*1 summary A case. torney’s fees in this discretionary for review petition of a
denial any issues raised dispositive of is not Carlson, v. petition. Carlson in the (Minn.Ct.App.1985), 1985). (Minn. denied, Oct. pet. rev. discretionary review denying An order not consider the the court will means that Therefore, order cannot such an merits. in futurе cases. relied on including in attor- court erred The trial prosecution. the costs of ney’s fees in DECISION delay filing in his brief is not Appellant’s The ordinance dismissal. un- grounds for charged appellant is not der which vague. The unconstitutionally evidentiary rulings nor did not err its er- The trial court’s jury instructions. jury during to the ror in its cоmments harmless. The costs of deliberations was Minn.Stat. 631.48 prosecution, under § 320-13, include Hugo City do not Code § prosecution attorney’s fees. costs reduced $393.88. must be modified and remanded for Affirmed as prosecution in the sum of entry of costs of $393.88. FIRE AND MARINE
The ST. PAUL COMPANY, INSURANCE Respondent, SPARROW, Appellant, Lee Terri Erickson, Respondent. No. C2-85-651. Appeals of Minnesota. Court Nov. 23, 1986. Denied Review Jan.
under a commercial policy, auto insurance part. reverse in We
FACTS 20, 1982, Sparrow
On June and her sister loading wagon were a concession by owned Anthony their brother prepara- Erickson in taking tion for wagon to the Grand Rapids fairgrounds community for a cele- wagon bration. The had two axles and wheels, four wagon and the concession Gladiator, hitched Jeep to a also owned Anthony jeep wagon Erickson. The parked alongside were a Taco John’s Res- by Anthony taurant owned Erickson. paper noticed napkins that some plate wagon on a hot inside the were smouldering. attempted As she to remove napkins, they burst into flames and ignited fumes leaked from either a loose propane gas fitting gasoline from a can wagon in the that had a cloth inserted spout cap. Sparrow for a severely burned. Jeep
Both the and the concession covered a commercial auto St. Paul Fire and Marine An- thony Sparrow brought Erickson. negli- gence personal injuries action for the responded received and St. Paul with this declaratory action. coverаge be- employee
cause was an of the insured, precluded by and thus employ- an Bateman, Duluth, Charles B. for St. Paul ee exclusion. The further found that Fire and Marine Ins. Co. fire did not arise out of the mainte- Smith, Minneapolis, Richard C. for Terri vehicle, nance use of a thereby motor Sparrow. Lеe precluding recovery the no under fault ben- Hagglund, Minneapolis, Clarance E. Car- policy. Finally, efits the court deter- Richards, III, Virginia, ver for mined that the involved in the fire Erickson. did constitute an uninsured motor ve- policy, thereby hicle under the precluding Heard, considered and decided FO- reсovering from uninsured motor- LEY, P.J., and and NIEREN- FORSBERG policy. Sparrow ap- ist benefits under the GARTEN, JJ. peals. OPINION ISSUES NIERENGARTEN, Judge. 1. Sparrow employee Was Terri Lee appeals insured, Anthony Erickson, Terri Lee so as to judgment coverage trigger pre- existed exclusion and documentary depositions, evi recovering and other under elude dence, including by Anthony a statement coverage? liability submitted to trial Erickson that was in the concession Did the fire taped written forms. court in both and use of out of the arise Thus, “[ijnsofar as the court’s deter determining purposes of motor vehicle documentary upon evi minations are based no fault benefits? *3 novo, dence, may de this court review them to Sparrow entitled claim bene- Was upon they depend the extent that but to coverage the motorist fits under uninsured conflicts, testimonial the resolution policy? of the Mer ‘clearly applies.” errоneous’ standard Sandeen, 714, riman v. 267 N.W.2d 717 ANALYSIS (Minn.1978) (citing In Trust Known as re Scope of Review Properties, Iron Great Northern Ore 308 appeal Generally, scope of review on 225, 302, (1976). 221, 305 Minn. “clearly erroneous” governed by the is this, free From conclude this court is to we (“Find- Minn.R.Civ.P. 52.01 standard. make its own determinations. not be set aside unless ings of fact shall erroneous, regard clearly and due shall be I. of the court opportunity to the given liability The insurance witnesses”). credibility Re- judge the
to wagon/trailer St. Paul for concession Erickson, claims spondent Anthony who employees of excluded the insured. employee, argues, his Sparrow was not however, case should be that in this review employment Whether an relation findings the trial court’s de novo because fact, ship question exists is a and five entirely on written evidence. based ques resolving factors are utilized Supreme Court has deter- Milk
The Minnesota Holzemer Minnesota tion. standard of review mined that different In 259 593 order N.W.2d solely on applies when the trial relies person to determine whether a em documentary as the basis for its evidence contractor, independent ployee or an courts decision. right look at the to control the means and ** * pay performance; the critical evidence is docu- the mode of Where manner of necessity ment; tools;
mentary, furnishing there is no to defer of materials premises the trial court’s assessment of the mean- where the work control credibility of that evidenсe. We ing done; employer right and the deferred to the trial important have some cases Id. discharge. at 593. most The * * findings upon such evidence right to the means factor is the control rule is articu- We think the better that Id. performance. manner of Frank in Orvis v. by Judge lated Jerome (2 Cir.1950): Higgens, F.2d Right A. The Control Mеans * * * “ judge Where a trial sits without and Manner of Performance. jury, the rule varies with the character Sparrow argues had that Erickson (a) If he a fact of the evidence: decides control over activities of concession alone, are issue on written evidence we wagon. fairgrounds Sparrow selected the credibility, as able he to determine commitment, 20th and Erick- the June * * * ” may disregard finding. so we son out of the state on that date. In re Trust Known as Great Northern Sparrow *4 wage mum was never discussed. Erickson could her make own decisions regarding arrangement deposi- in сonfirmed this purchase supplies, where to and she and testimony. stated in tion He a recorded agreed split profits. her brother to the statement, however, “expected that he to minimum.” pay [Sparrow] a II. Furnishing The C. Materials of wagon The concession was an insured and Premises. Tools Cоntrol of the vehicle under commercial auto acknowledges Sparrow that Erickson St. Paul. A trailer is a motor jeep wag- the the furnished and concession vehicle or being when connected to towed however, Previously, on. Erickson 65B.43, a motor vehicle. Minn.Stat. § permitted Wally prior one Johnson of use (1985). 2 subd. Basic economic loss bene- wagon with and him the Erickson allowed injuries “arising fits are available for out profits,, to receive a share in the an obvious of the maintenance or of a use motor ve- non-employment relationship. Erickson (1985). hicle.” Minn.Stat. 65B.44 Subdi- § agrеed products Sparrow to advance but provides vision 3 of section 65B.43 further supplies was free to obtain as follows: any source. The contained Taco “Maintenance or use of a motor ve- advertising John’s and Erickson did not hicle” means or use maintenance of a plаn supervise operations con- while the vehicle, including, motor vehicle as a inci- stand was at the fair. cession dent to maintenance use as a ve- Paul Erickson and St. counters that built hicle, entering into, occupying, and preclud- trailer owned concession thus alighting from it. Maintenanсe or use of finding parties ing engaged that the * * * a motor vehicle does not include joint argues in a venture. St. Paul further in loading conduct the course of and un- that concession trailer was in fact a loading the vehicle unless the conduct part of the Taco business John’s owned occupying, entering while occurs into or supplied of his wife most alighting from it. going items was sell at 65B.43, (1985). Minn.Stat. subd. The § fair. that the accident did not dispute as to Taco There was a whether of arise out or use of personnel worked in John’s ever the conces- motor vehicle because the accident was un- wagon. sion related to the use of the trailer as a medi- Right Employer The Dis- D. Rather, of transportation. um of the fire oc- charge. curred in connection with concession Sparrow argues Accordingly, neither nor stand’s use as a restaurant. discharge Erickson could St. the trial court denied fault benefits. other. arise out of DECISION injury to for an In order vehicle, or use of motor the maintenance The record does not sustain the injury and between the causal connection finding that Terri Lee was transportation vehicle for the use of the Inju- an Erickson. present. North River рurposes must wag- ries received from fire a concession Dairyland Insurance jeep Insurance Co. on that is hitched to a do not arise of a motor of the maintenance use “ ‘something is less required connection vehicle. cause the tort sense and proximate than part. Reversed in being something more than vehicle ” injury.’ Id. at 114 mere situs FORSBERG, Judge, dissenting: omitted). The is (citation connection estab findings of respectfully I dissent. The injury a natural and when the is lished relation- employer-employee the court consequence use of reasonable ship amply supportеd evidence. omitted). (citation vehicle. Id. all, control First there evidence of concession the fire in the claims accident, performance. Er- Prior to the reasonable inci- a natural and Sparrow and how ickson showed her sister consequence the use main- dent and They operate the stand. at had worked tenance of the vehicle. supervised he let the stand while he before operate it on their The fact them own. argues the accident occurred out St. Paul decision-making authority that some restaurant, of the use of the delegated Sрarrow is inconsistent *5 and, therefore, the trailer the mere was employment relationship. with an injury. of situs Secondly, De- Erickson’s statement of This case is correct. St. Paul 9, arrange- wage a cember 1982 evidences v. Tlougan similar Auto-Owners Insur commissions, possibility ment with a of Supreme in which Minnesota ance Co. profit-splitting arrangement than rather a pick-up a cab to be mere Court found necessary joint venture: year old injury situs of when five child (sic.) Q. hourly Was Terri and be on an playing was burned while with matches. wage then or her ar- rate how was v. Auto-Owners Insurance Tlougan See rangement? 116, 310 N.W.2d Well, expected her just A. I told I Engeldinger v. State Automobile and also pay minimum then I her a and Underwriters, 202, Casualty 306 Minn. thought maybe if she worked as (1975) (court found that hard, money made a lot of well then out the use of death did not arise profit. I give would her some of the car, “but rather that automobile Q. Okay, you right if I so understand instrument, receptacle, situs of mere or up then this June inci- insured”). negligence of We primary paid by dent then she was the hour fire did arise out of the find that the not anything on commission or or a use of motor vehicle like this? laws. under the no fault Right, up A. until then there would suppose
have been no сommissions I doing time, III. got after she it full would have had a chance to make argument if she Sparrow’s final is that hourly wage more that’s than an Erickson, found to then be an doing. intending on what she was Erickson’s she is entitled benefits under Another, is the coverage. Because of factor to be considerеd uninsured motorist employment furnishing Most of finding relationship, of tools materials. our Erickson, do this the materials were furnished we not address issue. owner of Taco John’s. In his statement, all Erickson said that Minnesota, Respondent, STATE of paper products meat and stand used came the restaurant. There was no Thomas William separate accounting Taco between John’s MICKELSON, Appellant. against and the concession stand. Bills paid stand were out “take” No. C1-85-995. Taco John’s check. of Appeals Court of Minnesota.
Also there is evidence of control of the judge Erickson. The triаl Nov. presented conflicting documentary with 23, 1986. Denied Jan. Review testimony by Erickson. Erickson stated at deposition arranged his had community have the trailer at the event. statement,
In his earlier he maintained fairgrounds arrangements he made the had himself. The statement was made about event, dеpo-
six months after the while the sition was taken later. Erickson alone re- pointed title tained to the trailer. As court, by the trial fact negate this tends to joint claim venture. Because owner, Erickson was the sole he power premises. to control the He exer- by delegating authority
сised that control Sparrow. It should noted that Erick- son has an interest in the outcome of this relationship
case because to Ms. (brother sister) who seeks compensation. *6 upon well-recognized
Based considera- credibility, particularly tions of witness case, interest the outcome of the relationship parties opportu- and the facts, nity to remember the trial court found earlier statement more credible. discharge, As to the justifiably re- power served to terminate use of the trailer because he the sole
owner of the trailer. notes she could stock the also that 221, 225- Properties, Iron Ore 308 Minn. source; supplies any with (1976) (citations 226, 243 N.W.2d purchasing needed was not restricted omitted). Erickson’s Fur- items from Taco John’s. case, ther, argues Erickson im- Sparrow In the that present facts, Sparrow stipulation posed bookkeeping, no method of based its on a decision IK hours, and Paul clearly free to her own asserts that Erickson choose gave and had no directions to hire and Erickson fire and the other inspect Sparrow’s work. plan employees Taco John’s that at the worked stand. contrast, points Paul In St. permitted and her sister facts, Based on the above prior on the to June 20 “so to work stand court concluded that was an em get of it” he they could the feel and so that ployee disagree. of Erickson. We The supervise could and show them how employment facts do exhibit an rela operate the stand. tionship, but rather arrangement a loose Mode Payment. B. member, family allowing within a Spar deposition, In her testified row, to use concession to earn Erickson, she, agreed to a and her sister money. requisite some control for an payment arrangement prof- in which loose employer-employee relationship doesn’t ex split. mini- would be stated that She fairgrounds, ist. selected