STATE OF MINNESOTA
IN COURT OF APPEALS
David Goeman, et al.,
Allstate Insurance Company,
remanded; motion denied
Hennepin County District Court
File No. 05-2634
Robert W. Kettering, Jr., Douglas D. McGhee, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN 55402-3214 (for appellants)
Thomas D. McCormick, McCormick Law Office, P.A., 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondent)
Considered and decided by Minge, Presiding Judge, Lansing, Judge, and Klaphake, Judge.
1. A reply brief will not be stricken when it does not raise any new matters but merely rephrases arguments in order to rebut those raised by the respondent.
2. When, as here, two homeowners’ policies equally contemplate the risk of personal liability arising out of injuries sustained by a guest bitten by the family dog, the policies provide concurrent coverage and neither is primarily liable for purposes of application of the “closest to the risk” doctrine.
O P I N I O N
Appellants David and Charlotte Goeman and Trade Lake Mutual Insurance Company (Trade Lake) challenge the grant of summary judgment to respondent Allstate Insurance Company (Allstate), determining that under the “closest to the risk” doctrine, Trade Lake was primarily liable for injuries sustained by a child guest who was bitten by the Goemans’ dog while at their cabin. On appeal, Trade Lake argues that because both policies were equally close to the risk, the policies provide concurrent coverage. We agree, and reverse and remand. We further reject Allstate’s claim that Trade Lake’s reply brief inappropriately includes “new matters” and deny Allstate’s motion to strike.
In June 1998, an eight-year-old child was bitten by the
Goemans’ dog while in the living room of their cabin. This child was a guest at the cabin, which is
At the time of the incident, the Goemans also owned a primary residence in Richfield, Minnesota. The Goemans insured their cabin through Trade Lake and their primary residence through Allstate. Both homeowners’ policies provided the Goemans with $100,000 in personal liability coverage; the Trade Lake policy, however, limited its coverage to occurrences within the state of Wisconsin.
In October 2001, the father of the child who was bitten sued the Goemans. Trade Lake assumed defense of the lawsuit. In October 2002, a jury awarded the child $34,209 in damages, and Trade Lake paid this amount, as well as an additional $2,807.34 in taxable costs and $19,055.73 in legal fees and costs. In total, Trade Lake paid out $54,272.07 on the claim.
Trade Lake and the Goemans thereafter brought this
declaratory judgment action against Allstate, seeking a declaration that
Allstate pay half of the damages or $27,136.04.
On cross motions for summary judgment, the district court determined
that the policies’ excess coverage clauses were in conflict and that under the
“closest to the risk” analysis,
1. Should this court grant Allstate’s motion to strike Trade Lake’s reply brief?
2. Did the district court err in determining
Allstate moved to strike Trade Lake’s reply brief, claiming that the reply brief is not confined to new matters raised in respondent’s brief and thus violates Minn. R. Civ. App. P. 128.02, subd. 3 (stating that “reply brief must be confined to new matter[s] raised in the brief of the respondent”). By order dated June 21, 2006, this court deferred Allstate’s motion to this panel for a ruling.
insists that the “geographic scope factor” discussed by Trade Lake in its reply
brief is simply a re-argument of the same issue raised by Trade Lake in its
initial brief. A reply brief should be
limited to a “concise answer to new points” made by a respondent; it should not
include a “repetition of arguments previously made [or] new matter not in
response to points made by [the] respondent.”
Albert Lea Ice & Fuel Co. v.
United States Fire Ins. Co., 239 Minn. 198, 205, 58 N.W.2d 614, 619
(1953). To the extent that
On appeal from a grant of summary
judgment, this court must determine whether genuine issues of material fact
remain for trial and whether the district court erred in applying the law. See State
by Cooper v. French, 400 N.W.2d 2, 4 (Minn. 1990); Minn. R. Civ. P.
56.03. Where, as here, the facts are
undisputed, an appellate court “need only review the [district] court’s
application of the law in interpreting the language of the two insurance
contracts.” Interstate Fire & Cas. Co. v. Auto Owners Ins. Co., 433 N.W.2d
82, 85 (
The parties agree that both of the
Goemans’ policies had “other insurance” clauses that provided excess coverage
and that those clauses conflicted. The
parties further agree that when faced with this type of conflicting coverage,
Integrity Mut. Ins. Co. v. State Auto. &
Cas. Underwriters Ins. Co., 307
The following three-part test is used to determine which policy is closest to the risk:
(1) Which policy specifically described the accident-causing instrumentality?
(2) Which premium is reflective of the greater contemplated exposure?
(3) Does one policy contemplate the risk and use of the accident-causing instrumentality with greater specificity than the other policy that is, is coverage of the risk primary in one policy and incidental to the other?
Auto Owners Ins. v. Northstar Mut. Ins.,
281 N.W.2d 700, 704 (
With respect to the first factor,
the district court here concluded that “[b]oth policies provided broad personal
liability coverage for a wide range of occurrences” and that neither policy
more specifically described the accident-causing instrumentality, which was the
Goemans’ dog. The parties both agree
with the district court’s analysis on this first factor: neither policy specifically addressed the
risk of an injury caused by a pet.
Rather, the risk of a dog bite was merely one of many potential personal
liabilities for a homeowner. Cf. Nat’l Union Fire Ins. Co. v. Republic
Underwriters Ins. Co., 429 N.W.2d 695, 697 (
With respect to the second factor regarding which premium reflects the risk of exposure, the district court concluded:
Both parties also agree with the district court’s analysis on this second factor: both insurers provided comprehensive personal liability coverage for the Goemans as part of their homeowners’ insurance policy and neither contemplated greater exposure by an increased premium.
With respect to the third factor regarding whether one policy contemplates the risk with greater specificity, the district court determined that the Trade Lake policy more clearly contemplated the risk because it “more accurately cover[ed] the location where this tort occurred.” In particular, the district court reasoned:
We agree with Trade Lake that the district court erred in considering the “geographical scope of coverage” as the determinative factor here.
Allstate asserts that the Trade Lake policy was closest to the risk because its coverage was specifically limited to losses or occurrences in Wisconsin, which is where the dog bite occurred. While such a geographic restriction is not common, Allstate insists that an insurer with such a provision in its policy necessarily “accepts the primacy of its coverage” when the occurrence falls within that geographic restriction. We disagree and point out that the Allstate policy covered the Goemans in all 50 states, thus indicating that Allstate contemplated greater risks than Trade Lake, which sought to reduce its coverage by restricting liability to occurrences in Wisconsin.
We therefore conclude that both
policies equally contemplated the risk of a dog bite injury and neither is
closest to the risk. The location of the
injury was merely fortuitous, and there is no language in either policy linking
coverage for an injury caused by a pet to any particular place. While some types of risks may be dwelling
specific, such as personal liability arising out of an accident in a swimming
pool at a residence, the “accident-causing instrumentality” here was mobile and
not limited to any particular residence.
Thus, because both policies equally contemplate the risk of a dog bite
injury, whether at the Wisconsin cabin or elsewhere, the district court erred
in determining that the
D E C I S I O N
Because the district court erred in determining that the Trade Lake policy was closest to the risk and primarily liable, we reverse the grant of summary judgment to Allstate and remand with directions to enter judgment for Trade Lake on its cross motion for summary judgment.
Reversed and remanded; motion denied.