This opinion will be unpublished and

may not be cited except as provided by

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






Michael Robertson, individually and as

father and natural guardian of

Brooks Robertson, a minor,







Farm Bureau Mutual Insurance Company,


Bruce Flatmoe,




Filed November 7, 2000


Toussaint, Chief Judge


St. Louis County District Court

 File No. C596602075



Adrian B. MacDonald, MacDonald & Downs, 200 Alworth Building, 306 West Superior Street, Duluth, MN 55802  (for appellant)



Anthony S. Downs, Steven W. Schneider, Halverson, Watters, Downs, Reyelts & Bateman, Ltd., 700 Providence Building, Duluth, MN 55802 (for respondent Farm Bureau Mutual Insurance Co.)



Robin C. Merritt, Hanft, Fride, O’Brien, Harries, Swelbar & Burns, P.A., 1000 First Bank Place, Duluth, MN 55802 (for respondent Bruce Flatmoe)



            Considered and decided by Toussaint, Chief Judge, Harten, 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

Appellant Michael Robertson challenges the posttrial dismissal of his negligence and misrepresentation claims against respondents Farm Bureau Mutual Insurance Company (Farm Bureau) and Bruce Flatmoe.  Appellant’s son, B.R., was riding as a passenger on an all terrain vehicle (ATV) driven by J.V. when he was struck by an automobile driven by K.B.  B.R. sustained severe injuries.  In settling his claims against each, appellant received $15,000 from J.V.’s insurance company and $25,000 from K.B.’s insurance company.  Appellant, who owns Duluth Ready-Mix, then pursued underinsured motorist (UIM) benefits from his company’s insurance company, Farm Bureau, which denied the claim.  Farm Bureau concluded that because B.R. was not covered under the company’s policy and J.V. was driving an ATV, appellant was ineligible for UIM benefits.

Appellant sued Farm Bureau (1) to recover UIM benefits; (2) for negligence; and (3) for defamation.  The trial court agreed that Farm Bureau properly denied UIM benefits, but did not address the negligence or misrepresentation claims.  On appeal, this court affirmed the summary judgment for Farm Bureau on UIM coverage, and remanded for the trial court to address the claims of negligence and misrepresentation.  On remand, the trial court dismissed those claims, concluding that because J.V. was not underinsured, appellant failed to show damages.  Because the trial court did not err in (1) concluding that appellant could not establish damages; and (2) allowing each respondent’s attorney to participate at trial, we affirm.



            A non-moving party meets its burden of proof if it presents “clear and convincing evidence on the elements of [its] claim.”  Special Force Ministries v. WCCO Television, 584 N.W.2d 789, 792 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998); accord Minn. Stat. § 554.02 (1998).  This court reviews the denial of a motion to dismiss under Minn. Stat. § 554.02 de novo.  See id. (determining whether the non-moving party met its required burden under Minn. Stat. § 554.02, subd. 2(2), (3)).  Appellant claims the trial court erred in granting respondent Flatmoe’s motion to dismiss his action for UIM benefits for failure to show damages, i.e., to establish that K.B. was underinsured.  We agree.

Underinsured motorist coverage is intended to compensate persons legally entitled to recover damages from a tortfeasor whose liability coverage is inadequate. Minn. Stat. § 65B.42(1) (1998); see Minn. Stat. § 65B.43, subd. 19 (1998)(defining underinsured motorist coverage).  Underinsured benefits are not payable when the available liability limits exceed the claimant’s damages.  Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855, 858-59 (Minn. 1993); Junker v. Allstate Ins. Co., 489 N.W.2d 821, 822 (Minn. App. 1992). 

Because J.V. was driving an ATV, which was not a “motor vehicle” under appellant’s policy, appellant could not recover damages for J.V.’s negligence. Robertson v. Farm Bureau Mut. Ins. Co., C7-97-1865, 1998 WL 88621, at *2 (Minn. App. Mar. 3, 1998).  Appellant’s only remedy was to recover damages from K.B., who was driving an automobile.  While the jury awarded total damages in the amount of $102,752.74, K.B.’s maximum liability under the verdict is limited to $10,275.27 because the jury found he was only 10% at fault.  K.B.’s liability insurance adequately covers his share of the damages; accordingly, K.B. is not underinsured.  See Employer Mut. Co., 495 N.W.2d at 858-59 (explaining that an individual is not underinsured if his available liability coverage exceeds his share of the damages); Junker, 489 N.W.2d at 822 (same).  Because K.B. was not an underinsured motorist, the trial court did not err in dismissing appellant’s claims for failure to establish that he was entitled to damages under his policy.

            But appellant claims that there should be UIM and uninsured motorist (UM) coverage for ATVs, and in support of his claim he relies on American Nat’l Prop. & Cas. Co. v. Loren, 597 N.W.2d 291 (Minn. 1999) and Northrup v. State Farm Mut. Auto. Ins. Co., 601 N.W.2d 900 (Minn. App. 1999), review denied (Minn. Jan. 25, 2000).  While these cases extended underinsured motorist coverage to motorcycles under certain circumstances, they dealt exclusively with motorcycles.  Loren, 597 N.W.2d at 295 (holding that policy provision excluding UIM coverage for an insured injured while driving a family member’s motorcycle violates Minn. Stat § 65B.49, subd. 3a); Northrup, 601 N.W.2d at 906 (holding that policy provision excluding UIM coverage for an insured injured while driving a motorcycle regularly used by her husband violates Minn. Stat § 65B.49, subd. 3a).  Because this case involves an ATV, not a motorcycle, any analogy between the present case and either Loren or Northrup fails.

There is no Minnesota caselaw providing that an ATV is entitled to UIM or UM coverage.  Moreover, Minn. Stat. § 65B.43, subd. 2 (1998) fails to include ATVs in the list of “motor vehicles.”  While Minn. Stat. § 65B.49 requires UIM and UM coverage for motorcycles under certain situations, it makes no mention of coverage for ATVs.  See Minn. Stat. § 65B.49, subd. 3(a)(8)(1998) (stating that motorcycles are not covered by UIM benefits if the insured is the owner of the motorcycle, but not mentioning ATVs). 

            Finally, this court previously stated that “[o]n remand, even if Flatmoe is found liable for negligence or misrepresentation, no damages for negligence of the ATV driver can be recovered.”  Robertson, 1998 WL 88621, at *2.  While appellant contends that this court’s May 3, 1998 decision was erroneous, an appellate decision on a given issue establishes “the law of the case” and must be followed on remand and subsequent appeals.  Loo v. Loo, 520 N.W.2d 740, 744 n. 1 (Minn. 1994); McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986).

            Because appellant is precluded from recovering damages from J.V. because he was driving an ATV, and K.B.’s share of appellant’s damages is less than K.B.’s liability limit under his insurance policy, the trial court did not err in dismissing the negligence and misrepresentation claims.


            Next, appellant claims that the trial court erred when it allowed each respondent to be represented by separate counsel because it was prejudicial and confusing to the jury.  Because appellant failed to show he was prejudiced by the fact that each respondent was represented by separate counsel, we cannot conclude that the trial court erred.



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