findings and conclusions on the allocation of
fault. Id. at 703.




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      On remand, the district court stated the “court’s decision regarding fault is not
influenced by Denault’s status as the sober designated driver,” and modified its
conclusions to say:

      Denault’s fault was greater than any of the passengers due to the
      following:

             (a) she chose to start her vehicle with passengers perched
                 on her trunk;
             (b) she chose to drive her vehicle with passengers on her
                 trunk;
             (c) she had the greatest ability to assess danger;
             (d) until Jeffries’ interference, she was in exclusive control
                 of the vehicle; and
             (e) she failed to take adequate measures to stop Jeffries
                 from interfering with her operation of the vehicle,
                 which could have included stopping the vehicle,
                 removing the keys from the ignition, ejecting Jeffries,
                 and/or refusing to move the vehicle so long as there
                 were passengers on the trunk.

       After making these changes, the district court arrived at the same fault
allocation. Owners again appeals, arguing, as it did in Hiltner I, that the district court
put an impermissibly high burden on Denault.

                                           II.

      We review de novo a district court’s conclusions of law. Blue Cross Blue
Shield of Minn. v. Wells Fargo Bank, N.A., 816 F.3d 1044, 1048 (8th Cir. 2016). We
affirm the court’s findings of fact unless they are clearly erroneous. Id.

      Under North Dakota law, a person driving a vehicle must operate “in a careful
and prudent manner.” N.D. Cent. Code § 39-09-01.1. But North Dakota does not

                                           -3-
impose a heightened duty of care on a sober designated driver, either by statute or
common law. As we noted in Hiltner I, “[o]ther jurisdictions affirmatively have
rejected such a duty, citing the potential that heightened exposure to liability would
chill designated drivers from performing a valuable service.” 869 F.3d at 701.

       The district court’s original order relied on the fact that Denault “was the only
sober person in the group and had the greatest ability to assess danger.” The order on
remand omitted the reference to Denault’s status as “the only sober person,” but did
not provide any other reason why she “had the greatest ability to assess danger.” The
unstated assumption—and burden—is that Denault had this greater ability because
she was sober. The district court’s conclusions of law also put on Denault the burden
of rebuffing Jeffries, whose role in this accident is as under-discussed as it was
critical. Although we acknowledge the district court’s statement that its decision
regarding fault was not influenced by Denault’s status as the designated driver, we
are hard-pressed to reconcile that statement with a rationale that is expressly
influenced by Denault’s “greatest ability to assess danger” and a decision on remand
that made no change to an allocation of fault that originally “was tied to [Denault’s]
status as the designated driver.” 869 F.3d at 702. After careful review, we are thus
not satisfied that the order on remand eliminated the legal error that this court
identified in the original conclusions of law.

       For this reason, the judgment is vacated and this matter is remanded for new
findings and conclusions on the allocation of fault. Because the district judge is no
longer in service on the district court, the chief judge of the district court should
reassign this case for further proceedings.

WOLLMAN, Circuit Judge, dissenting.




                                          -4-
      Although the district court could well have spelled out in more detail the
explanation of its reasoning on remand, I am willing to take it at its word and
therefore would affirm the judgment it entered.
                      ______________________________




                                      -5-
