*1 on, drinking party going police relied Harvey CHRISTENSEN, Petitioner, telephone
on the informant’s call and her car in Appellant, driveway statement belonged teenager suspected to a of being However, inside the home. when the dep- arrived, dark, quiet,
uties the house was COMPANY, MILBANK INSURANCE there was one car the drive- Respondent. way. do support These factors not a find- No. C3-01-2078. ing of exigent circumstances. deputies’ We also observe that the con- Supreme Court of Minnesota.
duct was with the presence inconsistent April 2003. exigent circumstances. Once Marcinkow- tip ski received the informant’s about the
party, teenagers he was aware that were
allegedly consuming alcohol and that there guns
were Despite inside home.
knowledge, Marcinkowski waited approxi-
mately dispatch 35 minutes at the center proceeding Aalfs to arrive before
residence.
Finally, Marcinkowski admitted deputies one reason the did not obtain
a warrant was because it was inconvenient property they leave the feared that left, they
if teenagers would also leave.
If teenagers concerned about the leaving
the property, deputies should have
called police other officers for assistance.
Mere inconvenience does not justify an
unreasonable intrusion into an individual’s
home. circumstances, the absence exigent entry warrantless and search of
B.A.O.’shome violated the Fourth Amend-
ment I, and Minnesota Constitution Article Therefore,
Section 10. the fruits of the
entry and suppressed. search must be
Paul,
Reversed.
HANSON, J.,»took part no
consideration or decision of this case. *3 Kuderer, E. Thomp-
Robert Teresa M. son, Condon, P.A., Minneapolis, & Johnson MN, Appellant. for Scherer, Rajkowski John H. Hansmeier Ltd., Cloud, MN, for Respondent. St. OPINION ANDERSON, A, Russell Justice. case, In this we are inter asked to pret scope of rule which that when a insured named initially another gives permission to use a vehicle, use, subsequent short of conver vehicle, sion or theft of the per remains though missive even the use is outside the hold, grant permission. initial We context the “theft or conversion” exception to the initial permission the intentional dominion or control necessary for “conversion” cannot be shown accidental destruction of ve Further, hicle a collision. we hold that “closer the risk” analysis to inappropri ate a plan where school district’s insurance agreement states “this provides primary coverage” employ school district personal ee’s states its “shall coverage any oth excess over er collectible insurance.” a.m. Friday, From 6 to noon July on Christensen, appellant Harvey instructor, drivers’ education conducted drivers’ education instruction a van by Independent owned School District instruction, # 787. After he finished drove Christensen home to wash the van. did not Christensen have to use own, coverage any provided don’t at time personal for reasons the van any agreement is excess over park van did have but purchased home. collectible insurance. his the van after- washed personal auto insurer was he the lawn cleaned noon after mowed Company. Milbank Insurance Milbank’s of the after- Over the course the house. provides: At noon, about six beers. he also drank INSURING AGREEMENT sup- p.m., finishing he was about 6:30 damages “bodily pay A. We for will for a go drive. Christensen decided per, injury” “property damage” van was the drivers’ education block- Since legal- “insured” which becomes put he driveway, car cooler ing his *4 ly an auto responsible because of ice in van and took the van of beer and * * * We accident. will settle couple drank a a drive. Christensen for defend, appropriate, as we consider and p.m. beers between 6:30 8:15 more any asking claim or suit for these was p.m., 8:30 involved About Christensen damages. with driven in a collision a vehicle Vero- n n n n on He Wagner Highway 10. nica State The intoxicated at the time.1 van was
was OTHER INSURANCE totally destroyed. Wagner’s passengers in- applicable liability If is other there Christensen, # District and oth- sued pay will our share of surance we resulting past damages for and future ers proportion Our share is the loss. injuries. from their that our limit of bears by District # 787 The van was insured However, applicable total of all limits. the Minnesota School Board Asso- through any insurance we for vehicle (MSBAIT), Insurance Trust a self- ciation any do over you not own shall excess pool authorized specifically other insurance. collectible 471.981, § Minnesota subd. Statutes initially MSBAIT defended Christensen plan provides: This district in the action and school IS COVERED WHO by Wagner’s passengers. brought any a plan participant 1. You are for tried to the defense MSBAIT later tender covered auto. reject- to Milbank. Milbank action Anyone plan participant 2. else is grounds on the that Chris- ed tender your while with using, excess and tensen’s Milbank was own, [any auto hire or you borrow was but plan primary that the MSBAIT * * * except] applicable]. [none capacity of an excess agreed act also plan The states: settled Ultimately, insurer. Christensen INSURANCE PURCHASE OF $78,000. payments totaling pay- The loan re- own, pursuant made to a any you ments were 1. For covered auto The loan ceipt2 provided by MSBAIT. primary cover- agreement provides receipt upon you For covered auto was conditioned Christensen’s age. costs, fees, as a loan charged pled and from MSBAIT 1. was with and Christensen driving indemnify influence. guilty to under the him. fund his defense repayable only in the event loan made was receipt, re- 2. the loan Under recovered and to extent that Christensen $78,000 $115,471.13, representing ceived monies other insurance carriers. from $34,471.03 indemnity payments, in defense promise that he would seek declaratory conversion exception permis- to the initial against recovery relief Milbank for of dam- sion rule.
ages attorney fees for the original for the declaratory pro- action as well as I. ceeding duty for breach to defend. appeal summary On from judg sought declaratory Christensen then relief ment, novo; our review is de we consider against Milbank for the breach of its whether any genuine there are issues of and indemnify duties to defend him and material fact and whether party either recovery attorney for the fees and costs judgment entitled to aas matter of law. original incurred in the action and the America, Zimmerman v. Ins. Co. declaratory judgment action. Safeco (Minn.2000); 605 N.W.2d Wash parties brought Both motions sum- ington v. Milbank Ins. 562 N.W.2d mary judgment. The district court (Minn.1997); see also Garrick v. granted summary judgment Northland Ins. judgment motion and ordered against (Minn.1991). In this case there are no Milbank for the amount of the settlement genuine fact, issues of material and we plus attorney fees and costs in origi- *5 consider de novo what constitutes “conver nal declaratory judgment action and the sion” under the “conversion or theft” ex so, doing action. In the district court de- ception permission to the initial rule. (1) termined: that Christensen was not a permissive user within the context of the Minnesota law that an owner of permission initial rule because Christen- a motor may vehicle be vicariously held sen’s use of the vehicle constituted con- liable for a driver’s use of that vehicle if version since improperly he had taken gives the owner the express driver im or van, it, failed to return ultimately and plied permission. § Minn.Stat. 170.54 it; (2) destroyed and the Milbank (2002). To effectuate this automo provide primary should coverage liability bile insurance policies contain an because Milbank intended to insure omnibus clause that creates insur personal vehicle use and permissive ance for drivers. 8 Lee R. District # 787’s plan intended to cover Russ & Segalla, Thomas F. Couch on In only school use of the vehicle. 111.1, (3d § surance at 111-5 to 111-6 ed.1997).
The court of appeals, concluding that the Whether and under what cir district court’s definition of conversion was cumstances an automobile is considered to broad,” “too held that a “[i]n situation permission used with the of the named which the property destroyed, is conver- insured within the meaning of the omnibus may sion be shown if only the destruction clause is province of the courts. was intentional.” Christensen v. Milbank construing scope coverage of created 639, Ins. clauses, 643 N.W.2d (MinmApp. by 643 omnibus courts have followed 2002). The appeals applied (1) court of its one of three rules: the strict or conver definition (2) rule; instant facts and deter- sion rule; the initial permission (3) mined that Christensen did not convert the or the minor deviation rule. See C.T. van. It therefore Drechsler, concluded that the Annotation, dis- Automobile Liabil trict court erred in granting summary ity Insurance: Permission or Consent to judgment for Christensen and Employee’s reversed. Use Car Within the Mean of appealed, and this court ing Clause, Coverage Omnibus 5 of granted review to consider the scope 600, of the A.L.R.2d Id. The employer v. home. at 162. told Mutual Insurance Co. In Milbank Guaranty was Fidelity employee and that he to drive United States rule. permission the initial adopted we truck and back to and was not home work (Minn.1983) (noting Nevertheless, Id. go “joyriding.” § Minn.Stat. 170.54 that the behind employee his wife and son for a drive took Responsibility is to ensure Safety Act] [the was in an acci- truck and involved by negligent opera- “persons injured Id. com- employer’s dent. approximate ‘an cer- tion of automobiles was pany coverage claiming denied the use lia- recovery” when tainty’ of an effective the ini- nonpermissive. adopted Id. We exist) (citation bility not otherwise would tial rule and held that because omitted). Under the initial of the em- grant initial permission to use vehicle is when permissive thus cov- ployee’s use was use, short of initially given, subsequent Id. at employer’s ered insurance. theft, permis- or remains actual conversion 167. We not define “conversion.” did though is not within the even the use sive parties outside contemplation contexts, we have de other grant permission. scope of fined as “an willful “conversion” act of 167; also Alan Appel- Id. at see 6C John personal property [the interference with Appelman, man Insurance Law & Jean another], done, justification, without lawful (Rich- § § 4367 and Practice any person which entitled thereto 1979) (“[Some] Buckley ed. states ard B. possession,” Larson deprived of use arbitrarily adopted [known have doctrine Co., 226 Minn. Archer-Daniels-Midland rule, or the initial high hell or water (1948), and if vehicle was rule] “the of dominion and control over exercise *6 insured, entrusted the named originally with, in goods repudiation and inconsistent authority to having proper give or one of, rights goods.” in those the owner’s at operating it person 664, 452 668 Seely, Rudnitski v. N.W.2d accident, despite then hell time of (Minn.1990); Inc. v. Hildegarde, accord water, is high operation or such considered 410, 257, 413, Wright, 244 Minn. 70 N.W.2d to scope be within (1955). Larson, Citing 259 grossly the granted, regardless of how “intent, knowledge, or mo argues that the original may have terms of the bailment and of converter immaterial” tive violated.”). Milbank, we to been looked limiting appeals court of erred legislative history to our trend in- and intentional conversion to destruction Act Safety Responsibility terpreting Minn, at at 226 32 N.W.2d property. liability and omnibus clauses should counters that intent 650. Milbank policies public policy to conclude “that the to in this be the element conversion key favors of the un- protection of this state for the initial context because of automobile acci- compensated victims cov purpose rule to its serve any an over interest of owner-in- dents per to erage through the vehicle’s not subject his insurer he be sured or users, to damage or missive destruction liability to when his exceeds permittee the vehicle cannot be the determinative permission.” of the initial scope agree with Milbank. factor. We 166-67. defines conversion analogous Restatement are to The facts Milbank or Milbank, exercise of dominion “an intentional employ- an instant case. the chattel.” Restatement company control over ee to take a truck had (Second) (1965). § of Torts 223 cmt. b As We are troubled the dissent’s such, nonfeasance negligence, “[m]ere conclusion that Christensen’s decision to without such an is not sufficient for drink excessively and drive Describing conversion.” Id. the character requisite intent for conversion. Under required, of the intent the Restatement such a permittee, an uninsured who explains: involved a one-vehicle accident while necessary subject
The intention driving impaired, would not be covered deprives one who another of the under the named-insured’s policy. This possession of his chattel is merely the per se rule preclude would recovery for intention to deal with the chattel so that automobile accident victims even if in dispossession such results. It is not toxicated negligent. driver was not See necessary that the actor intend to com- 169.96(b) (2002) § Minn.Stat. (providing mit what he a trespass knows to be aor that violation of a traffic prima statute is is, however, It conversion. necessary facie negligence, evidence of negli not that his act be one which he knows to be se); gence per Czech, Kedrowski v. destructive of outstanding possesso- Ill, 118, (1955) Minn. 69 N.W.2d ry right, if such there be. (noting that “the mere fact that plain [the (Second) § Restatement may of Torts tiff] cmt. have been under the influence of c alcohol did not in and of itself constitute contributory negligence”); Kirsebom v. We find the Restatement instruc Connelly, 486 N.W.2d 175 (Minn.App. tive. A wrongful intent to appropriate 1992) (concluding there was sufficient evi chattel purposes for one’s own is the es dence for the trial court to instruct sence of the “conversion or theft” excep jury on Minnesota’s prohibition on driving tion. To hold that requires conversion an under the influence of alcohol and remand intentional destruction of the vehicle un trial); ing for new Mueller Sigmond, necessarily narrows meaning of “con 843-44 (Minn.App.1992) case, version.” In the instant it is undis (determining that blood alcohol concentra puted that Christensen did not intend to tion evidence is not presumptively rele wrongfully deprive the school district of its vant in a civil action damages right to use or control its van. Christen *7 holding that sen, the trial (“There court’s 643 decision to N.W.2d at 644 is no evi exclude such evidence was not clearly dence that er Christensen’s destruction of the roneous); see also 4 Minn. Judges vehicle was intentional. Dist. To the contrary, Ass’n, all Minnesota parties Jury agree seem to it Instruc was acciden Practice — tal.”). Guides, Civil, (4th tion In keeping with the CIVJIG 26.25 purpose of the ed.1999); Act, 4A Safety Ass’n, Minn. Responsibility Judges Dist. which affords compensation to Minnesota Jury victims of automobile acci Instruction Practice— dents, Guides, Civil, (4th ed.1999). we hold that under CIVJIG 65.25 the “theft or Furthermore, exception us, conversion” to the initial it permis seems to the dissent’s sion position the opens intentional the dominion or con door to exempting necessary trol many for “conversion” cannot kinds of negligent be drag- conduct— shown by accidental racing destruction of or driving the ve well in excess of the collision, in hicle therefore, speed limit because come to mind—from coverage. there is no other basis for a finding of In the considering such conduct within the requisite intent, wrongful Christensen did context of the permission rule, initial not convert the van. Supreme Colorado Court reiterated Colo-
587 tracts, that we question is a of law review compen inadequate avoid policy “to rado’s Graff, accidents” v. of automobile de novo. Haarstad to victims sation (Minn.1994). ‘ludicrous’ uses that “even and concluded 584 long as the insured’s are within theft or conver Generally speaking, not constitute they
as do Farm Mut. Auto. contracts, contracts, Raitz v. State sion.” must be “like other 1183, 1187, n. 15 Co., P.2d Ins. 960 according par to the terms the construed ** * (Colo.1998) did not (“Angelopulous used, to taken and under ties have he and Naran- both convert the van when stood, in ambiguity, their absence roof.”) (citation omitted); jo on its rode sense, popular so as to plain, ordinary, and Ins. v. Farmers Wiglesworth also see parties to the intention of the give effect (“Be (Colo.1996) Each., 288, 292 917 P.2d from the entire contract.” Bo- appears it that the record indicates Smiths cause the Minn. 104 Oja, bich v. 258 truck keys to their Wiglesworth the gave However, in deter N.W.2d him that he could drive and informed may courts mining policy primary, which further asking for truck to work without policies. beyond language look Wiglesworth we conclude that Garrick, (examining at 711-12 N.W.2d to use the truck initial had the of the insuring the function and intent drag race] in a participated he [when language of “other policies instead of * * * ) re Determining that decision clauses); Fire & Interstate insurance” constitutes negligent behavior sulting Ins. Co. Auto-Owners Cas. express public contravenes conversion (Minn.1988) (“In Minnesota, 82, 85 certainty of policy of our state type at the simply does not look this court injured automobile recovery for those involved. of ‘other insurance’ clauses accidents. * * * explained this court [Integrity] was to ‘allocate re approach the better II. policy coverages light spective did not Because Christensen insuring as determined total van, we con the school district’s convert poli upon risks which each primary vicariously ha- # 787 is clude that District and as deter were based cy’s premiums negligent use of ble Christensen’s function of each primary mined rule. vehicle under ”) Integrity Mut. Ins. Co. (quoting policy.’ the MSBAIT and Accordingly, both Ins. Auto. & Cas. Underwriters v. State for the provide coverage policies Milbank 173, 175, 239 N.W.2d Minn. determining whether accident. (1976)). However, looking insuring Milbank MSBAIT policies where appropriate intent disagree primary, parties policy is *8 “other insurance” claus conflicting contain is analysis to the risk” whether “closer es: that be Christensen submits appropriate. that two or more com- it is clear When analysis ap is to the risk” cause “closer liable to among themselves panies are con properly court propriate, the district appor- but the insured for his loss the intended to cluded that Milbank cannot among companies tionment Mil- coverage situation. this primary in- violating the other made without express language maintains that the bank company, at least one clause of surance here. not controls policies, of look outside the courts must in then analysis, which the risk” “Closer to apportionment. for rules of policies insurance con- interpretation of volves Minn, 174-75, at Integrity, 307 239 N.W.2d and who was of driving convicted under Garrick, influence, at quoted did not convert the school 711-12. effectively collapses district’s van “theft or exception conversion” into a theft case, policy pro- the MSBAIT exception. coverage primary vides that its is for covered vehicle owned the school dis- view, my Christensen’s decision to trict. The if Milbank excessively drink and drive constitutes the insured is involved in an accident while conversion: “an act of willful interference vehicle, operating a nonowned the Milbank personal property [the of another] coverage is excess to other collectible in- done, justification, without lawful by which surance. Because there is no conflict be- any person deprived entitled thereto is language policies— tween the of the two possession.” use and v. Archer- Larson clearly primary— MSBAIT is Daniels-Midland 226 Minn. analyzing intent inappropriate. is It is this Accordingly, we conclude that MSBAIT to excessively choice drink anoth- use such, primary is the insurer. As Milbank er’s property the destruction of the —not not required indemnify is to property requisite constitutes the —that expenses paid connection with the wrongful intent necessary for conversion. settlement of a claim that arose out of the Quoting from the Restatement commen- accident. tary, the majority recognizes that the actor need not “intend to commit what he knows decision of the of Appeals Court * * * to be a conversion” and that “[t]he affirmed and this decision is remanded to intention necessary subject entry district court for summary judgment deprives one who possession for Milbank. another of the of his merely chattel is the intention to
Affirmed. deal with the chattel so that disposi- such added.) tion results.” (Emphasis HANSON, J., part took no in the consideration or decision of this case. Nonetheless, quoting after approvingly from the Restatement commentary, MEYER, J., part took no majority immediately wrongful states “[a] consideration or decision of this case. appropriate intent to chattel for one’s own BLATZ, Justice, Chief (concurring in purposes is the essence of the ‘conversion part, dissenting in part). or theft’ exception.” This is misstate- law, ment of the as it redefines
I conversion concur with the majority opinion that to mean theft effectively eliminates intentional dominion or control neces- exception sary conversion from for conversion cannot be shown permission rule. a holding departs accidental destruction Such of the vehicle in- from the principles volved in the set forth in prior collision. I also our agree with case majority holding law. See Milbank that “closer Mut. Ins. Co. v. analysis” risk United States Fid. & inappropriate Guaranty under the (Minn.1983). presented circumstances I N.W.2d 160 respect- here. The rule enunci- *9 fully however, disagree, majority ated disposi- it difficult— makes tion of this case. To perhaps impossible conclude that imagine any Chris- fact —to tensen, who had consumed “about six scenario other than theft that pre- would beers” before taking the van for a drive vent an owner being vicariously from lia- Therefore, respectfully I dissent ble. appeals. court of reverse the
would
PAGE, Justice, (concurring part,
dissenting part). join
I in the concurrence and dissent BLATZ. Justice
Chief
J.M., Respondent,
MINNESOTA DISTRICT COUNCIL OF GOD, OF ASSEMBLIES
Appellant, Respondent, Assembly Church, of God
St. James
Respondent, Appellant, Dvorscak, Defendant.
Jerald C4-02-1533,
Nos. CX-02-1584. Minnesota. Appeals
Court of
March 2003.