Hot Topics*

1. In the Matter of the Contest of General Election held on November 4, 2008, for the purpose of electing a United States Senator from the State of Minnesota, Cullen Sheehan and Norm Coleman, contestants v. Al Franken, contestee. Filed: June 30, 2009. State of Minnesota in Supreme Court (posted July 2, 2009)
2. Patrick Brian Stewart v. Christopher Michael Koenig, et al. Filed: June 30, 2009. Minnesota Court of Appeals (posted June 30, 2009)
3. Kathleen J. Bryan v. Deonarine Kissoon, et al. Filed: June 30, 2009. Minnesota Court of Appeals (posted June 30, 2009)
4. Sergey Oganov v. American Family Insurance Group. Filed: June 25, 2009. State of Minnesota in Supreme Court (posted June 29, 2009)
5. Candace Yath v. Fairview Clinics, N.P., et al. Filed: June 23, 2009. Minnesota Court of Appeals (posted June 25, 2009)
6. Donald Babinski v. American Family Insurance Group. Filed: June 18, 2009. United States Court of Appeals for the 8th Circuit (posted June 22, 2009)
7. Equity Trust Company Custodian FBO Heather Eisenmenger IRA, et al. v. Joseph A. Cole, et al. Filed: June 9, 2009. Minnesota Court of Appeals (posted June 10, 2009)
8. Cargill, et al v. Ace American Ins. Co, et al. Filed: May 26, 2009. Minnesota Court of Appeals (posted May 27, 2009)
9. Larry Benjamin Johnson v. Brian Cletus Cummiskey, et al. Filed: May 26, 2009. Minnesota Court of Appeals (posted May 27, 2009)
10. David Foss v. Jeremy Kincade and Stephanie Kincade. Filed: May 14, 2009. State of Minnesota in Supreme Court (posted May 24, 2009)
11. Jennifer Herrmann v. ExpressJet Airlines, Inc. and Continental Airlines, Inc. Filed: May 5, 2009. United States District Court, District of Minnesota (posted May 11, 2009)
12. State Farm Mutual Automobile Insurance Company v. John Frelix. Filed: April 28, 2009. Minnesota Court of Appeals (posted April 29, 2009)
13. Westchester Fire Insurance Company v. Douglas Wallerich, Patrick Lowther, Sharon O'Reilly. Filed: April 24, 2009. United States Court of Appeals for the 8th Circuit (posted April 27, 2009)
14. Valspar Refinish, Inc. v. Gaylord's, Inc. Filed: April 23, 2009. State of Minnesota in Supreme Court (posted April 27, 2009)
15. James Stroop v. Farmers Insurance Exchange, et al. Filed: April 21, 2009. Minnesota Court of Appeals (posted April 23, 2009)
16. Charles R. Hornberger v. Erica L. Wendel, et al. Filed: April 14, 2009. Minnesota Court of Appeals (posted April 14, 2009)
17. Henry Kenneth Roger Siems v. City of Minneapolis, et al. Filed: March 25, 2009. United States Court of Appeals for the 8th Circuit (posted March 30, 2009)
18. Halla Nursery, Inc., et al. v. City of Chanhassen. Filed: March 24, 2009. Minnesota Court of Appeals (posted March 31, 2009)
19. General Casualty Company of Wisconsin v. Wozniak Travel, Inc., et al. Filed: March 19, 2009. State of Minnesota in Supreme Court (posted April 2, 2009)
20. Joan M. Krieger v. City of St. Paul, et al. Filed: March 10, 2009. Minnesota Court of Appeals (posted March 18, 2009)
21. Lady Jayne Fontaine v. Geraldine Carlen Steen, et al. Filed: January 27, 2009. Minnesota Court of Appeals (posted January 28, 2009)
22. Donnelly Brothers Construction Company, Inc. v. State Auto Property and Casualty Insurance Company, et al. Filed: January 26, 2009. Minnesota Court of Appeals (posted January 28, 2009)
23. Nancy M. Meyer, et al. v. Bibian Nwokedi, et al. Filed: January 20, 2009. Minnesota Court of Appeals (posted January 23, 2009)
24. Andre Gilmore v. Walgreen Co. Filed: January 20, 2009. Minnesota Court of Appeals (posted January 23, 2009)
25. A & L Potato Company, Inc. v. Aggregate Industries, et al. Filed: January 6, 2009. Minnesota Court of Appeals (posted January 9, 2009)

• In the Matter of the Contest of General Election held on November 4, 2008, for the purpose of electing a United States Senator from the State of Minnesota, Cullen Sheehan and Norm Coleman, contestants v. Al Franken, contestee. Filed: June 30, 2009. State of Minnesota in Supreme Court
  1. Appellants did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process.
  
  2. Appellants did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection.
  
  3. The trial court did not abuse its discretion when it excluded additional evidence.
  
  4. Inspection of ballots under Minn. Stat. §209.06 (2008) is available only on a showing that the requesting party cannot properly be prepared for trial without an inspection. Because appellants made no such showing here, the trial court did not err in denying inspection.
  
  5. The trial court did not err when it included in the final election tally the election day returns of a precinct in which some ballots were lost before the manual recount.
  
  Affirmed.
  
  
• Patrick Brian Stewart v. Christopher Michael Koenig, et al. Filed: June 30, 2009. Minnesota Court of Appeals
  The driver of a motor vehicle operating on a private driveway that crosses a state recreational trail is a "trail user" and is subject to the rules governing state recreational trails.
  
  
• Kathleen J. Bryan v. Deonarine Kissoon, et al. Filed: June 30, 2009. Minnesota Court of Appeals
  In an action for misrepresentation relating to the purchase of a home, it is necessary to prove that the alleged misrepresentation proximately caused the claimed damages.
  
  
• Sergey Oganov v. American Family Insurance Group. Filed: June 25, 2009. State of Minnesota in Supreme Court
  When a tortfeasor's insurer is judicially declared insolvent within six years of the date of the accident, a claim for uninsured motorist benefits accrues and the limitations period begins to run on the date the tortfeasor's insurer is declared insolvent.
  
  Reversed and remanded.
  
  
• Candace Yath v. Fairview Clinics, N.P., et al. Filed: June 23, 2009. Minnesota Court of Appeals
  1. Posting private information on a publicly accessible Internet website satisfies the publicity element of an invasion-of-privacy claim.
  
  2. The Health Insurance Portability and Accountability Act does not preempt Minnesota Statutes section 144.335 (2006), which gives patients a private right of action for improper disclosure of their medical records.
  
  
• Donald Babinski v. American Family Insurance Group. Filed: June 18, 2009. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil Case - Diversity. District court erred in granting summary judgment to policy holder, on claim insurance policy obligated insurer to indemnify insured up to $1,000,000 policy limit. Policy's household drop-down exclusion limits to the minimum amount required by state law is not ambiguous simply because the exact amount of the coverage is not contained in the policy's four corners. Minnesota's doctrine of reasonable expectations does not apply, and the exclusion is not per se unenforceable under Minnesota law. Judge Goldberg dissents on issue of ambiguity of step-down provision.
  
  
• Equity Trust Company Custodian FBO Heather Eisenmenger IRA, et al. v. Joseph A. Cole, et al. Filed: June 9, 2009. Minnesota Court of Appeals
  The equitable remedy of piercing the corporate veil is not limited to shareholders and members of corporate entities, but may be applied to impose personal liability against any parties to a lawsuit who disregard the corporate form.
  
  
• Cargill, et al v. Ace American Ins. Co, et al. Filed: May 26, 2009. Minnesota Court of Appeals
  Pursuant to Minn. R. Civ. App. P. 103.03(i), the district court certified the following question for appellate review as important and doubtful: "Can a court order primary insurers, who insure the same insured for the same risks, and whose policies are triggered for defense purposes, to be equally liable for the costs of defense where there is otherwise no privity between the insurers?" Because an insured, as a part of its contractual duty to cooperate, has an affirmative obligation to preserve the insurer's opportunity to obtain contribution from other primary insurers with a similar duty to defend, and because a district court has the equitable authority to award such relief when an insured refuses to cooperate, we answer the certified question in the affirmative.
  
  Question answered in the affirmative.
  
  
• Larry Benjamin Johnson v. Brian Cletus Cummiskey, et al. Filed: May 26, 2009. Minnesota Court of Appeals
  Minnesota's No-Fault Automobile Insurance Act does not require that motorcycle insurance policies written to provide only limited underinsured motorist coverage under a limits-less-paid structure be reformed to provide full underinsured motorist coverage under a damages-less-paid structure.
  
  
• David Foss v. Jeremy Kincade and Stephanie Kincade. Filed: May 14, 2009. State of Minnesota in Supreme Court
  Homeowner did not have a duty to secure an empty bookcase to the wall to prevent it from tipping over because it was not reasonably foreseeable that a three-year-old guest would injure himself by attempting to climb the bookcase.
  
  A discovery sanction is not appropriate when the disposal of evidence did not prejudice the opposing party.
  
  Affirmed.
  
  
• Jennifer Herrmann v. ExpressJet Airlines, Inc. and Continental Airlines, Inc. Filed: May 5, 2009. United States District Court, District of Minnesota
  Court's introduction:
  In this negligence action, Plaintiff Jennifer Herrmann has sued Defendants ExpressJet, Inc. and Continental Airlines, Inc. (collectively, 'Continental')1 for injuries she sustained while climbing a set of stairs at the Minneapolis-St. Paul International Airport ("'MSP"). Continental now moves for summary judgment. For the reasons set forth below, the Court will deny the Motion.
  
  Excerpts:
  A reasonable jury could conclude that Continental should have anticipated passengers might trip on a stair approximately 2.5 inches higher than 22 steps of equal height leading up to it, particularly when burdened with luggage or other items.
  
  . . . The Court is cognizant of the exception to the anticipation-of-harm limitation carved out by the Minnesota Supreme Court -- namely, some dangers are 'so obvious' that a landowner owes an entrant no duty, even though he reasonably should anticipate harm. Louis, 636 N.W.2d at 321-22. But as the Minnesota Court of Appeals has stated:
  
  A cynic might suggest that our cases imply that where the danger is really obvious, there is no landowner duty, but where the danger is really, really obvious, there is a duty, yet, where the danger is really, really, really obvious, there is again no duty. Our appellate decisions have not clearly explained the difference between a danger that is so obvious that the landowner must warn against the likely injury despite the obvious danger and a danger that is a bit more obvious such that the entrant now needs no warning.
  
  [citations omitted] . . . In the Court's view, this succinctly explains why Herrmann's claims must proceed to a jury. The Court cannot conclude, as a matter of law, that the final step's riser was 'really, really, really obvious,' thereby relieving Continental of a duty to Herrmann.
  
  
• State Farm Mutual Automobile Insurance Company v. John Frelix. Filed: April 28, 2009. Minnesota Court of Appeals
  By statute, mandatory no-fault arbitration is appropriate if expenses incurred by the claimant at the commencement of arbitration are less than or equal to $10,000. If no-fault expenses are incurred by the claimant on the same day that the petition for arbitration is filed, and those expenses bring the total expenses submitted substantially over the jurisdictional limit, mandatory arbitration is inappropriate.
  
  
• Westchester Fire Insurance Company v. Douglas Wallerich, Patrick Lowther, Sharon O'Reilly. Filed: April 24, 2009. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - Insurance. District court erred in finding spouse of insured director was not an insured party under the provisions of the policy in question; because both the director and his spouse were insureds, the "insured v. insured" exclusion of the policy applies, and the insurer did not have any duty to defend the insureds; insurer was not entitled to reimbursement of defense costs; since there was no duty to defend the insureds, they were not entitled to coverage fees. Judge Bye, dissenting.
  Excerpt from majority:
  'We have already determined that the policy's "insured v. insured" exclusion applies and that the language of the policy is unambiguous as to Shayna Fayette's status as an "Insured" under the policy. Therefore, there was never "arguable coverage" As a result, Westchester never had a duty to defend the Insureds. Applying Minnesota law, the Insureds are not entitled to coverage fees because Westchester never had a duty to defend.'
  
  
• Valspar Refinish, Inc. v. Gaylord's, Inc. Filed: April 23, 2009. State of Minnesota in Supreme Court
  1. Parties to a contract may expressly agree that written notice of breach is a condition precedent to bringing a breach of contract claim and that the failure to do so bars a subsequent claim. Such a term is enforceable and operates to bar a contract claim.
  
  2. Under Minn. Stat. § 336.2-209(4) (2008), parties to a contract for the sale of goods may waive a requirement under the contract that any modification must be in a writing signed by both parties. This exception is narrow, however, and must satisfy the rules and principles of Minnesota law regarding waiver.
  
  3. Waiver is the intentional relinquishment of a known right. Knowledge and intent are essential elements of waiver. But knowledge may be actual or constructive and the intent to waive may be inferred from conduct.
  
  4. Under Minn. Stat. § 604.101, subd. 4 (2008), a buyer of goods is barred from bringing a common-law negligent misrepresentation claim against the seller that relates to the goods sold.
  
  Affirmed.
  
  
• James Stroop v. Farmers Insurance Exchange, et al. Filed: April 21, 2009. Minnesota Court of Appeals
  An underinsured-motorist (UIM) claim accrues and the statute of limitations begins to run on the date that the insured plaintiff in an action to recover damages caused by an automobile accident receives notice from the insured plaintiff's UIM insurer that the UIM insurer will not substitute its check for that of the tortfeasor's insurer to preserve the UIM insurer's subrogation rights against the tortfeasor under Schmidt v. Clothier.
  
  
• Charles R. Hornberger v. Erica L. Wendel, et al. Filed: April 14, 2009. Minnesota Court of Appeals
  An attorney-client relationship exists between an insured and defense counsel retained by a liability insurer on the insured's behalf, and this relationship is not nullified because the insurer and defense counsel have not had contact with the insured regarding the defense of a claim.
  
  
• Henry Kenneth Roger Siems v. City of Minneapolis, et al. Filed: March 25, 2009. United States Court of Appeals for the 8th Circuit
  Court's summary:
  Civil case - civil rights. Where plaintiff violated every part of the district court's pretrial order, despite an extension of time and a clear warning of the consequences of non-compliance, the district court did not abuse its discretion in dismissing the case as a sanction.
  
  Excerpt:
  "We are not wholly unsympathetic to Siems's position. The record does not contain any evidence that Siems himself contributed in any way to the dilatory actions of his counsel. However, we have long held that litigants choose their counsel at their own peril. . . . The ultimate question on appeal is not whether the litigant contributed to the conduct but whether the district court abused its discretion by dismissing the case with prejudice." Court's summary:
  
  
• Halla Nursery, Inc., et al. v. City of Chanhassen. Filed: March 24, 2009. Minnesota Court of Appeals
  A permit applicant does not obtain vested rights in a substantially completed construction project when the applicant was aware upon submission of the permit application that the construction sought is prohibited by a prior judgment or relevant city ordinances.
  
  
• General Casualty Company of Wisconsin v. Wozniak Travel, Inc., et al. Filed: March 19, 2009. State of Minnesota in Supreme Court
  Coverage for "infringement of title" in "advertising injury" provision of commercial general liability insurance policy extends to trademark infringement.
  
  The term "advertising" as used in provision of commercial umbrella liability insurance policy is ambiguous and will be broadly construed to mean any oral, written, or graphic statement made by the seller in any manner in connection with the solicitation of business.
  
  Certified questions answered in the affirmative.
  
  
• Joan M. Krieger v. City of St. Paul, et al. Filed: March 10, 2009. Minnesota Court of Appeals
  For purposes of the trespasser-liability exception to recreational-use immunity, an inherently dangerous condition is not established where death or serious bodily harm might result only in particularly vulnerable users of recreational property.
  
  
• Lady Jayne Fontaine v. Geraldine Carlen Steen, et al. Filed: January 27, 2009. Minnesota Court of Appeals
  1. Whether a legal-malpractice claim requires expert testimony to establish a prima facie case is a question of law, reviewed de novo on appeal.
  
  2. An adverse court ruling on a legal issue does not necessarily constitute a prima facie showing of legal malpractice in that same proceeding.
  
  
• Donnelly Brothers Construction Company, Inc. v. State Auto Property and Casualty Insurance Company, et al. Filed: January 26, 2009. Minnesota Court of Appeals
  1. The insurer, under an occurrence-liability-insurance policy, has a presumptive duty to defend an insured contractor against a negligence action for damages caused by water intrusion that occurred during the policy period.
  
  2. Summary judgment determining that an insurer has no duty to defend a construction contractor against claims for damages caused by water intrusion that occurred during the policy period of an occurrence-liability policy is proper only if the record clearly and convincingly establishes that initial water-intrusion damage attributable to that contractor occurred prior to the effective policy date and that allocation is not applicable.
  
  
• Nancy M. Meyer, et al. v. Bibian Nwokedi, et al. Filed: January 20, 2009. Minnesota Court of Appeals
  1. Minn. Stat.§ 169.09, subd. 5a (2008), is preempted by 49 U.S.C. § 30106 (Supp. V. 2005), to the extent that section 169.09, subdivision 5a, seeks to impose vicarious liability on the owner of a rental vehicle.
  
  2. Minn. Stat. § 65B.49, subd. 5a(i)(2) (2008), which limits the vicarious liability of a rental-vehicle owner, is not preserved by the "savings clause" in 49 U.S.C. § 30106(b), and is therefore preempted.
  
  
• Andre Gilmore v. Walgreen Co. Filed: January 20, 2009. Minnesota Court of Appeals
  A storeowner has a duty of reasonable care to protect an invitee from a dangerous condition, notwithstanding that the condition is open and obvious, if the storeowner should reasonably anticipate that other conditions or circumstances in the store will distract the invitee's attention from the obviously dangerous condition.
  
  
• A & L Potato Company, Inc. v. Aggregate Industries, et al. Filed: January 6, 2009. Minnesota Court of Appeals
  An offer of settlement made solely under Minn. R. Civ. P. 68 is deemed withdrawn if not accepted within ten days, and cannot, therefore, constitute a valid settlement offer under Minn. Stat. § 549.09, subd. 1(b), which provides for acceptance or a counteroffer within 30 days of receipt of the offer.