This opinion will be unpublished and

may not be cited except as provided by

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






St. Paul Fire and Marine Insurance Co.,





C. J.,



Filed March 30, 2004


Randall, Judge


Ramsey County District Court

File No. C8-02-6844



Darrell G. Carter, Carter Law Office, 622 Bemidji Avenue North, Bemidji, MN  56601 (for appellant)


Eric J. Strobel, Jodi L. Johnson, Hinshaw & Culbertson, 222 South Ninth Street, Suite 3100, Minneapolis, MN  55402 (for respondent)



            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N


            The district court determined that res judicata barred recovery by appellant under respondent’s insurance policy, reasoning that a prior declaratory judgment action, which held that the insured chiropractor’s sexual misconduct was not covered by respondent’s insurance policy, controlled the issue.  Appellant argues that (1) summary judgment was improperly granted on the basis of res judicata because after the order in the first declaratory judgment action was issued, appellant amended her complaint to allege (a new cause of action) “physical injuries;” (2) the second declaratory judgment action brought by respondent was improperly venued Ramsey County; (3) respondent violated his duty to defend appellant, its insured.  We affirm on all issues.


            In 1990, appellant C.J., began seeing Dr. Gregory Fors for chiropractic treatment.  During the summer of 1993, Dr. Fors began pursuing appellant sexually, and by July 1994, appellant and Dr. Fors were intimate.  The parties’ sustained a three-year consensual sexual relationship during which appellant and Dr. Fors “had regular sexual contact . . . both intercourse and oral sex at his office and other places.”  Appellant became an employee of Dr. Fors during this time. 

            In December 1996, the parties’ sexual relationship ended.  Shortly thereafter, appellant and her husband filed a lawsuit against Dr. Fors requesting damages for assault, battery, sexual exploitation, sexual harassment, and sexual abuse.  Three days later, appellant amended the complaint adding requests for damages relating to intentional infliction of emotional distress and malpractice.  Appellant brought a second motion to amend the pleadings a few months later to add punitive damages and attorneys’ fees, and to add a claim against Dr. Fors for medical malpractice.  The district court granted appellant’s motion to amend the complaint to clarify that her claim was for “negligent treatment specifically malpractice,” but denied the motion to add punitive damages.  Pursuant to the Second Amended Complaint, appellant asserted six cause of actions against Dr. Fors:  Malpractice, Breach of Fiduciary Duty, Negligence, Negligent Infliction of Emotional Distress, Breach of Contract, and Sexual Battery.   

            On January 23, 1998, respondent, St. Paul Fire and Marine Insurance Company filed a declaratory judgment action in Ramsey County District Court.  Respondent sought a declaration regarding its coverage obligations related to the underlying action.  Appellant intervened, and brought a motion for summary judgment claiming that the insurance policy issued by respondent to Dr. Fors provided insurance coverage for the defense and indemnification of one or more claims made by appellant.  The Ramsey County District Court examined both the Commercial General Liability (CGL) and the Professional Liability (PL) insurance polices, and concluded on March 26, 1999, that the injuries suffered by appellant resulted from Dr. Fors’ intentional misconduct, and for that reason, public policy dictated no coverage under either policy.  Appellant appealed this decision, and this court affirmed in St. Paul Fire and Marine Ins. Co. v. Fors, C5-99-914, 2000 WL 1693650, (Minn. App. Nov. 14, 2000).

            After the Ramsey County District Court issued its Order finding that Dr. Fors had no insurance coverage for the claims asserted in appellant’s complaint, Dr. Fors filed for bankruptcy.  Dr. Fors identified appellant as a creditor, and provided her with proper notice.  In response, appellant filed an adversary proceeding to protect her rights.  On October 1, 1999, the Bankruptcy Court issued an Order discharging all claims against Dr. Fors under 11 U.S.C. § 727, except any claims which were based on “willful and malicious conduct” and therefore non-dischargeable under 11 U.S.C. § 523(a)(6).  The bankruptcy court subsequently conducted a four-day trial to determine whether the conduct upon which appellant’s remaining claims were based qualified as willful and malicious pursuant to Section 523(a)(6).  In ruling from the bench, the bankruptcy court held that:

Any debt of [Dr. Fors], to the [appellant] that might result from [Dr. Fors’] willful and malicious conduct as heretofore found and described is not dischargeable under 11 U.S.C. § 523(a)(6) and [appellant] is entitled to judgment of nondischargeability accordingly.  


The bankruptcy court’s final order was affirmed in In re Gregory Charles Fors et al., 259 B.R. 131 (8th Cir. BAP 2001). 

            Following the decision by the bankruptcy court, appellant sought to amend the complaint a third time to add a claim for “physical injury” resulting from Dr. Fors’ intentional misconduct.  The district court granted appellant’s motion to amend concluding that amending the complaint to include allegations of physical damages would not result in unfair prejudice to respondent.  The court stated that:

The amendments proposed by [appellant] and the original pleading are based on common facts and rely on the same type of evidence.  The same legal issues of injury, consent, intent and the nature of [Dr. Fors’] conduct all still exist as before.


            Upon receipt of the Third Amended Complaint, respondent agreed to continue to defend Dr. Fors against appellant’s allegations of intentional misconduct, under a reservation of rights.  Respondent continued to defend Dr. Fors until April 30, 2002, when Dr. Fors entered into a settlement agreement with appellant, notably, without respondent’s consent.  The agreement stipulated that Dr. Fors would satisfy all of the judgments for emotional damages in the amount of $55,000.  The agreement also contained a Miller-Shugart agreement, which stipulated that appellant would attempt to collect from respondent for physical damages in the amount of $345,000.

            On July 15, 2002, respondent filed a second declaratory judgment action in Ramsey County District Court.[1]  Because the Ramsey County District Court had already found in its 1999 Order that respondent had no obligation to indemnify Dr. Fors for damages caused by his intentional misconduct, respondent sought confirmation that its prior order had res judicata and/or collateral estoppel effect, and therefore precluded coverage for damages caused by Dr. Fors’ intentional misconduct.  Respondent also requested, in the alternative, a declaratory judgment that appellant is not entitled to insurance coverage for the settlement amount entered pursuant to the Miller-Shugart agreement.

            On August 7, 2002, appellant moved for change of venue.  Shortly thereafter, respondent moved for summary judgment on their declaratory judgment action, contending that recovery is barred by the doctrines of res judicata and collateral estoppel.  Appellant also moved for summary judgment requesting that the court transfer venue to Hubbard County, or in the alternative, that the court grant her summary judgment on the basis that her claim for “physical injury” was not alleged in the second amended complaint, and therefore the Ramsey County District Court’s 1999 Order is not applicable to appellant’s claim for “physical injury,” and, therefore, the doctrine of res judicata is not a bar. 

            On November 12, 2002, the district court denied appellant’s motion for change of venue from the bench.  A few months later, the court issued a written order denying appellant’s motion for summary judgment, and granting respondent’s motion for support on the basis that res judicata barred appellant’s claims.  This appeal followed.     


I.  Summary judgment

            Appellant argues that the district court erred by granting summary judgment in favor of respondent on the basis that res judicata barred appellant from recovering damages under the insurance policy issued by respondent.  “On appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  “A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The appellate court must view the evidence in the light most favorable to the party against whom judgment was granted.  Id.  The applicability of res judicata is a question of law subject to de novo review.  Care Inst., Inc.-Roseville v. County of Ramsey, 612 N.W.2d 443, 446 (Minn. 2000).

            The doctrine of res judicata is designed to prevent the relitigation of causes of action already determined in a prior action.  Beutz v. A.O. Smith Harvestore Prods., 431 N.W.2d 528, 531 (Minn. 1988).  A subsequent claim is barred under the doctrine of res judicata when:  (1) the earlier claim involved the same claim for relief; (2) the earlier claim involved the same parties or their privies; (3) there was a final judgment on the merits; and (4) the estopped party had a full and fair opportunity to litigate the matter.  State v. Joseph, 636 N.W.2d 322, 327 (Minn. 2001).  The res judicata effect of a judgment in a declaratory judgment action is essentially no different from the res judicata effect of any other judgment.  Howe v. Nelson, 271 Minn. 296, 301, 135 N.W.2d 687, 691 (1965).

            Here, appellant argues that the issue before this court is whether the third amended complaint alleging physical injury provides for a claim that is “arguably within the scope of the policy coverage.”  The Ramsey County district court held that it did not, reasoning that the order in the prior declaratory judgment action precluded appellant from recovering from respondent under the insurance policy for intentional acts.  In reaching its decision, the district court addressed the four factors set forth in Joseph, and concluded that all four requirements for the doctrine of res judicata had been met.  Appellant claims this decision was an error because factors one and four were not satisfied.  Each of the four factors will be discussed.

A.         Earlier claim involving the same claim for relief

Appellant argues that this factor was not satisfied because the third amended complaint amended the second amended complaint to add a claim for physical injuries.  Appellant claims that because it is disputed as to whether appellant’s injuries occurred as a result of Dr. Fors’ negligent or intentional conduct, the district court erred by concluding that res judicata barred relitigation of the matter. 

            We disagree.  A review of the bankruptcy order reveals that appellant’s injuries, including her physical injuries that resulted from a claim of negligence, i.e., standard malpractice (not intentional), were discharged in bankruptcy.  This is evident by the plain language of the bankruptcy order:


[Dr. Fors’] motion for summary judgment is granted as to the cause of action under 11 U.S.C. § 727, and that cause of action is dismissed.  To the extent that [appellant’s] complaint pleads a cause of action under any provision of 11 U.S.C. § 523 other than § 523(a)(6), the action is also dismissed.


The order further provides that “[appellant’s] motion for summary judgment under 11 U.S.C. § 523(a)(6) is denied and the matter will proceed to trial on the issue of nondischargeability under § 523(a)(6) alone.  Pursuant to 11 U.S.C. § 523(a)(6) a discharge under section 727 does not discharge an individual debtor from any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.”  The bankruptcy order plainly dismissed all of appellant’s claims for injury except those that resulted from appellant’s willful and malicious conduct.

            Appellant contends that the Order in the bankruptcy proceeding concerned just the claim for emotional damages arising from the sexual misconduct claim, and the negligence claims for physical damages could not be discharged by the bankruptcy proceeding because those claims had not even been alleged yet.  We disagree.  The bankruptcy order discharged any and all causes of action brought by appellant against Dr. Fors, except those claims that arose out of Dr. Fors’ “willful and malicious” conduct.  Although appellant had not amended the complaint to add the claim for physical damages at the time the bankruptcy order was issued, creditors are not able to avoid bankruptcy and discharge by waiting until after the discharge in the bankruptcy proceeding and then changing the name of a claim.  The bankruptcy discharge applies to all causes of action that did not result from Dr. Fors’ “willful and malicious” conduct.  That most certainly includes appellant’s claims for negligence and malpractice. 

            Appellant is unable to recover from respondent insurance company for her physical injuries that may have resulted from Dr. Fors’ intentional conduct.  In the first declaratory judgment action, the Ramsey County district court was asked to determine if Dr. Fors’ conduct precluded coverage for appellant’s claimed injuries.  The district court determined that the policy only provided coverage for Dr. Fors’ services as a chiropractor.  The district court then determined that the sexual conduct was not part of the “chiropractic treatment,” but was done by Dr. Fors’ for his own personal reasons.  Because the claimed injuries were inflicted as a result of Dr. Fors’ sexual misconduct, the district court concluded that the policy precluded coverage for the injuries resulting from the misconduct.

            Appellant argues that because the third amended complaint added the claim for “physical injuries,” the claims set forth in the second and third amended complaints are not identical, and thus the decision in the first declaratory judgment action does not work to bar recovery under the insurance policy for appellant’s claim for physical injuries.  We are not persuaded.  It is disingenuous to continue to argue that “physical injury” was somehow a never-before-considered cause of action.  Paragraph 23 of the second amended complaint alleges that appellant suffered bodily injury as a result of Dr. Fors’ conduct.  Specifically, the complaint states that “[a]s a result of the sexual exploitation and sexual abuse, [appellant] has suffered and will continue to suffer severe . . . bodily injury . . .”  We have no basis to distinguish a “physical” injury from a “bodily” injury.  Further, paragraph 36 of the second amended complaint states “[Dr. Fors] did inflict emotional distress, including mental anguish, emotional distress, physical, bodily, and emotional injury, upon [appellant].”  This paragraph sets out how “physical injury” was alleged in the second amended complaint.  We can only conclude that the claimed injuries in the third amended complaint for physical injuries are but part of the umbrella of claimed injuries in the second amended complaint.

            Because “physical injuries” were alleged in the second amended complaint, the claims in this proceeding are the same as the appellant’s earlier claims for relief.  Pursuant to the first declaratory judgment action, everything intentional, whether sexual or physical manipulation is not covered by respondent’s insurance policy.  The first component of the application of the res judicata doctrine was met.

B.         Same parties or their privies

            Appellant concedes this factor has been met.  The first declaratory judgment action involved Dr. Fors and respondent.  After appellant learned of the declaratory judgment action, she moved to intervene in order to protect her interests.  Appellant’s motion to intervene was granted; this action involves the same parties or their privies as the first declaratory judgment action. 

C.        Final judgment on the merits

            Appellant concedes that this factor has been satisfied.  The district court issued a final judgment on the merits in the first declaratory judgment matter.  The ruling that Dr. Fors’ sexual misconduct barred appellant from recovering from respondent under the insurance policy was upheld on appeal.  There was a final judgment on the merits.

D.        Full and fair opportunity to litigate the matter

            Appellant argues that this factor has not been met because after she moved the court to intervene in the first declaratory judgment action, the court failed to provide appellant with the opportunity to do any discovery.  Appellant asserts that discovery was relevant because she did not know for certain she was physically injured by Dr. Fors’ over-adjustments until Dr. Glenn Johnson examined her x-rays in the summer of 2002.  But, as stated above, “physical injury” was alleged in the second amended complaint.  Appellant’s claim for “physical injury” was before the Ramsey County District Court in the first declaratory judgment action.  We cannot conclude that appellant did not have a fair opportunity to litigate this matter under several different names and different causes of action.

            We affirm the district court’s grant of summary judgment to respondent on the basis that the doctrine of res judicata bars appellant from recovering damages under respondent’s insurance policy in this lawsuit. 

II.  Venue

            Pursuant to Minn. Stat. § 542.10 (2002), venue is proper if “the county where the action was begun is a county in which the cause of action or some part thereof arose.”  A denial of a motion for a change of venue is reviewed for an abuse of discretion “and can be disturbed only upon a clear showing of abuse.”  Vanden Broucke v. Lyon County, 301 Minn. 399, 404, 222 N.W.2d 792, 795 (1974).

            Here, appellant argues that proper venue in this matter is in Hubbard County rather than Ramsey County because appellant had already commenced a garnishment action to enforce payment on the judgment in Hubbard County as an ancillary proceeding before respondent commenced the second declaratory judgment action.  We disagree.  Although we understand appellant’s request to change venue, it was not an error not to change venue.    There is no showing that venue in Ramsey County was improper under Minn. Stat. § 542.10.  The first declaratory judgment action was issued in Ramsey County, as was the order issued from the bankruptcy court.  Because the first declaratory judgment action arose in Ramsey County, it was proper for the district court to retain jurisdiction in Ramsey County for the second declaratory judgment action.  Appellant suffered no prejudice when she moved to intervene in the first declaratory judgment action, which was heard in Ramsey County.  Appellant was not prejudiced in any way by the bankruptcy proceeding, which was also held in Ramsey County.  The district court did not abuse its discretion by denying appellant’s motion for change of venue.

III.  Duty to defend

            Appellant argues that because respondent neglected its duty to defend Dr. Fors, she is entitled to judgment in her favor.  Appellant did not address this argument in her memorandum of law to the district court, nor did she raise the argument at oral arguments.  Thus, this issue is not properly before this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that issues not raised at the trial court level are generally not reviewed on appeal).  Also, commensurate with our decision affirming the lack of coverage, the record in this lawsuit shows that respondent took all the steps necessary to protect its insured up until it was released from coverage and the duty to defend by judicial fiat.





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

[1]  In June 2002, appellant commenced a garnishment action in Hubbard County in an attempt to collect the full amount of the consent judgment entered pursuant to the Miller-Shugart agreement.  The district court dismissed the action on September 4, 2002, and appeal is currently pending before this court.