*1 owned, actively the officers controlled corpora-
participated in the business of the Finally, corpo- this court concluded a tion. personally held liable rate officer can be person’s prop- for the conversion of a third actually participated or erty if the officer acquiesced Bay v. Tonka it. Holzer Sales, Inc., Marine
Yachts & (Minn.App.1985),pet. rev. de- 30, 1986). nied June case, Similarly, present in the Converse intimately aspects was both involved in all Alpine’s responsible business and for the design purifiers and for use air Alpine’s promotional
all of claims. Accord- ingly, we did not conclude holding personally
err Converse liable.
DECISION (1) The trial court did not err in determin- ing protection violations of the consumer proven by preponder-
statutes must be evidence; (2) determining ance of the verti- price-fixing agreements per cal are a se law; (3) violation of antitrust Minnesota trial; (4) denying Alpine jury making its fact; (5) restitution; findings granting (6) awarding the state its costs attor- fees; (7) ney imposing penalty; a civil denying the admission of additional testi- mony; holding personally Converse liable.
Affirmed. HEWITT, Respondent,
Kathleen J. GROUP, al., Appellants. APOLLO et
No. C4-92-671. Appeals of Minnesota. Court Sept. 1992. Review Denied Nov. *2 Bader, Paul, respon-
Michael M. St. dent. Cosgriff, Stellpflug,
Roderick C. Janet Minneapolis, appellants. HUSPENI,
Considered and decided P.J., FOLEY,* and NORTON and JJ.
OPINION
NORTON, Judge.
Appellants, Apollo Group and United Fidelity Company, Guaranty States & chal- lenge denying the trial court order them a compensation subrogation recov- ery awarding proceeds the entire aof third-party negligent settlement with a respondent, tortfeasor Kathleen J. Hew- itt.
FACTS employed
Apollo Group aas recruiter for candidates College for the Stritch Cardinal masters program. Respondent’s job requires her to give travel to various locations to seminars 10,1989, to recruit candidates. On October scope while in the course and of her em- ployment, respondent severely injured in a accident. As a result of multi-vehicle accident, appellant States Fideli- United G) (USF ty Guaranty Company paid & & benefits to dent. third-party
Respondent initiated a tort action the other driver involved A reached the accident. settlement was $50,000 policy for the limit of the tortfea- addition, In sor’s automobile insurance. $30,000 under her respondent received own auto insurer’s underinsured motorist cover- age.
* judge Appeals, acting by Retired of the Court of 2.§ Const, VI, appointment pursuant Minn. art. portion agreement parties, III. Is G
By USF & entitled to a recovery against to- the underinsured mo- settlement by respondent? torist benefits received taling the amount of workers’ time, paid tion benefits IV. Does the evidence *3 subroga- represented USF & G’s amount court’s allocation of recoverable and nonre- 176.061, under Minn.Stat. tion interest § damages? coverable initially placed interest-bearing in an was pending pursuant trust account allocation ANALYSIS agreement parties the or a dis- between trict court allocation. I. negotiations G re- USF & continued compensation Whether workers’ carri
garding
apportionment
the
of the settle-
subrogation recovery
er’s
under Minn.Stat.
16,
proceeds through January
ment
176.061,
(1988)
subd.
is
when
6
barred
§
employee
fully compensated
is not
22, 1991,
January
appellants
On
filed a
nonrecoverable
question
is a
of
petition
determining
for an
sub-
order
their
such,
subject
law. As
it is
de
novo
rogation interests
the
Com-
with Workers’
court.
Chromy
review
this
A.J.
pensation
Department
the
of
Division of
Constr. Co. v. Commercial Mechanical
29,
January
Labor and
On
Industry.
Serv., Inc.,
579,
582
subrogation manager
Department
of the
of
1977).
Industry
third-party
Labor and
issued a
allocating
proceeds
order
entire
the
of the
compensation
When workers’
ben
tort
settlement amount
accordance with
paid
employee
efits are
aby
to an
third-
176.061,
(1988).
Minn.Stat.
subd. 6
§
tortfeasor,
the
its in
Respondent appealed
third-party
the
or-
are subrogated
employee’s
surer
to the
compensation
der to the
workers’
court
rights against
third-party
the
tortfeasor.
decision,
appeals.
August
In its
1991
176.061,
Minn.Stat.
subd. 5. When the
§
the
compensation appeals
court
employee’s
third-party
settlement with the
that the
third-
concluded
allocation
the
tortfeasor includes amounts
recovera
both
party proceeds
properly
was
the
before
ble and nonrecoverable under the workers’
subrogation manager and therefore vacat-
statutes,
compensation
the
has
third-party
ed the
order.
options:
two
to elect to have Minn.Stat.
176.061,
applied
pro
subd. 6
to the
§
18, 1991,
special
On
at
December
term of
ceeds
settlement
the Workers’ Com
Ramsey
Court,
County
the
District
pensation Division or
to have the district
sought
third-party
dent
allocation
allocate
proceeds
court
the settlement
be
proceeds. The
settlement
trial court allo-
tween amounts recoverable and nonrecov
proceeds
cated the entire settlement
to re-
under
compensation
erable
the workers’
spondent and
her
entitled
to future work-
statutes and then have the
Com
Workers’
compensation
benefits
offset
without
176.061,
pensation
apply
Division
section
176.061,
pursuant to section
subd. 6.
only
portion
6
subd.
of the settle
trial court denied
claim for sub-
proceeds
ment
allocated to recoverable
rogation. This appeal followed.
damages.
Wineman,
Henning
See
306
(Minn.1981).
552
choice
ISSUES
employee’s.
Damages
subject
subrogation
I.
USF &
Is
G entitled to a
compensation subrogation
to the workers’
recovery under Minn.Stat.
subd.
statute,
and therefore nonrecoverable
respondent
fully compen-
if
has been
insurer,
loss of
include amounts for
her damages
sated for
un-
nonrecoverable
consortium,
distress, pain,
emotional
suf
compensation
der the workers’
statute?
fering,
earning capacity.
and loss of
See
II.
Is USF & G entitled to a
Kaiser Northern States Power
case,
(Minn.1984).
and credit
future N.W.2d
In this
compensation
benefits?
chose
have the
district
proceeds
coverage
uninsured
allocate the
settlement
motorist
which was
provided by
amounts recoverable and nonre-
the same
company
between
insurance
provided
compensation
under the workers’
coverable
its workers’
insurance.
statutes.
Id. The court stated that there
nothing
in the record
justify
Appellants argue that USF & G’s subro-
that,
assumption
except for otherwise un-
gation rights
statutory
and contractual
compensated
loss,
wage
equity.
in nature and are not a creation of
represent
insurance settlement
a double re-
Therefore,
subrogation rights
are not
covery. The court concluded that some of
dependent
on
proceeds may
the settlement
represent to
precondition.
nonrecoverable
as a
recovery,
some extent a double
but that it
Appellants rely on Paine v. Water Works
*4
unlikely
seemed
that the settlement did not
(Minn.1978),
Supply
subrogation recovery
and a credit
R.Civ.P. 52.01. Where the trial court’s fac-
compensation
findings
future
benefits. We do not
reasonably supported by
tual
reach
we hold that the
evidence,
this issue because
they
clearly
are not
erroneous
rule bars
appeal.
and must be affirmed on
Mechura
right.
McQuillan,
App.1988).
III.
Appellants argue that
the trial court’s
Appellants argue
respondent’s
allocation of
uncompensated
$30,000 recovery in underinsured motorist
loss,
wage
suffering,
and future
computa
benefits should be included in the
temporary
disability
total
benefits was ar-
subrogation recovery
tion of USF & G’s
as
bitrary
unsupported
by the evidence.
by respondent
from
party.
a third
underinsured mo
Whether
Uncompensated Wage Loss
compu
torist benefits should be used in the
$13,-
argue
subrogation recovery
ques
tation of a
is a
uncompensated
000 amount of
wage loss is
subject
tion of
law
de novo review
speculative and does not coincide with the
this court.
Chromy
See A.J.
Constr. Co.
facts. The trial court record includes con-
Serv., Inc.,
v. Commercial Mechanical
*5
flicting
parties
affidavits from the
regard-
579,
(Minn.1977).
N.W.2d
582
ing respondent’s wage loss. The record
supreme
court has concluded that
copies
respondent’s
includes
of
paycheck
6,
Minn.Stat.
subds. 5 and
do not
for
period prior
stubs
the 26-week
to her
liability
include contract
and contractual
injury.
payments
injured
to
party
based on
The trial
weigh
court was able to
coverage.
uninsured motorist
Janzen v.
credibility of the affidavits and review re-
O’Lakes, Inc.,
(Minn.
Land
Findings of damages”). whether based on oral An award of is ex evidence, documentary or shall not greatly be set cessive when it so exceeds aside clearly unless Minn. adequate erroneous. what is as to be accountable on HUSPENI, passion prejudice. Judge (concurring specially). no other basis than Exch., Dallum v. Farmers Union Cent. agree I my colleagues that the full Inc., (Minn.App.1990), 462 N.W.2d appel- rule bars the exercise of 14, 1991). pet. rev. denied Jan. subrogation rights lant’s under the facts Respondent prove My analysis must the reasonable cer this applicable ease. law, however, differs damages by prepon a fair somewhat from that tainty of future majority. Eg derance of the evidence. Pietrzak v. (Minn.1980).
gen, Appellant heavily here relies on Paine v. Supply Water Works N.W.2d 725 injuries suffered extensive (Minn.1978) argue its entitlement to sub- to this date. which continue She has a rogation against permanent scar her left knee which is on from Subroga- the third tortfeasor. minimally subject to correction cosmetic Paine, submit, permitted tion was I surgery. persistent swelling She also has equitable because the doctrine of full recov- leg in her left which can be controlled there, ery inapplicable but because the compression stocking. Respon- use of a same existed in both the workers’ expects going she is dent’s doctor to compensation shop and dram actions: sales, working in be able to continue but is to receive worker’s [Widow] pain, there is a fair chance due knee dependency benefits measured may require surgery. she further percentage daily wage of her husband’s * * * compensate in order to her for loss past, present The record shows and fu- support. of her means Loss of means suffering resulting ture from re- precisely is also the element spondent’s injuries. The trial court was damages compensated to a widow un- clearly setting erroneous the amount *6 Shop der the Dram Act. suffering. for Id. at 731. Younkin, Cooper While v. 339 N.W.2d Temporary Future Total (Minn.1983) involves a workers’ com- Disability Benefits pensation subrogation claim and contains a equitable discussion of the doctrine of full Finally, appellants argue that recovery, Cooper I am not certain that setting damage court erred in the future controlling holding on that issue. The temporary disability amount of total bene- was, essence, Cooper in that a workers’ compensa- fits recoverable under workers’ compensation carrier was not entitled to tion at are correct $2725.80. subrogation against the trial court’s calculation of total in the settlement of an unin- benefits of 16 weeks at a week does $413 principle sured claim. That motorist’s amount, equal but rather $6608. Paine, in stated earlier does However, recovery the full rule controls challenge in it this case. While there is part and USF & G receives no of the alloca- language Cooper recognizing in instructive tion of the settlement funds because re- compensa- that an insured is entitled to full spondent fully has not recovered for her may right tion before an insurer exercise damages. Any in error calculation of the subrogation, it seems to me that lan- temporary total benefits is harmless. See guage may dicta. (harmless error). Minn.R.Civ.P. language Westen Westendorf Stasson, dorf (Minn.1983),recognizing equitable prin DECISION however, ciple recovery, is not dicta. full full rule bars involved a Health Main While Westendorf subrogation recovery under Minn.Stat. Organization tenance rather than a work 176.061, subd. 6. carrier, persuaded I am Affirmed. policy that the considerations of Westen- indistinguishable qualitatively dorf Certainly the present from those here. arguments which
same cost-containment subrogation in this might support case rejected by supreme were raised and court Westendorf. if, I conclude that in workers’ matters, right is to right subrogation, legisla- bow to courts, ture, not the should declare that to public policy be the of the state. PLASTER, Leroy
Richard petitioner, Appellant, Fesler, Janet C. E. Daubney John Law COMMISSIONER OF PUBLIC Office, Paul, Gary Bryant-Wolf, St. R. SAFETY, Respondent. Ohio, Elyria, appellant. No. C4-92-590. III, Gen., H. Humphrey, Atty. Hubert Appeals Court of of Minnesota. Watne, Gen., Paul, Sp. Atty. Joel Asst. St. respondent.
Sept. RANDALL, Considered and decided P.J., KLAPHAKE, and KALITOWSKI and *7 JJ.
OPINION
RANDALL, Judge. Appellant Richard Plaster’s driver’s li- cense was indefinitely canceled and denied public as “inimical safety” after dent Commissioner of Safety Public con- cluded had violated the “total abstinence” previously imposed condition upon driving privileges. his After a trial to court, appellant’s petition for reinstate- ment was dismissed. We reverse.
FACTS incidents,
Due appel- to alcohol related driving privileges lant’s were revoked un- implied der the DWI consent laws. completing After chemical dependency re- habilitation, appellant’s driving privileges