*1 65 subject prosecuted for the murder of Ms. involvement was the Haldorson Frederick’s shooting nearby not for the earlier into a proceedings, and she has separate criminal home. The Haldorson murder and ran- criminally responsible ac- held for her been “target practice” nearby dom the house that Esler was tions. The evidence reveals separated by were several hours and had way passive or controlled actor in this in no therefore, objectives; they different criminal prior or in the events to it. We murder parts were not of the same behavioral inci- conclude, therefore, the sentence State, Bangert dent. v. See offense, disproportionate to the and the (Minn.1979) (factors to consider in deter- by impos- trial court did not abuse discretion mining multiple whether violations constitute ing upward departure. durational time, single unity behavioral incident are place, objective). Although and criminal II. homeowner was “victim” of Esler’s earlier argues Esler the trial court abused session, “target practice” Esler was found by ordering pay him discretion restitution guilty murder, premeditated which in- to the homeowner and homeowner’s might have two linked the incidents into a company damage he caused earli- surance Thus, single course of conduct. we cannot day shot at a house located er that when he say that the homeowner was a “victim” of the group near the home. He contends this conclude, therefore, Haldorson murder. We separate incident was and distinct from the that the trial court discretion in or- abused shooting of Ms. Haldorson and therefore the dering pay Esler to restitution to the home- and the homeowner’s insurance homeowner separate owner and insurer for this behavior- company meaning are within the not victims al incident. Act, Right Minn.Stat. Victim’s (1994). therefore, § argues, 611A.01 Esler DECISION order should be vacated. restitution We affirm the trial court’s order sentenc- argument. concurs with Esler’s state ing Esler to 382 months incarceration. We directing reverse the trial court order Esler “[0]nly the victim is entitled to re pay restitution to the homeowner and the Harwell, v. ceive restitution.” State company. homeowner’s insurance review de N.W.2d part part. 1994). Affirmed and reversed nied June Under the stat ute, “victim” is defined as either a natural
person corporation or a that incurs loss as a 611A01(b). §
result of a crime. Minn.Stat. restoring
[T]he word “restitution” connotes compensating If the victim his loss. KABANUK DIVERSIFIED INVEST- legislature intended the term be MENTS, INC., Tropix Beach d/b/a loosely, punitive a form of used more Club, Appellant, damages, it should have used some other particular word or made its use of the word clearer. CREDIT GENERAL INSURANCE COMPANY, Respondent, Dillon, 387, 395, rev’d on State grounds, other Hass, Respondent, David Any broader entitlement to restitution must Chavez, Brian Defendant. legislature. be mandated Id. directly “[W]here the victim’s losses are No. CO-96-322. by [the caused conduct defendant’s] Appeals Court of of Minnesota. nothing
which he was convicted there is im- Aug. 1996. proper ordering restitution.” State v. Ol- son, Review Denied Oct.
(emphasis supplied). agree that Esler’s com
We instance,
ports with the law. In this he was *3 count), retention,
(separate negligent in- fliction of emotional distress. assault,
At respondent the time of the Company Credit General Insurance insured general liability under commercial Baill, Theesfeld, L. Steven Yost & policy. insurance included an at- P.L.L.P., Minneapolis, Appellant. excluding bodily inju- tachment P.A., Ashley, Condon, James P. & Johnson ry property damage arising out of an Minneapolis, Respondent Credit General actual or threatened assault or Pur- Company. Insurance endorsement, suant to this Credit General respondent against refused to defend Hass’ Ellis, Jeffrey Kramer, P.A., M. Messerli & *4 Tropix declaratory lawsuit. a instituted Minneapolis, for Respondent David Hass. judgment against action General Credit ar- Considered and decided guing that Credit General had a KALITOWSKI, P.J., PARKER and and against defend it Hass’ lawsuit. Credit Gen- RANDALL, JJ. brought summary judgment eral a motion
contending policy’s that the assault and bat- tery clearly endorsement unambiguously OPINION precluded coverage any for and all RANDALL, Judge. arising conduct battery. assault and Appellant response, Tropix argued Kabanuk Diversified Invest- endorse- Inc., ments, Club, ambiguous Beach ment was insti- and should be con- d/b/a declaratory judgment seeking tuted a action strued in of coverage. Hennepin favor County respondent determination of whether District Court Cred- found endorse- required was unambiguous granted General to defend a ment to be respon- it in personal injury brought respondent summary judgment. suit dent’s motion for Tro- pix appeals. David Hass. Credit brought General a mo- summary judgment, tion for arguing that the assault and endorsement in contained ISSUE Tropix clearly its insurance with 1. Did the trial court in considering err
unambiguously
any coverage
excluded
for
Tropix’
summary
cross-motion
and all conduct
out of an assault
judgment?
agreed
The trial court
2. Did the trial
in concluding
court err
granted summary judgment in Credit Gener-
that
the Credit General assault al’s favor. We affirm.
battery endorsement
not ambigu-
was
ous?
FACTS
trial
in concluding
Did the
court err
27, 1994,
September
respondent
On
David
required
Credit General was
Hass was assaulted
Brian Chavez outside
against
the claim of
the Tropix
night
Beach
club
downtown
negligent
infliction of emotional dis-
Minneapolis. Hass was attacked from be-
tress?
injuries
hind and suffered extensive
to his
4. Did
expec-
the doctrines of reasonable
face, mouth,
eye
sockets. Chavez was
illusory coverage provide
tations and
charged
first-degree
with
assault. He ac-
present
case?
cepted
plea bargain
and confessed to the
lesser
attempted
included offense of
first-
ANALYSIS
degree assault. David Hass filed a civil com-
plaint against
seeking damages
appeal
Chavez
summary judg
On
assault, battery,
ment,
reviewing
intentional infliction of
court
tois
determine
suit,
emotional
any genuine
distress.
In his
Hass also whether
issues of material fact
sought damages
alleging
from Tropix
negli-
exist
correctly
and whether the trial court
gent supervision, hiring, training, supervision
applied
University
the law.
v.
Offerdahl
Clinics,
R.
P. 56.03 has
pursuant
427 notice
Minn. Civ.
N.W.2d
Hosps. &
Minn.
summary judgment
where
not been satisfied
coverage issues are
“Insurance
hearing
granted
pre-trial
at a
or other
was
Farm
for the court.” State
questions of law
hearing,
discovery
full
has been
(Minn. comparable
62, 64
Seefeld, 481 N.W.2d
Ins. Cos. v.
no material
conducted or where there are
1992).
trial
not defer
This court need
party
dispute, judgment
for one
facts
legal
issues.
purely
on
decision
court’s
law,
and there is no
proper as a matter
Pub.
Ass’n v. Minnesota
Elec.
Frost-Benco
objecting party
prejudice to the
result
Comm’n,
N.W.2d
Utils.
Lappe
lack of notice. See Anderson
1984). Thus,
is de novo. Nation
our review
266, 275, 224
gaard, 302 Minn.
Bunton,
Family Ins. v.
al
(defendant’s
(1974)
untimely motion for
in
(interpretation of an
summary judgment
properly
considered
review).
subject to de novo
surance
plaintiff’s motion for
by the trial court where
summary
properly
judgment was
before
I.
judgment
matter of law was
court and
as a
argues
begin,
To
Credit General
Mercury
Paul
appropriate); Niazi
St.
summary judgment
Tropix’
cross-motion
227, 121
115.03(a) of
untimely pursuant
to Rule
(1963) (unless
prejudice can be shown
Practice and
the Minnesota Rules General
summary
objecting party,
the exercise of
*5
by
trial
improperly considered
therefore
sound);
pre-trial
judgment at
is
Wikert
court.
Gravel, Inc., 402 N.W.2d
Northern Sand &
(trial
178,
court did not
182
Here, Tropix
General
did
serve Credit
considering summary judgment motion
err in
summary judgment
with its cross-motion
hearing
no
days before
date where
filed 8
hearing date
days before the
until nine
dispute, judgment
as a
material facts were
motion for
for Credit General’s
scheduled
proper, and there was no
matter of law was
object-
summary judgment. Credit General
objecting
prejudice
party
as
result
ed,
cross-motion for sum-
arguing that
(Minn.
notice),
May
review denied
the lack of
untimely
mary judgment
because it was
18, 1987).
days
28
of the scheduled
not filed within
rejected Credit
hearing date. The trial court
Although Tropix’ cross-motion for sum-
argument and consid-
untimeliness
General’s
days
mary
nine
before
judgment was filed
merits. Ultimate-
the motions on their
ered
date,
hearing
Credit General
the scheduled
ly,
ruled in Credit General’s
the trial court
Tropix raised no new
prejudice.
no
suffered
favor.
motion,
is no
arguments in its
and there
“caught off
indication Credit General
115.03(a) provides that no dis-
Rule
meaningful opportunity
guard”
denied a
nor
unless the
positive motion shall be heard
Tropix’ argu-
respond to
prepare
proper notice and
moving party serves the
affidavits,
ments,
and exhibits.
supporting
days prior to the
least 28
documents
Moreover,
of law submit-
the memorandum
hearing.
56.03 of the Minne
scheduled
Rule
Tropix’ moving papers is enti-
part
ted
provides that
Procedure
sota Rules of Civil
Law in Re-
“Tropix’ Memorandum of
tled
summary
gov
be
judgment motions shall
Support of Cross-Motion
sponse to and
115.03,
that “in no event
Rule
but
erned
arguments are
Summary Judgment” and the
days
motion be served less than
shall the
response to Credit
reasonably
as a
construed
heating.” Absent a
the time fixed for
before
summary judgment. As
General’s motion
adversary,
peri
by the
the time
clear waiver
timely
such,
filed in a
Tropix’ response was
mandatory.
requirements of rule 56.03 are
od
115.03(b)
R.
Pract.
manner. See Minn. Gen.
No.
Independent
Sch. Dist.
McAllister
dispositive motion must
(party responding to
(1967);
549, 550,149
supplemental
of law and
file memorandum
Bontjes, 488 N.W.2d
Ins. Co. v.
Tri-State
days
before
and exhibits at least
affidavits
(Minn.App.1992).
Therefore,
hearing).
it was
scheduled
summary
for the trial court to consider
upheld
inappropriate
Minnesota courts have
summary judgment
Tropix’ cross-motion for
10-day requirement of
judgments when the
(a)
as a
simply
response to Credit General’s
the actual or
assault
threatened
or
summary judgment.
motion for
suppress
or the failure to
or
prevent
such action
the insured
II.
by anyone
or
else for whom the in-
General,
Tropix contends that Credit
responsible,
sured
legally
is
or
insurer,
duty
as its
against
had a
to defend it
(b)
negligent:
Tropix argues
Hass’ lawsuit.
that because
(i) employment;
duty,
Credit General breached this
it is enti
tled to recover the costs it incurred in de
(ii) investigation;
against
fending
Hass’ lawsuit. Credit Gener
(iii) supervision;
al,
hand,
on the other
that its
contends
(iv)
clearly
unambiguously precludes
training;
cover
age
for all
an assault
(v) retention;
person
for whom
insured is or
An
insurer
not bound to defend
legally responsible
ever was
on a
insured
claim outside the insured’s
whose
conduct would be excluded
policy coverage. Rulli v. State Farm Fire &
(a) above.
Cos.
2. Exclusion
2.a.
Commercial Gen-
1992).
review denied
Feb.
Where
Liability Coverage
eral
Form delet-
that,
alleged
allegations
the claim
is based on
entirety
replaced
ed
its
proved,
if
fall within the
of coverage
terms
following:
provided
for in the
does
insurer
duty
Id.;
have a
Economy
defend.
Fire
“Bodily injury”
a.
“property
dam-
Iverson,
& Cas. Co. v.
age” expected or intended from the
to defend exists
standpoint of the insured.
*6
any part
where
arguably
of the claim is
appeal,
On
it
allega-
is not claimed that the
scope
within the
policy. Economy
of the
tions
contained David Hass’ lawsuit do not
Fire,
declines defend the insured. Lanoue v. policy, the court’s function Companies, Fireman’s Fund Am. is to ascertain Ins. 278 49, (Minn.1979); give parties’ N.W.2d 55 effect to the Morrison v. intentions. Fill Swenson, 127, 137-38, 142 274 Minn. more N.W.2d v. Iowa Nat’l Mut. Ins. 344 Co. N.W.2d (1966). 640, 875, 647 (Minn.App.1984). doing, 877 In so the language policy of the must be construed Here, Tropix’ general liability commercial according parties used, to the terms the have policy following contained the endorsement: language given with ordinary the used its EXCLUSION —ASSAULT meaning give and usual as so to effect to the
AND BATTERY
of
parties
appears
intention
the
as it
from the
Dairyland
Implement
contract.
Ins. Co. v.
pro-
This endorsement modifies insurance
236,
45,
Dealers
294 Minn.
following:
under
vided
the
244 —
(1972).
806, 811
An
policy
insurance
COMMERCIAL GENERAL LIABILITY
ambiguous
is considered
if it
reasonably
is
COVERAGE PART
susceptible
interpretation.
to more than one
Corp.,
1. This
apply
insurance does not
to
Hubred v. Control Data
“bodi-
ly injury”
“property damage”
language
or
aris-
When the
of
ing out
exclusionary
of:
an
an
policy
clause to
insurance
precluded recovery
any
meaning
to
ous and
for the insured.
as
its
ambiguous,
is
doubts
Minnesota,
in favor of the insured
be resolved
See
Taste
488 N.W.2d
should
Roloff v.
of
(Minn.
poli
the
against the insurer who drafted
review
denied
Webber,
cy. Caspersen
1992);
City Minneapolis,
Oct.
Ross v.
(1973).
213 N.W.2d
(Minn.App.1987),review
23, 1987).
Sept.
denied
examining
parties,
the intent
the
After
whole,
language
at
policy
Ross,
injured
plaintiff
In
was assaulted and
issue,
concluded that
there
the trial court
Ross,
wrestling
leaving
as he was
match.
ambiguity
that the endorsement
no
was
sponsor’s
match
coverage Tropix.
court
to
The trial
excluded
liability
general
to
insurer
refused
provision
reasonably
is
read
ruled
battery
based on an assault and
exclusion
a claim
from
exclude
policy providing that:
its
or
assault and bat-
actual
threatened
“the
Anything
in this
policy
contained
by
tery,”
prevent
or the failure to
such action
contrary notwithstanding;
agreed
it
is
employees.
Tropix or its
policy
not cover
understood that this
shall
however,
the exclu-
Tropix,
claims
injury
bodily
or death caused
it
language
ambiguous
is
sion’s
because
arising directly
indirectly
or
out of or
or
meaning.
one
susceptible to more than
battery
an assault and
nature
an
introduced
affidavit
support,
or not
whatsoever whether
committed
Anson, profes-
report
Christopher
from Dr.
or at
direction
insured.
University
English
sor
at the
of Minneso-
rejected
Id. This court
Ross’s
language
ta.
Anson concluded that the
Dr.
battery
the assault and
exclusion
ambiguous”
“syntactically
ambiguous, holding that:
interpretations.
to two
open
different
Anson,
language
Dr.
can be
According to
necessarily ambiguous
contract is not
[A]
(1)
any actual or threatened
read to:
exclude
simply
parties
advance differ-
because
when it is committed
assault or
Moreover,
ing interpretations of it.
‘the
(Tropix)
or is committed
those
ambiguity
no
read
right
court has
i.e.,
responsible,
Tro-
legally
whom
plain
of an
language
into
insurance
pix employees, as
as the failure of Tro-
well
against
the one who
in order
construe
pix
employees
prevent
assault
or its
such
plain lan-
prepared the contract.’ The
battery by Tropix
employees;1
its
or
*7
clearly
guage
policy
here
excluded
(2)
coverage
that the endorsement excludes
coverage any
out of an
battery,
of
any
for
assault or
or the failure
assault or
prevent
or its
to
such
employees
the insured
Fire &
citing
v. State Farm
Id. at
Estes
battery regardless of who com-
assault and
Co.,
(Minn.App.
Cas.
it was
it.2 The trial court stated that
mits
1984),
grounds,
other
on
modified
by
analysis,
Dr. Anson’s
not-
persuaded
(Minn.1985).
beyond
ing
analysis
“the
extends
that
well
Similarly, Rolojf,
interpreted
this court
plain
ordinary meaning.”
battery
that stated:
an assault and
exclusion
court has had two occasions in which
This
BATTERY EXCLU-
battery
ASSAULT AND
interpret
to
assault and
exclusions
hereby
It
is
understood
the
at issue here.
In both
SION.
similar to
one
under
instances,
coverage
apply
that
shall
agreed
court
no
this court affirmed the trial
claim,
any
or suit
unambigu-
policy for
demand
that the exclusions were
this
decision
following
interpretation
interpretation
following
the
comes from
1. The
comes from the
This
grouping:
grouping:
word
word
battery” or
"actual or threatened assault or
battery”
or
assault or
“actual
threatened
prevent
suppress
failure
or
such ac-
"the
or
tion”
suppress
prevent
or
ac-
"the failure
such
by
by
by
anyone
for
or
else
tion
“the insured
by anyone
insured
else for whom the
"the
or
responsible."
legaEy
is
whom
insured
legally responsible.”
insured
battery,
pleaded,
based on assault and
and assault
he
Hass claims
suffered emotional
accident,
placed
shall
be
allegedly
deemed
whether
distress when he was
in a
physical
by Tropix.
or
of
danger
not committed
or
the direction of
zone
findWe
Tropix’
unpersuasive.
the Insured.
Rolojf,
III. involving limited to cases contracts with hid Tropix argues Ross, 914; furthers that even if den exclusions. 408 N.W.2d at the coverage exclusion here excluded for see also Corp., Gunderson v. Ins. Classified bodily injury arising (the (Minn.App.1986) of assault and bat 397 tery by anyone, expectations Credit General still had a doctrine of reasonable not does duty to neghgent defend for Hass’ of apply claim of policy where the terms the are clear infliction of Tropix unambiguous); emotional distress. main v. and Park Government Em Co., tains neghgent that Hass’ ployees infliction emo Ins. 396 N.W.2d 902-03 (doctrine tional allege injury distress claim does of reasonable ex assault, stemming rather, pectations but as limited to the facts as set in forth (Minn. IB, notes, Atwater), Tropix denied Feb. As Credit General review was not Farm, 1986); charged premium battery a Merseth v. State Fire & Gas. for assault and (doe- Co., 16,18 (Minn.App.1986) coverage policy’s because the intent was to ma- coverage. coverage is limited to those instances where exclude such Had such trine included, jor in policy provisions Tropix’ premiums are hidden the been would have expecta- operate higher. Tropix say to defeat the reasonable been paid pre- cannot it (Minn. insured), functionally tions of the review denied miums for coverage. nonexistent 13,1986). Aug. Tropix paid premiums coverage for the it Tropix pay any had. premiums did not for concedes that the assault bat- type coverage the it needs here and does tery endorsement was attached to the Credit coverage not have it now wishes it had. The Liability Coverage that it General Form and trial in refusing apply court did not err to the gen- modified the insurance contained illusory coverage doctrine of to benefit Tro- addition, liability policy. eral pix. court, language unambiguous. The trial therefore, refusing apply did not err to DECISION expectations. doctrine of reasonable duty Credit General did not have Tropix also doc Tropix against Hass’ lawsuit. The illusory coverage applies. trine of The doc battery terms of the assault and endorse- illusory coverage provides trine of that “lia excluding coverage ment such are clear and should, bility possible, insurance contracts if Similarly, unambiguous. Credit General did so as not to be construed be delusion Tropix against not have a to defend insured.” Jostens negligent Hass’ claim for infliction of emo- Northfield de review tional distress. The emotional distress arose 27, 1995), April quoting nied Motor out of the assault Chavez. Smith, Casualty Vehicle Co. only pay premiums was asked (1956). 151, 157, 490-91 This coverage for it charged had. It was not ap court has held that the doctrine is best have, premium coverage for that would on plied premium part specifi “where facts, this set insured them. Credit Gen- cally particular type period allocated to a coverage eral’s intention was to sell that coverage coverage and that turns out to be Tropix. It pay did not. did not functionally nonexistent.” Id. at 119. The expectations it. The doctrines of reasonable properly apply trial court refused to the doc illusory coverage apply. do not illusory coverage. trine of No evidence was Affirmed. presented any premium specifically coverage non-employee allocated as PARKER, Judge (dissenting). battery sault or claims. respectfully I dissent would reverse. Tropix argues thought pur- that it it had Grammatically, report as Professor Anson’s coverage non-employee chased assault. demonstrates, susceptible the exclusion is Tropix claims that assault is, thus, meanings ambiguous. two exclusion, interpreted by the Credit Gen- conclusion, granting summary trial court’s court, effectively eral and the trial would judgment, analysis this “extends well up deny swallow it beyond plain ordinary meaning” confers thought purchasing. it was That *9 syntactically ungram- surprising status on There, rejected in Jostens. the court correct, usage. devastating matical If it is a rejected paid that it the insured’s eustomaiy use of the lan- indictment our $90,000 comprehensive liability policy for a guage. yet nothing in return. Id. at received comprehensive poli- successfully brought summary 118. We noted The insured cy judgment against plaintiff ground “afforded excess and umbrella on the him, variety duty damages for a wide other than it owed no his assailant not employee having those from discrimination.” Id. been an of the bar. The only duty appealed order from concerns defend, i.e., the cost of the successful
summary judgment liability. motion on duty to defend is broader than
Since the indemnify, and since burden insurer, proving an exclusion is on the oppose
since there was no evidence to evidence, expert opinion I
insured’s would summary judgment im-
reverse the order as
providently granted.
Larry HOTCHKISS, James
Petitioner, Appellant,
COMMISSIONER OF PUBLIC
SAFETY, Respondent.
No. C8-96-181. Appeals
Court Minnesota.
Aug. 1996.
Review Denied Oct.