This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Mary E. Motzko, trustee for the heirs

and next-of-kin of

Arnold Francis Motzko, deceased,





State Farm Mutual Automobile

Insurance Company,



Bobby Gene Olson,



Filed October 9, 2001

Gordon W. Shumaker, Judge


Clay County District Court

File No. C599604


Paul D. Johnson, McLarnan, Hannaher & Skatvold, P.L.L.P., 730 Center Avenue, Suite 202, P.O. Box 8, Moorhead, MN  56561-0008 (for respondent Mary E. Motzko)


Erik J. Askegaard, Askegaard, Robinson & Schweich, P.A., 206 North Seventh Street, P.O. Box 826, Brainerd, MN  56401 (for appellant)


Richard D. Varriano, Suite 106, 200 Fifth Street South, Moorhead, MN 56560 (for respondent Bobby Gene Olson)


            Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


In a dispute as to the applicability of uninsured motorist (UM) coverage to a truck-pulling contest in which a vehicle driver was killed, appellant State Farm Mutual Automobile Insurance Company alleges that the district court erred in its rulings on assumption of risk and the use of the vehicles for “transportation purposes,” and in its jury instruction on the concept of “accident.”  Because we find no error in the district court’s rulings or instruction, we affirm.


            In a bar on the evening of October 30, 1998, Arnold Motzko, Bobby Gene Olson, Leen Iten, and Tammy Heng had a friendly debate as to whether Ford or Chevrolet pickup trucks were stronger.  Motzko and Olson owned Chevrolets and Iten owned a Ford.

            The group decided to settle the debate by having a truck-pulling contest on a country road.  It was planned that Iten would pit his Ford against Motzko’s Chevrolet and that Olson would pull against the winner.  The group departed for the contest site.

            Motzko and Olson arrived and waited for Iten.  When Iten did not appear, they decided to go ahead with the contest.  They attached a ten-foot chain to the trailer hitches on their trucks.  Then each drove forward in an effort to pull the other backward.

            After Olson had pulled Motzko’s pickup about 615 feet, the chain broke or came loose.  This caused Motzko’s truck to leave the road and to roll over.  During the rollover, Motzko was ejected from the truck.  When the truck eventually came to rest it landed on top of Motzko and killed him.

            Olson was uninsured.  Motzko carried uninsured motorist coverage (UM) with State Farm.  Motzko’s trustee sued State Farm to recover UM proceeds.  State Farm moved for summary judgment, contending that coverage is not available for intentional acts and that Motzko assumed the risk of his death.  The district court denied the motion and the parties tried the case to a jury.

            At the conclusion of all the evidence, the court denied State Farm’s motion for a directed verdict.  The court also denied State Farm’s request for jury instructions on primary assumption of risk, on whether Motzko’s death resulted from an accident, and on whether Motzko was using his truck for transportation purposes.  The court previously had ruled as a matter of law that Motzko was using his pickup for transportation purposes at the time of his death.

            In its special verdict, the jury found that (1) Olson did not intend to cause Motzko’s truck to roll over; (2) both Olson and Motzko were negligent and that the negligence of each was a direct cause of the rollover; (3) Olson was 65% and Motzko 35% at fault; and (4) damages amounted to $300,000.  The district court ordered judgment on this verdict, denying cross-motions by the trustee and State Farm for judgment notwithstanding the verdict, or, in the alternative, a new trial.  State Farm appealed.


            On appeal from denial of a motion for a new trial, “the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).  Because the district court has the discretion to grant a new trial, a reviewing court will not disturb the district court’s decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann­Furrie & Co., 454 N.W.2d 905, 9 10 (Minn. 1990).  Judgment notwithstanding the verdict (JNOV) is proper when a jury verdict has no reasonable support in fact or is contrary to the law.  Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990).  We review denial of a motion for JNOV de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Unless a reviewing court is “able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict,” the district court’s order denyinga motion for JNOV will stand.  Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975) (citation omitted).  The interpretation of an insurance contract is a question of law, which this court reviews de novo.  Am. Nat'l Prop. & Cas. Co. v. Loren, 597 N.W.2d 291, 292 (Minn. 1999).


            The insurance policy Motzko purchased from State Farm provided coverage for accidental bodily injury caused by an uninsured vehicle:

We will pay for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.


            The first issue is whether Motzko’s death was “caused by accident.”  State Farm argues that Olson acted intentionally, and even though he might not have intended to harm Motzko personally he did intend to cause property damage to Motzko’s truck.  The intent to cause some harm, even to the insured vehicle, is sufficient, argues State Farm, to preclude this incident from coverage as an accident.

            The State Farm policy does not define “accident.”  In their arguments, the parties have cited several insurance cases that attempt to define the term.  During the pendency of this appeal, the Minnesota Supreme Court decided Am. Family Ins. Co. v. Walser, 628 N.W.2d 605 (Minn. 2001), a case involving a personal injury claim against a homeowner’s insurance policy.  Three high school boys were “just goofing around” in a gymnasium.  One boy hung by his hands from the rim of a basketball hoop while the other two pulled on his ankles.  When the boy lost his grip and began to fall, the boys holding his ankles let go.  As a result, he injured his hand.  The injured boy made a claim against the homeowner’s policy covering the family of one of the other boys.

            The homeowner’s insurer brought a declaratory judgment action seeking a determination that the incident resulting in the injury was not an “occurrence.”  The policy provided liability coverage only for occurrences.  The policy defined occurrence as “an accident.”  But the policy did not define “accident.”

            The supreme court concluded that the applicable definition of “accident” is that stated in Hauenstein v. St. Paul-Mercury Indem. Co., 242 Minn. 354, 65 N.W.2d 122 (1954).  Thus, an accident is “an unexpected, unforeseen, or undesigned happening or consequence * * *.”  Walser, 628 N.W.2d at 611 (quotation omitted).  The court elaborated, saying that, in applying this definition, conduct is intentional when there is a specific intent to cause injury and is accidental where there is no intent to injure, even though the conduct that resulted in the injury was intentional.  Id. at 612.

            As stated in a previous case discussed in Walser, for an act to be considered intentional, “the requisite intent demands that the [actor] intended the harm itself, not merely that the [actor] generally intended to act.”  R.W. v. T.F.,528 N.W.2d 869, 872 (Minn. 1995) (citation omitted).  Intent may be established “either by proving [the actor’s] actual intent to injure or by inferring such intent as a matter of law.”  Id. “[I]n analyzing whether therewas an accident for purposes of coverage, lack of specific intent to injure will be determinative * * *.”  Walser, 628 N.W.2d at 612.

            There is nothing in the record that shows that either Olson or Motzko intended to cause an injury.  Although they intentionally engaged in a reckless activity, there was no specific intent to injure.  Nor do the facts support an inference of such intent as a matter of law.  An inference of intent can be drawn only when the nature and circumstances of a person’s act are such that the harm was substantially certain to occur.  R.W. v. T.F., 528 N.W.2d at 872.

            We also reject State Farm’s argument that an intention to cause property damage is sufficient to preclude this incident from being categorized as an accident.  The coverage provision the trustee has invoked is that referring to bodily injury.  Even if, arguably, Olson and Motzko contemplated the possibility of damage to their trucks, that is not bodily injury and is not a sufficient basis for classifying Motzko’s death as being the result of intentionally caused bodily harm.

            The jury had before it evidence upon which it could reasonably find that Olson’s conduct was not intentional.  That finding was not reversible error.


            State Farm assigns as error the district court’s refusal to give a requested jury instruction and special-verdict question on the law of accident in the state of Minnesota.

            District courts have broad latitude in selecting the language of jury instructions, provided that the entire charge fairly and adequately states the applicable law.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  District courts also have broad discretion in framing special-verdict questions.  Dang v. St. Paul Ramsey Med. Ctr., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992).  Where jury instructions fairly and correctly state the applicable law, this court will not reverse the denial of a new trial.  Alevizos v. Metro. Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

            The district court instructed the jury:

            In this case you will first need to determine whether or not Arnold Motzko’s death was caused by accident.  To do so, you must determine whether the defendant, Bobby Olson, intended to cause the rollover.

            Intent or intentionally means that a person wants to cause the consequences of his or her acts, or knows that his orher acts are substantially certain to cause those consequences.

            If you determined that the defendant, Bobby Olson, intended to cause the rollover of Mr. Motzko’s pickup truck, the only other issue for you to determine will be the issue of damages, if any, the plaintiffs are entitled to.

            If you determine that the rollover of Mr. Motzko’s pickup was not intended, but was an accident, there will be additional issues for you to decide.


State Farm argues that the court erred in refusing to instruct the jury that the term “accident” should be afforded its plain, ordinary, or popular meaning.  State Farm also contends the district court erred in denying State Farm’s request to include a separate question on whether Motzko’s death was caused by accident, specifically, “[w]as the death of Arnold FrancisMotzko, bodily injury caused by accident, from the perspective of Bobby Gene Olson?” and instead asking the question,Did defendant, Bobby Olson, intend to cause the rollover of the vehicle driven by Arnold Motzko?”

            Although the district court did not define “accident” and did not use that term in the special verdict, the concept was fairly presented by contrast.  The court instructed the jury that it had to determine whether the incident was an accident or was intentional.  From the instruction it was clear that these were mutually exclusive terms.  The court adequately defined “intent.”  If the jury found that the facts fit the definition of intent, that finding necessarily excluded accident.  Conversely, if the jury found that the facts did not fit the definition of intent, the act necessarily was an accident, because that was the only other possibility presented to the jury.  This approach did not distort the concept of “accident,” and the district court did not err in denying State Farm’s requests for a definition of accident and a special verdict question about accident.


            State Farm alleges that the district court erred in finding as a matter of law that at the time of Motzko’s death, Olson’s vehicle was being used for transportation purposes. State Farm argues that this issue should have been submitted to the jury.

            On established facts, the question of whether an injury arose out of the use of a motor vehicle is a question of law, and the appellate court need not defer to the district court.  Med. Lake Bus Co. v. Smith, 554 N.W.2d 623, 624 (Minn. App. 1996); Kern v. Auto Owners Ins. Co., 526 N.W.2d 409, 4 10 (Minn. App. 1995).

            State Farm’s policy provides coverage for bodily injury caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.  An accident arises out of the use or maintenance of a motor vehicle when (1) there is adequate causation between the motor vehicle and the injury; (2) no act of independent significance breaks the causal link between the use and the injury; and (3) the vehicle is used for a transportation purpose.  Cont’l W. Ins. Co. v. Klug,415 N.W.2d 876, 878 (Minn. 1987); Midwest Family Mut. Ins. Co. v. Karpe, 430 N.W.2d 856, 859 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988).  State Farm contests only the third prong of the Klug test, arguing that at the time of the incident Olson was not using his vehicle as a motor vehicle but rather as “an instrumentality in a dangerous and illegal contest.”  State Farm essentially argues that Olson was using his vehicle as a weapon, not as a mode of transportation.

            The use of a motor vehicle in a dangerous and illegal manner does not necessarily preclude its contemporaneous use for transportation purposes.  Driving a car at an excessive speed and weaving in and out of traffic are dangerous and illegal uses of a motor vehicle.  But the car is still being used to transport the driver.  Using an ordinary passenger vehicle to tow or to push a disabled vehicle, although perhaps not illegal, are arguably dangerous activities and yet are still within the constellation of motoring activities known as transportation.  The common meaning of “transport” is “[t]ocarry from one place to another; convey.”  The American Heritage Dictionary of the English Language 1903 (3d ed. 1992).  The truck-pulling contest involved the carriage or conveyance of both trucks and their drivers from one position on the road to another through the motorized operation of the Olson truck.  As the court in Klugpoints out, for insurance coverage purposes, there must be a distinction drawn between risks associated with motoring and those incident to the use of a vehicle as merely the situs of a risky activity. Klug,415 N.W.2d at 878-79.  Motoring uses are within the contemplation of the insurance policy.  Non-motoring uses likely would fall into a category of some other type of insurance coverage.  The truck-pulling contest was a motoring or transportation use and not a mere situs of injury.  The district court did not err in ruling as a matter of law that the Olson truck was being used for transportation purposes at the time of Motzko’s death.


            Finally, State Farm argues that the district court erred by not ruling as a matter of law that Motzko assumed the risk of his death and by refusing to instruct the jury on the law of assumption of risk.

            When the facts are undisputed and reasonable people can draw only one conclusion, assumption of the risk is a question of law for the court.  Schroeder v. Jesco,Inc., 296 Minn. 447, 451, 209 N.W.2d 414, 417 (1973).  It is within the district court’s discretion to decide whether or not to instruct the jury on assumption of risk. Kantorowicz v. VFW Post, No. 230, 349 N.W.2d 597, 599 (Minn. App. 1984).

            Minnesota law recognizes two types of assumption of the risk.  Swagger v. City of Crystal, 379 N.W.2d 183, 184 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).  Primary assumption of the risk is shown if a person has knowledge of the risk, appreciates the risk, and has a choice to avoid the risk but voluntarily chooses to chance the risk.  Andren v. White-Rodgers Co., 465 N.W.2d 102, 104-05 (Minn. App. 1991), review denied (Minn. Mar. 27, 1991).  Application of the primary assumption of risk doctrine is uncommon.  Swagger, 379 N.W.2d at 185.  By contrast, secondary assumption of the risk is a form of contributory negligence.  Andren,465 N.W.2d at 104.

            Primary assumption of the risk applies only when a person is aware of a specific danger.  Olson v. Hansen, 299 Minn. 39, 44, 216 N.W.2d 124, 127 (1974).  The record contains no evidence regarding Motzko’s knowledge or appreciation of the risk involved in engaging in a truck-pulling contest.  Thus, there was no factual basis on which the court could apply the doctrine of primary assumption of risk as a mater of law.

            Motzko's conduct was, atmost, a secondary assumption of risk.  In finding Motzko 35% negligent, the jury recognized that Motzko was negligent in his conduct and assumed some risk.  The record supports that determination.  It was properly within the district court’s discretion to rule as it did on the issue of primary assumption of risk.