1. Supreme Court
1. Civil Procedure
2. Contracts
3. Public Employment
2. Court of Appeals
1. Civil Procedure
2. Contracts
3. Employment
4. Evidence
5. Garnishment
6. Governmental Immunity
7. Insurance
8. Negligence
9. Torts
3. Federal Court
1. Civil Procedure
2. Contract
3. Discrimination
4. Employment
5. ERISA
6. Evidence
7. Insurance
8. Malpractice
9. Torts
10. Workers' Compensation

4. Minnesota Workers' Compensation
1. Arise Out Of And In The Course Of Employment
2. Gillette Injury
3. Outside The Scope Of Employment
5. Wisconsin Workers' Compensation
1. There were no updated cases for review as of the printing of this Newsletter.
6. Michigan Workers' Compensation
1. There were no updated cases for review as of the printing of this Newsletter.

Reversing the Court of Appeals, the Supreme Court in this case determined that Columbus Day is a legal holiday under Minn. R. Civ. P. 6.01.

The District Court had granted summary judgment dismissing the claims of plaintiff. An appeal may be taken within 60 days after entry of judgment pursuant to Minn. R. Civ. App. P. 104.01. The method for computing the 60-day period is found in Minn. R. Civ. P. 6.01. Rule 6.01 specifies that the last day of the period is included in the computation, unless it is a Saturday, a Sunday, or a legal holiday and then the period runs until the end of the next day which is not one of aforementioned days. The 60th day of the appeal period was Sunday and the following day was Monday, Columbus Day. Appellants served and filed their notice of appeal on Tuesday.

The Court of Appeals dismissed the appeal stating that Columbus Day was not a legal holiday, and the appeal was untimely. The Supreme Court looked at the definition of legal holiday found in Minn. R. Civ. P. 6.01, which defines the term as "any holiday defined or designated by statute. Since Columbus Day is included in the general definition of a holiday in Minn. Stat. § 654.44, subd. 5, it is a legal holiday for purposes of computing the time period for an appeal and is not included in computing the last day of an appeal period.

The Supreme Court reversed the Court of Appeals and held that contracts made in violation of the corporate practice of medicine doctrine are not void per se. The corporate practice of medicine doctrine prohibits a corporation from practicing medicine indirectly by hiring a licensed healthcare professional to practice medicine for the benefit or profit of the corporation.

This matter was originally before the Supreme Court on the issue of whether the corporate practice of medicine doctrine applies to chiropractors. The sole shareholder of three chiropractic clinics, who was not a licensed chiropractor, incorporated the clinics as general business corporations. The clinics provided chiropractic services by licensed chiropractors. In the first case, the Supreme Court determined that the corporate practice of medicine doctrine did apply to chiropractors and remanded to the Court of Appeals to determine whether defendant insurer was required to pay the outstanding chiropractic claims. The Court of Appeals determined that plaintiff's outstanding claims for chiropractic services were void as against public policy. Defendant insurer argued that allowing plaintiff clinics to receive payment in spite of its violation of the corporate practice of medicine doctrine would render the doctrine ineffectual because it would allow clinics to incorporate in violation of the doctrine, provide services, and receive retrospective payment. The Supreme Court disagreed and held that contracts made in violation of the corporate practice of medicine doctrine are not void per se. Rather, the court will examine the circumstances surrounding the contract to determine whether the violation was knowing and intentional.

The Supreme Court affirmed the Court of Appeals' decision that Brittain was entitled to enhanced disability benefits because he was disabled from performing any act of duty. Brittain filed for disability benefits under PERA claiming he was disabled as a result of anxiety and depression caused by a hostile work environment created by his supervisor. PERA denied Brittain's claim for the enhanced benefits because it interpreted "any act of duty" as being limited to acts involving hazardous duty.

The Supreme Court determined that the plain meaning of the words "any act of duty" found in Minn. Stat. § 353.656, subd. 1, used to qualify the entitlement to enhanced disability benefits under the Police and Fire Fund, includes all tasks and functions of a police officer, not just those that involve hazardous situations or heightened risks or that are unique to police work. An occupational disability resulting from depression caused by a hostile work environment qualifies as a "disability incurred in or arising out of any act of duty" where the hostility is in response to and interferes with the performance of the tasks and functions of a police officer. A dissent by Justice Gildea agreed with the majority as to the meaning of "any act of duty" but would have remanded the matter to determine whether the officer's injury occurred in or arose out of an act of duty.

In this public contract dispute, the Court affirmed that the time to appeal a judgment entered pursuant to Minn. R. Civ. P. 54.02 begins to run upon the entry of judgment if the District Court makes an express determination that there is no just reason for delay and expressly directs the entry of judgment. In this action that stems from a contractor's promissory estoppel claim, the Court found that there were no material facts to support the contractor's claim of a clear and definite promise to enter a contract for a public project or that the contractor had reasonably relied to his detriment on that promise.

Here, when the District Court denied a demand for change of venue as a matter of right under Minn. Stat. § 542.10 (2004), the appellants did not immediately challenge the decision and file a petition for mandamus, but rather waited and challenged the decision in an appeal. The Appellate Court declined to rule on it stating that "it has been the long accepted practice in this state to seek the review of a venue order by petitioning this Court for a writ of mandamus. It is proper and often preferable to determine the place of trial prior to the actual trial of the case rather than afterwards." The Court further found that the doctrine of unclean hands should have prevented the District Court from invoking its equitable powers in this case that arose from married business partners who ultimately divorced and dissolved their business with allegations of breach of lifetime employment contract, conversion, theft, unjust enrichment, failure to pay commissions, defamation, and constructive trust or equitable return of business.

An expert is a two-edged sword. Here, when a sprinkler pipe in a building burst, the building owner filed a Complaint against the company which had installed a rooftop heating ventilation and air conditioning unit, alleging a single negligence theory that the company's failure to install a severe weather exhaust stack was the direct and proximate cause of the damages. Later, after the experts the owner consulted opined a different theory of negligence, the owner sought to amend the Complaint by removing references to the alleged failure to raising a different theory of negligence. The Appellate Court upheld the District Court's denial of the amendment because defendant would have been prejudiced by the broadening of the Complaint, the owner had delayed in bringing the motion to amend, and the amendment was barred by the two-year statute of limitations.

In this dispute about roofing work on a building, the Court of Appeals held that Johnson, the purchaser of a damaged and partially repaired building, was not an intended beneficiary of a contract between Kraus-Anderson and the previous building owner and that Johnson's claims were untimely. After a fire severely damaged the building, the previous owner could not decide whether to restore, raze, or sell the building. The previous owner hired Kraus-Anderson to make minimal repairs to prevent water damage and then sold the building "as is, where is" to Johnson.

The Court held that summary judgment on plaintiff's discrimination claim was in error due to a dispute of material fact whether the employer's refusal to hire was based on a legitimate nondiscriminatory reason or whether that reason was a pretext for racial discrimination. Best Oil had no formal criteria for the position or interview procedure. Plaintiff applied for a position as a convenience store cashier and was not hired. The Court held that there was a factual dispute regarding plaintiff's past contacts with the store.

The second issue for the Court was whether evidence of appellant's 12-year old criminal conviction discovered after the decision not to hire appellant bars the discrimination claim. The Court held that the District Court erred by holding that subsequent evidence of a 12-year old conviction barred appellant's discrimination claim as a matter of law. While it does not bar the claim, it may affect the range of remedies.

In this complex litigation involving claims representatives who brought a class-action against their employer for failing to pay overtime compensation pursuant to the Minnesota Fair Labor Standards Act (MFLSA), the Court of Appeals held: (1) the District Court had authority to impose injunctive relief and civil penalties under the MFLSA; (2) civil penalties under the MFLSA must be paid to the state rather than to individual litigants; and (3) a damage multiplier for exceptional success by a party did not apply where the party plead $16 million in damages and the jury awarded $0, despite the imposition of injunction and civil damages.

The Court of Appeals affirmed a District Court ruling that plaintiff instructor had no property interest in re-employment under the terms of a collective-bargaining agreement, where the employment relationship with the Community College was on a fixed-term basis and concluded at the end of the semester. The instructor was not rehired following an investigation that substantiated a complaint that the instructor sexually harassed a student.

The Court also ruled that the doctrine of compelled self-publication as it relates to separation from employment is limited to defamation actions and does not apply to a claim challenging a constitutional violation of a liberty interest. The doctrine of compelled self-publication could not be invoked, because the college did not make public the information regarding the reasons why the plaintiff instructor was not rehired or the investigator's report substantiating the sexual harassment allegations.

In this case, the Minnesota Court of Appeals affirmed the District Court's Order denying plaintiff's post-trial motions for a new trial or judgment as a matter of law. The Court held that the District Court did not abuse its discretion when it denied plaintiff's motion to introduce portions of medical textbooks to impeach defendant's medical expert and reading a transcribed portion of the defendant medical expert's opinion testimony because the plaintiff failed to present the relevant portions of the textbook to the defendant medical expert to afford him the opportunity to explain or deny the same and also because the evidence had the potential of confusing the jury on causation issues.

The Court of Appeals ruled that in a garnishment action of a joint bank account there is no conflict between case law which authorizes the garnishment of a joint bank account regardless of which depositor contributed the funds and the Minnesota Multi-Party Accounts Act because that act only governs nonprobate transfers upon the death of a joint depositor. This case arose out of rent due under a commercial lease and did not involve the transfer of nonprobate assets at death; therefore, the caselaw which holds that a joint bank account is subject to garnishment in its entirety for the individual debts of one of the depositors controls.

The Court of Appeals also ruled that the District Court did not abuse its discretion in ruling that a default judgment against the defendant should not be vacated based on allegations that the medical condition of the defendant prevented him from responding to a lawsuit and the subsequent discovery. Defendant never cited his medical condition as a reason for his inability to comply with discovery and court orders despite multiple contacts with the plaintiffs through discovery requests and court proceedings.

The Court of Appeals reversed a District Court's denial of the dismissal of the defendant contractor's counterclaims which sounded in tort because the plaintiff City of Minneapolis was entitled to statutory and official immunity. The City sued defendant Ames & Fischer Co. for breach of contract for its failure to make certain payments arising out of a parking ramp construction project. The defendant counterclaimed alleging misrepresentation and related theories regarding the City's conduct on the project. The Court dismissed the counterclaims because they sounded in tort so the City was entitled to governmental and official immunity. However, since the case is a contract action, no governmental immunity applies, and the defendant contractor will still be able to defend the breach of contract action on the basis that the City's own actions prevent it from prevailing on its contract claim.

The Court of Appeals affirmed an arbitration award of income loss benefits to an employee who was the sole shareholder of the employing corporation without a showing by the employee that there had been a reduction in the corporation's gross income.

An arbitrator awarded plaintiff income loss benefits as a result of injuries sustained in a motor vehicle accident. To support his claim for lost wages, plaintiff submitted his W-2 forms. Plaintiff testified that he was unable to work for a period of time due to his injuries and did not draw a salary during that period of time. Defendant withheld payment of the income loss benefits because plaintiff did not submit the income tax records for his business. An insured ordinarily establishes a wage loss by showing that there has been a reduction in salary or wages. Defendant argued that since plaintiff was the sole shareholder of the corporation that employed him he must show that the corporation had incurred a reduction in its income. The Court found that plaintiff was paid wages by the corporation and it was not necessary to resort to other means to show proof of his earnings. The Court determined that because Minnesota no-fault law permits an individual to prove income loss by showing a reduction in personal income and does not exclude individuals who are employed by a corporation in which they are the sole shareholder, the arbitrator did not exceed his authority by relying on the individual's salary loss to substantiate the income loss.

When two homeowners' policies equally contemplate the risk of personal liability arising out of injuries sustained as a result of being bit by a family dog, neither policy providing concurrent coverage is primarily liable for purposes of application of the "closest to the risk" doctrine when the dog bite occurred at the insured's cabin and one of the homeowners' policies limited coverages to occurrences within the state of Wisconsin. The homeowners' primary residence is located in Richfield, Minnesota, and the homeowners insured their cabin through Trade Lake Mutual Insurance Company and primary residence through Allstate. Both policies provided $100,000 in personal liability coverage; however, the Trade Lake policy limited coverage to occurrences within the state of Wisconsin. The injury occurred in the state of Wisconsin. Trade Lake assumed defense of the lawsuit, and the declaratory judgment action was brought against Allstate seeking a declaration that Allstate pay half of the judgment. The Appellate Court found that both policies equally contemplated a risk of a dog bite injury and neither was closest to the risk as the location was merely fortuitous. The "accident-causing instrumentality" was mobile and not limited to any particular residence; therefore, the District Court erred in determining that the Trade Lake policy was closest to the risk.

The Court of Appeals affirmed the District Court's denial of Innsbruck's request for leave to serve a supplemental garnishment summons and complaint on Stock Roofing's insurers. Innsbruck and Stock Roofing had entered a Miller-Shugart settlement. The Court concluded that the settlement was unenforceable because Stock Roofing violated its duty of cooperation and prejudiced the insurers by entering into a Miller-Shugart settlement when its insurers had not fully denied coverage.

The Court of Appeals affirmed the District Court decision dismissing the homeowners' claims finding that appellants/homeowners did not specifically request homeowner's insurance from the agent.

Plaintiffs allege that they received a quote for homeowner's insurance prior to closing on their home and contend they asked the agent to obtain a homeowner's policy with American Family. Five months later in November of 2003, a fire damaged the home, and the plaintiffs contacted their agent to report the loss. He informed them that he had not obtained the policy for them. The Court found that there was ample evidence to support the District Court's finding that the plaintiffs did not request insurance. Both the agent and his assistant testified that the plaintiffs did not request insurance and did not provide enough information required to apply for a policy. Plaintiffs acknowledged that they did not sign an application, make any payments for homeowner's insurance or receive a binder of declaration of coverage. The Court found that necessary information including plaintiffs' social security number and other personal information was not supplied.

The Court of Appeals affirmed the lower court's decision that the UIM carrier's failure to timely intervene is unequivocal conduct evincing a waiver of its right to a jury trial.

Plaintiff/respondent was injured in an automobile accident with Ms. Clough who had a liability insurance policy with a limit of $50,000. Plaintiff maintained $50,000 in UIM coverage through her insurer, Allstate Insurance Company. Plaintiff notified Allstate by letter of her claim against Clough. The letter expressly noted damages would likely exceed Clough's policy limit. The letter also informed Allstate that the claim had been referred to a mediator and invited participation. Allstate responded in a letter requesting additional information which was provided with no further response from Allstate. Mediation did not result in a settlement, and the matter was submitted to binding arbitration. A stipulation was forwarded to Allstate with another notification that if her damages exceeded $50,000, she would pursue a claim against Allstate for UIM coverage. Allstate was invited to intervene. Allstate responded by saying it denied to arbitrate the matter and would not be bound. A panel of arbitrators awarded damages in the amount of $67,500. Plaintiff/respondent forwarded the award to Allstate and again noted that she was seeking UIM benefits. More than eight months after it was first notified of a pending action, Allstate filed a motion to intervene. Plaintiff and Clough had already agreed by stipulation to confirm the arbitration award. The District Court denied Allstate's motion to intervene and confirmed the arbitration award. Plaintiff/respondent filed a separate action against Allstate to recover UIM benefits for the part of the arbitration award not covered by Clough's insurance policy. She filed a summary judgment motion arguing Allstate was bound by the arbitration award and estopped from relitigating the issue of damages because it was given an opportunity to intervene. The District Court granted summary judgment because Allstate failed to intervene in a timely manner in the underlying action. Allstate chose abstention and did not try to intervene until the issue of damages was conclusively established through binding arbitration and the parties sought judicial confirmation of the award.

The Court affirmed the District Court's grant of summary judgment to defendants. Plaintiff slipped and fell while walking up a sloped apron of a driveway that serviced two multi-family dwellings owned by defendants. Plaintiff's fall occurred on municipal property. Defendants performed snow removal activities on the municipal property. Plaintiff argued that since defendants voluntarily performed snow removal activities on the city's property defendants must exercise reasonable care. The Court stated that defendants cannot be found liable simply because they assumed snow removal duties on the city's property. There also was no evidence to show that defendants had created an artificial or dangerous condition with the snow removal activities. The conditions found by plaintiff were typical for a Minnesota winter.

The Court affirmed the District Court's decision that the City was entitled to summary judgment based on the "mere slipperiness" doctrine. This doctrine provides that a municipality is not liable for injuries sustained due to the natural accumulation of snow and ice on city sidewalks unless the city allows the accumulation to remain on the sidewalk long enough to form "slippery and dangerous ridges, hummocks, depressions, and other irregularities." See Doyle v. City of Roseville, 524 N.W.2d 461, 463 (Minn. 1994). After a 12 to 14 inch snowfall, city employees plowed the snow on a sidewalk, used a sidewalk sleeper, and then applied sand, salt, or calcium chloride to any icy patches that remained. Approximately seven hours later plaintiff fell on the sidewalk she describes as wet, sloppy and slushy. The Court found that the City owed no duty to appellant under the "mere slipperiness" doctrine.

This Minnesota court determined that sneezing or comparable physical problems are not cause for an emergency rule jury instruction. Here, a driver ran a red light and collided with a vehicle. The driver testified that he sneezed several times as he approached the intersection, that when he stopped sneezing he was blinded by the sun, that he was aware of the upcoming intersection during the sneezing episode, and that he decided not to brake or take his foot off the accelerator. The Court concluded that it was an abuse of discretion for the District Court to instruct the jury on the emergency rule because none of the Minnesota cases dealing with the emergency rule have involved sneezing or a comparable physical problem and yet the evidence did not support a conclusion that sneezing deprived the driver of time for thought or the opportunity to waive alternative courses of action or required him to act speedily by impulse or instinct.

In this case, the Court explored the land possessor's duty of care and the duty to anticipate harm despite the obviousness of the danger. Here the plaintiff was on his father-in-law's property assisting in moving heavy debris from a loft. The father-in-law was directing the process and telling his son and sons-in-law what to do. The plaintiff fell from the loft while he and another son-in-law were trying to throw an automobile axle into a tractor bucket, and the father-in-law had directed the two men to "just throw it in there" because he could not get the bucket any closer. The Court concluded that the record supported the jury's determination that the plaintiff could recover from his father-in-law in negligence.

The Court of Appeals upheld the District Court's summary judgment ruling dismissing plaintiffs' claims for negligence supervision, respondeat superior, and ratification against a church, the regional synod and national organization in a lawsuit arising out of allegations of sexual abuse by a retired pastor who occasionally presided over services at the church.

The factors used to determine whether an employment relationship exists include a right to control the means and manner of performance, the mode of payment, the furnishing of materials and tools, the control of premises where work is performed, and the right of the employer to hire and discharge. There must be more than a limited right of control by an entity over an individual to establish an employment relationship. The alleged sexual abuse took place at the retired pastor's home. The Court dismissed the church, the regional synod and the national organization because they did not employ the minister regardless of the fact that the synod and the national organization set certain standards for Lutheran ministers and can be involved in disciplinary proceedings. The church did not employ the minister where the minister occasionally served as a filled in pastor. The pastor received payment for services rendered and did not receive vacation or fringe benefits.

The Court further held that the plaintiffs' lawsuit did not violate the Establishment Clause and Religious Freedom Clause of the First Amendment; therefore, the defendant church, synod and national organization were not entitled to "doctrinal immunity" under the First Amendment in a case involving sexual abuse.

The Court granted defendant's motion for spoliation of evidence sanctions in this products liability action alleging that a toaster oven manufactured by defendant caused a fire. This was a subrogation action brought by plaintiffs' insurer, State Farm. State Farm's fire investigator concluded that the fire was caused by an electrical malfunction in the toaster oven. The toaster oven and the three-way power plug into the oven were removed from the home. Within a few days of the fire but well before State Farm notified defendant of any potential claim, State Farm permitted repair work to begin on the home and the fire scene was completely destroyed before defendant had an opportunity to inspect it. The Court held that a finding of bad faith is necessary to impose certain sanctions, such as an outright dismissal or an adverse inference instruction. Defendant asked the Court to exclude all evidence of the cause and origin of the fire. To exclude evidence the Court need only find that State Farm knew or should have known that the evidence was relevant to potential litigation. In the absence of a finding of bad faith the Court determined that to exclude all evidence as to the cause and origin of the fire would differ little from dismissing the case. The Court noted that to its credit State Farm stipulated that the Court may give an adverse inference instruction even in the absence of bad faith. The Court also prohibited State Farm's expert witness from testifying at trial, a measure to which State Farm had also consented.

In this declaratory action, the court ruled that United States Fire Insurance Company had no duty to indemnify the Diocese of Winona for damages resulting from a lawsuit alleging that a former priest sexually abused a minor.

U.S. Fire moved for summary judgment on the grounds that the Diocese's claim was collaterally estopped because the underlying factual issues of the priest's abuse had been previously litigated. The Court granted the motion noting that the first three elements of collateral estoppel were not disputed and, therefore, satisfied. The fourth element of estoppel was disputed because the Diocese argued that it was not afforded a full and fair opportunity to litigate whether it "expected" the continued abuse because (1) the Eighth Circuit engaged in improper fact-finding, and (2) the Diocese now possessed expert testimony that was unavailable to it in the earlier trial. The U.S. District Court found that the Diocese did have a full and fair opportunity to litigate the issues because it had ample time to conduct discovery, it was not prohibited from introducing evidence in its defense, and it was represented by competent counsel. The U.S. District Court further found that there was no legal support for the proposition that a party is not provided a full and fair opportunity to litigate its case unless it is afforded either an en banc review of the Eighth Circuit or by review of the U.S. Supreme Court. The U.S. District Court further found that the fact that the Diocese did not retain an expert in the underlying case did not establish that it was not given a full and fair opportunity to litigate the issue that the continued abuse of children was not "expected."

The Federal District Court dismissed this Privacy Act suit, concluding that the Privacy Act, as interpreted by the Eighth Circuit Court of Appeals, did not provide John Doe with a cause of action. An occupational physician working part-time at the Minneapolis Veterans Administration Medical Center's Employee Health Service Department revealed to a third party that John Doe was HIV positive and was using marijuana. John Doe filed suit against the Department and the physician. Unfortunately for John Doe, the Privacy Act only provides protection for records contained in a system of records. Because the physician's knowledge came directly from John Doe, and not from a record, there was no violation of privacy under the act.

The matter before the Court arose out of a promise by Alpine to the customer that if the amount that it bills to the insurer is later found to be excessive, and the insurer only pays part of the invoice, Alpine will "eat" the difference. This litigation arose when Alpine sued Farmers in state court seeking a declaratory judgment that numerous short-pay claims be consolidated into a single no-fault arbitration proceeding. Farmers removed the action to Federal Court and filed a seven count counterclaim. The Federal Court dismissed several counts of Farmers' counterclaim that were based on the alleged invalidity of the assignments by Alpine customers of their rights against Farmers. The Court also dismissed Count III of Farmers' counterclaim which alleged that Alpine violated Minnesota's anti-incentive statute, concluding that the anti-incentive statute does not define "rebate" or "credit" and that no Minnesota case law interpreted those terms. As Alpine's rebate did not result in costs to be borne by insureds through higher premiums, Alpine's practice did not violate the anti-incentive statute. The sole count not dismissed by the Court was that of an alleged beach of contract by Alpine in not abiding by the price list that Farmers provided to it for work provided to Farmers' insureds. While the Court was dubious of this claim surviving a motion for summary judgment, the Court concluded that the claim was not covered by the mandatory arbitration provisions of the No-Fault Act, which would require resolution through arbitration.

In a case arising out of alleged construction defects, the District Court granted defendant's summary judgment motion on the implied warranty of fitness for a particular purpose claim and denied plaintiffs' motion for partial summary judgment on plaintiffs' claims based on the indemnification and express warranty clauses of TEC's Purchase Order.

This case arises out of alleged construction defects of the exterior insulation and finish system ("EIFS") at the Pepsi Center located in Denver, Colorado. Saint-Gobain supplied a reinforcing mesh which contained plasticized polyvinyl chloride which delaminated the EIFS finish. The general contractor Mortenson and its liability carrier and several subcontractors, including TEC, the subcontractor who supplied the EIFS, entered into a settlement agreement and release and took an assignment of TEC's claim against Saint-Gobain.

The Court denied plaintiffs' motion for partial summary judgment that the indemnification clause and express warranties of TEC's Purchase Order with Saint-Gobain were enforceable. The Court held that Saint-Gobain was not judicially estopped from asserting that the indemnification and warranty clause of TEC's Purchase Order were not part of the contract between Saint-Gobain and TEC in previous litigation. The Court ruled further that the United Nations Convention on Contracts for the International Sale of Goods ("CISG") applied; however, the plaintiffs were not entitled to summary judgment because there were material factual issues regarding the formation of the parties' contract since the CISG explicitly states that a contract of sale need not be concluded or evidenced by writing and is not subject to any other requirements as to form and may be proved by any means, including witnesses. The lack of evidence in the record as to the timing of the exchange of the parties' forms prevented the Court from finding as a matter of law that the terms of TEC's Purchase Orders were part of a contract formed between TEC and Saint-Gobain.

The Court granted Saint-Gobain's summary judgment motion on the implied warranty of fitness for a particular purpose, because there was no evidence that Saint-Gobain had knowledge that TEC ordered its mesh for use in the Pepsi Center's EIFS and Saint-Gobain had no input in TEC's selection of mesh for the EIFS system for the building.

Also, the Court denied defendant's motion for summary judgment on a design defect theory. The Court found that plaintiffs offered sufficient evidence of a design defect to survive summary judgment based on the plaintiffs' expert opinion that the defect was related to the composition of the mesh product, not the method of installation and that Saint-Gobain manufactured reasonable alternative designs that would have eliminated the known dangers of using a plasticizer.

Here the United States Court of Appeals reviews a choice-of-law provision in a contract which ultimately affected the award of prejudgment interest. The U.S. District Court of Minnesota had applied Minnesota law regarding prejudgment interest, and appellant SIG Pack, Inc., Doboy Division argued that Wisconsin law should have applied.

In affirming the U.S. District's decision, the U.S. Court of Appeals ruled that prejudgment interest is a procedural matter for conflicts-of-laws purposes under Minnesota law and that the District Court did not err in applying Minnesota's prejudgment interest statute in the absence of a provision in the parties' contract expressly governing procedural matters. The court noted that, in diversity cases, it applies substantive state law and that prejudgment interest is a substantive matter of state law in Minnesota. However, the question of which state's prejudgment interest law should apply depends upon the conflict-of-law principles of the state where the District Court sits. Minnesota courts generally apply their state's own procedure and remedies in all cases involving conflict of laws whether the parties have a choice-of-law agreement or not. Therefore, the District Court did not err in applying Minnesota's prejudgment interest statute, a procedural issue, in the absence of a prejudgment interest provision in the parties' contract.

Here, the court reviewed claims of discrimination on the basis of sex, race, and reprisal in violation of Title VII of the Civil Rights Act of 1964 and the Minnesota Human Rights Act ("MHRA") and on the basis of race, color, and national origin in violation of 42 U.S.C. § 1981. After the plaintiff refused numerous advances from her supervisor at the Swift and Company pork processing plant, plaintiff alleged that she was treated differently, was made to work in a strenuous position more than other employees, and was not allowed as many breaks as employees who went along with the supervisor's advances. When plaintiff reported her complaints to Swift's Human Resources' manager, she was advised that she could leave the company. Plaintiff asserted that later that year she was denied the opportunity to advance to a better position in the company. Plaintiff subsequently asked the Human Resources Department for three days off work to file a formal complaint and seek a legal remedy. Plaintiff was given a time-off slip and told that she must get her leave request approved by the supervisor who had been harassing her. Her supervisor would not accept the request. Plaintiff then left Swift and did not return. Plaintiff was then advised that her employment at Swift had been terminated.

The Court denied both parties' motions for summary judgment because there was conflicting evidence in the record as to whether the plaintiff was discriminated against on the basis of sex and that the plaintiff's submission to the unwelcome advances was an express or implied condition for receiving job benefits. The Court did find that the facts as presented were sufficient for a jury to conclude that plaintiff was subjected to sexual harassment sufficiently severe or pervasive to establish a hostile work environment. Finally, the Court dismissed Swift's motion to dismiss the retaliation claim because plaintiff had produced sufficient evidence to show that employees who had complied with the harassment were not disproportionately kept in the unfavorable positions, and that after she had reported her supervisor's conduct, plaintiff was advised to return to that supervisor to receive authorization for seeking three days off to seek legal remedy for her sexual harassment.

In this summary judgment action, the Eighth District Court of Minnesota reviewed the Minnesota Whistleblower Protection Act, retaliation and reprisal in violation of the Minnesota Human Rights Act, defamation, negligent retention and supervision of employees, and retaliation in violation of Title VII of the Civil Rights Act of 1964 in the context of a Super America manager who was fired subsequent to expressing concerns about policies and procedures that he found to discriminate against or harass employees.

Plaintiff Jeff LeBaron was a manager at a Speedway Super America store who reported what he observed to be discriminatory and harassing actions of the district manager to whom he reported. He first discussed these actions with the district manager, and later with the corporate officer regarding his concerns. LeBaron was advised to discontinue expressing his concerns. During this time LeBaron received favorable performance reviews. Shortly after this, a notice was sent out by voicemail to all Speedway Super America stores regarding a Money Gram wire transfer scam that was being perpetrated by telephone. LeBaron, who was on vacation when these voicemails came in, did not receive this warning. The subordinate manager in charge of the store while LeBaron was gone was able to and responsible for checking the voicemail. Later that day, the assistant manager, who had not checked the voicemails and received the warning, fell victim to the Money Gram scam and the store lost approximately $10,000. LeBaron was fired shortly thereafter. The Court denied Speedway Super America's summary judgment motion on the counts of retaliation in violation of the Minnesota Human Rights Act and retaliation in violation of Title VII of the Civil Rights Act of 1964 because LeBaron demonstrated sufficient evidence that LeBaron had engaged in protected activity by complaining of the alleged discrimination, that LeBaron's firing was close in time to those complaints of alleged discrimination, and also that LeBaron had followed company policy in not checking his voicemail while on vacation. The Court granted Speedway Super America summary judgment motion on the counts of violation of the Minnesota Whistleblower Protection Act, defamation, and negligent retention and supervision of employees. The defamation count was dismissed because LeBaron had not pled the alleged defamatory statements with specificity; however, LeBaron's self-publication defamation claim survived summary judgment because he was compelled to disclose to his new employer the reason he had been discharged from Speedway Super America.

In this action alleging violation of Title VII of the Civil Rights Act of 1964 and violation of the Equal Pay Act, the Court held that (1) the plaintiff's Title VII claim was preserved by equitable tolling, despite an expired filing period, because the plaintiff relied on representations by the Equal Employment Opportunity Commission, which failed to follow proper procedures; and (2) although the plaintiff's allegations were insufficient to support a claim under the Equal Pay Act, he would be allowed to amend his Complaint to allege facts sufficient to support his claim.

In this case involving claims pursuant to the Family Medical Leave Act ("FMLA") and Minnesota Human Rights Act ("MHRA") by an employee who was terminated after suffering severe health problems, the Court held that (1) a doctor's note stating that the employee "has sensitive lungs and sensitive airways" constituted a fitness-for-duty certification; (2) while an employer has no obligation to restore employment where a restriction renders the employee unable to perform essential functions of his position, a factfinder could conclude that the employee's position included neither handling grain and chemicals nor physical labor; (3) a factfinder could conclude that the employee's condition materially limited him in the major life activities of working and breathing; and (4) a factfinder could conclude the employee was able to perform the essential functions of his position such that the employer was required to accommodate his disability.

In this case, the U.S. District Court considered the issue of what constitutes a "mistake concerning the identity of the proper party" under Rule 15(c). Prior to the instant lawsuit, the plaintiffs filed charges of discrimination against ABMI with the Equal Employment Opportunity Commission ("EEOC") and the Minnesota Department of Human Rights ("MDHR"). They subsequently received "right-to-sue" letters from the EEOC that stipulated any "lawsuit under Title VII or the ADA must be filed in federal and state court within 90 days of . . . receipt of this Notice or the right to sue based on this charge will be lost." The U.S. District Court granted the dismissal motion of ABM Kentucky, which was added after the 90-day period specified in the letter, because the plaintiffs had learned, prior to the expiration of the statute of limitations, that ABM Kentucky was liable for its claims and they failed to add ABM as a defendant, ruling that the plaintiffs' failure to do so was not a mistake under Rule 15(c).

The Court granted defendant's motion for summary judgment. Plaintiff brought a discrimination action against his former employer after plaintiff's employment was terminated. Plaintiff claimed that his employer discriminated against him on the basis of race and national origin in violation of Title VII. Plaintiff claimed that he was passed over for a promotion due to his race. The evidence showed that although plaintiff was similarly situated to the employee who was promoted, the other employee was more qualified than plaintiff. Thus, plaintiff failed to present evidence that defendant's reason for hiring the other employee was a pretext for discrimination. Plaintiff also claimed that defendant terminated him in retaliation for a complaint he made regarding disciplinary action taken against him. The Court found that plaintiff was fired for failing to attend a work meeting and for being absent without permission. Plaintiff failed to produce any evidence that defendant's legitimate business reason for terminating plaintiff's employment was a pretext for intentional discrimination.

In this matter the Court determined that plaintiff Rosanne Simons was fired in retaliation for exercising a protected right under the Employee Retirement Income Security Act when she sent a written inquiry to defendant Frank Bagot regarding the fact that there had been no employer contributions to her IRA account to date. Because Bagot fired her within the same conversation when they were discussing the contents of her letter, the Court determined that plaintiff had established a prima facie case of retaliation. Her employer and Bagot articulated a legitimate nondiscriminatory reason for plaintiff's discharge when they established that plaintiff would have been laid off shortly after her termination by Bagot. The Court further determined that the defendants articulated reasons for the plaintiff's termination were pretext because there had been no performance issues documented in the plaintiff's personnel file and that Bagot admitted he had no plans to discharge the plaintiff prior to receiving her letter questioning the IRA contributions. The Court found in favor of plaintiff and awarded damages for unpaid employer contributions to plaintiff's IRA, damages for lost wages and health care payments and attorney's fees and costs.

In this subrogation action, the District Court granted defendant Black & Decker's motion to exclude the testimony of the plaintiffs' expert witnesses. The Court then granted Black & Decker's motion for summary judgment. Plaintiffs' insurer brought a product liability action against Black & Decker, alleging that a toaster oven made by the company was defective because the material used in it was insufficiently heat resistant. The Court held that the plaintiffs' experts lacked the qualifications to give opinions on the material and that no other evidence existed to support the insurer's claim.

The District Court held that three friends who agreed to help Dorpinghaus frame a construction project were not "temporary workers" for purposes of a commercial general liability policy. To be a temporary worker, the worker must have been "furnished." The Court adopted the majority view that a worker is not furnished unless a third party typically a staffing agency is involved in supplying the worker. The Court found that one friend had not furnished the others and that none of the friends' unrelated businesses had furnished them to Dorpinghaus. The friends had been injured when scaffolding collapsed and wanted to be classified as temporary workers because the policy excluded coverage for bodily injury to "employees," but did not consider temporary workers to be employees.

The Court granted partial summary judgment to defendant dismissing plaintiffs' claims for breach of contract. Plaintiffs brought suit against defendant for breach of contract and agent negligence for the lack of UIM coverage. In 2005, plaintiffs were involved in a motor vehicle accident in Minnesota, where they were living. Plaintiff previously had resided in Michigan. Prior to that time, plaintiffs had resided in Minnesota and had automobile insurance coverage through defendant, which included UIM coverage. Plaintiffs had two Michigan automobile insurance policies in force and an umbrella policy through State Farm Fire and Casualty Company at the time of the accident. Plaintiffs made a UIM claim, which was denied by defendants because the auto policies did not contain UIM coverage, which was not required in Michigan. The umbrella policy also did not contain UIM coverage. The Court found that agents in Minnesota and Michigan are not required to offer or include UIM coverage in umbrella policies and granted partial summary judgment dismissing plaintiffs' breach of contract claims as to the umbrella policy. Plaintiffs' claim for breach of contract with the automobile policies was also dismissed as there was no evidence showing defendant breached a contractual duty. With the claims of agent negligence, the Court found that when plaintiffs presented their prior insurance card to the Michigan agent a fact question was created as to whether through this action plaintiffs had instructed the agent as to what coverage they wanted, which would have included UIM coverage. Under both Minnesota and Michigan law an agent would have a duty to procure that coverage. The agent did not obtain UIM coverage and did not inform plaintiffs that they were not given that coverage. The Court denied summary judgment on the issue of agent negligence relating to the Michigan automobile policies.

In this matter, plaintiff Associated Commercial Finance, Inc. ("ACF") sued Brady Martz & Associates, P.C. ("BMA") alleging that because of BMA's negligence in auditing financial statements, ACF lost hundreds of thousands of dollars on loans made to Christian Brothers, Inc. ACF brought claims of professional malpractice, negligent misrepresentation, and fraudulent misrepresentation. ACF's professional malpractice claim against BMA was dismissed because, as a practical matter, nothing turned on the question. The Court further ruled that, although the claim had problems with proving reliance, there were numerous disputes regarding material facts that precluded summary judgment. The Court, therefore, denied BMA's motion to dismiss.

In this personal injury action brought by an employee against Norfolk Southern Railway Co., the United States Supreme Court held that the same standard of causation applied to the railroad's negligence and to the employee's contributory negligence under the Federal Employers' Liability Act (FELA). The employee initially brought the suit in Missouri state court. According to Missouri's jury instructions, an employee is contributorily negligent if the employee's negligence "directly contributed to cause" the injury, while railroads are liable to their employees for injuries "resulting in whole or in part from the negligence" of the railroad. The Court noted that different standards would make it difficult to reduce damages "in proportion" to the employee's negligence as allowed under FELA.

When plaintiff Cardiac Science's expert, Dr. Bach, notified Cardiac Science that he was unwilling to proceed as an expert in the trial due to personal matters, Cardiac Science sought an Order to substitute the opinions of Dr. Kallok for those of Dr. Bach. The submission of Dr. Kallok's opinion, disclosed over four months before trial, adopted the essence of Dr. Bach's opinions, but did have differences of opinion with Dr. Bach's report. Defendant Philips refused to stipulate to the substitution, and the Court ruled as follows: (1) Dr. Kallok could not testify in any manner that was contrary or inconsistent with Dr. Bach; (2) Dr. Kallok's invalidity opinions must also be limited to the opinions properly disclosed in Dr. Bach's opening expert report; (3) Dr. Kallok could only testify with respect to matters of prior art that were properly disclosed and included in Dr. Bach's opinion expert report; (4) Cardiac Science was required to submit a revised report of Dr. Kallok that was consistent with this Order; (5) Philips would be allowed to depose Dr. Kallok with all expenses paid by Cardiac Science; and, (6) Dr. Bach's deposition testimony could be used for impeachment purposes at trial consistent with the Federal Rules of Evidence.

The Federal District Court granted Maguire Tank's motion for summary judgment on plaintiff's negligence action because workers' compensation was the sole remedy available to plaintiff. Plaintiff was an employee of Truck Crane Service. Maguire Tank leased a crane and plaintiff's labor from Truck Crane Service. The Court held that under the "loaned servant doctrine," plaintiff had an implied contract for hire with Maguire Tank, that the work being done was essentially that of Maguire Tank, and that Maguire Tank had the right to control the details of the work. Therefore, plaintiff was an employee of both Truck Crane Service and Maguire Tank, and plaintiff's exclusive remedy was workers' compensation.

Typically if an employee is injured while attending a voluntary recreational activity sponsored by their employer, the injury is not compensable. In this particular case, however, the Minnesota Workers' Compensation Court of Appeals reversed the compensation judge's decision that this "Olympic" activity barred the employee's claim.

The employee was born and raised in Somalia and came to the United States about seven years prior to the hearing. She testified that she had difficulty understanding English. The employee began working for Minneapolis Hilton as a housekeeper in 2001. During an employer-sponsored event, "Housekeeping Olympics," the employee injured her right knee. The event took place at the hotel during her work shift and the employees were on the clock during the event. The employee testified that she understood that she was required to attend the event. Other management employees of Hilton Hotel, however, testified that the event was voluntary and that the employee could have left for the day.

Pursuant to Minn. Stat. § 176.021, subd. 9, injuries incurred while participating in a voluntary recreational program sponsored by the employer do not arise out of and in the course of employment unless the injured employee was ordered or assigned to participate in the program. When applying this statute, therefore, there are two steps. First, the activity must be voluntary; and second, it must be shown that the employee was not ordered to participate. In the present case, the WCCA questioned whether the Housekeeping Olympics was truly a recreational activity. The program activities were those activities normally expected of housekeepers. In addition, the event was on the employer's premises during work hours while employees were still punched in. The Court noted that simply labeling a work event as an "Olympics" or as a "Fun Day" does not transform it into recreation. Regarding the second step, the employee testified that a supervisor had told her that her attendance was required. Although other employees testified that her attendance was voluntary, the employee was not made aware that participation was voluntary. Since the two steps for the statute were not satisfied, the WCCA reversed the compensation judge's decision which barred the employee's claim and remanded the case back to the compensation judge for consideration of further issues.

In this particular case, the Minnesota Workers' Compensation Court of Appeals addressed the culmination date of the employee's Gillette injury. Beginning in June 2003, the employee was on her feet most of the day while performing her job duties. By October 2004, the employee began having heel and feet pain, therefore, she sought medical treatment on December 7, 2004. During that appointment, the employee received an injection in her right heel. On March 28, 2005, she returned for medical treatment complaining of intense pain in the bottom of her left heel. She received steroid injections in her left heel on that day and again on May 9, 2005. Medical notes from August 2, 2005 indicate that the employee's heel condition was related to excessive walking, overuse, and was a work-related injury. The employee's left foot was casted and she received work restrictions. On August 2, 2005, the employee reported a work injury to her supervisor. Since there was no available light-duty work, the employee was unable to work because of her foot condition from August 2, 2005 through November 17, 2005. On September 30, 2005, the employee filed a Claim Petition claiming a Gillette injury culminating on September 1, 2005. The employer denied primary liability, disputed the date of injury, and asserted failure of timely notice. In April, 2006, the employee amended her Claim Petition to an injury date of August 2, 2005. The compensation judge found that the employee had sustained a Gillette-type injury to her left heel which culminated on August 2, 2005. The employer appealed.

In its appeal, the employer contended that the employee's Gillette injury culminated on December 7, 2004. The WCCA noted that the Minnesota Supreme Court has held that Gillette injuries are compensable once their effect is serious enough to disable the employee from work. This does not mean that the last date of work is necessarily the date of injury. All evidence should bear on the issue determining the date of injury. The date of ultimate breakdown can be found to be the date of injury. As previously held by the WCCA, the timing of a Gillette injury is fact specific.

In this particular case August 2, 2005, was the first date that any doctor mentioned the employee's left heel condition being related to her work and it was the first date that any physical work restrictions were enacted. These facts would allow the compensation judge to find that the culmination date for the employee's Gillette injury was August 2, 2005. The compensation judge's findings were affirmed.

The employer and insurer appealed the compensation judge's finding that the employee's injury did not result from the performance of a prohibited act. The employee's job duty was to obtain parts off shelves in the employer's warehouse. It was the standard procedure for the employees to use a picker machine to obtain the parts which were on the upper shelves. On or about June 15, 2005, the employer instituted a new safety requirement prohibiting the employees from using the picker machine without a safety harness attached to the picker. On August 4, 2005, the employee climbed onto a picker to obtain a box of parts and did not wear a safety harness. Unfortunately, as the employee was in the process of stepping off the platform onto the pallet, which he thought was on the forks of the picker, he fell approximately 12 feet onto the cement floor. Apparently the picker clamp had failed to latch onto the pallet and the pallet was not on the forks. The employer and insurer argued that since the employee was performing an act prohibited by the employer, using the picker machine without a harness, this took the employee outside the scope of his employment and his injury was not compensable. The employee testified that between June 15, 2005 and August 5, 2005, the safety harnesses were not always available, that not all employees used the safety harnesses, and that the failure to use the harness was not the reason why he was injured. The compensation judge found that the employee's operation of the mechanized picker without a safety harness was not inherently hazardous and the employee's failure to use the harness was foreseeable by the employer. The employer and insurer appealed.

Pursuant to case law, if an employer expressly prohibits a specific act and the disregard of that prohibition is not reasonably foreseeable by the employer, the violation of that prohibition by the employee takes the employee outside the scope of his employment making the resulting injury uncompensable. The Minnesota Workers' Compensation Court of Appeals has previously noted that not every safety rule limits the scope of employment. The more minor the prohibited act, the more foreseeable that it will be violated. In this particular case, the compensation judge noted in his Memorandum that it was not the result of the employee's failure to wear a harness that caused his injury rather it was due to a defect in the picker lift itself. In addition, since other employees had used the lift after June 15, 2005 without a harness, it was foreseeable that workers would occasionally violate the safety harness policy. The compensation judge, therefore, concluded that the employee's violation of the safety harness policy was reasonably foreseeable. The WCCA found that the judge's conclusions were supported by ample evidence and the decision was affirmed.

There were no updated cases for review as of the printing of this Newsletter.

There were no updated cases for review as of the printing of this Newsletter.