This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








Western National Mutual Ins. Co.,





Paula Goldstein,




Filed ­­­November 16, 2004

Affirmed; motion granted

Harten, Judge



Hennepin County District Court

File No. CT-02-19668



Bradley L. Doty, Jon R. Schindel, Stempel & Associates, PLC, 41 Twelfth Avenue North, Hopkins, MN 55343 (for appellant)


Amy J. Doll, Fluegel, Helseth, McLaughlin, Anderson & Brutlog, Chtd., 215 Atlantic Plaza, P.O. Box 527, Morris, MN 56267 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Harten, Judge; and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N




Respondent insured was involved in a collision while driving a car insured by appellant.  Appellant filed a complaint for declaratory relief against respondent, seeking to void the policy and recover the amount of benefits paid to date, asserting that respondent made a material misrepresentation on her policy application.  Both parties moved for summary judgment.  Because the district court properly applied the law in granting respondent summary judgment, we affirm.  We also grant respondent’s motion to strike.


            Respondent Paula Goldstein applied for automobile insurance with appellant Western National Mutual Insurance Company.  Appellant alleged that some information on the first application was incomplete, and respondent filled out a second application that was accepted.  It asked applicants to list “names of all residents of household licensed or not.”  Respondent listed herself and her three-year-old daughter.  At the time respondent’s application was completed, she was living in an apartment with three other people: her daughter; Steve Maxey, who was not related to respondent by blood or marriage; and Maxey’s son.

            Respondent was involved in a collision while driving her car in which her daughter and Maxey were passengers.  Maxey was no longer living with respondent at the time of the collision.  All three sought benefits under respondent’s insurance policy.  Appellant paid respondent medical benefits of $11,218.20 for herself and $3,862.99 for her daughter.  Appellant filed a complaint for declaratory relief against respondent, seeking an examination under oath regarding her policy.  At the examination, appellant’s attorney asked respondent to describe her relationship with Maxey.  Respondent explained that Maxey first moved in with her as a personal care attendant (PCA).  They then dated for about 18 months, but the relationship was unsuccessful.  Respondent stated that Maxey continued to live with her as a PCA for some time after the relationship failed and was listed on the lease as such at her landlord’s request.

Maxey’s attorney sent appellant a demand to settle his claim.  Appellant answered that it would respond to the demand pending the outcome of the declaratory action against respondent.  Appellant then filed an amended complaint against respondent, seeking to void the policy and recover the amount of benefits paid to date, asserting that respondent made a misrepresentation of material fact by failing to list Maxey as a resident of her household.  Appellant moved for summary judgment.  Respondent also moved for a summary judgment that the policy was valid to cover the collision and seeking costs and attorney fees.  The district court granted respondent’s motion and awarded costs and attorney fees.  Appellant now challenges this award and the denial of its motion; respondent moves to strike portions of appellant’s brief.


“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower court erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The question of whether an insurer has a duty to defend is a legal question subject to de novo review.  Metro. Prop. & Cas. Ins. Co. v. Miller, 589 N.W.2d 297, 299 (Minn. 1999).  Interpretation and application of an insurance policy to the facts in a case are reviewed de novo.  Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn. 2001).

1.         Insurance Policy

            Appellant contends that respondent’s policy is void because (1) respondent misrepresented material facts on her policy application, and (2) respondent’s failure to list Maxey as a member of her household increased appellant’s risk of loss.

            An intentional, material, factual misrepresentation on an insurance application violates Minn. Stat. § 60A.08, subd. 9 (2002), and thereby voids the policy.[1]  The burden of proof for alleged factual misrepresentations is on the insurer.  Proprietors Ins. Co.  v. Northwestern Nat’l Bank, 374 N.W.2d 772, 776 (Minn. App. 1985).  Appellant argues that respondent’s failure to list Maxey as a member of her household on her application was such a misrepresentation.

            The application asked respondent to list “names of all residents of household licensed or not,” but did not define “all residents of household.”  Under Minnesota caselaw, persons unrelated by blood or marriage to an insured are not considered residents or members of the same household.  Bartholet v. Berkness, 291 Minn. 123, 126, 189 N.W.2d 410, 412 (1971) (unrelated friends living as roommates were not "member[s] of the same household"); Kruse v. Minn. Auto. Assigned Claims Bureau, 371 N.W.2d 602, 605 (Minn. App. 1985) (the phrase "members of the owner's household" did not include an owner's fiance who moved into the owner's home thirteen days before an accident, because she was unrelated by blood or marriage), review denied (Minn. 18 Oct. 1985); see also Mickelson v. Am. Family Ins. Co., 329 N.W.2d 814, 816 (Minn. 1983) (a man and a woman who lived together for seven years, commingled incomes, and shared expenses, were not "relative[s]" for auto insurance purposes because they were not connected by "blood, marriage, or adoption").

Minnesota courts have adopted a three-part test to determine whether a person is a resident of another’s household:  (1) living under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship in contracting about insurance.  Johnson v. Am. Econ. Ins. Co., 419 N.W.2d 126, 128 (Minn. App. 1988) (quotation omitted); accord Lott v. State Farm Fire & Cas. Co., 541 N.W.2d 304, 307-08 (Minn. 1995); Vierkant v. AMCO Ins. Co., 543 N.W.2d 117, 122 (Minn. App. 1996), review denied (Minn. 28 Mar. 1996).  The first two Pamperin factors are generally satisfied if the individuals in question “dwell together as a family under the same roof.”  Johnson, 419 N.W.2d at 128 (quotation omitted).  Further, whether a policy uses the term “resident” or “member” of the household, or both, Minnesota caselaw uses the same factual analysis.  See, e.g., Skarsten v. Dairyland Ins. Co., 381 N.W.2d 16, 19 (Minn. App. 1986) (whether a person is a resident or member of the household is dependent on the Pamperin test), review denied (Minn. 27 Mar. 1986).

            While respondent and Maxey did live under the same roof at the time of the application, their arrangement did not rise to the level of “family.”  The two seemingly did not consider themselves a family while they were dating or after their relationship failed.  Even if this relationship could be construed as familial, the parties evidently had no plans that it would be of substantial duration.  The dating relationship lasted only about 18 months, and Maxey moved out of respondent’s home after two or three years.  We note that the relationship between respondent and Maxey was not nearly as lengthy as the seven-year relationship in Mickelson, 329 N.W.2d at 815, nor as significant a relationship as the engagement in Kruse, 371 N.W.2d at 603.  Thus, even though the first two Pamperin factors are satisfied by Maxey living with respondent, application of Mickelson and Kruse clearly indicates that the relationship here was insufficient to be within the definition of “household.”  We conclude that respondent’s failure to list Maxey as a resident of her household was correct, not a factual misrepresentation.  Given that conclusion, the associated question of whether that failure increased the risk of loss becomes moot; the policy is not voidable.

2.         Attorney Fees


            Attorney fees are generally not recoverable absent specific statutory or contractual authorization.  Hopkins v. Empire Fire & Marine Ins. Co., 474 N.W.2d 209, 213 (Minn. App. 1991).  “On review, [an appellate court] will not reverse a [district] court’s award or denial of attorney fees absent an abuse of discretion.”  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).  If an action for declaratory relief results in a determination that the insurer breached its duty to defend, the insurer will be held responsible for the costs and attorney fees from the underlying action.  Redeemer Covenant Church v. Church Mut. Ins. Co., 567 N.W.2d 71, 82 (Minn. App. 1997), review denied (Minn. 1 Oct. 1997).

            The district court awarded respondent attorney fees of $10,178, together with costs and disbursements, because it concluded that appellant breached its duty to defend, which is triggered when an insurer has notice of a claim by the insured.  The award was not an abuse of its discretion.

3.         Motion to Strike

Appellant’s brief appendix and reply brief appendix contain documents that are not in the record, including documents describing respondent’s automobile insurance policy, respondent’s claim history, respondent’s driver’s license records, notes made by appellant, Maxey’s driver’s license records, portions of a transcript of Maxey’s testimony, and Maxey’s application for benefits under respondent’s policy.  Respondent petitioned this court to strike these documents and citations to them.

“The papers filed in the [district] court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  Minn. R. Civ. App. P. 110.01.  “An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.”  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  This court will strike documents not included in the appellate record and any reference to those documents included in the parties’ briefs.  Brett v. Watts, 601 N.W.2d 199, 201-02 (Minn. App. 1999), review denied (Minn. 17 Nov. 1999).  Accordingly, because they are not part of the appellate record, we grant respondent’s motion to strike these parts of appellant’s briefs.

            Affirmed; motion granted.

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

[1] Minn. Stat. § 60A.08, subd. 9, states, “No oral or written misrepresentation made by the assured, or in the assured’s behalf, in the negotiation of insurance, shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless made with intent to deceive or defraud, or unless the matter misrepresented increases the risk of loss.”