This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lynda Ste. Jhourré,
American Family Insurance,
Quinlivan & Hughes, P.A.,
Affirmed in part, reversed in part, and remanded
Gordon W. Shumaker, Judge
Hennepin County District Court
File No. CT 02-011638
J. Poage Anderson, Nicholas G. B. May, Nichols, Kaster & Anderson, PLLP, 4644 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)
Frederick L. Grunke, Rajkowski Hansmeier, LTD, 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302-1433 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge, and Minge, Judge.
GORDON W. SHUMAKER, Judge
Appellant Lynda Ste. Jhourré claims that respondent American Family Insurance (AFI) is liable for damages she sustained when AFI breached its promise that it would keep confidential Ste. Jhourré’s tip regarding her neighbors’ insurance fraud.
Ste. Jhourré was a neighbor of Kent and Deborah Jones in Big Lake. In the spring of 1996, the Joneses stored personal property in a storage facility while they built a new home. The facility caught fire and destroyed all items inside.
The Joneses decided to file a claim for the property damage with their insurer, AFI, and decided to list as property destroyed in the fire items that actually were not stored in the facility. To corroborate their claim, the Joneses asked Ste. Jhourré to tell the insurer that she had helped move the property into storage.
In late July 1996, Ste. Jhourré telephoned AFI to report the Joneses’ insurance fraud. She spoke with Susan Brichacek, an AFI employee, who had some experience with receiving an insurance fraud tip. Ste. Jhourré stated that she had information about insurance fraud and Brichacek replied that she was the AFI person who could take the information. Before revealing anything, Ste. Jhourré said that AFI had to promise not to reveal either the content of the tip or even the fact that a tip had been made. She stated that she feared for her life if the Joneses found out that a tip had been given. Ste. Jhourré claims that Brichacek promised not to reveal the tip, and Ste. Jhourré then told her of the Joneses’ scheme to defraud AFI. Ste. Jhourré did not give her name or telephone number. A few days later, Ste. Jhourré again telephoned Brichacek to emphasize the critical importance of keeping the tip confidential. At this time, Ste. Jhourré identified herself.
Immediately after Ste. Jhourré’s first telephone call, Brichacek sent an e‑mail message to AFI’s St. Cloud office, but she did not mention anything about confidentiality. That office forwarded the tip to one of AFI’s special investigators, who later told the Joneses’ insurance agent about the tip.
The Joneses had made a $114,328 claim. The special investigator interviewed them regarding the basis for the claim. The investigator did not mention the tip. After the interview, the Joneses called their agent to complain that AFI was investigating their claim. Then the agent told them that AFI had received an anonymous tip that the claim was fraudulent. The Joneses told the agent that they might know who the tipster was.
Kent Jones then left a voice message for Ste. Jhourré saying that he knew she had made the tip to AFI. In a later call to Ste. Jhourré, Deborah Jones said that she and her husband were going to come after her until the day she died.
AFI denied the Joneses’ claim, and they sued their insurer. While the lawsuit was pending, an AFI investigator learned from Ste. Jhourré that she was the tipster, and Ste. Jhourré agreed to have her deposition taken. Kent Jones attended the deposition and heard Ste. Jhourré admit that she was the tipster.
After the deposition, the Joneses harassed Ste. Jhourré, sued her, and posted disparaging fliers about her all over town. Kent Jones also stalked her. Ste. Jhourré contends that she sustained some damage to her property and that she suffered significant emotional distress as a result of the disclosure of her tip.
Ultimately, Ste. Jhourré sued AFI on theories of breach of contract, negligent and intentional misrepresentation, and promissory estoppel. The district court granted AFI’s motion for summary judgment and dismissed all claims in the action. On appeal, Ste. Jhourré does not challenge the dismissal of her breach of contract claim, but asserts that the district court erred in dismissing all other claims.
In a thorough, articulate, thoughtful, and lucid order memorandum, the district court analyzed and explained its bases for granting summary judgment. We agree with the court’s reasoning as to the claims for breach of contract (which is not an issue on appeal), negligence, and negligent misrepresentation. But, applying summary judgment standards, we reach different conclusions as to the claims for intentional misrepresentation and promissory estoppel, and we are compelled to reverse judgment on these claims.
Our standard of review on appeal from a summary judgment requires us to determine whether there exist any issues of material fact for trial and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We view “the evidence in the light most favorable to the party against whom [summary] judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But we need not defer to the district court on purely legal questions. Frost‑Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).
We also note that summary judgment tends to be an extraordinary remedy that should be granted only when the material facts compel a single conclusion. Ill. Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 634 (Minn. 1978). Where there are genuine doubts, parties ought to have their day in court.
Summary judgment is a ‘blunt instrument’ and should not be employed to determine issues which suggest that questions be answered before the rights of the parties can be fairly passed upon. It should be employed only where it is perfectly clear that no issue of fact is involved, and that it is not desirable nor necessary to inquire into facts which might clarify the application of the law.
Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).
Factual inferences, credibility, and the weight of the evidence are issues for the jury. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). It is our view that genuine fact issues exist as to each element of Ste. Jhourré’s claim of intentional misrepresentation. Those elements are that AFI
(1) made a representation (2) that was false (3) having to do with a past or present fact (4) that is material (5) and susceptible of knowledge (6) that the representor knows to be false or is asserted without knowing whether the fact is true or false (7) with the intent to induce the party to act (8) and the party in fact is induced to act (9) in reliance on the representation; (10) that the plaintiff suffered damage (11) attributable to the misrepresentation.
M.H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992). The district court did not analyze all of the elements, but rather held that Ste. Jhourré failed to point to fact issues as to the third and eleventh elements.
As to the third element, the court ruled that, if there was any promise, it concerned “a possible future event and had nothing to do with a past or present fact.” We disagree. Ste. Jhourré’s contention is that Brichacek made a promise regarding a present fact, namely, that, upon disclosure of the tip, confidentiality would immediately attach. Inferentially, she promised to take whatever immediate steps would be necessary to ensure confidentiality. According to Ste. Jhourré, Brichacek accepted the tip information and immediately began to act on it within AFI, but did nothing whatsoever to ensure that the tip would not be revealed to persons outside AFI. Because of the timing of the promise and the tip and Brichacek’s immediate dissemination of the confidential information, a jury could infer that Brichacek had no intention to perform her promise when she made it. See Belisle v. Southdale Realty Co., 283 Minn. 537, 540, 168 N.W.2d 361, 363-64 (1969) (stating that a defendant by representation may create a belief that defendant intended to perform an act which in fact it did not and that misrepresentation of a present intention could amount to fraud).
As to the eleventh element, the court ruled that AFI’s breach of confidentiality did not directly cause damages. Ordinarily, causation is a jury issue. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995). The district court’s premise is that, if there were damages, they occurred only after Ste. Jhourré’s deposition, during which she admitted that she was the tipster. But this ruling seems to assume that a lawsuit and a revelatory deposition would have occurred even if the tip had not been disclosed by the Joneses’ insurance agent. The evidence suggests that the Joneses’ lawsuit was fueled in part by the tip and that the tip was a substantial precipitating factor in bringing about virtually all of Ste. Jhourré’s alleged damages. At the very least, the evidence raises the issue of concurring cause, which presents a fact question for trial. Roemer v. Martin, 440 N.W.2d 122, 123 (Minn. 1989).
Ste. Jhourré does not challenge the district court’s dismissal of her breach of contract claim but instead argues that she is to recover on the basis of promissory estoppel.
The equitable remedy of promissory estoppel is available upon proof of four elements: (1) a clear and definite promise, (2) intention to induce reliance on that promise, (3) reliance did occur to the detriment of the promisee, and (4) it is necessary to enforce the promise to prevent an injustice. Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1992) (Cohen II).
Noting that Ste. Jhourré relies on Cohen II for her promissory estoppel claim, the district court ruled that the remedy is not available because the public policy considerations that existed in Cohen II do not exist here and because Ste. Jhourré has failed to show the existence of a genuine fact issue as to damages.
In Cohen II, a tipster gave damaging political information to two newspapers about a candidate for elective office shortly before the election. Id. at 388. Before giving the tip, the tipster obtained from the reporters their promise to keep the identity of the source of the information confidential. Id. at 389. Despite the promises, the newspapers revealed the tipster’s identity. Id. The tipster was fired from his job. Id. He sued the newspapers and ultimately received a jury award of $200,000 on a theory of promissory estoppel. Id.
Rejecting Ste. Jhourré’s contention that promissory estoppel applies to her claim, the district court stated:
[On] a public policy level, the promise to Cohen was made in a context of an industry with an established practice and honored tradition of protecting source anonymity. By contrast, Ste. Jhourré’s tips concerning the Joneses’ insurance fraud occurred in a setting in which AFI was required to report the information to authorities.
We do not read Cohen II to be restricted to cases involving industries with established practices and honored traditions of protecting source anonymity. Rather, Cohen II appears to recognize the applicability of promissory estoppel to any situation in which “injustice can be avoided by enforcing the promise.” Id. at 391.
The injustice to the tipster in Cohen II was that he got fired from his job. Id. at 389. The alleged injustice here is that Ste. Jhourré was subjected to lawsuits and various acts of harassment and disparagement. We fail to see how the loss of a job is more “injustice” than the consequences Ste. Jhourré allegedly suffered.
The district court also points out that AFI was required to disclose the tip it received from Ste. Jhourré and that is a significant distinction between this case and Cohen II.
The court’s reference is to Minn. Stat. § 60A.95, subd. 2 (1994), which requires insurers to provide information about suspected insurance fraud to “the division of insurance fraud prevention or to any authorized person . . . .” In noting that statute, the district court appears to be saying that, unlike the Cohen II tip, confidentiality here was actually prohibited by law. The implied assumption in that statement is that AFI could not keep the tip confidential from the Joneses. There is nothing in the record to support the conclusion that the responsible authorities would have had to disclose the tip or to allow its discovery had the Joneses inquired. In fact, it is equally likely that the responsible authorities would have kept the source of the tip anonymous because of both data privacy rules and the established practice and honored tradition of the protection of source anonymity in criminal investigations and prosecutions.
Furthermore, Ste. Jhourré argues that the disclosure requirement under the statute actually augments her claim of intentional misrepresentation because AFI knew it had to disclose the tip, at least to public authorities, and made the promise of confidentiality nevertheless. This is an argument that the trier of fact is entitled to consider.
The district court also ruled that Ste. Jhourré’s damages are speculative and are not supported by an independent tort. We have already explained that there are genuine issues of material fact as to the independent tort of intentional misrepresentation and of causation. We agree with the district court that speculation as to damages is inadmissible at trial, but here we have at least some damages that appear directly connected to the Joneses’ response to the revelation of the tip. There are sufficient fact issues as to damages to permit the trier of fact to decide.
Affirmed in part, reversed in part, and remanded.