This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Keith O’Daniel,





Progressive Northern Insurance Company,


Prior Lake State Agency, et al.,




Filed March 14, 2000

Appeal dismissed in part and affirmed in part

Toussaint, Chief Judge


Scott County District Court

 File No. 9714193


Dennis P. Moriarty, Jaspers, Moriarty & Walburg, 206 South Scott Street, Shakopee, MN 55379  (for respondent Keith O’Daniel)


Richard S. Stempel, Stempel & Associates, P.L.C., 41 Twelfth Avenue North, Hopkins, MN 55343 (for appellant Progressive Insurance Co.)


Rolf E. Sonnesyn, Tomsche, Sonnesyn & Tomsche, P.A., 888 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant Prior Lake State Agency, et al.)


            Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge. *

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

            Respondent Keith O’Daniel sued his insurance company, Progressive Northern Insurance Co. (Progressive), and the agency and agent who sold him the policy, Prior Lake State Agency and Kate Haggerty (Prior Lake/Haggerty), for wrongfully denying his claim for a stolen truck.  After a jury verdict in O’Daniel’s favor and the trial court’s order that Progressive pay Prior Lake/Haggerty’s attorney fees, Progressive moved for a new trial and judgment notwithstanding the verdict (JNOV).  Because the trial court lacked authority to address Progressive’s untimely posttrial motions, we dismiss Progressive’s appeal, but affirm the trial court’s grant of summary judgment awarding attorney fees to Prior Lake/Haggerty.



            A trial court lacks jurisdiction to hear a motion for a new trial if the hearing for the motion is not held within the 30-day limitation imposed by Minn. R. Civ. P. 59.03, unless within the 30-day period a party requests, and the trial court grants for good cause, an extension.  Minn. R. Civ. P. 59.03; see also Minn. R. Civ. P. 50.02 (applying rule 59.03’s time limitations to motion for JNOV); Celis v. State Farm Mut. Auto. Ins. Co., 580 N.W.2d 64, 65 (Minn. App. 1998).  In Celis, this court held that because the trial court’s order extending the hearing date was issued after the 30 days had expired, the trial court lacked jurisdiction to extend the time for a hearing and was required to dismiss the motion as untimely.  580 N.W.2d at 66.  We further directed counsel to ensure the hearing is scheduled within the 30-day period or obtain an order, within the 30 days, from the trial court extending the hearing date, rather than rely on the clerk scheduling the hearing.  Id.

            Here, O’Daniel served Progressive by mail on February 8, 1999, with notice of the filing.  Progressive served its notice of motions for a new trial and JNOV on February 24, 1999, but scheduled the hearing for its posttrial motions for March 25, 1999.  Because Progressive scheduled the hearing after the 30-day time limit had expired, the trial court lacked jurisdiction to address Progressive’s posttrial motions under Minn. R. Civ. P. 59.03 and properly dismissed the motions as untimely.

            The existence of a “timely and proper” posttrial motion shapes this court’s scope of review.  Minn. R. Civ. App. P. 103.04.  To preserve appellate review of issues arising during the course of a trial, counsel must timely move for a new trial.  Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986).  Because Progressive’s posttrial motions were untimely under Minn. R. Civ. P. 59.03, our review is limited to whether the evidence sustains the findings of fact and whether these findings sustain the conclusions of law and judgment.  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).  After a careful review of the record, we conclude this standard has been satisfied. 


            Even if this court could address the merits of Progressive’s claims, we would affirm.  First, the trial court did not err in refusing to submit the misrepresentation issue to the jury.  An insurer may void a policy if the applicant made a material misrepresentation with intent to deceive and defraud or if the applicant made a misrepresentation relating to a matter that increases the risk of loss.  Minn. Stat. § 60A.08, subd. 9 (1998).  The statute presumes any misrepresentation by the applicant is not material and will not defeat or void the policy.  Id.  The determination of whether the insurer may void a policy under the statute is a question for the trier of fact “unless the evidence is conclusive one way or the other.”  Transamerican Ins. Co. v. Austin Farm Ctr., Inc., 354 N.W.2d 503, 506 (Minn. App. 1984) (quoting Craigmile v. Sorenson, 248 Minn. 286, 295, 80 N.W.2d 45, 51 (1956)).  The insurer bears the burden of proving all issues of fact relevant to the alleged misrepresentation.  Preferred Risk Mut. Ins. Co. v. Anderson, 277 Minn. 342, 347, 152 N.W.2d 476, 481 (1967).  Moreover, in deciding whether the applicant made a misrepresentation, the trier of fact must consider the facts in existence at the time the representation was made, not the facts developed later.  Id. at 347-48, 152 N.W.2d at 481.

            A trial court properly refuses to submit a misrepresentation claim under the statute in cases where the insurer did not present evidence that the applicant knowingly or intentionally made a misrepresentation when the policy was issued.  See Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917, 926 (Minn. 1983) (holding no fraud in insured’s application where insured had no knowledge or intent that policy would be backdated to preexisting loss); Domtar, Inc. v. Niagara Fire Ins. Co., 552 N.W.2d 738, 747 (Minn. App. 1996) (finding no error where trial court refused to submit to jury insurer’s claim that insured misrepresented site conditions when it obtained insurance coverage where no oral or written misrepresentations were made), aff’d and rev’d on other grounds, 563 N.W.2d 724 (Minn. 1997).  Progressive did not present evidence that O’Daniel knowingly or intentionally made an oral or written misrepresentation when he filled out the application.  Given the statutory presumption and Progressive’s burden of proof, we conclude the trial court properly refused to submit the misrepresentation issue to the jury.

            Second, although the trial court erred by ruling on the policy-cancellation issue, the error was harmless because the misrepresentation issue can be resolved as a matter of law.  See Minn. R. Civ. P. 61 (providing any “error or defect in any ruling or order or in anything done or omitted” by trial court will not constitute grounds for new trial or setting aside verdict unless inconsistent with substantial justice); see also Minn. Stat. §§ 65B.15, .16, .161 (1998) (providing requirements for policy cancellation).

            Third, the trial court did not err in dismissing Prior Lake/Haggerty.  A directed verdict motion presents a question of law for the trial court: whether the evidence is sufficient to present a fact question for the jury to decide.  Minn. R. Civ. P. 50.01; Citizens Nat'l Bank v. Taylor, 368 N.W.2d 913, 917 (Minn. 1985).  This court applies the same standard.  Midland Nat'l Bank v. Perranoski, 299 N.W.2d 404, 409 (Minn.1980).

            O’Daniel asserted a claim against Prior Lake/Haggerty for negligence.  But O’Daniel did not present any expert testimony regarding an insurance agent’s standard of care.  See Atwater Creamery Co. v. Western Nat’l Mut. Ins. Co., 366 N.W.2d 271, 279 (Minn. 1985) (requiring party to present expert testimony regarding insurance agent’s standard of care if jury would need to speculate without benefit of expert testimony and if case “centers around the professional judgment of the agent”).  Because O’Daniel presented no expert testimony establishing the standard of care for an insurance agent, the trial court properly directed the verdict in Prior Lake/Haggerty’s favor.

            Fourth, the trial court did not err in denying Progressive’s motion for a directed verdict.  A trial court should not grant a directed verdict motion where the evidence is sufficient to sustain a verdict for the opponent.  Minn. R. Civ. P. 50.01.  The trial court must consider all the evidence and view it in the light most favorable to the nonmoving party.  Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 676 (Minn. 1977); Swanson v. La Fontaine, 238 Minn. 460, 463, 57 N.W.2d 262, 265 (1953).  This court applies the same standard used by the trial court.  Perranoski, 299 N.W.2d at 409.

            The record shows that sufficient evidence supports the jury’s verdict that O’Daniel’s truck worth $31,705.74, was stolen after the policy’s effective date. Progressive argues the testimony of its customer service manager went unchallenged and therefore merits a directed verdict.  But this testimony does not contradict the evidence presented by O’Daniel showing that Progressive breached its contract with him by wrongfully denying his claim for a loss occurring within the effective policy period.  Under these circumstances, the trial court did not err in denying Progressive’s motion for directed verdict.

            Likewise, Progressive is not entitled to JNOV.  A trial court shall grant a JNOV motion “if the moving party would have been entitled to a directed verdict at the close of the evidence.”  Minn. R. Civ. P. 50.02; see also Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975) (describing applicable JNOV standard as whether there is any competent evidence reasonably tending to sustain verdict).  Because Progressive was not entitled to a directed verdict at the close of the evidence, it is also not entitled to JNOV.

            Sixth, the trial court did not abuse its discretion when it refused to order a mistrial based on an improper question posed to a witness.  During the cross-examination of Scott Lucius, a witness called by Progressive, O’Daniel’s counsel asked Lucius, “Isn’t it true, Mr. Lucius [,] that you stole an automobile and you were * * *.”

            The decision to grant a new trial based on attorney misconduct rests wholly within the trial court’s discretion.  Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994).  “To warrant a new trial, however, misconduct by trial counsel must be severe, have an impact on the jury, and clearly result in prejudice.”  Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d 670, 676 (Minn. App. 1991)  (citing Eklund v. Lund, 301 Minn. 359, 362, 222 N.W.2d 348, 350 (1974), review denied (Minn. Aug. 2, 1991)).  Furthermore, the trial court is best positioned to determine whether or not an attorney's misconduct has prejudiced the jury.  Johnson, 518 N.W.2d at 601.

            Progressive is unable to demonstrate that any prejudice occurred as a result of the improper question.  The trial court sustained Progressive’s objection, instructed the jury to disregard the question, and struck the question from the record.  See Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989) (recognizing new trial should not be granted when trial court gives curative instruction unless misconduct is extremely prejudicial).  And in its final charge to the jury, the trial court repeated its instruction to the jury that it should ignore any question to which an objection is sustained and to disregard all evidence ordered stricken.  Moreover, Progressive’s counsel did not seek any additional curative instructions at the close of the trial court’s charge.  Under these circumstances, the trial court did not abuse its discretion in denying Progressive’s posttrial request for a mistrial. 

            Finally, the trial court did not abuse its discretion by refusing to admit evidence of an earlier application by O’Daniel to another insurance company.  Absent an erroneous interpretation of law, the determination of whether to admit or exclude evidence lies within the trial court’s discretion.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  In addition, to receive a new trial based on an improper evidentiary ruling, the complaining party must demonstrate prejudicial error. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990); see also Minn. R. Civ. P. 61 (providing error in exclusion of evidence is not grounds for new trial or setting aside verdict unless inconsistent with substantial justice). 

            Because Progressive presented no evidence that O’Daniel knowingly or intentionally made a misrepresentation on his Progressive application, the trial court did not abuse its discretion in ruling the earlier application was not relevant.  See Minn. R. Evid. 401 (defining relevance).  Furthermore, the trial court acted within its discretion when it decided that any impeachment value was substantially outweighed by the earlier application’s unfair prejudicial effect.  Minn. R. Evid. 403; see also Minn. R. Evid. 608(b) (prohibiting proof by extrinsic evidence of specific instances of witness’s conduct for purpose of attacking credibility).  “Even if evidence had some probative value, if its introduction may confuse or mislead the jury, the trial judge has discretion to exclude it.”  In re Commodore Hotel Fire & Explosion Cases, 324 N.W.2d 245, 249 (Minn. 1982) (citations omitted).  Given the broad discretion a trial court exercises in this area, we cannot say the trial court abused its discretion in refusing to admit the Mendota application.  See Hansen by Hansen v. Smith, 373 N.W.2d 349, 352 (Minn. App. 1985) (affirming trial court’s excluding evidence of witness’s possible untruthfulness in unrelated deposition because it was collateral, it would not have changed result, and prejudicial impact outweighed probative value). 


            Progressive also appeals from the trial court’s order granting summary judgment for Prior Lake/Haggerty and ordering Progressive to pay attorney fees.  On appeal from summary judgment, the reviewing court must determine whether the case raises any genuine issues of material fact and whether the trial court correctly applied the law.  Minn. R. Civ. P. 56.03; Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  This court reviews de novo whether the trial court erred in its application of the law.  Homart Dev. Co. v. County of Hennepin, 538 N.W.2d 907, 910 (Minn. 1995).

            Prior Lake/Haggerty was acting under contract as Progressive’s agent and ‘[o]rdinarily an agent is entitled to reimbursement and indemnity for expenses, losses, and liabilities incurred by him on behalf of his principal * * * .”  Hollandale Mktg. Ass’n v. Goemat, 245 Minn. 154, 161, 72 N.W.2d 376, 380 (1955) (citations omitted). Because no indemnity clause governed the present case, the common law of agency applies.  Cf. Art Goebel, Inc. v. North Suburban Agencies, Inc., 567 N.W.2d 511, 516 (Minn. 1997) (holding common-law indemnification rights are not available in cases where parties intend agency agreement’s indemnity clause to be exclusive).  Under the common law, Prior Lake/Haggerty is entitled to indemnification from Progressive.  See Restatement (Second) of Agency § 439(d) (1958) (requiring principal to indemnify agent for “expenses of defending actions by third persons brought because of the agent's authorized conduct, such actions being unfounded but not brought in bad faith”).  Considering the common-law indemnity requirement, we conclude the trial court did not err in ordering Progressive to pay Prior Lake/Haggerty $14,182 in defense costs.  We therefore affirm the trial court’s grant of summary judgment against Progressive.

                  Because Prior Lake/Haggerty is entitled to attorney fees incurred in the trial court, it is also entitled to attorney fees spent on this appeal and may pursue them under the procedures provided in Minn. R. Civ. App. P. 139.06.

            Appeal dismissed in part and affirmed in part.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.