1. Supreme Court
1. Improvement To Real Property
2. Court of Appeals
1. Civil Procedure
2. Contract
3. Consumer Protection
4. Corporations
5. Damages
6. Employment
7. Insurance
8. Professional Malpractice
9. Torts
3. Federal Court
1. Civil Procedure
2. Contract
3. Employment
4. Torts

4. Minnesota Workers' Compensation
1. Arose Out Of And In The Court Of Employment
2. Estoppel
3. Permanent Partial Disability
4. Permanent Total Disability
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.

In this case, which was briefed and argued by Michael Barrett and Andrea Reisbord of our office, the Minnesota Supreme Court agreed with the district court that a general contractor's claims against subcontractors and a supplier arising out of an improvement to real property are barred if not brought within the 10-year statute of repose set forth in Minn. Stat. § 541.051, subd. 1(a).

Top Value Homes, a general contractor, was sued in May, 2003, for damages when a home it completed in July, 1993, developed water intrusion and mold problems. In March, 2004, Top Value Homes brought contribution and indemnity claims against subcontractors and a supplier who had contributed to the construction of the home. The district court held that Top Value Homes' contribution and indemnity claims were extinguished by the statute of repose and granted summary judgment to the subcontractors and supplier. The court of appeals reversed, holding that claims for contribution and indemnity that had not otherwise accrued within 10 years of completion of construction would be deemed to have accrued in the tenth year, triggering the extension feature found in Minn. Stat. § 541.051, subd. 2. The Supreme Court reversed the court of appeals. The Supreme Court found that the language of the statute was not ambiguous and that the statute defined accrual as occurring upon discovery of the injury or, in the case of contribution/indemnity, upon payment of damages arising out of the unsafe condition. The statute does not permit accrual to be deemed by law to have occurred prior to payment. The contractor also argued that the statute violated the Due Process Clauses of the state and federal constitutions and the Remedies Clause of the state constitution. The Supreme Court did not find any violation. Three concurring justices agreed that the contribution/indemnity claims were barred. However, the three justices noted that the statute could be unconstitutional under different facts and, therefore, the holding should be limited to the facts presented in this case.

The court of appeals held that a plaintiff does not engage in a "diligent search" for purposes of tolling the statute of limitations when the plaintiff knows that the defendant does not reside in Minnesota but makes no attempt to locate him outside the state. The court further determined that the district court properly dismissed some of plaintiff's claims and plaintiff's motion to extend a Scheduling Order deadline because his expert witness's single sentence regarding injury causation was insufficient to comply with Minnesota law (which requires a detailed chain of causation) and plaintiff did not establish excusable neglect.

In this opinion regarding an exclusive paint supply contract, the court of appeals concluded that the contract's forum-selection clause was enforceable. A California company and a Minnesota company entered the contract, which designated Minnesota as the forum for litigation. Despite appellant's argument that it lacked sufficient contact with Minnesota to confer personal jurisdiction in the selected forum, the court held that appellant submitted to jurisdiction by entering a contract with a valid forum-selection clause. The court determined the clause was valid because the California company failed to show that the Minnesota forum was a seriously inconvenient place for trial, that the agreement was one of adhesion, or that the agreement was otherwise unreasonable.

The Minnesota Court of Appeals held that for service of process to be sufficient, it must be made knowingly and intentionally. In this case, the court found that the process server's delivery of the Summons and Complaint to a neighbor who accepted it without knowing what the envelope contained and then gave it to the teenage daughter of the defendant's son, who gave it to his mother, who gave it to her husband, who had power of attorney for the defendant, was insufficient.

In this unpublished decision, the court of appeals held that in a tort action the defendant's interest in the mortgage, guarantee, and lien were not compulsory counterclaims because the rule requires claims "arising out of the same transaction" and the word "transaction" does not embrace claims in tort.

The court of appeals held that a plaintiff's failure to serve the Summons along with the Complaint rendered service invalid, and the court strictly applied the rules of service of process. The limited exception to strict compliance did not apply because there was not substantial compliance with the rules of service.

In this construction case, the appellate court reversed a district court's grant of summary judgment for the driveway installer on a homeowner's breach of contract claim based on the installer's disclaimer.

Plaintiffs contracted with the defendant to install a driveway. The contract contained a disclaimer stating, "the finished surface and/or color may reflect variables which are inherent in the methods, materials or creative skills of the installers." The appellate court ruled that the disclaimer was not valid because the alleged defects fell outside the scope of "inherent" imperfections in the finished surface based on the assumption that if the homeowner's assertions were true, the entire finished surface did not conform to what the installer promised and differed in texture from the model the installer poured.

The court did affirm the dismissal of the plaintiff's negligent breach of contract claim and unjust enrichment action.

The court of appeals, in this unpublished opinion, agreed with the district court that an individual could not use the private-attorney-general statute to bring a cause of action based on business practices that the attorney general had already addressed. The private-attorney-general statute allows individuals to seek damages by standing in place of the attorney general to enforce certain laws regarding unlawful practices in business, commerce, or trade that the state attorney general is charged with enforcing. Appellant had purchased an automobile from Walser and was alleging that a salesperson deceived and tricked appellant by telling him he was required to purchase a $1,500 sales contract and a $340 credit-insurance policy in order to obtain financing.

The court of appeals found that the district court erred in determining that collateral estoppel applied where an adjudication on the merits was not necessary and essential to the prior judgment which was decided on a procedural issue. However, the court found that summary judgment was proper under application of the business judgment rule under Delaware law.

In this unpublished opinion, the court of appeals affirmed the district court's calculation of lost profit damages in a dispute between a construction company and real estate agents. The construction company and real estate agents had agreed to form a general partnership, Atlantis Developers, for the development and sale of property. In a lengthy chain of events, the agents formed another company, Creekside Homes, and tortiously interfered with a contract between the construction company and Atlantis Developers. The court of appeals deferred to the district court's determination of expert credibility and did not find error in the district court's findings on lost profits, deduction of interest, property value, and damages.

The court of appeals, in this landlord-tenant dispute, concluded that the district court properly reduced a $35,000 jury award to $5,500. Appellants sought and received approximately $5,500 in conciliation court after respondent disposed of items in their apartment storage locker. On appeal to the district court, the judge granted respondent's motion in limine to limit any recovery to $5,500, but failed to inform the jury of this fact. Noting case precedent, the court of appeals reasoned that respondent was prejudiced by the excess award because respondent would have more vigorously defended itself had it known there was potential for damages greater than $5,500. The court of appeals concluded that appellants were limited by the pre-trial order to the $5,500 amount pleaded in their ad damnum clause.

In this employment case, the court of apeals concluded that Olson's assault and battery claim fell outside the Workers' Compensation Act because Olson's manager was motivated to assault her by personal animosity arising from circumstances wholly unconnected with the employment. The district court, therefore, had subject matter jurisdiction. The court of appeals then upheld the district court's denial of summary judgment because a question of fact remained about whether the manager's conduct was personal or an integral part of the employment culture. Olson was employed at Movie Gallery Services, Inc. as a customer service representative. The manager allegedly assaulted her at work by snapping and unhooking her bra, kicking and slapping her buttocks, and pulling her underwear up from behind. The manager terminated Olson's employment (claiming that Olson failed to comply with company policy) after she reported him to the district manager.

The court of appeals agreed with the district court that a temporary injunction was improper against an outside salesperson who violated the explicit terms of an agreement with his former employer. The court of appeals concluded that (1) the non-compete provision in the agreement was broader than reasonably necessary to protect the employer's business; (2) the employer failed to establish irreparable harm sufficient to sustain an injunction under the non-solicitation and confidentiality portions of the agreement; and (3) even if the employer could show that the salesperson obtained trade secret information protected by the Uniform Trade Secrets Act, the employer failed to demonstrate the requisite high probability of inevitable disclosure.

In this unpublished opinion, the court of appeals found that appellant's whistleblower claim was not precluded by the results of his union arbitration proceeding and that appellant was free to submit to the jury evidence of further damages. The court of appeals reversed summary judgment with regard to appellant's whistleblower claim and remanded for trial. The court upheld the dismissal of appellant's second claim regarding defamation because his complaint did not identify who made the alleged defamatory statement, the statement was true, and allowing appellant to amend his complaint would prejudice defendant by requiring further discovery.

The court of appeals affirmed a district court's summary judgment ruling that in a case involving UIM coverage the UIM coverage under the host driver's policy was available to the passenger for the negligence of the other driver in the accident and the policy limits of the passenger's father's policy did not exceed the limits of the policy of the host driver.

The plaintiff was injured when his host's car collided with another car. The plaintiff qualified as a resident insured under his father's automobile policy, and the host's policy contained a Myers exclusion, providing that the vehicle identified as being insured under a policy does not qualify as an "underinsured" vehicle under that policy. The court concluded that under the facts UIM coverage under the host driver's policy was available to the passenger for the negligence of the other driver in the accident and since the policy limits of the passenger's father's policy did not exceed the limits of the policy of the host driver, no coverage was available.

Judge Minge dissented. The parties stipulated that each vehicle was underinsured, but the other driver's liability was settled for $15,000, although she had liability insurance coverage for $100,000. The case should be remanded for clarification of the underinsured status of the other driver because if the other driver was not underinsured then the host driver's UIM coverage would not be available.

Following settlement with the at-fault driver, Anderson filed a complaint alleging that United Fire refused to pay her UIM benefits. The parties agreed to submit the claim to a three-member arbitration panel. The arbitrator made findings of fact which Anderson moved the district court to confirm. The district court disregarded the arbitrator's decision, and the court of appeals found this to be in error because the arbitrator's findings of fact are conclusive. In reviewing the arbitrator's application of the facts to the law, the reviewing court found the application correct and subsequently reversed the district court and adopted the arbitrator's findings and decision.

The court held that a contractor's policies of insurance provided coverage for compensatory damages, not punitive damages and, therefore, defendant insurer did not breach a duty to defend or duty to indemnify for the punitive damages claim. Appellant Seren was the contractor on a fiberoptic cable installation project which hired Cable Constructors (CCI) to perform the construction installation of the cable. The construction contract between Seren and CCI required CCI to purchase additional insurance to indemnify Seren. CCI then purchased policies from Transcontinental Insurance Company and Continental Casualty Company (collectively known as CNA). CNA settled the compensatory damages claim without settling the punitive damages claim. Seren then filed suit against CNA alleging it breached its duty to defend and to indemnify, among other claims. The district court dismissed most claims and granted CNA summary judgment on the claims for breach of duty to defend and duty to indemnify.

The appellate court addressed the threshold issue of whether the CNA insurance policies provided punitive damages coverage. The court held that the language of the policies was unambiguous and only covered compensatory damages for property damage or bodily injury. Seren also argued that the vicarious liability exception applied, but the court held that the exception did not create punitive damages coverage when none was provided by the plain language of the contract.

The court of appeals affirmed the lower court's decision holding that even though appellants were not named individually as parties to the indemnity agreement, that the appellants were properly held liable under that agreement where they had signed two signature pages as individuals and not officers and the signature pages contained language stating that the pages were part of the general agreement for indemnity and that signatures of all indemnitors was required. The use of the word "indemnitors," along with their signatures on the individual signature page separate from the signatures as corporate officers, unambiguously reflects the parties' intent to bind individual indemnitors. Appellants did not dispute the liability of the company on the indemnity agreement, but rather that the individual defendants were not named individually as parties to the agreement and so could not be held liable. However, the court noted that sureties often require individuals to sign the indemnity agreement. The agreement unambiguously reflects the intent for the individuals to be held as individual indemnitors.

The court of appeals held in this unpublished decision that the duty to cooperate precludes the insured from waiving the right to tax costs and disbursements. Where the insured driver rather than the underinsured policyholder was the prevailing party, the insured had a duty to cooperate with the defense and settlement of the claims and the terms of the policy provided that its terms cannot be waived without the company's consent.

Mike McNee and Tamara Novotny, in this second appeal to the Minnesota Court of Appeals, obtained an affirmance of the trial court's finding that Great West's non-trucking use policy did not afford coverage for an accident which resulted in the death of a pedestrian. The court found that the driver was operating "in the business of" the motor carrier even though driving bobtail (i.e. without an attached trailer).

In this coverage case, Everhardt signed a standard lease agreement used by motor carrier, Select Transportation. Select, however, would never sign the lease and would deny receipt of the same. Select never required Everhardt to undergo any pre-employment procedures (i.e. drug test, driving test, etc.) and never had any direct communications with Everhardt but, nevertheless, through its on-site liaison, allowed Everhardt to haul several loads over the course of three days. Everhardt turned in job tickets at the end of each day which Select used daily to create invoices. Select would also create worksheets used to pay its drivers and which contained personal information for Everhardt which could only be found on the lease agreement.

On his third day on-site, Select received a complaint regarding the fact that Everhardt's semi did not have the necessary identifying placards/logos displayed on the doors. Through its on-site liaison, Select's president directed Everhardt to drive to Rogers, MN to get placards affixed to his truck and to complete some paperwork at its office. These orders were again relayed to Everhardt when he arrived to work on the fourth day. On his way to complete these tasks, Everhardt briefly stopped to pick up tools needed to fix the semi's leaking radiator. As he left this facility, Everhardt struck and killed a pedestrian.

On appeal, Select and its insurer, Carolina Casualty, disputed the trial court's finding that Everhardt was operating his semi pursuant to an implied lease with Select. The appellate court affirmed the trial's court's finding that there was sufficient evidence by which to conclude that Select had direct knowledge Everhardt was working on the job site such that he was doing so pursuant to an implied lease. The appellate court also found that the conduct of Select's officers and employees contradicted its purported belief that Everhardt was not leased to the carrier.

The appellate court also affirmed the trial court's finding that "in the business of," as used in Great West's exclusion (and coverage grant) was not ambiguous and did not err in concluding that a business or trucking use was not limited to hauling a load. Thus, Everhardt's activities on the day of the accident, including driving to get placards, completing paperwork, stopping for repairs, and purchasing fuel in order to haul for the carrier, all ultimately benefitted Select such that Everhardt was "in the business of" Select at the time of the accident. Great West's non-trucking use policy therefore did not afford coverage.

Instead, Carolina Casualty is obligated to provide coverage for Everhardt pursuant to the policy's after-acquired provisions. Select, Carolina, and the pedestrian's trustee, the latter which seeks to establish coverage under both policies, have all petitioned the Supreme Court for review.

In this case concerning defects in the design of an exhibit tank in an aquarium, the court of appeals held that: (1) the district court may expand the time limits for serving expert review affidavits, even after the statutory time limits have expired, upon showing excusable neglect; (2) the district court correctly denied summary judgment where fact issues existed at the time of the court's decision, as opposed to the time of a subsequent jury verdict; (3) the district court did not commit reversible error by denying a motion for directed verdict where any error did not affect the trial outcome; (4) a district court properly denies a post-trial motion to add parties and hold them liable for indemnity where the claims are time-barred and a jury has found the parties not negligent; (5) the district court properly denied appellants' motion for JNOV (judgment notwithstanding the verdict) where competent evidence existed in the record to support the jury's findings; (6) the district court properly denied a motion for a new trial despite arguments regarding settlement agreements, prejudicial misconduct, and various errors of law; (7) although Minnesota Rule of General Practice 127 provides that a court administrator may tax only $300 per day for expert witness fees, the court has discretion to allow additional fees for pretrial preparation; (8) the district court was within its discretion to stay enforcement of a judgment for costs; and (9) absent an agreement by the parties, costs for daily trial transcripts cannot be awarded as taxable costs.

The court of appeals held that under Minn. Stat. § 169.685, subd. 4(b) evidence pertaining to the use of a child passenger restraint system is allowed into evidence if it is claimed that the injuries resulted from a defectively designed, manufactured, installed or operated child passenger restraint system. Minn. Stat. § 169.685, subd. 4(a) ordinarily prohibits evidence of use or non-use of a seat belt or child passenger restraint system in any litigation involving a motor vehicle. Plaintiff was a minor child who brought an action against his parents alleging negligent maintenance and installation of the child restraint system that the child was riding in when he was injured in a motor vehicle collision. Under the plain meaning of the statute, the court of appeals held that the exception created by Minn. Stat. § 169.685, subd. 4(b) applies to an action for damages arising out of an occurrence or event that involved a child passenger restraint system that had a defect or was faulty because of the way that it was connected or set in position and prepared for use.

In this case, the appellate court found a contract with a release of liability enforceable. Plaintiff joined a fitness club. As part of the registration requirements, she was required to read an Agreement and Release of Liability, initial certain paragraphs in the document, and date and sign it. The Release included language that stated plaintiff acknowledged that "fitness activities involve a risk of injury" and she agreed to "expressly assume and accept any and all risks of injury or death." After completing the registration, plaintiff began a workout under the supervision of a trainer. About 15 to 20 minutes later, plaintiff developed a headache, and the trainer indicated that it was probably due to a lack of use of certain muscle and that plaintiff would be fine. Plaintiff claims that she later developed pain in her neck, shoulder and arm. Eventually plaintiff underwent surgery for her neck problems. Plaintiff argued the Release was ambiguous in scope and a contract of adhesion that contravened public policy.

The court of appeals found that parties to a contract may protect themselves against liability for negligence if the release language is unambiguous in scope and does not contravene public policy. A release that purposes to exonerate the benefitted party from liability for any act or omission, including negligence, is not ambiguous as to negligence despite broad additional language. Further, the fitness club's requirement that members sign a release of liability for negligence does not contravene public policy because such clubs are not engaged in a necessary public service and fitness services are widely obtainable elsewhere.

In this wrongful-death negligence case involving a foster home, the court of appeals held that when the duty to control another person's conduct results from a special relationship, that duty is limited by the authority conferred by the relationship.

Roman Nose was a resident in a group foster home. He left the foster home without permission; and when he had not returned three hours later, the foster home reported to the police that Roman Nose had run away. During his absence from the foster home, Roman Nose consumed drugs and alcohol and sexually assaulted and murdered a woman. The court ruled that the foster home had satisfied any duty it had with respect to controlling Nose's conduct and also ruled that the alleged negligent conduct of the foster home was not the proximate cause of the woman's death.

The Minnesota Court of Appeals found in this published decision that an attorney's false statement to an adverse party during a settlement negotiation constitutes an actionable misrepresentation if it implies facts that the attorney knows or has reason to know are false and on which the adverse party reasonably and detrimentally relies. The court found that an attorney's statements asserted or implied knowledge of facts not disclosed or otherwise known to the other side which gave the impression that the factual elements necessary to establish a veil-piercing claim did not exist. There was a genuine issue of material fact as to whether the attorney reasonably relied upon the representation.

The Minnesota Court of Appeals affirmed the district court's Order granting summary judgment in this slip and fall case where the tenant failed to present sufficient evidence that her slip and fall was caused by an accumulation of water at the top of the stairs directly caused by defendants or that defendants had constructive notice of water accumulating at the top of the stairs.

The court held that where plaintiffs failed to present any expert medical evidence to support their personal injury claims in this negligent construction case summary judgment on those claims was appropriate. The district court did not abuse its discretion in refusing to consider plaintiffs' untimely expert affidavits regarding causation even where the court attempted to ameliorate the harshness of the Order by proposing that it would consider allowing plaintiffs' claims to go forward if plaintiff paid appropriate attorney's fees.

The court of appeals upheld the district court's dismissal of plaintiff's negligence action because the suit was barred under the doctrine of res judicata. Plaintiff is a musician who was hired by defendants to perform at several concerts. During a rehearsal in March, 1999, a light fixture that was placed on a utility table fell and injured plaintiff. Shortly after the accident, plaintiff took a medical leave due to her injuries. Subsequently defendants rescinded their offer of further work. In August, 2000, plaintiff filed a lawsuit in federal court against defendants alleging discrimination under various state and federal employment statutes. The court granted summary judgment on several of the claims and dismissed the remaining claims without prejudice.

Plaintiff then brought suit in February, 2002, against defendants in state court asserting state-law claims for the same types of claims as alleged in the prior federal suit. The Complaint's factual allegations were the same as the allegations in the earlier federal Complaint. The court granted defendants' motion for summary judgment. In March, 2005, plaintiff brought a negligence suit against defendants in state district court, and again, her Complaint recited the same factual allegations as were contained in the two earlier Complaints. The court of appeals determined that the current litigation involved the same set of factual circumstances as the two earlier suits. The court further found that plaintiff had a full and fair opportunity to litigate the matter in the prior proceedings and a judgment was issued on the merits. Plaintiff had every opportunity to assert her negligence claim along with her other claims in 2002, but she chose not to. Therefore, her current negligence claim was barred by the doctrine of res judicata.

In this case, in which the plaintiffs alleged that defendant Cargill had engaged in a pattern and practice of discrimination in promotions, compensation and terminations, the Eighth Circuit Court ruled on defendant's motion to strike the testimony of three experts and Plaintiffs' amended motion for class certification. Defendant's motion to strike the testimony of three of plaintiffs' experts was denied on the part of two experts, but upheld in the case of an expert that the court found (1) lacked pertinent education training experience or knowledge to qualify as an expert, (2) who failed to base his opinions on adequate foundation, (3) whose methodology was not based upon scientific or professional standards, and (4) who failed to reliably apply principles and methods to the facts of the case. In ruling on the plaintiffs' motion for class certification, the court determined that with 1,600 potential class members plaintiffs had met the "numerosity" requirement. However, the court ruled that the plaintiffs' arguments about the discriminatory impact of Cargill's culture, the discriminatory design and impact of Cargill's systems, and that Cargill had failed to remedy the discriminatory effects of its culture had failed to satisfy the commonality requirement. Further, the court ruled that the plaintiffs had failed to show that the claims or defenses of the plaintiffs' representative parties were typical of the claims or defenses of the class; accordingly, the plaintiffs had not satisfied the "typicality" requirement. Finally, the court found that plaintiffs could not establish that each representative's interests were sufficiently similar to those of the class, so that it was unlikely that their goals and viewpoints would not diverge; thus, their motion for class certification also failed on the adequacy requirement.

In this summary judgment appeal, Wagner argued that the district court erred in excluding the testimony of two experts because Minnesota substantive law did not require proof of an alternative feasible design in this products-liability case. In upholding the district court's summary judgment for the defendants, the Eighth Circuit Court held that the district court had not required Wagner to present proof of an alternative feasible design as an element of its prima facie case under Minnesota law, but rather the district court applied the test of whether the scientific theory presented had been tested in evaluating the reliability of the experts' proffered testimony. Further, the court clarified that Wagner's assertion that Minnesota substantive law did not require proof of an alternative feasible design in a products-liability case was misleading. The court held that Minnesota requires a plaintiff in a products-liability case to prove that the product was defective and was unreasonably dangerous, i.e. that the plaintiff ordinarily has the burden of showing the existence of an alternative design that was safer.

In upholding the defendant's motion to dismiss this breach of contract claim, the Eighth Circuit Court held that public policy considerations precluded plaintiff from seeking indemnification for the criminal fines levied against it and also that plaintiff's claims were barred by the doctrine of in pari delicto. In doing so, the court affirmed that Minnesota law is clear that one cannot insure oneself from criminal penalties, nor can a settlement agreement, intended to resolve civil liability issues, defeat the purpose of the law of criminal responsibility by creating an end around escape from criminal consequences. The court also rejected plaintiff's argument that the inclusion of an innocent purchaser in the indemnification provision alleviated any concerns regarding indemnity to the plaintiff, citing that there was no authority for the proposition that simply because an innocent third party was a beneficiary of the indemnification agreement that any beneficiary could apply the indemnification provision of the agreement under any circumstances. Since the innocent third-party purchaser was not a party to this suit, the question of whether they could validly enforce the indemnification provision was not a question for the court.

In upholding defendant Komo's motion for summary judgment, the court held that an amended and detailed quotation was a valid contract that governed plaintiff Dave's Cabinets' claims against defendant Komo. The court noted that plaintiff Dave's Cabinets was a sophisticated buyer, that there was not a large discrepancy in bargaining power between the plaintiff and the defendant, and that both parties had negotiated the terms of the contract. The court also held that the damages exclusion in the contract, a short sentence written in plain and unambiguous language, was not unconscionable and was readable, thus enforceable against plaintiff Dave's Cabinets. Finally, the court held that all four categories of damages claimed by the plaintiff in this case were consequential damages and thus barred by the damages exclusion.

In granting the defendant employer's motion for summary judgment, in this Age Discrimination case, the court determined that the employer provided legitimate, nondiscriminatory reasons for the terminations and that the plaintiffs failed to show that those reasons were merely pretext. The court reasoned that (1) plaintiffs cited no authority for their argument that an employer must notify employees of performance issues prior to termination; (2) the employer's allegedly age-based comments were vague and required speculation to make a reasonable inference of discrimination; (3) the employer's comments, made before the employees were hired or months before termination, lacked causal connection with the terminations; and (4) "youthful, trendy, and hip" images on the employer's website required too great of an inferential leap to be an indication of bias.

This case involves a claim that plaintiff's employment was terminated due to disability in violation of the Americans with Disabilities Act and the Minnesota Human Rights Act. The court disregarded the employee's claims of disparate treatment and failure to accommodate, finding that the employee could not demonstrate an ability to work with reasonable accommodation because neither she nor her doctor could specify when she would return to work. For the same reason, the court found that the employee's request for additional unpaid leave was unreasonable. The court dispensed with the employee's claims of negligent and intentional infliction of emotional distress, stating that the employee offered no supporting evidence.

Is reliable attendance a critical element in establishing that an employee is "qualified" within the meaning of the ADA? In Susan K. Knutson's case, the Eighth Circuit Court said "yes." In granting Medtronic's summary judgment motion, the court concluded that due to her excessive absenteeism, Knutson could not establish that she was "qualified," within the meaning of the ADA, for her position at the time she was terminated.

From February, 1999, until her eventual termination in July, 2003, Knutson developed an absenteeism rate of up to 46% consisting of both medical and personal absences. Immediately following her termination, Knutson applied for SSA disability benefits. In January, 2005, Knutson filed suit against Medtronic alleging disability discrimination, failure to accommodate, and retaliation.

The Eighth Circuit recognized that "regular and reliable attendance is a necessary element of most jobs." The court also noted that Medtronic had "maintained a policy and progressive discipline practice regarding absenteeism," and that Knutson had not disputed the accuracy of her attendance records. Further, Knutson had failed to present evidence regarding the inconsistency between her disability discrimination claim (alleging her ability to perform the essential functions of her job) and statements made to the SSA in support of disability benefit application (alleging that she was unable to work at any job). The court concluded that Knutson's discrimination claim failed because she could not establish that she was a "qualified" individual within the meaning of the ADA, that her failure to accommodate claim lacked merit due to Knutson's failure to actually request accommodations, and that her retaliation claim failed because a six month gap between Knutson's complaints to Human Resources and her eventual termination was too diluted to create the necessary temporal proximity for a causal connection in a retaliation claim. Therefore, Medtronic's motion to dismiss was granted.

In this case where a bond provided coverage for loans granted based on the good faith belief that the loan was secured by a guarantor, but where the guarantor's signature was actually a forgery, the Eighth Circuit Court ruled that a loan issued upon the receipt of the forged faxed copy of the signature of a guarantor was not sufficient to trigger coverage in a policy that required actual physical possession of the original guarantee. The court further held that this ruling would not render the coverage against forgery that Marshall Bank purchased meaningless, noting: "The protection afforded by the policy is against forgery, but not forgery committed by use of faxed documents, accepted by the bank without perusal of the originals." The court took special note that Marshall Bank could have simply waited for original documents to arrive before dispersing funds in order to trigger the coverage.

The employee was a driver representative providing non-emergency medical transportation in out state Minnesota. The employee normally commuted in his own vehicle from his residence in Little Falls to the Brainerd garage at the beginning of each work day and then from Brainerd back to Little Falls at the end of each work day. On November 7, 2003, at the end of his shift, the employee telephoned his dispatcher and requested to take his company van home for the weekend. He explained that his personal vehicle was being repaired and that his first pick-up on the following Monday was before 7:00 a.m. in Little Falls. The employer's policy is that company vehicles are not for personal use unless approved by the office. Approval is given on a case-by-case basis. On occasion, drivers may be instructed by the company to take the van home if there is an early morning pick-up close to the driver's home. On those occasions, the driver is paid for his commute home. When the employee has not been instructed to take the van home but permission is otherwise granted, the employee is not paid for his commuting time or time spent using the van on personal business. The employee's use of the company van was approved. He left the Brainerd facility between 5:00 p.m. and 5:30 p.m. en route to his home in Little Falls. While driving south on Highway 371 from Brainerd, the employee struck a deer with the company van. He pulled to the side of the road and was killed when he was struck by another driver.

A claim for dependency benefits was filed on behalf of the employee's one minor dependent child on May 21, 2004. The compensation judge determined that the employee's use of the company van at the time of his death was for both business and personal reasons and that, because of his scheduled client pick-up in Little Falls on Monday morning, the employee's drive to Little Falls on Friday afternoon was a necessary business trip. Finding that the employee's commute home was a "dual purpose activity," the judge concluded that the employee's death arose out of and in the course of his employment. The WCCA concluded that the evidence was sufficient to support a finding that the work of the employee created the necessity for the trip, which would have had to have been made even if it had not coincided with the employee's commute home. The business purpose of the trip, although not the sole reason, was reasonably at least a concurrent reason for and not a mere incident to the employee's personal activities on the night on which was fatally injured.

At issue in this matter was the employee's entitlement to temporary total disability benefits and medical expenses due to cellulitis with toxic shock syndrome. The employee was an over-the-road truck driver and while away from home was required to stay at the Bridgeview Hotel. The employee showered at the hotel and slept and then began his return trip on the same day. The employee began to experience a high fever and continued to feel poorly throughout the entire return trip. He later developed a fever of 104 degrees and was diagnosed with cellulitis with toxic shock syndrome. The compensation judge determined the employee had contracted the infection in Chicago, most likely in the hotel room where he showered and rested during the day of May 1, 2004. The compensation judge awarded the claimed benefits based in part on a handwritten doctor's report which although speculative, linked the hotel stay to the employee's illness. On appeal, the WCCA affirmed the decision of the compensation judge indicating that while the doctor's office notes did not indicate a definitive diagnosis, a medical opinion does not have to express absolute certainty that the employee's injury arose out of and in the course of his employment.

The employee sustained a personal injury to his low back on December 6, 2002 while working for the employer. The employer and insurer accepted liability for the injury.

The employee treated with various doctors following said injury. Dr. John Stark took the employee off of work in February 2002. In May 2003, Dr. Stark released the employee to very light work. The doctor prepared an R-33 form on August 14, 2003, that limited all of the employee's activities except lifting and carrying up to 10 lbs. Dr. Stark stated, "restrictions considered permanent." On September 23, 2003, Dr. Stark did not provide any restrictions, fearing they might limit the employee. In a Report of Work Ability dated November 24, 2003, Dr. Stark referred to the permanent restrictions contained in the R-33 form. On several occasions, Dr. Stark stated that the employee's restrictions were permanent. On September 2, 2004, Dr. Stark prepared a Work Ability Report and a Department of Unemployment and Economic Development form indicating that the employee was able to work without restrictions. On September 7, however, the doctor noted that those reports were inconsistent with his prior opinions and stated that the employee "obviously has a lingering disability which is interfering with his ability to work."

The employee began a job at Grand Casino as a security guard on October 7, 2004. When he applied for the job, he represented that he was capable of working without restrictions. On May 23, 2005, the employee obtained a job as a forklift driver/material handler at Woodcraft, Inc., which he procured through Doherty Temporary Services.

The employee filed a Claim Petition seeking temporary partial disability benefits. The compensation judge found that the December 6, 2002 personal injury resulted in restrictions and permanent partial disability and awarded temporary partial disability benefits. The employer and insurer appealed, arguing that the employee made representations to the employer and others that were contrary to his direct testimony before the compensation judge. These representations included submitting to the Department of Employment and Economic Development Dr. Stark's opinion that he was able to work without restrictions, a union grievance, and his representations to Grand Casino and Doherty Services that he had no physical restrictions. They argued that the employee's inconsistent representations estopped him from claiming wage loss benefits.

The WCCA explained that the elements of judicial estoppel, and its application, have not been clearly defined in Minnesota. As a general rule, however, under the doctrine of judicial estoppel, a party who has successfully asserted a position in a prior proceeding may be estopped from asserting an inconsistent position in a subsequent proceeding. In this case, the WCCA pointed out that the employee testified he was not successful and did not receive unemployment benefits. Moreover, there was no evidence regarding the nature of the proceeding involved. The WCCA did not know why the form with Dr. Stark's opinion was submitted, the assertions made by the parties, or anything else about the unemployment proceeding. Under those circumstances, they declined to apply the doctrine of judicial estoppel. The WCCA also pointed out that the doctrine of equitable estoppel has been applied in workers' compensation cases with the seeker of the equitable remedy demonstrating that it suffered some loss through a reasonable reliance on the conduct of the party to be estopped. The WCCA ruled that there was no evidence that the employee's position regarding his ability to work induced the employer to act or fail to act in any way. While the employee's previous assertions may go to the credibility of the employee, it is a question for the compensation judge to weigh and resolve. The WCCA ultimately decided there was no compelling reason to apply either the doctrine of judicial or equitable estoppel.

In this case, the WCCA affirmed the compensation judge's decision that the employee's permanent partial disability could be ascertained. The employee sustained an admitted injury when he fell 30 feet from the top of a building and died approximately seven months later. The employee's treating physician assigned him a permanent partial disability rating of 40% of the whole body. The doctor retained by the employer and insure to review the employee's records concurred with the treating doctor's assessment of permanent partial disability at the time of the consultation but indicated that had the employee survived, his permanent partial disability would have been in the 10 to 20% range. The compensation judge awarded the employee's dependents 40% whole body disability, accepting the opinion of the treating physician. On appeal, the WCCA affirmed finding that the treating physician's testing and medical records most accurately set forth the extent of the employee's permanent partial disability at the time of his death.

At issue in this case was the employee's entitlement to permanent total disability benefits due to a low back injury. Previously the employee claimed multiple neck and back work-related injuries. The employee's functional capacity evaluation indicated that the employee had restrictions but was not prohibited from working.

The employee returned to work with the date of injury employer full-time at a light duty job which was generally within the employee's restrictions as set forth in the FCE. The employee continued to work with the employer until the employer eliminated all of its light duty positions. The employee returned to regular duty as an automotive mechanic, a job outside his restrictions, to retain employment with the employer. The employee continued to work in this position until the employee was permanently laid off due to bankruptcy proceedings of the employer. One day after he was laid off, the employee filed a claim for social security disability benefits. Thereafter he obtained employment but later voluntarily quit this position.

The compensation judge concluded that the employee had been permanently and totally disabled since he quit his job. Reversing the decision of the compensation judge, the WCCA held the employee was not entitled to permanent total disability benefits as the employee continued to work with fluctuating but not clearly declining physical ability since the date of the FCE and had not been restricted from full-time work even by the employee's treating doctors. Further, the employee's job search was not diligent and he did not establish a job search would have been futile. Further, the evidence relied upon by the compensation judge did not support the conclusion that the employee was permanently and totally disabled from all substantial employment.

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.