STATE OF MINNESOTA
as trustee for the heirs and next of kin of
Ann Elizabeth Schossow, deceased,
First National Insurance Company
Filed May 1, 2007
Hennepin County District Court
File No. 27-CV-04-008133
Robert G. Manly, Vogel Law Firm, P.O. Box 1077, Moorhead, MN 56561-1077 (for respondent)
Chris A. Edison, Storslee Law Firm, P.C., P.O. Box 4007, Bismarck, ND 58501 (for appellant)
Considered and decided by Peterson, Presiding Judge, Worke, Judge, and Crippen, Judge.
1. A person living and working in Minnesota is a Minnesota resident notwithstanding evidence that her domicile may be in another state to which she intends to return within a few years.
the Minnesota No-Fault Act, an insurer licensed to write automobile insurance
Appealing the district court’s
summary judgment, appellant First National Insurance Company of
This dispute arose out of respondent’s
claim for underinsured motorist benefits from his automobile insurer. In November 2002, Ann Schossow died from
injuries that she sustained in an accident in which she was struck by a vehicle
while she was walking to work from her apartment in
Respondent and his wife Ann had lived in Fargo, North Dakota, where she had worked for Qwest Communications. In 2000, when her Fargo job was eliminated, Ann Schossow accepted Qwest’s offer for employment in Minnesota. She intended to live and work in Minnesota until 2005, when her Qwest pension would vest. In January 2001, she rented an apartment in the Twin Cities and began work in her new position. She returned to Fargo an average of one weekend a month.
In May 2002, the Schossows obtained
automobile insurance from appellant for a vehicle that they purchased for Ann
Schossow. The agent who issued the
policy became aware in December 2001 that Ann, who had an accident with her
prior vehicle at that time, was living and working in Minnesota and planned to
stay in Minnesota until her retirement with Qwest. Appellant is licensed to write insurance
policies in both
The Schossows had other policies
with appellant for vehicles that respondent drove. Appellant issued all policies to the couple
After Ann Schossow’s death, respondent settled with the driver’s insurance company for the driver’s liability coverage limit of $100,000 and then sought underinsured motorist benefits under his policy with appellant for his excess damages. Appellant denied the claim based on North Dakota law, which provided for “difference-in-limits” coverage—with no benefits in this case because respondent’s underinsured motorist policy limit was also $100,000.
In respondent’s subsequent suit, the
district court denied appellant’s summary judgment motion and entered judgment for
respondent, concluding that Ann Schossow was a Minnesota resident at the time
of her fatal accident, and, therefore, Minn. Stat. § 65B.50, subd. 1
(2006), requires appellant, an insurer licensed to write policies in Minnesota,
to provide respondent with “add-on” underinsured benefits, allowing for
recovery of respondent’s uncompensated loss up to the amount of his underinsured
motorist limit, $100,000. Appellant argues
that Ann Schossow was not a
1. Did the district court err by concluding that Ann Schossow was a Minnesota resident at the time of her fatal accident?
the district court err by applying
On appeal from summary judgment, we
determine whether there are any genuine issues of material fact and whether the
district court erred in its application of the law. Funchess
v. Cecil Newman Corp., 632 N.W.2d 666, 672 (
Respondent’s policy conforms to
North Dakota law for underinsured motorist coverage, in which a tortfeasor
driver is considered underinsured when the driver’s liability coverage does not
at least equal the amount of underinsured motorist coverage carried by the
injured insured. N.D. Cent. Code § 26.1-40-15.1(2)
(2005); DeCoteau v. Nodak Mut. Ins. Co.,
603 N.W.2d 906, 909-12 (N.D. 2000). By
The parties do not dispute that respondent’s
actual damages exceed the $100,000 maximum benefit paid by the tortfeasor’s
Minnesota requires that every insurer licensed to write automobile insurance in the
state provide at least the minimum security required by Minn. Stat. § 65B.49 (2006)
to all policyholders, except that in the case of “nonresident” policyholders it
need only provide security with respect to accidents occurring in Minnesota. Minn. Stat.
§ 65B.50, subd. 1 (2006); see also
Minn. Stat. § 65B.49, subds. 3a–4a (defining Minnesota’s underinsured
motorist coverage requirements). The
“security” required for all insurance policies covering nonresidents
includes only basic-economic loss and residual-liability coverages. Ziegelmann
v. Nat’l Farmers
The terms “resident” and “nonresident” are not defined anywhere in Minn. Stat. ch. 65B, which deals with automobile insurance. Appellant argues that the undisputed facts of this case support the conclusion that Ann Schossow was a North Dakota resident because she represented herself as one. Appellant points out that Ann renewed her North Dakota driver’s license, registered and titled her car in North Dakota, and declared her intention to return permanently to North Dakota after becoming vested in her Qwest pension. Her 2002 W-2 form contained only her North Dakota address, and the Schossows’ 2002 tax returns indicated that they were both full-year residents of North Dakota.
The district court concluded, under a “plain and simple analysis,” that Ann Schossow was a Minnesota resident because she lived here continuously and worked here full time, with only one weekend visit per month to North Dakota. This analysis conforms to governing precedents.
The district court cited Jacobson v. Universal Underwriters Ins.
Group, in which we affirmed the district court’s determination as a matter
of law that Minnesota law should apply to an underinsured motorist claim on
behalf of a student who was killed in an automobile accident in Minnesota while
he was going to school here. 645 N.W.2d
741, 746-47 (
It was determinative in Jacobson that “[d]ecedent lived in
Minnesota at the time of the accident, and the accident occurred here.”
decision in Schoer v.
Appellant relies on our decision in
Hoeschen v. South Carolina Ins. Co.
for the propositionthat “residency”
for the purpose of Minn. Stat. § 65B.50, subd. 1, should be interpreted to
mean “domicile.” See Hoeschen v. South
Carolina Ins. Co., 349 N.W.2d 833, 834-35 (Minn. App. 1984) (discussing
domicile), aff’d on other grounds,
378 N.W.2d 796 (
Hoeschen was a military serviceman
living and working in North Carolina and domiciled in Minnesota when he was
injured in an automobile accident in this state. Hoeschen,
349 N.W.2d at 834-35. We determined that
a person must be a
As a general rule, “while a person
can have only one domicile, [the person] can have more than one
residence.” Mut. Serv. Cas. Ins. Co. v. Olson, 402 N.W.2d 621, 624 (Minn. App.
1987), review denied (Minn. May 20,
1987); see Krause by Krause v. Mut. Serv.
The remaining cases that appellant cites to support its argument that residence means domicile are inapplicable to the present case. See Dreyling v. Comm’r of Revenue, 711 N.W.2d 491, 494-96 (Minn. 2006) (applying income tax statute that defines resident as any individual domiciled in Minnesota); In re Smith’s Estate, 242 Minn. 85, 88, 64 N.W.2d 129, 131 (1954) (interpreting residence as used in probate statutory provision to mean decedent’s domicile at time of death). That Ann Schossow’s legal domicile was the family home in North Dakota does not determine the meaning of residency in Minn. Stat. § 65B.50, subd. 1.
Appellant asserts, alternatively, that
even if Ann Schossow was a
Any automobile insurance policy
that is “renewed, delivered or issued for delivery, or executed in [
Because Minn. Stat. § 65B.49, subds. 3a and 4a, define required underinsurance coverage, we address whether a Minnesota licensed insurer who issues a policy in North Dakota, including underinsurance benefits as required by North Dakota law, to a resident of Minnesota is required to provide underinsurance coverage under Minnesota law.
relies on Cantu v.
The Schossows, in contrast, purchased underinsured motorist benefits from appellant, their North Dakota insurer. Unquestionably, a policy specifically incorporating Minnesota underinsured coverage is required only when issued in this state. But it does not follow that an insurer who writes a policy with an underinsured motorist provision in another state, does not certify for Minnesota residents, under Minn. Stat. 65B.50, subd. 1, that they will be afforded the full benefits as provided by Minnesota law. See Warthan, 592 N.W.2d at 139 (stating that under Hoeschen, “when a Minnesota resident is injured in an accident in Minnesota, the resident’s [underinsured motorist] policy will be reformed to comply with Minnesota law.”). The language of Minn. Stat. § 65B.50, subd. 1, which states that “[e]very insurer licensed [in Minnesota] shall . . . afford at least the minimum security provided by section 65B.49 to all [resident] policyholders,” is a compelling matter of law, whereby we uphold the district court’s determination of benefits coverage.
deference to the dictates of Minn. Stat. § 65B.50, subd. 1, is enlarged by
The district court did not err by
concluding that Ann Schossow was a
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We find no merit to appellant’s argument that the district court erred by deciding the residency question as a matter of law. The parties agreed that the underlying facts were undisputed, in which case a district court may properly determine residency as a matter of law. French v. State Farm Mut. Auto. Ins. Co., 372 N.W.2d 839, 841 (Minn. App. 1985) (affirming district court’s determination of residency when parties had stipulated to relevant facts and district court concluded that ultimate interpretation of “reside” involved merely a “characterization” of those facts).
Under Cantu, a federal court states,
“the Court will not read [UIM] into the policies.” Ray v. State
Farm Mut. Auto. Ins. Co., No. 06-277, 2007 WL 172559, at *5 (D.
 Respondent also contends that the requirements of Minn. Stat. § 65B.49, subd. 3a(1), were satisfied because, unlike Cantu, in which the insurer did not become aware that Cantu had become a Minnesota resident until after his wife was killed in a Minnesota automobile accident, appellant knew or should have known several months before Ann Schossow’s fatal accident that she was living and working in Minnesota. We need not reach this issue because we hold that benefits in this case are determined by section 65B.50, not section 65B.49.