This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Western National Mutual Insurance Company,
Filed December 13, 2005
Hennepin County District Court
File No. MC 03-16260
Timothy J. Johnson, Paul E. Overson, Johnson, Uhl & Associates, 7300 Hudson Boulevard, Suite 290, Oakdale, MN 55128 (for respondent)
Burke J. Ellingson, Brendel and Zinn, Ltd.,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Dietzen, Judge.
appeal from a district court order confirming an arbitrator’s award,
appellant argues that the district court erred in confirming the award because (1)
the arbitrator erroneously interpreted Rindahl
v. Nat’l Farmers Union Ins. Cos., 373 N.W.2d 294 (
Respondent Pee Xiong was injured in a motor vehicle accident in April 2002. She applied for and received no-fault benefits until late September 2002, when benefits were terminated based on the results of an independent medical examination. Respondent then filed a petition for no-fault arbitration, seeking recovery of a number of expenses. At issue here is respondent’s claim for homemaker replacement services pursuant to Minn. Stat. § 65B.44, subd. 5 (2004).
Respondent sought $12,000 in homemaker-replacement-services benefits at the June 2003 arbitration hearing. Although respondent’s own children range from six to sixteen years old, respondent’s claim included 7.45 hours per week spent dressing, bathing, and diapering children. Respondent is Hmong and does not speak or read English. Appellant contends that the claim for these services is fraudulent, while respondent maintains that these services were performed for other children in respondent’s household.
arbitrator awarded respondent the full $12,000 that she sought for homemaker replacement
services. Appellant moved the district
court to vacate the award because respondent “clearly submitted fraudulent
evidence in support of her claim for homemaker replacement services” and
because the arbitrator erroneously interpreted Rindahl v. Nat’l Farmers Union Ins. Cos., 373 N.W.2d 294 (
A second arbitration took place before the same arbitrator in June 2004. Both parties submitted additional briefs, but no new testimony was taken. The arbitrator awarded respondent $10,178 for homemaker replacement services.
Appellant again sought an order vacating the arbitrator’s award. After a hearing in September 2004, the district court concluded that there were no findings of fraud by either the district court or the arbitrator, that the parties had agreed that the arbitrator had enough evidence to award $12,000, exclusive of child services, and that no new evidence was introduced at the second arbitration. Stating that appellant failed to meet its burden of proof, the district court denied the motion to vacate. This appeal follows.
of arbitration awards is “limited to those matters where jurisdiction is
statutorily granted.” Abd Alla v. Mourssi, 680 N.W.2d 569, 572
Appellant argues that the district
court should not have confirmed the arbitrator’s award for homemaker replacement
services because the arbitrator erroneously interpreted both Rindahl v. Nat’l Farmers Union Ins. Cos.,
373 N.W.2d 294 (
Next, appellant argues that the arbitrator’s award of homemaker replacement services should have been vacated because it violates the statutory purpose of the no-fault act—namely, providing for special damages but not for general damages. Appellant asserts that the arbitrator’s award for homemaker replacement services is an award for general damages because it does not represent reimbursement for money actually paid to a third person for assistance with household tasks. In support of this argument, appellant contends that the benefits awarded in Rindahl represented reimbursement for an actual financial loss and that, absent an actual out-of-pocket expenditure, the arbitrator’s award here amounts to one of general damages. Appellant contends that “Rindahl . . . seems to require a proven economic loss.”
misconstrues Rindahl. In Rindahl,
a farm wife sought both homemaker-replacement-services benefits and income-loss benefits after her
involvement in a disabling automobile accident.
Rindahl, 373 N.W.2d at 295. The
court analyzed the two claims independently and concluded that Minn. Stat. § 65B.44,
subd. 5 (2004), does not require an out-of-pocket expense for recovery of
homemaker-replacement-services benefits by someone who normally cares for the
home as a full-time responsibility.
Appellant argues that the district court’s November 2003 order vacating the arbitrator’s first award was based on a determination that evidence presented at the arbitration hearing was fraudulent and that it was therefore error to remand the matter to the same arbitrator. But neither the arbitrator nor either of the two judges that reviewed the arbitrator’s decisions made any findings or conclusions regarding any alleged fraud. Instead, in the district court order of November 2003, the court very clearly set forth the arbitrator’s manifest disregard for the law as the basis for vacating the award. In fact, the court stated that “[t]o constitute ‘manifest disregard’, the record must show that the arbitrator both knew the applicable law and expressly disregarded it. This is precisely the case here.”
court need not confirm an arbitration award where it is clear that the
arbitrator disregarded the law. Hunter, Keith Indus., Inc. v. Piper Capital Mgmt.,
Inc., 575 N.W.2d 850, 855 (
district court correctly noted that under the no-fault act, homemaker-replacement-services
benefits are limited to the reasonable value of certain care and
warrant vacating an arbitration award because of fraud, appellant has the
burden of proving the fraud by clear allegations and proof. Mork v.
Eureka-Sec. Fire & Marine Ins. Co., 230
Fraud was not found by the district court in either review of the case. The district court clearly vacated the first arbitration order based on its determination that the arbitrator had exceeded his powers, not on a determination of fraud. Because appellant failed to establish fraud by clear allegations and proof, the district court did not err in vacating the first order on an alternative basis, nor did the district court err in refusing to vacate the second arbitration award once the arbitrator acted within his statutory powers.
the district court did not err in remanding the matter to the same
Finally, appellant contends that the
district court erred in confirming the no-fault arbitrator’s award because the
arbitrator implicitly and impermissibly ruled on a question of law. Appellant raises this issue but makes no
argument concerning its merits. An
assignment of error that is based on a mere assertion and is unsupported by
argument or authority is waived unless prejudicial error is obvious on mere inspection. State
v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (