Hot Topics*

1. Michelle Kunza v. St. Mary's Regional Health Center, et al. Filed: April 22, 2008. Minnesota Court of Appeals (posted April 23, 2008)
2. Deborah Anne Ehlers v. Siemens Medical Solutions, USA, Inc.. Filed: April 15, 2008. United States District Court, District of Minnesota (posted April 16, 2008)
3. Michael Marchio v. Western National Mutual Insurance Company. Filed: April 15, 2008. Minnesota Court of Appeals (posted April 16, 2008)
4. Donald Babinski v. American Family Insurance Group. Filed: April 11, 2008. United States District Court, District of Minnesota (posted April 16, 2008)
5. David Charles Foss v. Jeremy Kincade, et al. Filed: April 8, 2008. Minnesota Court of Appeals (posted April 8, 2008)
6. Ohio Savings Bank v. Progressive Casualty Insurance Company. Filed: April 8, 2008. United States Court of Appeals for the 8th Circuit (posted April 8, 2008)
7. Chicago Avenue Partners, Ltd. v. Broan-Nutone, LLC. Filed: April 7, 2008. United States Court of Appeals for the 8th Circuit (posted April 8, 2008)
8. Integrity Floorcovering, Inc. v. Broan-Nutone, LLC. Filed: April 7, 2008. United States Court of Appeals for the 8th Circuit (posted April 8, 2008)
9. Michael Duane Razink, et al. v. Michael J. Krutzig, et al. Filed: April 1, 2008. Minnesota Court of Appeals (posted April 2, 2008)
10. Federal Insurance Co. v. Westurn Cedar Supply, Inc. Filed: March 13, 2008. United States District Court, District of Minnesota (posted March 18, 2008)
11. McIntosh County Bank, et al. v. Dorsey & Whitney, LLP. Filed: March 6, 2008. State of Minnesota Supreme Court (posted March 7, 2008)
12. Stan Koch & Sons Trucking, Inc. v. Great West Casualty Company. Filed: February 28, 2008. United States Court of Appeals for the 8th Circuit (posted February 29, 2008)
13. Corn Plus Cooperative v. Continental Casualty Company, et al. Filed: February 7, 2008. United States Court of Appeals for the 8th Circuit (posted February 8, 2008)
14. David A. Anderson v. Xcel Energy, et al. Filed: February 5, 2008. State of Minnesota Supreme Court (posted February 8, 2008)
15. Star Windshield Repair, Inc. v. Western National Insurance Co, et al. Filed: February 5, 2008. Minnesota Court of Appeals (posted February 6, 2008)
16. VoiceStream Minneapolis, Inc. v. RPC Properties, Inc. Filed: January 10, 2008. State of Minnesota Supreme Court (posted January 11, 2008)
17. Auto Owners Insurance Co. v. Star Windshield Repair, Inc., et al. Filed: January 8, 2008. Minnesota Court of Appeals (posted January 11, 2008)
18. Patricia A. Frey, et al. v. United Services Automobile Association, et al. Filed: January 8, 2008. Minnesota Court of Appeals (posted January 8, 2008)
19. Jonathan Aten v. Scottsdale Insurance Company. Filed: January 8, 2008. United States Court of Appeals for the 8th Circuit (posted January 8, 2008)

• Michelle Kunza v. St. Mary's Regional Health Center, et al. Filed: April 22, 2008. Minnesota Court of Appeals
  A contract not to sue that reflects an intent to temporarily refrain from bringing a cause of action, rather than an intent to extinguish the cause of action, is not a release that bars the cause of action.
  
  
• Deborah Anne Ehlers v. Siemens Medical Solutions, USA, Inc.. Filed: April 15, 2008. United States District Court, District of Minnesota
  Court's introduction:
  "Plaintiff Deborah Ehlers filed this product-liability action against Defendant Siemens Medical Solutions USA, Inc. ('Siemens') after sustaining a crushed ankle in an on-the-job accident. She claims that a design defect in an x-ray machine manufactured by Siemens caused her injury. Siemens denies liability and seeks summary judgment. For the reasons set forth below, the Court will grant the Motion."
  
  MSBA:
  The reasons the Court discusses are (1) the exclusion of the proposed testimony of an expert witness to establish a design defect as unreliable under Daubert and F.R.Evid. 702, and (2) inability to show that the alleged design defect was the proxmiate cause of plaintiff's injury, in particular due to superseding causes in the hospital staff's negligence.
  
  
• Michael Marchio v. Western National Mutual Insurance Company. Filed: April 15, 2008. Minnesota Court of Appeals
  An insurance policy’s duplicate payments exclusion that seeks to limit the amount payable for uninsured motorist benefits by the amount paid for liability coverage under the same policy is unenforceable as contrary to the Minnesota No-Fault Automobile Insurance Act, when an insured in a multi-vehicle accident sought uninsured motorist benefits based only on the fault of an uninsured driver.
  
  
• Donald Babinski v. American Family Insurance Group. Filed: April 11, 2008. United States District Court, District of Minnesota
  Court's introduction:
  "This matter is before the Court on cross-motions for summary judgment. Plaintiff asks the Court to find the insurance policy purchased from defendant offers coverage of up to $1 million. Defendant asks the Court to limit the coverage to $30,000. Plaintiff’s motion is granted; defendant’s motion is denied."
  
  
• David Charles Foss v. Jeremy Kincade, et al. Filed: April 8, 2008. Minnesota Court of Appeals
  1. The heightened duty of care owed to child trespassers does not apply to a child visiting a private residence in the company of a parent.
  
  2. The duty of reasonable care owed by landowners to entrants on their land does not require homeowners to protect a child visiting in the company of a parent from the dangers posed by ordinary household objects.
  
  
• Ohio Savings Bank v. Progressive Casualty Insurance Company. Filed: April 8, 2008. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - banking. In dispute over whether plaintiff's losses were covered by a bankers bond issued by defendant, the district court did not err in finding that the bond unambiguously precluded coverage under either the Fraudulent Mortgages Insuring Agreement or a provision of the Insuring Agreement.
  
  Excerpts:
  "Under the FMIA, a loss is covered only if the bank relied on a mortgage that proves to be 'defective by reason of the signature thereon . . . having been obtained through trick, artifice, fraud, or false pretenses.' Commercial law has long distinguished between common law fraud in the inducement, and fraud 'as to the nature and terms of the contract [being] signed.' ... 'There is a distinction,' the court explained, 'between a fraudulent scheme and a fraudulently induced signature. A mortgage may have been induced by fraudulent acts, but the signature may be valid. . . . There is no evidence [in this case] that any mortgagor . . . did not realize he was signing a mortgage.' North Jersey Sav. & Loan Ass’n v. Fid. & Deposit Co. of Md., 660 A.2d 1287, 1300 (N.J. Super. Ct. Law Div. 1993). Likewise, in this case the borrowers admitted knowing they were signing mortgages that would encumber their property. Thus, the mortgages were not 'defective.'"
  
  
• Chicago Avenue Partners, Ltd. v. Broan-Nutone, LLC. Filed: April 7, 2008. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - torts. For a full discussion of the law applicable to the case, see this court's opinion in No. 07-1824 Integrity Floorcovering v. Broan-Nutone, issued this same date.
  
  
• Integrity Floorcovering, Inc. v. Broan-Nutone, LLC. Filed: April 7, 2008. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - torts. In actions claiming ventilation fans manufactured by defendant malfunctioned and damaged an apartment building and a commercial warehouse, the district court did not err in determining that the claims were barred by Minn. Stat. Sec. 541.051, subd.1(a), which provides a ten-year statute of repose for actions arising out of defective and unsafe conditions of an improvement to real property; because the fans were required by Minnesota building code provisions, they were building material and did not qualify for the exception in the statute for equipment or machinery.
  
  Excerpt:
  "The facts of this case present a close issue. In light of the statute’s plain language and Minnesota’s case law, the code-required interior bathroom ventilation fan is more analogous to the items Minnesota courts have found to be ordinary building materials. The plaintiffs bear the burden of showing the exception applies.... Thus, we conclude the plaintiffs fail to meet their burden to demonstrate the subject fan is 'equipment or machinery' exempt from the statute of repose."
  
  
• Michael Duane Razink, et al. v. Michael J. Krutzig, et al. Filed: April 1, 2008. Minnesota Court of Appeals
  Minn. Stat. § 604A.25 (2002) does not preclude a landowner’s liability for conduct that, at law, entitles a trespasser to maintain an action and obtain relief for the conduct complained of unless the owner has given oral or written permission for the recreational-trail use of the land.
  
  
• Federal Insurance Co. v. Westurn Cedar Supply, Inc. Filed: March 13, 2008. United States District Court, District of Minnesota
  Court's introduction:
  "In April 2004, fire destroyed a house that Lecy Construction, Inc. ('Lecy') was building for the Sedley family in Minnetonka, Minnesota. Plaintiff Federal Insurance Co. ('Federal'), Lecy’s insurer, paid the Sedleys for the loss. Federal contends that the fire was caused by the negligence of defendant Westurn Cedar Supply, Inc. ('Westurn') or someone working for Westurn. Federal, as Lecy’s subrogee, brings this suit to recover from Westurn what Federal paid to the Sedleys. Westurn moves for summary judgment."
  
  Excerpt:
  "Westurn argues that because Tulkki was not Westurn’s employee, but 'at best a subcontractor, i.e., perhaps merely a meddling interloper,' Westurn cannot be held liable for damages resulting from Tulkki’s negligence. ... Westurn is incorrect."
  
  "Under Minnesota law, a party who hires an independent contractor is not, as a general matter, liable for the negligence of that independent contractor. ... But there are so many exceptions to this general rule that seventy years ago the Minnesota Supreme Court was already warning that 'it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions.' ... [I]n Kenny Boiler, the Minnesota Supreme Court established that contractors (here, Westurn) are liable to those who hire them (here, Lecy) for the negligent actions of their subcontractors (here, Tulkki)."
  
  
• McIntosh County Bank, et al. v. Dorsey & Whitney, LLP. Filed: March 6, 2008. State of Minnesota Supreme Court
  1. The rule of law announced in Marker v. Greenberg, 313 N.W.2d 4 (Minn. 1981), is affirmed. In order for a party to proceed in a legal malpractice action, that party must be a direct and intended beneficiary of the attorney’s services.
  
  2. A third party is a direct and intended beneficiary of an attorney-client relationship if a transaction has as a central purpose an effect on that party, the client intends the effect as a purpose of the transaction, and the lawyer is aware of the client’s intent to benefit that party.
  
  3. An implied contract for legal services does not exist between an attorney and a party if the attorney is unaware of the party’s identity, there are no communications between the attorney and that party, and there is no notice to the attorney that he or she is expected to represent the party.
  
  Reversed.
  
  Heard, considered, and decided by the court en banc.
  
  
• Stan Koch & Sons Trucking, Inc. v. Great West Casualty Company. Filed: February 28, 2008. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - insurance. District court did not err in finding that the insurance policy defendant issued to plaintiff covered a lessee of plaintiff's trailer as the lessee was permissibly operating plaintiff's covered vehicle and none of the exclusions cited by plaintiff precluded coverage; insurer did not breach its fiduciary duty to plaintiff when, despite plaintiff's objections, it accepted coverage and settled a claim arising from the accident in question, thereby triggering plaintiff's obligation to pay $500,000 under the Retention provision of the policy.
  
  MSBA:
  The deletion of the eighth letter in the fourth line on page 5 is by the MSBA.
  
  
• Corn Plus Cooperative v. Continental Casualty Company, et al. Filed: February 7, 2008. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil Case - diversity - declaratory action. District court's refusal to enforce settlement agreement because settlement was unreasonable for not allocating the damages by type of loss is affirmed. The district court did not err in finding the exclusions bar coverage of the costs associated with repairing faulty weldings and for loss of the facility's use, did not err in concluding agreement was unenforceable as a matter of law, and did not err in refusing to enforce addendum in light of public policy concerns. Court declines to reinstate the litigation underlying the settlement based on the party's waiver.
  
  MSBA: Here's an excerpt to consider when drafting Miller-Shugart agreements:
  
  "Finally, Corn Plus asks us to reinstate its underlying tort action against Wanzek if we decline to enforce the Miller-Shugart agreement, an issue which the district court did not reach. While parties to an unreasonable Miller-Shugart agreement are ordinarily returned to the status quo ante, Koehnen, 89 F.3d at 530, Corn Plus expressly waived any possibility of reinstating its claims against Wanzek 'regardless of whether any recovery is made on the Judgment from Wanzek's insurers.'
  That is because it stipulated in the agreement that 'in the event it is determined that the Policies afford no coverage or indemnity or that, for whatever reason, Corn Plus is not successful in recovering against the Policies on its claims, then Corn Plus shall have no further rights against Wanzek.' Because of the severability provision in the Miller- Shugart agreement this contractual waiver to pursue further litigation is unaffected by the lack of enforceability of other parts of the agreement.
  . . . We acknowledge that the waiver produces a harsh result for Corn Plus because it will be unable to pursue its claims against Wanzek, while the insurers have no liability despite the district court's determination that some of Corn Plus's claims against Wanzek are covered by their policies. . . . [But] Corn Plus is a sophisticated party which knowingly entered into the settlement with the benefit of counsel and expressly waived the ability to reinstate its claims against Wanzek."
  
  
• David A. Anderson v. Xcel Energy, et al. Filed: February 5, 2008. State of Minnesota Supreme Court
  The decision affirmed can be found at: http://www.workerscomp.state.mn.us/2007/Anderson-10-15-07.htm The headnotes there state:
  
  CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee's testimony, expert medical opinion and medical records, supports the compensation judge's findings that the employee's 1982 work injury was causally related to his disability in 2005 and his need for claimed medical treatment related to his low back.
  
  CAUSATION - GILLETTE INJURY. Substantial evidence, including adequately founded expert medical opinion, medical records and the employee's testimony, provides support for the compensation judge's findings that the employee sustained Gillette injuries to his cervical and lumbar spine, culminating on January 1, 2005.
  
  NOTICE OF INJURY - GILLETTE INJURY. Provision of notice of claimed Gillette injuries within 180 days of receipt of a medical opinion, in which the employee's treating physician stated that the employee had sustained Gillette injuries as a result of his work activities, constituted sufficient notice to the employer.
  
  
• Star Windshield Repair, Inc. v. Western National Insurance Co, et al. Filed: February 5, 2008. Minnesota Court of Appeals
  Anti-assignment clauses in comprehensive automobile insurance policies that by their plain language preclude assignment of rights and duties or change of interest extend to post-loss assignments of auto-glass claims.
  
  
• VoiceStream Minneapolis, Inc. v. RPC Properties, Inc. Filed: January 10, 2008. State of Minnesota Supreme Court
  A district court shall treat a motion to enforce a settlement agreement as it would a motion for summary judgment, and explicitly grant or deny each claim.
  
  Reversed and remanded.
  
  Considered and decided by the court en banc without oral argument.
  
  
• Auto Owners Insurance Co. v. Star Windshield Repair, Inc., et al. Filed: January 8, 2008. Minnesota Court of Appeals
  1. The Minnesota No-Fault Automobile Insurance Act, Minn. Stat. §§ 65B.41-.71 (2006 & Supp. 2007), allows the district court to determine coverage issues before compelling arbitration.
  
  2. A nonassignment clause in an insurance policy may prohibit the assignment of postloss insurance proceeds.
  
  
• Patricia A. Frey, et al. v. United Services Automobile Association, et al. Filed: January 8, 2008. Minnesota Court of Appeals
  Drop-down automobile insurance policy provisions that reduce bodily-injury coverage for resident family members to the minimum statutory amount are valid and enforceable.
  
  
• Jonathan Aten v. Scottsdale Insurance Company. Filed: January 8, 2008. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - insurance. Case remanded for further proceedings on the question of whether an exception to the policy exclusion provisions applied.