Coverage Conversion; No-Fault Act
Where an insurer has paid benefits to an injured passenger under
its liability coverage for injuries caused solely by the negligence of a driver
insured under that policy, also providing underinsured motorist benefits to the
injured passenger from the same policy based on the same negligence would convert
the underinsured motorist coverage into liability coverage.
Lynch v. American Family Mutual Insurance Co. (Court of Appeals) (Minnesota
Lawyer No. SC-89-01)
Uninsured Benefits; Judgments-Not-Binding Clause
A clause in an automobile insurance contract that provides that an
insurer will not be bound by any judgment for damages resulting from a suit
between an insured and an uninsured motorist violates the policy underlying
Minnesota’s No-Fault Automobile Insurance Act and cannot be enforced to bar
payment of uninsured motorist benefits when the insurer had notice of and an
opportunity to participate in the suit resulting in a judgment against the uninsured
Reversed and remanded. Certified question answered in the negative.
Kwong v. Depositors Insurance Co. (Court of Appeals) (Minnesota Lawyer No. SC-90-01)
Closely Held Corporation; Unfair Prejudice
1. Where a shareholder claims that controlling shareholders
acted in an unfairly prejudicial manner toward him in his capacity as a closely-held-corporation
shareholder in violation of Minn. Stat. sec. 302A.751, subd. 1(b)(3) (1998), a
written agreement between or among the shareholders or between shareholders and
the corporation is not dispositive of shareholders’ reasonable expectations, but
it is presumed to reflect the parties’ reasonable expectations on matters covered
by the agreement.
2. A stock-repurchase agreement that results in a repurchase price that is
lower than the stock’s fair market value does not establish, by reason of the
price disparity alone, a claim for unfairly prejudicial conduct under sec. 302A.751,
3. In addition to a fair return on their capital investment, shareholders
in a closely held corporation commonly expect that ownership in the corporation
will entitle them to employment. Actions by those in control of the corporation
that frustrate a shareholder’s reasonable expectation of continuing employment
constitute unfairly prejudicial conduct within the meaning of the statute, even
though a shareholder is an at-will employee and therefore not wrongfully discharged
in a breach-of-contract or tort sense.
Affirmed in part and reversed and remanded in part.
Gunderson v. Alliance of Computer Professionals, Inc. (Hennepin County) (Minnesota
Lawyer No. CA-571-01)
Custody Awarded to Non-Parents
1. A District Court, in its discretion and in accordance with Minn.
R. Civ. P. 24.02, may permit foster parents to intervene in a custody proceeding.
2. Where (1) father, who was 15 years old at the time of the birth, sought
custody of his daughter who had been placed with adoptive parents by the child’s
mother; (2) the adoptive parents have served as the child’s primary caretaker
since birth and have provided excellent care in a loving environment; (3) father
pursued custody at the urging of his mother, failed to attend one-third of the
scheduled visitations, and dropped out of school because of problems with drugs
and alcohol; and (4) numerous, significant, health and safety concerns were
identified in father’s home; the District Court did not abuse its broad discretion
by awarding custody of the child to the adoptive parents because the evidence
clearly demonstrated that the best interests of the child are served by the
award and that the natural parent is unfit to parent the child.
3. The guardian ad litem’s report was properly admitted as a business record
under Minn. R. Evid. 803(6).
J.W., a minor, by and through his mother, D.W. v. C.M., a minor, et al. (Becker
County) (Minnesota Lawyer No. CA-572-01)
No-Fault Priority: Bicyclist / School Bus
The personal no-fault insurer of a bicyclist who collided with a bus
transporting children has priority over the school district to pay no-fault
benefits to the injured bicyclist because a vehicle used to transport children
to school is exempt from the superior priority level established for vehicles
used in the business of transporting persons or property.
Reversed and remanded.
Amco Insurance Co. v. Independent School District #622 (Ramsey County) (Minnesota
Lawyer No. CA-573-01)
Annexation of Township to City
1. An administrative law judge appointed by the Office of Administrative
Hearings has the statutory authority to hear, and grant, an annexation petition
brought under Minn. Stat. sec. 414.031 (1998).
2. Under sec. 414.031, subd. 4(i), the presentation of a written plan for
providing governmental services to a newly annexed area is only one factor to
be considered in ordering an annexation; the lack of a written plan does not
3. Evidence that it is in the best interests of the local community, the county,
and the state to annex a township is sufficient to support a decision to deny
incorporation of the township into a separate municipal entity in favor of ordering
annexation to a single municipal entity.
4. Residents of a township do not have a constitutional right to vote either
to affirm or disaffirm an order for annexation.
5. Where a general election was held within a reasonable period of time following
an annexation and voters were able to write in the candidate of their choice,
the constitutional right to elect a particular candidate and obtain a representative
government has not been violated.
6. Where the taxes imposed by the city are proportional to the increased services
to residents of the newly annexed area, the residents’ constitutional
right to due process has not been violated.
McNamara v. Office of Strategic and Long Range Planning (Washington County)
(Minnesota Lawyer No. CA-574-01)
1. In an unlawful detainer proceeding in which a landlord seeks to
oust a tenant from HUD-subsidized housing due to the tenant’s material noncompliance
with a term of the lease, the trial court must make a specific finding on the
issue of material noncompliance.
2. If the landlord alleges material noncompliance by reason of the tenant’s
failure to report a change in circumstance, the landlord must prove that the
failure to report was fraudulent, and the standard by which the landlord must
prove fraudulent failure to report is by a preponderance of the evidence.
Reversed and remanded.
Chancellor Manor v. Thibodeaux (Dakota County) (Minnesota Lawyer No. CA-575-01)
Attorney / Client Relations
Fee and Stock Purchase Agreements
Where an attorney represented a client who was a minority shareholder in her dispute
with the corporation in which she held shares; the client accepted the attorney’s
proposed fee agreement providing for one-third of the total recovery against the
corporation; the client later entered into a stock purchase agreement whereby
the corporation purchased her stock and her attorney received one-third of each
payment made to her; and, as the final balloon payment neared, the client contested
the attorney’s fees; the District Court did not err in granting the attorney’s
motion for summary judgment because the fee agreement is not ambiguous, and there
are no material fact questions regarding the client’s claims of breach of fiduciary
duty or undue influence.
In Re: John S. Schomburg, P.A. v. Garthe (Wright County) (Minnesota Lawyer No.
Court-Initiated Involuntary Dismissal
Where a city resident filed suit alleging several causes of action in a dispute
over his water bill, and he later filed numerous motions which the District
Court characterized as frivolous, failed to respond to discovery requests, and
subpoenaed witnesses to appear at a summary judgment hearing, the District Court
did not err in dismissing the action pursuant to Minn. R. Civ. P. 41.02(a) for
the resident’s violation of the rules of civil procedure and delay of litigation.
Dixon v. City of Minneapolis Water Department (Hennepin County) (Minnesota Lawyer
“Newly Discovered” Evidence Does Not Warrant New Trial
Where the former employer sued his employer claiming that the employer had
reneged on its offer to pay him a guaranteed salary; after a trial on the merits,
the trial court ruled that the employee had failed to establish his claims;
and the employee later moved for a new trial on the basis of newly discovered
evidence, the trial court did not err in denying the motion because the new
evidence was testimony by a former co-employee who had been identified by the
employer during discovery, and reasonable diligence could have produced the
testimony at trial.
Gonzalez v. Imperial Camper Sales, Inc. (Washington County) (Minnesota Lawyer
Juvenile; Mentally Ill and Dangerous
Where a 15-year-old juvenile suffers from bipolar disorder, intermittent explosive
disorder, conduct disorder, and oppositional disorder; in 1999 the juvenile
attempted to cause serious physical harm to two correctional officers in separate
incidents; and in prior incidents over a span of four years, the juvenile threatened
a mother and child with a butcher knife, assaulted another resident by choking
him and stomping on his legs, and committed an assault on a female staff member;
the District Court did not err by indeterminately committing the juvenile as
mentally ill and dangerous.
In the Matter of the Civil Commitment of: T.L.S. (Hennepin County) (Minnesota
Lawyer No. CA-579-01)
Where two psychiatrists diagnosed the proposed patient with bipolar disorder
but did not dispute that he might also have an underlying personality disorder,
and the court-appointed examiner diagnosed the proposed patient with narcissistic
personality disorder, there was clear and convincing evidence that the proposed
patient suffers from bipolar disorder.
Placement at the security hospital as the least restrictive alternative was
also supported by clear and convincing evidence.
In the Matter of: Schottler (Minnesota Lawyer No. CA-580-01)
Where plaintiff farmers delivered kidney beans to a bean processor; the scale
tickets failed to state that the beans were received for storage and the processor
did not issue warehouse receipts; and all three farmers admitted under oath
that their intent when they delivered their beans was to place the beans in
storage; the District Court did not err in determining that the contract between
the parties was a contract for storage and not a contract for cash sale.
Bursch Farms, Inc. v. Circle C. Seeds, Inc. (Norman County) (Minnesota Lawyer
Debtor / Creditor
Judgment Debtor’s Bail Released to Creditor
Where the corporate agent for a judgment debtor violated an order for disclosure
and was subsequently charged with contempt, arrested on a bench warrant, and
posted cash bail, the bail constituted an asset that could be used to satisfy
the judgment even though the merits of the contempt accusation were not adjudicated.
Diem Design, Inc. v. Sabri (Hennepin County) (Minnesota Lawyer No. CA-582-01)
Child Custody by Default Judgment; Abuse Allegations
Even though the trial court properly entered a default disslution judgment
against wife who had failed to participate in discovery and several hearings,
the court erred by awarding husband sole physical and legal custody of the children
where the trial court failed to address allegations that husband has been abusive
toward the children.
Affirmed in part and remanded in part.
In Re the Marriage of: Wittstruck v. Wittstruck (Mille Lacs County) (Minnesota
Lawyer No. CA-583-01)
Nonmarital Nature of Home, Employment Settlement
Where an appraiser testified as to the value of real property, owned by wife
prior to the marriage, on which the parties built their marital home, and the
District Court determined that the parties had contributed on a two-to-one basis
to the construction of the marital home because $9,000 from the sale of wife’s
trailer and $18,000 net profit from the sale of husband’s home had been put
into the home, the Court’s findings supporting the property division are supported
by the record.
The Court also did not err in concluding that 10% of husband’s compensation
for a back injury was a marital asset where an unspecified portion of the settlement
covered an employment claim.
In Re the Marriage of: Washenesky, f/k/a Henschel v. Henschel (Carlton County)
(Minnesota Lawyer No. CA-584-01)
Injured Employee’s Personal Circumstances
Where an employee sued his employer after he developed bilateral flexor tenosynovitis,
a condition with symptoms resembling those of carpal-tunnel syndrome, and the
employer’s expert testified that psychosocial risk factors, such as marital
dissatisfaction and interpersonal relationship problems can be associated with
the employee’s condition, the District Court did not err by excluding evidence
that the employee had sought treatment for herpes and scheduled and canceled
an appointment to discuss a vasectomy because the expert did not explain how
a causal connection exists between psychosocial risk factors and the employee’s
Gordon v. Burlington Northern and Santa Fe Railway Co. (St. Louis County) (Minnesota
Lawyer No. CA-585-01)
Slip and Fall on Golf-Cart Path
Where a golfer slipped and fell on a golf-cart path surfaced with used conveyor
belts; the golfer was aware before beginning play that the golf course was very
hilly; and the golfer fell at the fourth hole and was already aware of the surface
and hilly nature of the path; the District Court did not err in granting summary
judgment for the golf course because the golf course had no duty to warn the
golfer of a danger which was known or obvious.
Summary judgment on the issue of negligence per se was also proper.
Schneider v. Lanesboro Golf & Country Club (Fillmore County) (Minnesota
Lawyer No. CA-586-01)
Workplace Injury; Worker’s Compensation
Where (1) decedent was killed by a forklift operated by a co-worker, and (2)
the forklift operator was paid by an employment service, but (3) the waste management
company for which both the decedent and the forklift operator worked had hired
the forklift operator and controlled the means and manner of his performance,
the trustee for decedent’s heirs is not barred by the workers’ compensation
exclusivity provision from filing a common law tort claim against the employment
service, but the negligence claim cannot survive summary judgment because no
relationship exists to hold the employment service vicariously liable for the
forklift operator’s actions.
There is also no evidence of gross negligence which would permit the trustee
to pursue a tort remedy against the waste management company, and under the
parties’ agreement, the employment service need not indemnify the waste management
company for the workers compensation benefits it paid.
Affirmed in part, reversed in part.
C1-00-1680, C7-00-1814 Montano v. ASAP Employment Services, Inc. (Hennepin County)
(Minnesota Lawyer No. CA-587-01)
Where the employer testified that she received a report that a nursing assistant
had verbally abused and threatened an employee, that when discussing the incident
the nursing assistant began yelling and arguing, and that the nursing assistant
stated several times that she quit, the commissioner’s representative did not
err in concluding that the employee voluntarily quit her job and is not qualified
for unemployment benefits even though the nursing assistant testified that she
had been fired.
In addition, the evidence supports the representative’s finding that the employee
did not have good reason to quit due to harassment and discrimination.
Fukar v. Richfield Health Center (Department of Economic Security) (Minnesota
Lawyer No. CA-588-01)
Fleeing Officer/Causing Death
Specific Crime Governs over Felony Murder
Where death accidentally resulted from defendant’s fleeing from a police officer
in a motor vehicle, defendant’s actions cannot be prosecuted as felony-murder
with fleeing a peace officer in a motor vehicle as the predicate felony because
fleeing a peace officer in a motor vehicle causing death is a more specific crime
than felony-murder predicated on the felony of fleeing a peace officer in a motor
Where a death is already an element of an aggravated offense, as it is here,
the felony-murder statute serves no purpose other than to ratchet up the permissible
Minnesota v. Craven (Hennepin County) (Minnesota Lawyer No. CA-589-01)
No Need for Examination
Even though defendant attempted suicide several months before
trial and was taking medication during trial, the postconviction court did not
err in concluding that his due process rights were not violated by the failure
to conduct a Rule 20 competency examination where (1) the psychiatrist who treated
defendant after his suicide attempt stated defendant was “relatively stable” at
the time of discharge; (2) defendant’s attorney testified that he and defendant
specifically discussed a rule 20 examination, but that defendant did not want
to undergo such an evaluation and that his attorney did not believe defendant
needed one; and (3) defendant participated in his defense and did not exhibit
any irrational behavior during trial.
Defendant’s claim of ineffective assistance of counsel also fails.
Minnesota v. Haselow (Lake County) (Minnesota Lawyer No. CA-590-01)
Driving and Alcohol
Right to Counsel Vindicated
Where a driver was given access to a telephone and called his father,
who was an attorney, and the officers allowed the driver to wait 30 minutes
from the end of his telephone call before he took a breath test, the driver’s
limited right to counsel was vindicated even though the driver’s father did
not have the opportunity to speak to his father in person before the breath
Further, where the driver never requested an additional test, his attorney
never arranged for a second test, and there is no evidence that the police denied
him the right to a test, the District Court did not err in finding that the
right to an additional test had been waived.
Newquist v. Commissioner of Public Safety (Hennepin County) (Minnesota Lawyer
Lay Witness’s Opinions
Where defendant was charged with fourth-degree assault for throwing
urine at a correctional officer, lay testimony by the assaulted officer and
two other correctional officers was sufficient to prove that the fluid in question
was urine because the lay witnesses were competent to give opinion evidence
rationally based on their perceptions as humans. Scientific testing and expert
testimony were unnecessary.
Minnesota v. Killian (Washington County) (Minnesota Lawyer No. CA-592-01)
Tactical Decision to Argue Accident
Where (1) during a dispute between defendant and her husband, husband
entered the home and a few moments later defendant discharged the gun she was
holding and struck her husband in the leg; (2) from the beginning, including
the 911 call made at the scene, defendant maintained that the shooting was an
accident; and (3) at trial, defense counsel pursued accident rather than self-defense
modified for accident as the most viable defense; the evidence supports the
postconviction court’s finding that defendant received effective assistance
of counsel at trial.
In addition, even if defendant could show her attorney’s representation was
deficient, the record does not support a reasonable conclusion that the outcome
of the trial would have been different had there been a self-defense instruction.
Gustafson v. Minnesota (Itasca County) (Minnesota Lawyer No. CA-593-01)
Scales Recording Requirement Not Violated
Where defendant asked the interrogating officer to stop the recording
the interrogation; the officer informed defendant that his off-the-record statements
could be used against him and warned defendant that he would continue taking
notes during the time the recorder was off; and defendant verbally confirmed
the off-the-record discussion when the recording resumed; we conclude that Scales
recording requirement was not substantially violated because the two recorded
segments of the interview, combined with other circumstances, allowed the court
to accurately evaluate the facts underlying the defendant’s statement.
Minnesota v. Chang (Ramsey County) (Minnesota Lawyer No. CA-594-01)
Where the plea agreement called for a stayed 48-month sentence and
a stay of imposition of sentence for a probationary period, the stay of imposition
was later revoked after several probation violations, and the District Court
sentenced defendant to 58 months in prison and five years of supervised release
after incarceration, defendant is entitled to withdraw his guilty plea because
the plea agreement neither contemplated a prison term greater than 48 months
for both counts of criminal sexual conduct, nor the mandatory five-year conditional
Reversed and remanded.
Minnesota v. Pozzi (Scott County) (Minnesota Lawyer No. CA-595-01)
Defendant Assisted Person Who Stole Drugs
Where three witnesses testified that defendant held a knife to the
victim’s throat, threatened to harm everyone in the room, and ordered his acquaintance
to take the money and drugs, there was sufficient evidence to support defendant’s
conviction of aggravated robbery even if defendant was convicted for his assistance
to others and not as the sole offender.
Because the use of a written jury questionnaire is not mandatory, and the
trial court did not restrict defendant’s attorney on oral questioning of the
jury panel regarding potential racial bias, the trial court did not abuse its
discretion in denying the use of a written questionnaire.
Affirmed in part, reversed in part, and remanded.