Hot Topics*

1. Greg Siewert, et al. v. Northern States Power Company. Filed: December 9, 2008. Minnesota Court of Appeals (posted December 16, 2008)
2. In re Dr. Roy Wayne Buckmaster, D.P.M., and Albert Lea Medical Center - Mayo Health System, et al. v. Dr. Roy Wayne Buckmaster, D.P.M., et al. Filed: September 9, 2008. Minnesota Court of Appeals (posted September 10, 2008)
3. SECURA Supreme Insurance Company v. M.S.M., et al. Filed: September 2, 2008. Minnesota Court of Appeals (posted September 5, 2008)
4. Shamrock Development, Inc. v. Randall N. Smith, et al. Filed: August 7, 2008. State of Minnesota Supreme Court (posted August 14, 2008)
5. Michael Bundul v. Travelers Indemnity Company d/b/a Travelers, et al. Filed: August 5, 2008. Minnesota Court of Appeals (posted August 14, 2008)
6. Tena V. Van Kampen v. Waseca Mutual Insurance Company, et al. Filed: August 5, 2008. Minnesota Court of Appeals (posted August 6, 2008)
7. Tonicstar Limited v. Lovegreen Turbine Services, Inc., et al. Filed: August 1, 2008. United States Court of Appeals for the 8th Circuit (posted August 5, 2008)
8. Margaret MacRae v. Group Health Plan, Inc., et al. Filed: July 31, 2008. State of Minnesota Supreme Court (posted August 5, 2008)
9. Jason George v. Daniel Evenson, et al. Filed: July 31, 2008. State of Minnesota Supreme Court (posted August 5, 2008)
10. Dr. Artur Guzhagin, et al. v. State Farm Mutual Automobile Insurance Company. Filed: July 24, 2008. United States District Court, District of Minnesota (posted August 5, 2008)
11. Farmers Insurance Exchange v. Kathleen Hallaway, et al. Filed: July 6, 2008. United States District Court, District of Minnesota (posted July 25, 2008)
12. Dean Do v. American Family Mutual Insurance Company. Filed: July 8, 2008. Minnesota Court of Appeals (posted July 9, 2008)
13. Erin J. Osborne v. Twin Town Bowl, Inc. Filed: May 30, 2008. State of Minnesota Supreme Court (posted June 10, 2008)
14. Auto Owners Insurance Company v. Chong Suk Perry. Filed: May 29, 2008. State of Minnesota Supreme Court (posted June 10, 2008)
15. James and Sally Bailly v. Michael and Annette Thompson, et al. Filed: May 27, 2008. United States District Court, District of Minnesota (posted May 29, 2008)
16. Aaron R. Carlson, et al. v. Allstate Insurance Company, et al. Filed: May 22, 2008. State of Minnesota Supreme Court (posted May 29, 2008)
17. U.S. Home Corporation v. Zimmerman Stucco and Plaster, Inc. Filed: May 13, 2008. Minnesota Court of Appeals (posted May 20, 2008)

• Greg Siewert, et al. v. Northern States Power Company. Filed: December 9, 2008. Minnesota Court of AppealsI
  I. Tort claims for compensatory damages arising from the delivery of electrical service are not barred by the filed-rate doctrine.
  
  II. The district court is not barred by the primary-jurisdiction doctrine from considering common-law damages for tort claims arising from the delivery of electrical service.
  
  III. The statute of repose for improvements to real property, Minn. Stat. § 541.051 (Supp. 2007), does not bar tort claims arising from the delivery of electrical service when the allegations are based solely on the method of service and not on component parts of the electrical-power-distribution system.
  
  
• In re Dr. Roy Wayne Buckmaster, D.P.M., and Albert Lea Medical Center - Mayo Health System, et al. v. Dr. Roy Wayne Buckmaster, D.P.M., et al. Filed: September 9, 2008. Minnesota Court of Appeals
  An agreement for corrective action under Minn. Stat. § 214.103 (2006) between a health-related licensing board and a regulated person constitutes a settlement agreement within the meaning of Minn. R. Evid. 408. Therefore, rule 408 precludes admission of such an agreement for corrective action as substantive evidence of liability in any subsequent civil action.
  
  
• SECURA Supreme Insurance Company v. M.S.M., et al. Filed: September 2, 2008. Minnesota Court of Appeals**
  1. The phrase "results from" is identical in meaning to the phrase "arises out of" when used to describe the scope of the injuries for which a criminal-act exclusion contained in a homeowners’ insurance policy precludes coverage.
  
  2. The inclusion of a severability clause in a homeowners’ insurance policy stating that the policy must be applied separately to each insured does not render ambiguous an otherwise unambiguous criminal-act exclusion that bars coverage for "any insured" for injuries resulting from the criminal conduct of a single insured.
  
  ** Andrea Reisbord briefed and argued this case before both the trial court and the court of appeals.
  
  
• Shamrock Development, Inc. v. Randall N. Smith, et al. Filed: August 7, 2008. State of Minnesota Supreme Court
  Service by publication under Minn. R. Civ. P. 4.04(a) is effective to confer jurisdiction if the essential jurisdictional facts set forth in the affidavit of the plaintiff or the plaintiff’s attorney actually exist—it is not effective if the affiant merely believes that the jurisdictional facts exist.
  
  Reversed and remanded.
  
  Heard, considered, and decided by the court en banc.
  
  
• Michael Bundul v. Travelers Indemnity Company d/b/a Travelers, et al. Filed: August 5, 2008. Minnesota Court of Appeals
  The Minnesota No-Fault Automobile Insurance Act does not preclude a "household exclusion" in a personal liability umbrella insurance policy so long as an underlying primary insurance policy provides the coverage mandated by the act.
  
  
• Tena V. Van Kampen v. Waseca Mutual Insurance Company, et al. Filed: August 5, 2008. Minnesota Court of Appeals
  Under the Schmidt-Clothier procedure, if an underinsured-motorist insurer fails to assert its subrogation rights, an insured does not forfeit underinsured-motorist benefits by settling claims against the tortfeasor without receiving payment.
  
  
• Tonicstar Limited v. Lovegreen Turbine Services, Inc., et al. Filed: August 1, 2008 United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - Insurance. Policy exclusion which excludes coverage for property damage to property which must be repaired because the insured's work was incorrectly performed applied to situation where insured's workers left a rag inside of a compressor, and insurer did not owe insured a defense and was not liable to indemnify the claim. Judge Beam, dissenting on the ground the property loss suffered by the compressor's owner was a covered loss.
  
  
• Margaret MacRae v. Group Health Plan, Inc., et al. Filed: July 31, 2008. State of Minnesota Supreme Court
  1. A cause of action for the negligent misdiagnosis of cancer accrues when the plaintiff suffers some legally compensable damage as a result of the misdiagnosis.
  
  2. The compensable damage that triggers the accrual of a cause of action for the negligent misdiagnosis of cancer is not limited to wrongful death, but may include any harm caused by the continued presence of the cancer.
  
  Reversed and remanded.
  
  Heard, considered, and decided by the court en banc.
  
  
• Jason George v. Daniel Evenson, et al. Filed: July 31, 2008. State of Minnesota Supreme Court
  1. The claimant’s arbitration award constituted a settlement subject to the notice requirements of Schmidt v. Clothier, 338 N.W.2d 256 (Minn. 1983), because the language of the arbitration agreement characterized the arbitration as a settlement and the last notice that the claimant provided his underinsurer was a Schmidt notice.
  
  2. The notice that the claimant provided his underinsurer satisfied the Schmidt notice requirements.
  
  Affirmed.
  
  Heard, considered, and decided by the court en banc.
  
  
• Dr. Artur Guzhagin, et al. v. State Farm Mutual Automobile Insurance Company. Filed: July 24, 2008. United States District Court, District of Minnesota
  Court's introduction:
  "Dr. Artur Guzhagin is a chiropractor employed at Loring Park Chiropractic Clinic ('Loring Park'). Dr. Guzhagin’s patients include several individuals insured by defendant State Farm Mutual Automobile Insurance Company ('State Farm'). Dr. Guzhagin and Loring Park filed this action after State Farm refused to reimburse them for their services, alleging breach of contract, negligence, defamation, tortious interference with contract, and product disparagement. State Farm now moves for summary judgment. For the reasons given below, the Court grants State Farm’s motion."
  
  Excerpts:
  "Plaintiffs allege that by not reimbursing them for their services, State Farm breached its individual contracts with its insureds. Plaintiffs argue that they have standing to enforce these contracts because they qualify as third-party beneficiaries. ... Because this Court agrees that this claim is subject to mandatory arbitration--requiring the dismissal of these claims even if plaintiffs have the right to enforce the individual insurance contracts--the Court need not address [other] arguments raised by State Farm [e.g., that the doctors lack third-party standing]. ... Here, too, this Court faces an (alleged) assignee of multiple individual claims, none of which exceeds $10,000. In those circumstances, the Court is bound to follow Illinois Farmers in enforcing the 'unequivocal' mandate of Minnesota’s No-Fault Act. Accordingly, the Court concludes that even if plaintiffs have enforceable rights under the individual insurance contracts, plaintiffs’ claim that State Farm breached those contracts by failing to provide benefits is subject to mandatory arbitration under Minnesota law."
  
  
• Farmers Insurance Exchange v. Kathleen Hallaway, et al. Filed: July 6, 2008. United States District Court, District of MinnesotaJ
  Order:
  "Plaintiff Farmers Insurance Exchange’s Motion for Summary Judgment [Doc. No. 23] is GRANTED in part and DENIED in part as follows: The Policy does not provide coverage for damages awarded as punitive damages, or damages attributable to the claim for intentional infliction of emotional distress. A question of fact exists as to whether the Policy provides coverage for damages attributable to the defamation claims."
  
  Excerpts:
  "Because Hallaway’s intent to injure is determinative of coverage, and because there are genuine issues of material fact as to whether Hallaway acted with an intent to injure, summary judgment is not appropriate with respect to the defamation claim. . . .
  
  The policy at issue also requires the insured to give prompt notice to the insurer of a claim and to forward legal papers to the insurer promptly. Defendant Hallaway admits that she did not provide notice until post-verdict - in December 2006. . . . The Court finds that fact questions exist as to whether Farmers was prejudiced by lack of notice in this case. . . .
  
  Finally, the parties challenge how many policy periods are applicable in this case. . . . In this case, . . . the e-mail campaign should be considered one occurrence, and that liability under the policy is limited as provided therein."
  
  
• Dean Do v. American Family Mutual Insurance Company. Filed: July 8, 2008. Minnesota Court of Appeals
  Pursuant to the collateral-source rule of Minn. Stat. § 548.36 (2006), an injured party’s prior settlement with a tortfeasor’s automobile-insurance carrier for unspecified general damages offsets an ultimate jury award that encompasses no-fault damages.
  
  
• Erin J. Osborne v. Twin Town Bowl, Inc. Filed: May 30, 2008. State of Minnesota Supreme Court
  When an intoxicated person chooses to evade arrest by jumping off a bridge into a flood-swollen river, a genuine issue of material fact exists as to whether the person’s intoxication was a proximate cause of his subsequent injuries; therefore, the district court erred when it granted summary judgment in favor of a bowling alley that allegedly served alcohol to the intoxicated person in violation of the Dram Shop Act, Minn. Stat. § 340A.801 (2006).
  
  Reversed and remanded.
  
  Heard, considered, and decided by the court en banc.
  
  
• Auto Owners Insurance Company v. Chong Suk Perry. Filed: May 29, 2008. State of Minnesota
  Supreme Court
  The district court did not err in concluding that the definition of "dependent" in Minn. Stat. § 65B.44, subd. 6 (2006), is limited to a decedent’s surviving spouse and children and that a decedent’s girlfriend, with whom he resided, is thus not entitled to survivors’ economic loss benefits under the Minnesota No-Fault Automobile Insurance Act, Minn. Stat. §§ 65B.41-.71 (2006).
  
  Affirmed.
  
  Heard, considered, and decided by the court en banc.
  
  
• James and Sally Bailly v. Michael and Annette Thompson, et al. Filed: May 27, 2008. United States District Court, District of Minnesota
  "This case arises from a negligence action -- and it all started with a horse named Baby Doll. ... Baby Doll escaped from its stall and ran to the enclosed field near the barn. ... [Two other boarders and the Baillys] decided to embark on their own mission -- capture Baby Doll and return it to the barn. ... So in the pitch black of night -- armed with flash lights and a lasso -- the Larsons and the Baillys entered Thompson’s property and went in search of Baby Doll. Thompson was unaware they had entered her property that evening. ... [After James Bailly was injured in the attempt, the Baillys sued], alleging negligence on the part of Thompson for allowing Baby Doll to escape from the barn. ... The Minnesota Supreme Court has ruled that '[b]efore a court considers assumption of risk, it should first determine whether the defendant owed a duty to the plaintiff' because '[i]f no duty exists there is no need to determine whether a person assumed the risk thus relieving the defendant of the duty.'" [The Court finds no duty, but notes that even if it were to, it would find assumption of the risk.]
  
  
• Aaron R. Carlson, et al. v. Allstate Insurance Company, et al. Filed: May 22, 2008. State of Minnesota Supreme Court
  1. Where an insurance policy limits uninsured motorist insurance coverage to the "policyholder" identified on the declarations page and the declarations page lists only "named insureds" and "drivers," the term "policyholder" refers unambiguously to the named insureds.
  
  2. Because Minn. Stat. § 65B.49, subd. 3a(5) (2006), is not intended to define mandatory minimum coverage but rather to establish priority among existing sources of coverage, the Minnesota No-Fault Automobile Insurance Act, Minn. Stat. §§  65B.41-.71 (2006), does not preclude an insurance policy’s definition of "insured."
  
  3. The doctrine of reasonable expectations does not apply to provide uninsured motorist coverage to a listed driver on an insurance policy for injuries sustained as a pedestrian where the policy unambiguously denies coverage.
  
  Affirmed.
  
  Heard, considered, and decided by the court en banc.
  
  
• U.S. Home Corporation v. Zimmerman Stucco and Plaster, Inc. Filed: May 13, 2008. Minnesota Court of Appeals
  The language of Minn. Stat. § 541.051 (Supp. 2007) manifests a clear legislative intent that the statute have retroactive application. Following the 2007 amendment, Minn. Stat. § 541.051 addresses indemnification and contribution claims separately from direct claims of injury to property or of personal injury arising out of an improvement to real property. Pursuant to Minn. Stat. § 541.051, subd. 1(a), (b) (Supp. 2007), claims for contribution and indemnity are subject to a two-year statute of limitations but are no longer potentially barred by the ten-year statute of repose.