*1 faith. Given evidence that the services projects
were being rendered construct- simultaneously, ed we can no find clear error in the trial court’s finding that the good overstatement faith mistake. DECISION ruling err by The trial court did not that respondents’ priority mechanics’ liens had mortgage,
over that appellant’s subcontrac- tor properly claims were re- included lien,
spondent respon- Witcher’s Ankeny’s dent lien voided due to overstatement.
Affirmed. MARKEL, Relator,
Edward PINES, OF CITY CIRCLE Commissioner Jobs and Training, Respondents.
No. C4-90-1444. Appeals Court Minnesota. Jan. 1991. Review Granted March Nathanson, Minneapolis,
Stan for Ed- Market ward Pines, City pro of Circle se. III, Gen., Humphrey, Atty. Hubert H. Liss, Gen., Sp. Atty. B. Steven Asst. St. Paul, for Training. Com’r Jobs and by and decided Considered P.J.,
KALITOWSKI, FOLEY NORTON, JJ.
OPINION KALITOWSKI, Judge.
Relator obtained a writ of certiorari seek- Department review of a decision ing *2 409 applied unemployment for com- Training (Department). Rela- Markel of Jobs Department pensation, but the denied his did not misconduct argues he commit tor appealed a claim for benefits. Markel to compensation purposes for referee, a hear- Department who conducted and could he lost his driver’s license when ing affirmed the of benefits. denial effectively job longer perform no affirm, a appealed Markel referee’s decision to disagree and duties. We representative, af- who
Commissioner’s the denial of Markel ob- firmed benefits. FACTS certiorari, seeking a writ of review tained employed was Edward Markel de- representative’s Relator of the Commissioner’s by respondent City of worker a utilities cision. April 1989 and Janu- Pines between
Circle job required that he ary 1990. Markel’s ISSUES pickup or truck. When City a van drive representa- 1. Did the Commissioner’s hired, he told he would Markel was was by incorporating new factual tive err a to retain need a valid driver’s license finding in his decision? job. representa- 2. Did the Commissioner’s employment City, by concluding to his with commit- Prior tive err that Markel driving viola- had committed two him from re- Markel ted misconduct 1970, guilty Markel to a pleaded ceiving unemployment compensation bene- tions. in driving while intoxicated and charge of fits? pursuant to license was revoked
1985 his
implied
laws.
consent
ANALYSIS
Minnesota’s
22, 1989,
evening
theOn
I.
asleep
while
and ran his
Markel fell
scope
Our
of review of
Commis
telephone pole.
a
The accident
vehicle into
is
sioner’s decision
limited:
working
in Mark-
after
hours and
occurred
light
in the
findings are
reviewed
Markel was under the
el’s own vehicle.
and, if
to
most favorable
the decision
at
Markel
of alcohol
the time.
influence
tending to
reasonably
is evidence
there
charged
with
while under the
them, they
disturbed
sustain
will not be
his driv-
pleaded guilty
He
influence.
appeal.
on
year.
for one
license was revoked
er’s
Inc.,
Foods,
370
Grotjohn v. Cornbelt
1989,
City placed
early
October
48,
(citing
(Minn.App.1985)
50
suspension
he did
on
because
Markel
Center,
Metropolitan Medical
v.
White
19,
a driver’s license. On October
have
(Minn.1983)).
25, 26
332 N.W.2d
1989,
driver’s
obtained a Sullivan
Markel
the Commis
appeal, we will review
On
only
license,
him to drive
which authorized
decision,' rather
representative’s
sioner’s
City.
by the
“B” vehicles owned
Class
v.
the referee’s. See Tester
than
Jefferson
143,
(Minn.App.
Lines,
145
358 N.W.2d
City,
for the
returned
work
Markel
13,
(Minn. Mar.
1984),
rev.
pet.
denied
license,
only
limited
he was
due to his
but
1985)
Div. Em
(citing
Chellson
State
truck,
City’s dump
and not
able to drive
335,
332,
Sec., 214
ployment &
City allowed
pickup
van or
trucks.
(1943)).
rinks,
sweep ice
to haul rock and
Markel
provided
legislature
The Minnesota
Markel
he needed
informed
but
that,
depart-
reviewing
decision
“C” license to resume
a Class
obtain
referee,
is free
the Commissioner
ment
Markel was unable
job duties.
normal
“affirm,
any find-
modify,
aside
license,
or set
and on or about
“C”
obtain Class
both,
decision,
of the
ing
fact or
discharged him
January
City
* *
*.” Minn.Stat.
his nor-
referee
perform
of his
because
may
(1984). The
license
Commissioner
a result
duties as
of the driver’s
mal
of the
independent
assessment
make
revocation.
based upon
1988).
evidence
question
evidence and
is not whether the
presented
testimony
the hearing
City
justified
Markel;
at
discharging
be-
rather,
fore the referee.
issue
is whether he should be
disqualified
receiving unemployment
from
Grotjohn, 370
N.W.2d at
*3
benefits.
Ress
See
v. Abbott Northwest
disputes
rep-
Markel
the Commissioner’s
Inc.,
Hosp.,
519,
ern
448 N.W.2d
523
finding
he ultimately
resentative’s
(Minn.1989).
pleaded guilty
charge
to the
of
argues
inability
Markel
perform
his
to
while under the influence of alcohol on
his
duties as
result of the driver’s license
22,
finding
sup-
1989. This
is
revocation did not constitute misconduct.
ported by
testimony
Markel’s own
at the
support
In
argument,
of this
Markel cites
referee,
hearing before the
and under our
Swanson v.
Corp.,
Columbia Transit
311
review,
scope
narrow
of
will
we
not disturb
538,
(1976).
248
732
In
finding.
the Commissioner’s
Swanson, a bus driver was involved in
three accidents while
duty.
he was on
The
II.
fired,
driver was
applied
he
for unem-
representative
The Commissioner’s
ployment compensation benefits.
The
determined that Markel’s
to drive
benefits,
Commissioner denied his claim for
trucks,
City’s
pickup
the
or
van
due to the
determining that he had committed miscon-
license,
revocation of
driver’s
constitut
warranting
duct
disqualification.
ap-
On
ed misconduct
him from the
peal,
Supreme
Minnesota
Court re-
receipt
unemployment compensation
of
versed, concluding:
benefits.
Minn.Stat.
See
separately, employee’s
Taken
accidents
1(b) (Supp.1989). “Misconduct” has been
only represent
of
incidents
inadvertence
defined as follows:
or
While we do not rule out
meaning
intended
of the term “mis-
[T]he
possibility
negligent
of a
of
* *
series
or
*
conduct”
is limited to conduct
amounting
inadvertent acts
to miscon-
evincing
wilful
disregard
such
or wanton
duct,
support
the evidence
not
does
such
employer’s
of an
interests as is found in
conclusion
this case.
disregard
deliberate violations or
of stan-
539,
(footnote
Id. at
248 N.W.2d
733
at
employer
dards of behavior which the
omitted).
right
expect
employee,
has the
to
of his
We
distinguishable,
conclude Swanson is
or in carelessness or negligence of such
because the driver’s
merely
actions were
degree or recurrence
as
manifest
negligent.
addition,
careless or
In
the em-
equal culpability, wrongful intent or evil
ployee in Swanson was still able to drive
design, or to
an
show
intentional and
accident;
for his employer
here,
after the
disregard
the employer’s
substantial
the revocation of Markel’s driver’s license
employee’s
interests or
duties and
perform
rendered him unable to
duties
obligations
employer.
On the oth-
for which he was employed.
inefficiency,
er hand mere
unsatisfactory
conduct,
good performance
failure in
distinguishable
We also find
the facts in
of inability
incapacity,
the result
or
inad-
Chippewa Springs Corp.,
Eddins v.
388
ordinary negligence
or
vertencies
in iso-
(Minn.App.1986),
N.W.2d 434
and Walseth
instances,
good-faith
lated
errors in
Wholesale,
v. L.B. Hartz
paid
disputes
he
the
the tickets
case,
In
present
impetus
the
the actual
tickets;
validity
of the
he was
of one
for Markel’s
the
was
Commis
good employee;
considered a
otherwise
Safety’s
sioner of Public
refusal to issue
and the six violations were minor and
Nevertheless,
him a Class
license.
“C”
the
period of more
two
occurred over a
than
for the
refusal
basis
Commissioner’s
was
years.
and one-half
Markel’s accident on
Eddins,
which was
result of Markel’s intoxi
that the conduct was failure more seri ous, demonstrating negligence or inadvertance nary the culpability [sic]. neces- unavailability
Smith’s for work due to his dump trucks and not other ve- disregard incarceration amounted to of hicles by employer. needed Markel’s employer attendance standards which his discharge was due to the Commissioner’s right expect obey. action, had a him to I his own. would not distin- guish the Eddins and cases Walseth Id. at 45. done, majority has but would follow those Here, also, public policy pro- we believe cases. treating hibits Markel’s violation as ordinary negligence or inadvertence. The representative Commissioner’s found legislature provided unemploy- has alcoholic, that Markel is an which the ma- ment reserves are “to be used for the bene- notes, jority legislature as well as the find- persons unemployed through fit of no fault ing that alcoholism is a serious illness. (1988). of their own.” Minn.Stat. 268.03 Contrary majority, to the I would also con- Markel’s was due to his clude that Markel’s accident caused “fault,” own he since chose drink and alcoholism should not be considered the drive. equivalent pay of intentional failure to speeding ticket.
We note that Markel anis alcoholic and legislature that the has characterized alco-
holism as a serious illness. See Minn.Stat. 268.09, 1(c)(2)(1988). subd. An individual
§ discharged who is “due to” his alcoholism may not be denied benefits disqualification under the misconduct 268.09, 1(b). Minn.Stat. subd. See § 1(c)(2). Here, Stat. how- In the Matter of the WELFARE OF ever, discharged Markel was not “due to” M.S.S., Minor Child. alcoholism, but because to drive due to the revocation of his license. No. C1-90-882. Appeals Court of of Minnesota.
DECISION Markel committed miscon- Jan. drive, duct when he chose to drink and resulting in the revocation of his driver’s consequent inability per-
license and his job form his duties. Affirmed. NORTON, Judge, dissenting.
I respectfully majority dissent from the opinion representa- and would reverse the tive of the It Commissioner. seems to me Nelson, this case is more like the Eddins eases where the em- Walseth ployees were as a result of the party:
action of a third in the aforemen- cases, employers’ tioned the actions of the insurers, here, while the action of the Com- Safety. missioner of Public Markel’s was based on in- one result, cident of As a the Com- Safety missioner of appears Public to have arbitrarily limited Markel’s class C license