This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-663

 

Gerald K. Nagle, Sr.,

Appellant,

 

vs.

 

North Central Life Insurance Company,

Respondent.

 

Filed January 8, 2002

Affirmed

Willis, Judge

 

St. Louis County District Court

File No. C299601559

 

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

 

Eric D. Hylden, Rebekka L. Eisenmenger, Downs Reyelts Leighton Bateman & Hylden, Ltd., 700 Providence Building, 332 West Superior Street, Duluth, MN  55802 (for respondent)

 

            Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the district court’s judgment notwithstanding the jury’s verdict (JNOV) that respondent violated the Prevention of Consumer Fraud Act.  By notice of review, respondent argues that JNOV can be sustained on the alternative ground that it is entitled to dismissal of this case.  Because we conclude that respondent is entitled to JNOV as a matter of law, we affirm.

FACTS

            The parties dispute the liability of respondent North Central Life Insurance Company (North Central) for a balloon payment on a promissory note executed by appellant Gerald K. Nagle, Sr., and a bank.  The note provided a 72-month payment schedule that required Nagle to make 71 monthly payments of $549, starting on April 30, 1993, and a final balloon payment of $27,510.68, due on March 30, 1999.

Nagle purchased from North Central credit life and disability insurance on the note.  The insurance policy states that during the 72-month payment period, North Central would pay the bank the principal remaining on the note if Nagle died or a “monthly disability benefit” of $549 if he became disabled.  The insurance was sold by Frank Bolos, an employee of the bank and an agent of North Central.

            Nagle became totally disabled in September 1995.  North Central paid the monthly disability benefit of $549 for the remainder of the payment period, including the month in which the balloon payment was due.  North Central did not pay the nearly $27,000 remaining on the balloon payment.  After Nagle’s son asked why the balloon payment was not paid in full, North Central replied that it was responsible for $549 per month and that it was not required to pay the balloon payment.

            Nagle sued North Central for negligence, misrepresentation, and breach of contract, claiming that Bolos told him that he would be “fully insured” under the insurance policy and that he is entitled to a disability benefit in the amount of the balloon payment.  North Central moved for summary judgment; Nagle later moved to amend his complaint to include a cause of action under the consumer-fraud act, Minn. Stat. §§ 325F.68-.70 (2000).  The district court granted both motions on the same day, allowing Nagle to proceed only on his consumer-fraud claim.  North Central again moved for summary judgment, which the district court denied.

            At trial, Nagle testified that Bolos told him that he was “fully covered” by the insurance policy and that he relied on everything that Bolos said.  Nagle’s son, who was present during the loan meeting, testified that Bolos said that the promissory note would be “covered in full” if Nagle died or became sick or hurt.  Bolos did not testify.

            The jury found that North Central, through Bolos, violated the consumer-fraud act and awarded Nagle damages of $1,818.29, the amount of the premium for the credit disability insurance.  Nagle moved for amended findings or a new trial and for attorney fees and prejudgment interest.  North Central moved for JNOV.  The district court denied Nagle’s motions and granted JNOV, finding that Nagle produced no evidence that Bolos intended for Nagle to rely on Bolos’s statements, an essential element of a consumer-fraud claim.  See Minn. Stat. § 325F.69, subd. 1.

Nagle appeals, arguing that (1) the evidence is not manifestly against the jury’s finding that Bolos intended for Nagle to rely on Bolos’s statements; (2) the jury awarded inadequate damages; and (3) he is entitled to attorney fees, costs, and prejudgment interest.


D E C I S I O N

I.

Whether the district court properly granted JNOV is a question of law, which this court reviews de novo.  See Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  When considering a motion for JNOV, the district court must determine (1) “whether, viewing the evidence in the light most favorable to the nonmoving party, the verdict is manifestly against the entire evidence” or (2) “whether despite the jury’s findings of fact the moving party is entitled to judgment as a matter of law.”  Id. (citation omitted).  We apply the same standard as the district court in determining whether JNOV is warranted.  Sikes v. Garrett, 262 N.W.2d 681, 683 (Minn. 1977).

            Nagle argues that he presented sufficient evidence for the jury to reasonably infer that Bolos intended for Nagle to rely on Bolos’s statements.  Intent is an essential element of the consumer-fraud act, which states:

The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided herein.

 

Minn. Stat. § 325F.69, subd. 1 (2000) (emphasis added).  Disability insurance is “merchandise.”  See Minn. Stat. § 325F.68, subd. 2 (2000) (“merchandise” includes commodities, intangibles, loans, and services); Force v. ITT Hartford Life & Annuity Ins. Co., 4 F. Supp. 2d 843, 859 (D. Minn. 1998) (stating that statute “can be read to encompass the sale of insurance policies”); Jenson v. Touche Ross & Co., 335 N.W.2d 720, 728 (Minn. 1983) (holding that “the statute applies to the sale of investment contracts”).  Any person injured by a violation of the consumer-fraud act may bring a civil action to recover damages, costs, and reasonable attorney fees.  Minn. Stat. § 8.31, subds. 1, 3a (2000). 

            We agree that the evidence at trial permitted the jury to find that Bolos intended for Nagle to rely on his statements.  Viewing the evidence in the light most favorable to the verdict, we must accept as true the testimony of Nagle and his son that Bolos said that Nagle would be “fully covered” and that the note would be “covered in full” if he became disabled.  These statements, and a careful review of the record, do not leave us with an impression that the jury’s verdict was manifestly against the entire evidence.

            But we conclude that North Central is entitled to JNOV because the jury’s verdict was contrary to law.  Minnesota courts have repeatedly held that reliance on an oral representation is unjustifiable as a matter of law if provisions in a written contract directly contradict the oral representation.  See, e.g., Dahmes v. Indus. Credit Co., 261 Minn. 26, 34-35, 110 N.W.2d 484, 489-90 (1961); St. Croix Printing Equip., Inc. v. Rockwell Int’l Corp., 428 N.W.2d 877, 882 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988); Veit v. Anderson, 428 N.W.2d 429, 433 (Minn. App. 1988); Johnson Bldg. Co. v. River Bluff Dev. Co., 374 N.W.2d 187, 194 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985).

            This court recently addressed the issue of alleged oral representations in the context of the consumer-fraud act.  See Scott v. Forest Lake Chrysler-Plymouth-Dodge, 598 N.W.2d 713 (Minn. App. 1999), review denied in part (Minn. Nov. 17, 1999) (denying review on consumer-fraud issue), rev’d on other grounds, 611 N.W.2d 346 (Minn. 2000).  In Scott, this court considered an automobile buyer’s claim that a dealer violated the consumer-fraud act by orally representing that credit terms in a retail installment contract were binding on both parties when a conditional-delivery agreement, executed contemporaneously, provided that the contract was void if the buyer did not obtain financing approval.  Id. at 720.  This court rejected this claim, finding that the conditional-delivery agreement clearly and unambiguously stated that the installment contract was subject to financing approval, and held that the dealer’s oral representation did not support a claim under the consumer-fraud act.  Id.  This court noted that the buyer cited no authority applying the consumer-fraud act “when oral representations contradicted clear and unambiguous contract language, and the contract language at issue was * * * not hidden among standard form clauses.”  Id. (citing St. Croix Printing Equip., 428 N.W.2d at 882).

            Similarly here, North Central’s disability-insurance policy clearly and unambiguously states that the monthly disability benefit is $549 per month for a maximum of 72 months.  The promissory note, executed contemporaneously, plainly states that the last monthly payment is $27,510.68.  And the policy warns, in boldface print directly above the signature line, that “[t]he amount of insurance may not be enough to completely pay off the loan.”  These provisions directly contradict Bolos’s statements that the note would be “fully covered” or “covered in full” if Nagle became disabled.  In accordance with Scott, we conclude that Bolos’s oral representations do not support a claim under the consumer-fraud act.

            Because the district court properly granted JNOV, we do not reach Nagle’s claims that the jury’s award of damages was inadequate and that he is entitled to attorney fees, costs, and prejudgment interest.

II.

By notice of review, North Central argues that the district court’s JNOV can be sustained on the alternative ground that it is entitled to dismissal of this case because Nagle did not serve or file an amended complaint with a claim under the consumer-fraud act.  In light of our conclusion that North Central is entitled to JNOV, we need not address this issue.

We note, however, that dismissal is not warranted.  If a party is represented by an attorney, service of any pleading after the original complaint must be made on the attorney by delivery, mail, or fax.  Minn. R. Civ. P. 5.01-.02.  Although North Central’s attorney received the amended complaint, the record does not indicate how Nagle’s amended complaint was sent.  Nor is there an admission or certificate of service.  But North Central had actual notice of Nagle’s consumer-fraud claim, and there is no indication that it was unable to adequately prepare for trial.  North Central has not demonstrated that any technical noncompliance with Minn. R. Civ. P. 5.01-.02 was prejudicial.  See Minn. R. Civ. P. 61 (requiring harmless error to be disregarded).

            Affirmed.