Opinion
No. C3-01-427.
Filed July 31, 2001.
Appeal from the District Court, Ramsey County, File No. 800002403.
John O. Murrin, III, Murrin Law Firm, (for appellant)
Clayton M. Robinson, Jr., St. Paul City Attorney, James Jerskey, Assistant City Attorney, (for respondents Ramsey County and City of St. Paul, et al.)
James T. Martin, Julian C. Janes, Gislason, Martin Varpness, P.A., (for respondent American National Insurance Company)
Karen Melling Van Vliet, First National Bank Building, (for respondent Misgen)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
After obtaining a default judgment against the owner of a dog that bit her daughter, appellant brought this action against the county, the city, two city employees, the previous insurer of the dog owner, and the insurer's employee. The county, city, and city employees were granted summary judgment on the grounds that none of their acts was a proximate cause of the injury; the insurer and its employee were granted summary judgment on the grounds that there was no policy in effect when the injury occurred. Because we see no genuine issue of material fact and no error of law, we affirm.
FACTS
On December 9, 1997, in St. Paul, the minor daughter of appellant Vanyell Suttle was bitten by a dog belonging to Robert McClenton. Previously, the dog had bitten two other children, was declared "dangerous" and was seized by Animal Control. McClenton requested a dangerous dog hearing. He was informed that he had to comply with the eight conditions set out in the St. Paul Code before the dog could be returned to him.
Although named as a respondent, McClenton takes no part in this appeal; nor did he oppose the action appellant brought against him.
Among these conditions was that McClenton provide and show proof annually of his maintaining public liability insurance of at least $300,000. On September 29, 1997, McClenton telephoned respondent Misgen, an agent for respondent American National Insurance Co. (ANI), and asked the price of renter's insurance for a year. McClenton did not mention that he owned a dog. Misgen quoted him a price of $108. Later that day, McClenton obtained the money and appeared at Misgen's office. He told Misgen that he owned a dog and that the dog had bitten someone, but did not say that the dog was impounded or that he needed proof of insurance to recover possession of the dog. McClenton was given a "binder," which he delivered to a city employee as proof of insurance. The document was accepted, and his dog was returned.
After McClenton left the office, Misgen decided that the risk with the dog on the premises was "unacceptably high" and notified ANI that it should cancel the policy. ANI investigated and decided to cancel. On October 15, 1997, ANI sent McClenton notice that the policy would be terminated on November 18, 1997, and a check for $94.63, the pro rata portion of the premium. McClenton knew that his policy had been cancelled and tried to obtain insurance from three other companies, but was unsuccessful. The following December 9th, the dog bit appellant's daughter in the leg.
Appellant obtained a default judgment against McClenton in the amount of $42,304. She then sued respondents City of St. Paul (City), Ramsey County (County), Gary Pechmann and Robert Kessler (City employees), ANI and Michael Misgen, an ANI insurance agent. Against ANI and Misgen, she sought a declaratory judgment that the policy was in effect as a matter of law on December 9, 1997. In the alternative, she alleged negligence in releasing a dangerous animal to an uninsured owner on the part of County, City, Robert Kessler, director of City's Office of License, Inspections and Environmental Protection (LIEP) division, and Gary Pechmann, supervisor of the city employee who had signed off on McClenton's proof of insurance. Respondents moved for summary judgment; appellant moved to amend the pleadings and for a declaratory judgment that the policy was in effect on the date of the injury.
After a hearing, the claims against City were continued so appellant could depose two witnesses. Thereafter, all respondents were granted summary judgment. Appellant now challenges those judgments, contending that the policy was in effect, that genuine issues of material fact preclude summary judgment, that she had a prima facie negligence claim against County, City, and City's employees, and that the district court abused its discretion in denying her motions for a continuance to amend her complaint and complete discovery.
Appellant also asserts the issue of City's and County's immunity, but because the district court did not address this issue and resolved the matter by concluding that appellant did not have a prima facie case for negligence against them, the immunity issue is not properly before this court . See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (a reviewing court considers only issues presented to and considered by the district court).
DECISION 1. The ANI Policy
Insurance coverage issues are questions of law for the court. State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn. 1992).
ANI notified McClenton that his policy was cancelled three weeks before the injury. The notice complied with Minn. Stat. § 65A.01, subd. 3c(a) (2000), which provides:
In the event of a policy less than 60 days old that is not being renewed * * * the notice [of the cancellation] must be mailed to the insured so that it is received at least 20 days before the effective cancellation date. If a policy is being canceled for underwriting considerations, the insured must be informed of the source from which the information was received.
McClenton's policy was less than 60 days old; he was informed that his policy was cancelled "due to underwriting guidelines concerning the dog bite and the credit history that we obtained from Equifax;" and he received the notice more than 20 days prior to the cancellation.
Appellant does not challenge ANI's compliance with Minn. Stat. § 65A.01, subd. 3c(a), but she contends that the appropriate statute is Minn. Stat. § 65A.01, subd. 3a (2000). However, that subdivision applies when the policy "has been in effect for at least 60 days," and appellant's policy was in effect less than 60 days.
Appellant also relies on Minn. Stat. § 65A.29, subds. 7 and 8(b) (2000), but those subdivisions pertain to renewal and therefore do not apply here.
There was no error of law in granting summary judgment to ANPAC on the grounds that its policy did not provide coverage for appellant's daughter's injury.
Appellant argues that she is entitled to step into the shoes of the insured, McClenton, pursuant to Minn. Stat. § 60A.08, subd. 6 (2000), which provides that the insolvency of an insured does not release the insurer of its obligations and that judgment creditors of insureds have the same rights as the insureds to recover under the terms of the policy. Here, however, there was no policy in force at the time of the injury: McClenton had no rights against ANI and therefore no rights passed to appellant.
2. Genuine Issues of Material Fact
On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether there was an error in the application of the law . State by Cooper v. French, 468 N.W.2d 2, 4 (Minn. 1990). Appellant contends that there was a genuine issue of material fact as to whether McClenton notified ANI agent Michael Misgen that McClenton's dog had bitten two people when he first applied for insurance. This may be a genuine issue of fact, but that fact is not material to whether the policy was in effect at the time appellant's daughter was bitten.
Appellant also contends there is a fact issue as to why ANI canceled the policy, but the cancellation notice states that the policy was cancelled "due to underwriting guidelines concerning the dog bite and the credit history that we obtained from Equifax." Again, that fact is not material. No genuine issues of material fact preclude summary judgment for ANI and Misgen.
3. Negligence Claim
In reviewing cases that were dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets
forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). The district court concluded that appellant had failed to state a prima facie negligence claim on which relief could be granted because appellant's daughter's injuries were caused by McClenton's negligence, not by any act of City or County.
Appellant argues first that City's employee was negligent in accepting the "binder" as proof of insurance and returning the dog to McClenton. But ANI agrees that McClenton was insured at the time the dog was released and for about a month thereafter; at that time of release, both McClenton and City were in compliance with the relevant law. City was not negligent.
Second, appellant argues that City should have known that McClenton's insurance policy was cancelled and seized the dog. But as the district court found:
The [C]ity knew nothing about this cancellation [of McClenton's insurance policy. Appellant] seems to argue that the City should have a method of keeping track of this.
Appellant provides no support for this argument. After the dog was released in reliance on the policy, City had no way of foreseeing or knowing that the policy would be canceled. There was no error of law in concluding that neither City nor County proximately caused the injury.
4. Appellant's Motions to Continue and to Amend
"The granting of a continuance is a matter within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion." Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977) (citation omitted). "Whether to allow an amendment is committed to the trial court's discretion." Utecht v. Shopko Dep't Store, 324 N.W.2d 652, 654 (Minn. 1982) (citation omitted.).
The district court granted a continuance on City's motions so appellant could depose two of City's witnesses, but denied appellant's motion to amend her complaint. Appellant claims that, "[t]he facts and pleadings were still being established when the court dismissed this case" but does not explain what amendment she wanted or why she did not initiate discovery. She provides this court with no basis for overturning the district court's discretionary decision.