Primary assumption of the risk bars person injured while snow tubing at recreation facility, from recovering against the facility. Grady v. Green Acres, Inc., __ N.W.2d __, __ File No. A12-885 (Minn. Ct. App. Feb. 4, 2013).
Homeowners’ claim for attorney fees under Minnesota’s Good Faith Law (Sec. 604.18) fails objective and subjective prongs, and jury determination that homeowners violated policy’s “Concealment or Fraud” provision requires homeowners to return $691,000 paid under policy dwelling coverage, less any premium payments attributable to the period after homeowners’ fraud or concealment occurred. Hackbarth v. State Farm Fire & Casualty Co., Civ. No. 11-690 DSD/FLN (D. Minn. Jan. 31, 2013).
Doctor’s claims regarding statements made online and in other written forums by son of the doctor’s patient does not constitute defamation: doctor disputed only specific details of the factual statements, but “gist or sting” remained the same; statements did not harm the doctor’s standing in the community; and calling someone “a real tool” is pure opinion and thus not actionable. McKee v. Laurion, A11-1154 (Minn. Jan. 30, 2013).
Employee claims of fraudulent inducement under Minn. Stat. §181.64, fraudulent misrepresentation, and promissory estoppel survive employer’s summary judgment challenges. Harter v. St. Mary’s Duluth Clinic Health System and Essentia Health, Civil No. 11-2320 ADM/LIB (D. Minn. Jan 29, 2013).
Endorsement in subcontractor’s insurance policy making contractor an additional insured for liability limits additional insured’s coverage to instances of vicarious liability for subcontractor’s negligence; and a contractual indemnification provision in a construction contract obligating subcontractor to indemnify another party for damages not caused by subcontractor’s fault, unaccompanied by either a coextensive insurance agreement or a proper allegation under Minn. Stat. Sec. 337.05, subd. 2, that the promisor has failed to procure insurance, violates Minn. Stat. Sec. 337.02. Engineering & Construction Innovations, Inc. vs. L.H. Bolduc Co., A11-0159 (Minn. Jan. 23, 2013).
An injured claimant’s receipt of underinsured-motorist benefits prior to the claimant’s direct tort action trial constitutes a collateral source for purposes of a motion to reduce damage pursuant to Minn. Stat. § 548.251 (2012). Russell v. Haji-Ali, A12-1213 (Minn. Ct. App. Jan. 14, 2013). [A petition for further review is likely.]
In Gieseke v. IDCA, Inc., No. A12-0713, slip op. (Minn. Ct. App. Jan. 14, 2013), the Minnesota Court of Appeals held that a claim of tortious interference with prospective advantage is a valid tort claim under Minnesota Law, as concerns both present and prospective contractual relations.
Minnesota’s Comparative Fault Statute (sec. 604.02, subd. 2) does not require joint and several liability as a prerequisite to reallocation. O’Brien v. Dombeck, A12-0948 (Minn. App. Dec. 3, 2012).
On September 17, 2012, the Minnesota Court of Appeals, in Associated Milk Producers v. Compressor Services A12-0276, A12-0435 (unpublished) affirmed dismissal of plaintiff’s claim against defendant because “but-for” causation was insufficient to establish proximate causation. The court determined that there was no legal connection between the loss of property due to the fire and Compressor Services’ work on an air compressor that did not actually cause the fire. The court also found that plaintiff failed to establish a causal connection between its warning claims and the fire in a compressor that defendant neither sold nor serviced.
In RAM Mutual Ins. Co. v. Rusty Rohde d/b/a Studio 71 Salon, A10-2146 (Minn. Sept. 5, 2012), the Minnesota Supreme Court concluded that whether an insurer may maintain a subrogation action against the negligent tenant of its insured is established on a case-by-case basis, with the court having to determine which party the parties expected to bear responsibility for the loss and weighing “the principles of equity and good conscience.”
Insurer did not act in bad faith, under Minn. Stat. 604.18, by declining to pay policy limits on claim for under-insured motorist (UIM) benefits. Bernstrom vs. American Family Mutual Auto Ins. Co., A11-1297 (Minn. App. June 04, 2012)(Pet. for Rev. denied Minn. Aug. 07, 2012).
Pilot can not recover in tort against airplane manufacturer where duty owed was imposed only by contract. Glorvigen v. Cirrus, A10-1242, 1243, 1246, 1247 (Minn. July 18, 2012)
Upon remand by the Eighth Circuit, the Minnesota Federal District Court granted Amco Insurance Company summary judgment, finding that Amco had no duty to defend Inspired Technologies in litigation with 3M concerning a rival product, where all of 3M’s allegations fell within one or more exclusion(s) in the comprehensive general liability insurance policy provided by Amco. Amco Ins. Co. v. Inspired Technologies, Inc., 08-5748 (June 25, 2012).
In Quade v. Secura Insurance, No. A10-0714 (Minn. June 13, 2012), the Minnesota Supreme Court held that, in the insurance context, an appraiser’s assessment of the “amount of loss” necessarily includes a determination of the cause of the loss, and the amount it would cost to repair that loss.
In an opinion divergent from longstanding precedent, the Wisconsin Supreme Court, in Maxwell v. Hartford Union High School District, supported insurer’s denial of indemnification coverage to its insured though insurer had defended the insured through summary judgment proceedings but without issuing a reservation of rights letter.
INSURER MAY ENFORCE INSURANCE POLICY EXCLUSION THAT PREVENTS COVERAGE CONVERSION WITHOUT VIOLATING THE MINNESOTA NO-FAULT ACT. The Minnesota Supreme Court held in Pepper v. State Farm Mutual Auto. Ins. Co., A10-2090 (May 30, 2012), that the plaintiff could not recover benefits under a UIM policy purchased by her stepfather when she had already recovered liability benefits under a separate policy purchased by her stepfather from the same insurer.
In addressing a commercial general liability policy that provided coverage for liability incurred by a subcontractor “caused . . . in whole or in part by [the subcontractor],” the Minnesota Court of Appeals held that the district court erred in granting summary judgment and holding the subcontractor’s insurer had no duty to defend the general contractor on claims by the subcontractor’s employee against the general contractor. Nor-Son, Inc. v. Western Nat’l Mut. Ins. Co., A11-2016 (May 14, 2012).
The Minnesota Supreme Court in Staab v. Diocese of St. Cloud, A09-1335 (Apr. 18, 2012) determined that where jury attributed 50% of negligence to sole defendant and 50% to non-party, defendant had to pay award only in proportion to fault attributed to it and was not liable for nonparty’s assessed liability.
In Schatz v. Interfaith Care Center, A11-1171 (Apr. 11, 2012) the Minnesota Supreme Court upheld the constitutionality of Minn. Stat. Sec. 176.136, subd. 1b(d) and ruled that the statute did not conflict with Sec. 176.135, subd. 1.
Federal appellate court decision again delays NLRB posting requirement for employers. See Bloombery Businessweek article for more information.
The United States Court of Appeals for the Ninth Circuit, in an unpublished decision, reversed and remanded the decision of United States District Court for the District of Arizona in an insurance coverage dispute involving the interpretation of an Additional Insured (“AI”) Endorsement in a construction defect case. The Ninth Circuit held that the AI Endorsement provided coverage to a general contractor for damages that occurred several years after a subcontractor completed its work on the project, notwithstanding AI language limiting the Endorsement to the “ongoing operations” of the subcontractor. Importantly, the Court noted that a newer version of the AI Endorsement specifically stated that the general contractor’s status as an insured ended when the subcontractor’s operations for the general contractor were completed. Tri-Star Theme Builders, Inc. v. Onebeacon Insurance Co., 426 Fed. Appx. 506, 2011 U.S. App. LEXIS 7467 (9th Cir. Apr. 11, 2011).
In Nunn v. Noodles & Co., No. 11.1531 (Apr. 22, 2012), the Eighth Circuit reversed summary judgment granted to the employer and insurer on a claim under Minn. Stat. §176.82, subd.1.
Wisconsin Supreme Court establishes that the collateral source rule, which allows an injured party to recover the reasonable value of medical services including written-off medical expenses, is applicable in cases involving underinsured motorist (UIM) coverage. Orlowski v. State Farm Mut. Auto. Ins. Co., No. 2009AP2848 (Mar. 7, 2012).
The Minnesota Federal District Court granted summary judgment to Grinnell Mutual Reinsurance Company, finding that Grinnell’s policy provided no coverage to its insured, an owner of a trailer hauling crushed cars at the time of a fatal MVA, where the insured’s hauling fell within the policy’s business exclusion. Grinnell Mutual Reinsurance Company v. John Moon, et al., Civ. No.10-4489 (Feb. 27, 2012)
Recently, the Centers for Medicare & Medicaid Services (Medicare) issued details about a new payment option that is applicable to liability settlements. The option allows Medicare beneficiaries who are plaintiffs to calculate their own Final Conditional Payment Amount and requires Medicare to make a determination approving or revising the amount within 60 days. Medicare will implement this new option beginning Feb. 21, 2012. Click here for more information.
The Eighth Circuit recently rejected an employee’s Section 1981 retaliation claim, holding that the treatment of the employee compared to other employees is only probative of pretext if the incidents are of “comparable seriousness.” Here, the employee offered evidence of single incidents involving other employees, but because he engaged in multiple serious infractions, the proffered evidence was not sufficient to demonstrate pretext under the burden-shifting framework. Gacek v. Owens & Minor Distribution, Inc., No. 11-1417 (Jan. 27, 2012).
The Eighth Circuit joined the majority of federal appellate courts in confirming that in a Section 1983 lawsuit alleging violation of fourth amendment rights for entry of a home without exigent circumstances, the plaintiff has the burden of proof to establish that exigent circumstances did not exist. The Court also held that the “emergency aid exception” does not require serious harm but only an objectively reasonable basis to believe that a person within the house is in need of immediate aid. Der v. Isanti County, Civ. No. 11-1048 (Jan. 25, 2012).
Police violated 4th amendment rights with GPS tracking of vehicle without search warrant. The United States Supreme Court ruled Jan. 23, 2012 that the installation of a GPS tracking device on a vehicle parked in a public lot is a form of a search that requires a search warrant. Jones v. U.S., Civ. No. 10-1259 (Jan. 23, 2012)
The Minnesota Court of Appeals reversed dismissal of the plaintiffs’ case, in Dickhoff v. Green, No. A11-402, 2012 Minn. App. LEXIS 3 (Jan. 3, 2012), determining that a medical-malpractice claim based on a physician’s failure to diagnose cancer is not barred as a mere “loss of chance” (or reduced-chance) claim when the misdiagnosis resulted in a delay in treatment that makes it more likely than not that the patient will not survive the cancer.
In Strandberg v. Country Mutual Insurance Co., the U.S. District Court, District of Minnesota granted a defendant’s motion to dismiss a claim for bad faith settlement due to Plaintiff’s failure to follow the procedural requirements of Minn. Stat. Sec. 604.18 (specifically for Plaintiff’s failure to seek leave of the Court prior to bringing a bad faith claim). The Court also dismissed Plaintiff’s underlying hail damage and vandalism claims noting that under recently enacted Minn. Stat. Sec. 65A.01, a minimum two-year period of limitations begins at the inception of the loss and Plaintiff’s losses occurred more than two and a half years before the lawsuit was filed.
A recent federal court decision emphasized that under Minnesota law the duty of an insurer to defend an additional insured continues until the claims against the named insured have been completely extinguished. In Nelson v. Home Assurance Company, No. 11-CV-01161, 2011 U.S. Dist. LEXIS 142507 (D. Minn Dec. 12, 2011) the insurer argued that its duty to defend the additional insured ended when the underlying claims against the named insured were dismissed. The court rejected that argument, ruling that the duty to defend continued because the dismissal was subject to appeal and the claims were therefore not completely extinguished.
The Eighth Circuit reversed the district court’s summary judgment in favor of the defendant security company in Gage v. HSM Electronic Protection Svcs., Inc., finding that the district court misapplied Minnesota law and there was an issue of fact as to whether the operator was willfully and wantonly negligent in failing to follow procedures.
In Wesely v. Flor, A10-0478 (Minn. Sept. 7, 2011), the Minnesota Supreme Court ruled that the safe harbor period of Minn. Stat. § 145.682, subd. 6(c) allows a plaintiff to amend the initial affidavit of expert disclosure when the initial affidavit identified a non-qualifying expert. Plaintiff corrected the deficiencies in the initial disclosure by submitting an amended affidavit that identified a new and different qualifying expert.
In Engquist v. Loyas, the Minnesota Supreme Court clarified the defense of provocation and emphasized the strict liability of dog owners, concluding that the jury instruction did not adequately explain dog owner liability, interpreting Minn. Stat. § 237.22 to mean that “a dog owner’s liability under the statute for a dog attack on a plaintiff-victim is absolute, subject to the requirements of the statute and the defense of provocation.”
The U.S. District Court, District of Minnesota, in Hillins v. Marketing Architects, Inc., 10-2845 (D. Minn. Sept. 6, 2011), ruled that an employee’s claims of retaliation and interference in violation of the FMLA, MPLA, Title VII and MHRA survive her employer’s summary judgment motion when the employer terminated the employee’s position during her FMLA leave despite having other comparable positions available and in light of discussions of her promotion to Vice President shortly before she announced her pregnancy.
In ECI v. L.H.Bolduc, the Minnesota Court of Appeals determined the indemnification and insurance agreement was enforceable and required the subcontractor to indemnify without regard to fault and since neither the additional insured endorsement or CGL policy limited coverage to claims from a subcontractor’s negligence, coverage for a general contractor is not limited to such claims either.
An insurance policy provision excluding underinsured motorist coverage for accidents occurring while using an automobile to carry persons or property “for compensation or a fee” is unenforceable under the Minnesota No-Fault Automobile Insurance Act, under a recent case decided by the Minnesota Supreme Court. The decision, Latterell v. Progressive Northern Ins. Co., is available here.
On cross-motions for summary judgment in Owners Ins. Co., et al. v. Autopia, U.S. District Court - District of Minnesota granted Autopia’s motion for summary judgment finding coverage under the advertising-injury provision for claims arising out of the violation of the Telephone Consumer Protection Act (TCPA) based upon the plain and ordinary meaning of “privacy”, rejecting the legalistic and technical definition offered by the Insurers and utilized in the Seventh, Third and Fourth Circuits.
The U.S. District, District of Minnesota enforced the plain meaning of the policy language in Construction Systems, Inc. v. General Casualty Co. of Wisconsin, 09-3697 (D. Minn. Aug. 17, 2011), determining that replacement coverage was available, but remedies were limited to the periods and amounts expressly outlined in the policy.
The 8th Circuit Court of Appeals reversed the district court in AMCO Ins. Co. v. Inspired Technologies, Inc. determining that since one of the claims brought against Inspired Technologies, Inc. (ITI) arguably fell within the scope of coverage, AMCO was required to defend ITI against the entire lawsuit even though the knowledge-of-falsity exclusion excluded coverage for Lanham Act claims.
Minnesota Supreme Court determined that the retirement presumption in the Workers’ Compensation Act does not have to be expressly stated or reserved in a stipulation for settlement in order for an employer and insurer to discontinue payment of permanent total disability benefits when the disabled employee reaches age 67. The decision, Frandsen v. Ford Motor Co., is available here.
On June 28, 2011, the Minnesota Supreme Court accepted review of Hansen v. Robert Half International, Inc., 796 N.W.2d 359 (Minn. Ct. App. Apr. 19, 2011), a case to watch because the review will determine whether a plaintiff (1) fails to plead a claim under the Minnesota Parental Leave Act, when leave under the Act is never specifically requested, and (2) fails to establish a prima facie case of discriminatory discharge under the Minnesota Human Rights Act, when she does not produce evidence that sex was a factor in the decision to eliminate her position in a reduction in force (RIF) by her employer.
The Minnesota Supreme Court reversed the Court of Appeals determination on notice standards for spoliation of evidence in Miller v. Lankow. For an analysis of how this may affect insurers, click on the case name.
Minnesota Supreme Court to Review Employer Reduction in Force Decision in Hansen v. Robert Half Intl, Inc..
In Jung v. General Casualty Company of Wisconsin, the 8th Circuit Court of Appeals affirmed the District Court granting of summary judgment in favor of General Casualty holding the $1M excess-liability policy carried by the at-fault driver at the time of the accident adequately constituted a “bodily injury” policy and was relevant to determining whether the vehicle was underinsured as defined by the statute.
In an insurance coverage dispute, PetroNet LLC v. Hartford Cas. Ins. Co., the Minnesota federal district court determined that a copyright infringement action against its insured did not trigger the advertising-injury coverage in defendant’s insurance policy.