This opinion will be unpublished and

may not be cited except as provided by

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








State Farm Fire & Casualty Company,

an Illinois corporation licensed to do business in Minnesota,





Braxton Haulcy, Jr.



Clinton J. Letch, et al.,




Filed November 7, 2000


Schumacher, Judge


Hennepin County District Court

File No. 9817760



Michael J. Tomsche, Tomsche, Sonnesyn & Tomsche, PA, 888 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)


Edward F. Rooney, 7300 Metro Boulevard, Suite 500, Minneapolis, MN 55439 (for appellants)



            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


Appellants Clinton J. Letch and Richard P. Opitz challenge a declaratory judgment denying coverage under a homeowner’s insurance policy issued by respondent State Farm Fire & Casualty Company to Braxton Haulcy, Jr., contending that the trial court erred in (1) granting summary judgment when there exists a question of material fact and (2) declining to grant a continuance.  We affirm.


            On March 27, 1997, Clinton Letch and Richard Opitz, both Minneapolis police officers, drove to the home of Haulcy in response to reports of a domestic dispute.  The officers entered the home and, having been told that Haulcy was upstairs putting the couple's son to bed, ascended a flight of stairs so that they might speak to him.  As the officers reached the top of the stairs, Haulcy came out of his son's room, uttered a profanity, and told the officers to leave. After a struggle, the officers ultimately brought Haulcy under control.  Haulcy pleaded guilty to assault in the fourth degree.  Haulcy admitted under oath that he had assaulted the officers.

            Subsequently, Letch and Opitz brought a civil action against Haulcy seeking compensation for the injuries they had sustained during the struggle.  Haulcy tendered defense of the claim to State Farm pursuant to a homeowner’s insurance policy issued to Haulcy by State Farm.  The policy excluded from coverage any bodily injury or property damage "expected or intended by insured" or which was "the result of willful and malicious acts of insured."

            State Farm brought a declaratory judgment action to determine coverage under the homeowner’s policy.  During discovery, Haulcy was uncooperative and did not show up for scheduled depositions.  State Farm moved for summary judgment.  Counsel for Letch and Opitz, in a brief in opposition to the declaratory judgment action and at oral argument, requested a continuance until counsel had the opportunity to depose Haulcy.  There was no separate motion or affidavit requesting the continuance. Later, counsel for Letch and Opitz deposed Haulcy and forwarded a transcript to the district court.  The court granted State Farm’s motion for summary judgment.  The court did not consider the deposition testimony of Haulcy in granting State Farm’s motion.  In denying a motion for reconsideration, the court stated that Haulcy’s statements were "completely self-serving" in nature and "would have no bearing" on the court’s determination.


1.         Summary judgment is appropriate when "there is no genuine issue as to any material fact and * * * either party is entitled to a judgment as a matter of law."  Minn. R. Civ. P. 56.03.  On appeal from a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the lower court erred in its application of the law.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 392-93 (Minn. 1998).

            In determining whether an intentional acts exclusionary clause applies, the requisite intent may be established by proof of actual intent to injure, or it may be inferred as a matter of law by the character of the act.  R.W. v. T.F., 528 N.W.2d 869, 872 (Minn. 1995).  In this case, the record reflects direct evidence that Haulcy intended to injure Letch and Opitz.  Haulcy pleaded guilty to assault in the fourth degree and, in entering that plea, readily admitted under oath that he intentionally assaulted Letch and Opitz.  Under these circumstances, the conflicting testimony contained in Haulcy’s deposition transcript does not create a question of fact and is not sufficient to defeat State Farm’s motion for summary judgment.  Cf. Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995) (holding that "self-serving affidavit that contradicts earlier damaging deposition testimony is not sufficient to create a genuine issue of material fact").

2.         Letch and Opitz contend that the district court erred in declining to grant a continuance pursuant to Minn. R. Civ. P. 56.06 for the purpose of taking Haulcy's deposition.  We need not address the issue because, as stated above, in light of Haulcy’s earlier sworn testimony any conflicting deposition testimony does not create a question of material fact sufficient to defeat a motion for summary judgment.  We do note that it is necessary to file affidavits in order to comply with the requirements of Rule 56.06.  See, e.g., Boulevard Del, Inc. v. Stillman, 343 N.W.2d 50, 52-53 (Minn. App. 1984) (holding that summary judgment was properly entered against party where non-movant failed to submit appropriate affidavits opposing summary judgment as required by Rule 56.06).