This opinion will be unpublished and

may not be cited except as provided by

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






Tammy Jean Hance, et al.,


Life Time Fitness, Inc., et al.,


Filed May 14, 2002


Huspeni, Judge*



Hennepin County District Court

File No. 0010929



Thomas E. Emmer, Lynne M. Miller, Emmer & Lively, P.A., 1800 Pioneer Creek Center, P.O. Box 39, Maple Plain, MN 55359 (for appellants)


Robert T. Stich, Leo I. Brisbois, Stich, Angell & Kreidler, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, MN 55401 (for respondents)



            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.

U N P U B L I S H E D    O P I N I O N



            Appellant employee challenges the district court’s directed verdict granted in favor of respondents, arguing that mere receipt of workers’ compensation benefits does not constitute an election of remedies under the statute.  Because we conclude that the workers’ compensation act provides appellant’s exclusive remedy against respondents, we affirm.



            On November 2, 1999, appellant Tammy Jean Hance and respondent Bahram Akradi, chief executive officer of respondent Life Time Fitness, Inc., were walking down a hallway at a Life Time Fitness Club, where Hance was employed as a receptionist.  As they were walking, they were met by another employee who joked that Akradi was walking with his girlfriend.  Akradi made a jocular comment in response and then, without warning, reached over to Hance, picked her up, rolled her across his hip, and set her down on her feet.

            As a result of the incident, Hance received injuries to her neck, ribs, back, and shoulder.  Some time later, when Hance discussed the incident with Akradi, he apologized and told her that “whatever it takes to help you out, if you need physical therapy or whatever you need, we’ll take care of it.”  Hance completed a written incident report at the direction of her supervisor over a week later, and subsequently a report of injury and a workers’ compensation claim were submitted by Life Time Fitness to its workers’ compensation insurer, E.B.I. Companies.

            A nurse from E.B.I. met with Hance at Life Time Fitness and also had several telephone conversations with her.  It is uncontested that E.B.I. paid workers’ compensation benefits to Hance and that she cashed the checks for $1,300 in wage replacement benefits.  E.B.I. also paid more than $3,700 in chiropractic and neurological bills.

            Approximately two months after incurring her injury, Hance voluntarily left Life Time Fitness and accepted a receptionist job at a state bank (a position she described as her “dream job”).  At that time, wage replacement benefits stopped.  Hance and her husband subsequently initiated a lawsuit for damages resulting from the injury based on common-law battery and assault claims, intentional infliction of emotional distress, loss of consortium, and vicarious liability.

            Respondents moved for a directed verdict following Hance’s case-in-chief.  The district court granted the motion following the testimony of two E.B.I witnesses, finding that Hance’s acceptance of workers’ compensation benefits barred her civil action.  In reaching its conclusion, the court found that Hance was injured in the course of employment and that Akradi was a co-employee.  On September 27, 2001, the court denied Hance’s request for leave to file a motion for reconsideration and entered a judgment of dismissal with prejudice.  This appeal resulted.


            A district court may grant a motion for a directed verdict when the evidence is insufficient as a matter of law to present a fact question for the jury.  Wall v. Fairview Hosp. & Healthcare Servs., 584 N.W.2d 395, 405 (Minn. 1998).  In determining whether to grant a directed verdict, the court must view the evidence in the light most favorable to the nonmoving party.  Id.  Nevertheless, a directed verdict should be granted when the evidence is overwhelmingly preponderant for one party, even if there is some evidence in favor of the adverse party.  Zinnel v. Berghuis Constr. Co., 274 N.W.2d 495, 498 (Minn. 1979).  This court reviews de novo the district court’s ruling on a directed verdict.  Kaiser-Bauer v. Mullan, 609 N.W.2d 905, 910 (Minn. App. 2000), review denied (Minn. July 25, 2000).[1]

            Hance argues that her passive acceptance of workers’ compensation benefits does not equate to an affirmative choice of electing workers’ compensation benefits over seeking damages at law.  She contends that she never applied for workers’ compensation benefits, but rather, that respondents took it upon themselves to apply for the benefits on her behalf.  Therefore, she argues, she should be permitted to make an election to proceed with this civil action.[2]  We conclude, however, that because it is uncontested that Hance’s injury arose during the course of her employment and that Akradi is an employee of Life Time Fitness, this is not a case involving election of remedies (although language in the district court’s dismissal order arguably could be interpreted as having considered the case to be one involving election of remedies).  See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (stating “we will not reverse a correct decision simply because it is based on incorrect reasons.”).  Instead, Hance’s exclusive remedy is under the provisions of the workers’ compensation act, unless she can bring herself within one of the act’s exceptions.

            The act ordinarily provides an employee’s exclusive remedy against an employer for personal injuries “arising out of and in the course of employment.”  Minn. Stat. § 176.021, subd. 1 (2000).  It is based on a policy of “mutual renunciation of common law rights and defenses by employers and employees.”  Minn. Stat. § 176.001 (2000).  The exclusive remedy provision of the act states that

[t]he liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employee * * * entitled to recover damages on account of such injury or death.


Minn. Stat. § 176.031 (2000).  In her brief, however, Hance cites to the act’s third-party exception to its exclusive remedy provision, inferring that somehow Akradi is a third party:

If an injury * * * for which benefits are payable occurs under circumstances which create a legal liability for damages on the part of a party other than the employer * * *, the employee, in case of injury * * *, may proceed either at law against that party to recover damages or against the employer for benefits, but not against both.


Minn. Stat. § 176.061, subd. 1 (2000).  It is uncontested, however, that Akradi was a co‑employee of Hance.  Hance even acknowledges in her complaint that Akradi is an employee of Life Time Fitness.[3]  Therefore, the third-party exception to the act provides no relief for Hance from the exclusivity of the act.

            The act does provide an exception for injuries inflicted under certain circumstances by a co-employee:

A co-employee working for the same employer is not liable for a personal injury incurred by another employee unless the injury resulted from the gross negligence of the co-employee or was intentionally inflicted by the co-employee.


Id., subd. 5(c) (2000).  This exception is very narrow.  To establish a negligence claim against a co‑employee, the injured employee must satisfy a two-pronged test designed to limit the liability of co-employees.  Wicken v. Morris, 527 N.W.2d 95, 98 (Minn. 1995).

First, the injured employee must establish that the co-employee had a personal duty toward the employee and, second, the injury must arise from gross negligence on the part of the co-employee.  Id.  There is no question of a personal duty at issue here.  And gross negligence is negligence of the highest degree.  High v. Supreme Lodge of the World, 214 Minn. 164, 170, 7 N.W.2d 675, 679 (1943).  Hance has never claimed that Akradi was grossly negligent or intended to injure.  Therefore, his conduct does not fall within the exception stated in Minn. Stat. § 176.031, subd. 5(c).

Hance further attempts to escape the exclusivity of the act by arguing that she has established a prima facie case for civil battery, an offense that may be committed without any specific intent to cause physical injury existing on the part of the defendant.[4]  The intent necessary to establish a civil battery, however, is wholly different from what the act requires to escape its exclusivity provisions.  The act’s exception requires intent to injure.  Again, no intent to injure is present in this case. 

Hance’s injury occurred during the course of her employment and resulted from an act of a co-employee who did not intend to injure her.  Therefore, we conclude as a matter of law that she is unable to invoke an exception to the act, and the act provides her exclusive remedy.

            Further, if we were to consider Akradi to be Hance’s employer rather than a co-employee, Hance would still be unable to escape the exclusivity of the act.  While the supreme court has carved out an intentional-injury-by-employer exception in Boek v. Wong Hing, 180 Minn. 470, 472, 231 N.W. 233, 234 (1930), a “conscious and deliberate intent to inflict injury” on an employee is necessary under that exception.  Kaess v. Armstrong Cork Co., 403 N.W.2d 643, 644-45 (Minn. 1987).  This narrow intentional-injury exception does not include negligence, even though the negligence may be gross.  Id. at 644.  Again, there is no intent to injure present in this case.

It follows that Hance’s argument that Life Time Fitness is vicariously liable must also fail.  This court has determined that the doctrine of vicarious liability is not a means of avoiding the intent requirement of the intentional-injury exception.  DeVries v. Emblom, 420 N.W.2d 670, 673 (Minn. App. 1988), review denied (Minn. Apr. 28, 1988).  Therefore, even considering Hance’s action to be one against her employer, her exclusive remedy is under the act.

Finally, Hance’s husband’s loss-of-consortium claim must also fail, because a spouse may not maintain a common-law action where the act provides an injured employee’s exclusive remedy.  Hartman v. Cold Spring Granite Co., 247 Minn. 515, 516‑17, 77 N.W.2d 651, 652-53 (1956).


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


[1]  Respondents argue that Hance’s appeal is solely from the denial of her motion for a new trial, which appeal would have a more favorable standard of review for respondents.  However, Hance’s notice of appeal indicates that she seeks review of the judgment of dismissal, which resulted from the trial court’s grant of a directed verdict to respondents.  Hance’s motion for a new trial is not included in the record before us, but we conclude from respondents’ memorandum in opposition to that motion that Hance there claimed error in granting the motion for directed verdict.  In any event, appellate courts are not precluded from reviewing a directed verdict even without a motion for a new trial.  Doan v. Medtronic, Inc., 560 N.W.2d 100, 106 (Minn. App. 1997), review denied (Minn. May 14, 1997).


[2]  Hance attempts to supplement the record in support of her argument that she should not be bound by her passive acceptance of benefits with a posttrial affidavit, apparently submitted with her motion for a new trial.  See footnote 1.  Affidavits on a motion for a new trial intended to add to and supplement testimony cannot be considered, and we do not do so here.  Mair v. Schwartz, 179 Minn. 586, 587, 229 N.W. 565, 565 (1930).


[3]  At oral argument, Hance claimed for the first time that her injuries fell within the act’s assault exception described in the act’s definition of “personal injury.” 


“Personal injury” means injury arising out of and in the course of employment * * * but does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.


Minn. Stat. § 176.011, subd. 16 (2000).  However, issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  Even if we were to address the merits of this allegation, we note that to prevail, Hance would be required to prove that Akradi was motivated by personal animosity toward her.  See Fernandez v. Ramsey County, 495 N.W.2d 859, 861 (Minn. App. 1993) (discussing noncompensable cases arising from assault are those where the assailant is motivated by personal animosity toward the victim).  The record contains no evidence of such personal animosity.

[4]  Intent to do an act is central to a civil assault and battery action.  A plaintiff in that action need not prove intent to injure, however.  W. Prosser, The Law of Torts § 9, at 35‑37 (4th ed. 1971); Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822, 825 (Minn. 1980).