This opinion will be unpublished and

may not be cited except as provided by

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






Latrina Plunkett, by and on behalf of
DeMaria Plunkett, a minor,


State Farm Insurance Companies,



Filed January 22, 2002


Stoneburner, Judge


Hennepin County District Court

File No. PI00003963



Richard A. Ruohonen, Pritzker & Associates, PA, Suite 4520, Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402-3792 (for appellant)


Kay Nord Hunt, Reid R. Lindquist, Lommen, Nelson Law Firm, 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant Latrina Plunkett appeals from a declaratory judgment that an insurance policy issued to her by respondent State Farm Insurance Companies was cancelled prior to the date of the accident in which her daughter was injured.  Plunkett alleges that the district court erred by denying her pretrial motion for partial summary judgment and her posttrial motions for judgment notwithstanding the verdict or a new trial.  Because the district court did not err in denying Plunkett’s motion for partial summary judgment, the evidence is sufficient to sustain the judgment, and the district court did not abuse its discretion in evidentiary rulings, instructing the jury, or framing the special verdict question, we affirm.



The factual dispute in this case is whether State Farm’s cancellation notice was sent to the wrong address because Plunkett gave the wrong address to her insurance agency or because an agency employee incorrectly recorded Plunkett’s address on the agency computer and forwarded it to State Farm.  It is undisputed that State Farm sent a cancellation notice to the address that State Farm received from the agency.  When State Farm denied coverage for Plunkett’s daughter’s accident, Plunkett sued State Farm in a two count complaint, seeking uninsured motorist benefits for her daughter (Count I) and a declaration that she was insured by State Farm on the date of the accident (Count II). 

Plunkett moved for partial summary judgment declaring that the accident was covered by State Farm.  Plunkett argued that (1) the cancellation was ineffective as a matter of law because State Farm mailed it to the wrong address; (2) State Farm waived its right to cancel the policy by accepting a premium after the attempted cancellation; and (3) State Farm is estopped from raising non-payment because it failed to notify Plunkett of a problem with her automatic premium withdrawal.  State Farm also moved for summary judgment.  The district court denied both motions without comment.

The case was submitted to a jury.  Plunkett asserts that for “strategical reasons” she made a conscious decision not to submit the issues of waiver and estoppel at trial.  Plunkett stipulated that State Farm had the right to cancel her policy for non-payment of premiums and that the only issue for trial was whether State Farm properly cancelled the policy.  Prior to trial, Plunkett moved to exclude from evidence the facts that supported State Farm’s determination to cancel the policy and to exclude evidence of any events or conversations that occurred after the cancellation notice was sent.  The district court denied the motion, noting that the case hinged on credibility and that the evidence Plunkett sought to exclude was relevant to credibility. 

The district court presented the following question to the jury on a special verdict form: “Did State Farm Insurance Companies provide notice of cancellation to [Plunkett] as required by Minnesota Statutes §§ 65B.16 and 65B.18?”  The jury answered: “Yes.”  The district court accepted the jury’s finding regarding notice, concluded that State Farm’s policy was not in force at the time of Plunkett’s daughter’s accident, and ordered judgment in favor of State Farm.  Plunkett moved for judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial, alleging that: (1) the district court admitted irrelevant prejudicial evidence; (2) the evidence does not support the verdict; and (3) the jury instructions and special verdict question were flawed.  The district court denied Plunkett’s posttrial motions.  Plunkett appeals from the denial of her posttrial motions and pretrial motions.


1.         JNOV and new trial motions


            The denial of a motion for JNOV is reviewed de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Where JNOV has been denied by the district court, the appellate court must affirm the denial “if, in the record, there is any competent evidence reasonably tending to sustain the verdict.”  Id. (quotation omitted).  “Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside.”  Id. (quotation omitted). 

The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.


Id. (citation omitted).  

Because the district court has the discretion to grant a new trial, that decision will not be disturbed absent a clear abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

If a district court denies a motion for a new trial, the denial will 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).            

            Admissibility of evidence

            A district court has broad discretion to admit or exclude evidence.  Beniek v. Textron, Inc., 479 N.W.2d 719, 723 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 19, 27, 1992).  “A party must demonstrate prejudicial error to be entitled to a new trial on the grounds of improper evidentiary rulings.”  Id. (citation omitted).  

            Plunkett argues that the district court abused its discretion by admitting evidence of irrelevant and prejudicial incidents that occurred after the agency entered the erroneous address into the agency’s computer.  Evidence is relevant when it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  Nonetheless, relevant evidence may be excluded if the “probative value is substantially outweighed by the danger of unfair prejudice.”  Minn. R. Evid. 403.  

            “Where evidence relevant to a factual issue consists of conflicting testimony, the district court’s decision is necessarily based on the credibility of the witnesses.”  Haefele v. Haefele, 621 N.W.2d 758, 763 (Minn. App. 2001), review denied (Minn. Feb. 21, 2001) (citation omitted).  Here, the district court admitted the challenged evidence as relevant to Plunkett’s credibility. 

            Plunkett argues that the district court’s admission of this evidence was unfairly prejudicial and encouraged “jury nullification” because the jury’s knowledge that she had received oral notification that the policy was cancelled prior to submitting the claim for her daughter’s injuries would lead the jury to decide the case in favor of State Farm even if State Farm was responsible for the address error.  We disagree.  The district court expressly instructed the jury that oral notice is insufficient to cancel an insurance policy and that strict compliance with the statute is required for an effective cancellation. 

District courts are given broad discretion in determining whether evidence is admissible under Minn. R. Evid. 403.  State v. Ashby, 567 N.W.2d 21, 25 (Minn. 1997) (stating that a district court’s evidentiary rulings are within the “sound discretion of the [district] court.”)   We assume that the jury followed the district court’s instructions.  State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998).  Because the evidence was relevant to credibility, and because any prejudice was mitigated by the court’s clear instructions, we conclude that there was no abuse of discretion in admission of the evidence or in denial of Plunkett’s motion for a new trial due to admission of this evidence.

Sufficiency of evidence

            Plunkett argues that the district court erred by denying her posttrial motions because the verdict has no reasonable support in fact and is contrary to law.  We disagree.  The verdict is supported by circumstantial evidence that Plunkett provided the address that was entered into the agency’s computer. 

            The statute governing insurance cancellation notices provides in relevant part:

            No notice of cancellation * * * of an automobile insurance policy under section 65B.15 shall be effective unless * * * notice is mailed or delivered by the insurer to the named insured * * * .


Minn. Stat. § 65B.16 (2000).  Proof that the insurer mailed the notice of cancellation is sufficient when notice of cancellation is mailed to the address shown in the policy.  Minn. Stat. § 65B.18 (2000).  Cancellation becomes effective if the insurer strictly complies with the requirements of Minn. Stat. § 65B.16.  See Ophus v. Tri-State Ins. Co. of Minn., Inc., 392 N.W.2d 653, 656 (Minn. App. 1986) (holding that insurer failed to cancel automobile insurance policy when insurer did not strictly comply with Minn. Stat. § 65B.16 (1980)), review denied (Minn. Oct. 22, 1986).

            If the evidence conclusively establishes that the agency employee who took Plunkett’s change-of-address over the telephone incorrectly entered the address into State Farm’s computer system, the evidence does not support the verdict.  If, however, the evidence supports a finding that State Farm mailed the notice to the address provided by Plunkett, the evidence supports the verdict.  See Minn. Stat. § 65B.18 (stating that proof that insurer mailed notice of cancellation is sufficient when notice of cancellation mailed to the address shown in the policy).[1]

            At trial, neither the agency’s employee nor Plunkett recalled the actual conversation that resulted in the entry of the address in State Farm’s computer system.  The agency employee testified about her usual and customary practice to first note a new address on the telephone log and then enter the address into the computer while the insured is still on the line, verifying the address as it is entered.  The agency’s employee explained that a discrepancy, such as the one that occurred in this case, between the address written on the telephone log and the address entered into the computer could be due to the insured having made a correction as the address was entered into the computer.  Plunkett testified that she had never used or lived at either the address the agency’s employee wrote on the telephone log or the address entered into the computer.[2]           

At trial, the jury heard evidence that Plunkett used several addresses in the short time period surrounding the purchase of her car and insurance and that she used addresses where she was not actually residing on some occasions.  The jury also heard evidence that Plunkett was aware that her bank account did not have funds to cover the first premium to be automatically withdrawn and had been told on at least one occasion, prior to submitting the claim for her daughter’s accident, that her policy was not in force because of non-payment of premiums.

The jury had the opportunity to view witnesses and evaluate the credibility of their testimony.  Generally, an appellate court will defer to a factfinder’s credibility determinations.  State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).  The jury, after evaluating the demeanor and credibility of the witnesses, apparently found that Plunkett, not the agency’s employee, was responsible for the erroneous address.  There is evidence in the record to support this finding, and we defer to the jury’s determination of this fact issue.  The district court did not err by denying Plunkett’s motions for JNOV or new trial based on sufficiency of the evidence.

            Jury Instruction

            A district court has broad discretion in determining jury instructions.  State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990).  Appellate courts will reverse a district court’s decision if the jury instruction constitutes an abuse of discretion.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  Where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial.  Alevizos v. Metropolitan Airports Comm’n of Minneapolis and St. Paul, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

            Plunkett argues that she is entitled to a new trial because the district court abused its discretion by failing to use Plunkett’s proposed jury instruction stating that evidence of conversations that occurred after the date that the erroneous address was entered on the agency’s computer could only be used to evaluate credibility.  The district court declined to give Plunkett’s requested instruction.  The district court ruled that the civil jury instructions on evaluating credibility of witnesses, coupled with the instruction that oral notice is not sufficient to properly cancel an insurance policy, were sufficient.  Because the instructions given fairly and correctly state the applicable law, we conclude that the district court did not abuse its discretion in denying Plunkett’s motion for a new trial based on its failure to give her requested special instruction.  See id. (stating that a district court is within its broad discretion to determine jury instructions when the jury instructions accurately reflect the law).

            Special Verdict

            A district court “has broad discretion * * * in framing special verdict questions.”  Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 658 (Minn. 1992) (citations omitted), review denied (Minn. Dec. 15, 1992).  Plunkett argues that the special verdict question was improper, vague, ambiguous, and did not properly address a factual issue.   At trial, Plunkett’s only objection to the special verdict question was that Plunkett wanted the court to ask whether State Farm “properly mailed and delivered the cancellation notice” to Plunkett and did not want the court to ask whether State Farm “provided proper notice to Plunkett.”  Plunkett did not object to the question as improper, vague, ambiguous, or as improperly addressing a legal issue before the question was submitted to the jury, therefore, Plunkett cannot challenge the special verdict question on those grounds on appeal.  See Kath v. Burlington N. R.R., 441 N.W.2d 569, 572 (Minn. App. 1989) (“It is well established that a failure to object to a special verdict form prior to its submission to the jury constitutes a waiver of a party’s right to object on appeal.”), review denied (Minn. July 27, 1989).

            Even if Plunkett had raised a proper objection to the special verdict question, her argument is meritless.  The district court instructed the jury to determine whether State Farm provided notice of cancellation to Plunkett as required by Minnesota Statutes        §§ 65B.16, .18, and the district court specifically instructed the jury that proper notice is only effectuated when the insurer mails the notice of cancellation to the address in the policy.  Minn. Stat. §§ 65B.16, .18.  Implicit in the special verdict question is whether State Farm properly mailed the notification to Plunkett, the very question Plunkett requested.  Because the district court’s special verdict question was appropriate, and the district court properly instructed the jury on the law, we conclude that the district court did not err by denying JNOV and did not abuse its discretion by denying Plunkett a new trial based on the special verdict question. 

2.         Summary judgment motion

            Genuine issue of material fact

            Plunkett contends that the district court erred by denying her partial motion for summary judgment because no issue of material fact exists as to whether the agency’s employee was responsible for giving State Farm the wrong address.  State Farm alleges that Plunkett’s argument is improperly before the court because she has improperly attempted, in her appellate brief, to incorporate by reference her memorandum in support of partial summary judgment.  But Plunkett also relies on her JNOV argument, which is properly presented in the appellate brief, and her assertion on appeal concerning responsibility for the wrong address and, therefore, we will address the issue.  At the time of the motion for partial summary judgment there was a genuine issue of material fact regarding who was responsible for the erroneous address to which the cancellation notice was mailed.  The district court properly denied Plunkett’s motion for partial summary judgment.

            Waiver & Estoppel

State Farm argues that Plunkett’s waiver and estoppel arguments, raised in her motion for partial summary judgment but not pursued at trial, are not properly before this court.  We agree.  Plunkett made a tactical decision not to pursue waiver and estoppel at trial.  She stipulated without reservation that State Farm had the right to cancel her policy for nonpayment of premiums.  To preserve these issues for appeal, Plunkett was required to raise them at trial.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).



[1] The parties do not dispute that the phrase “address shown in the policy” includes any address changes that an insured gives to an insurer.   

[2] Plunkett testified that her address on the date the computer entry was made was 426 2nd Street Southwest, Rochester.  The address written on the telephone log is 429 2nd Street Southwest.  The address entered into the computer is 429 2nd Street Northwest.