This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Progressive Northern Insurance Company,
Pietsch Chiropractic Clinic, Inc., et al.,
Weide Chiropractic, Inc., et al.,
Xiong Transportation and Translation,
Brian Keller, et al.,
Filed June 13, 2006
Reversed and remanded
Ramsey County District Court
File No. C7-04-6709
Richard S. Stempel, Eric S. Hayes, Jon R. Schindel, Stempel & Associates, PLC, 41 Twelfth Avenue North, Hopkins, MN 55343 (for appellant)
Eric Tostrud, Lockridge Grindal Nauen, PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401 (for respondents Pietsch Chiropractic Clinic, Inc., DP Unlimited, Discover Chiropractic and Wellness, David M. Pietsch, Cha Lee Xiong, Hue Xiong, and Xiong Transportation and Translation)
Jennifer L. Mortel, Crabtree Law Firm, P.A., 1901 Curve Crest Boulevard, Stillwater, MN 55082 (for respondents Desiree Palmen, Brian Keller, and Harris Birkeland)
Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s dismissal of its declaratory-judgment action for failure to state a claim under the corporate-practice-of-medicine law. We reverse and remand.
Appellant Progressive Northern Insurance Company, an automobile insurer, brought a declaratory-judgment action seeking the district court’s determination that Progressive was not required to pay benefits for chiropractic services rendered by respondent David Pietsch, a suspended chiropractor, or any of his corporate entities. Respondents moved to dismiss the action for failure to state a claim. While that motion was pending, Progressive moved for leave to amend its complaint to add counts of misrepresentation and fraud. Without hearing the motion to amend, the court dismissed the action with prejudice. Progressive contends the district court erred by dismissing the action and by failing to rule on the motion to amend.
The chiropractic board suspended Pietsch’s license to practice, effective November 5, 2002. The suspension prohibited Pietsch from practicing, supervising, assisting with, or being present during chiropractic services.
On the effective date of his suspension, Pietsch transferred his clinic to the respondent corporate entities, of which he was the incorporator and sole owner. The corporations employed a chiropractor named Michael Weide. Weide entered an agreement with Pietsch on January 9, 2003, to purchase the corporations, effective January 1, 2003.
In its lawsuit, Progressive alleges that Pietsch’s corporations provided chiropractic services to various of its insureds from November 13, 2002, until January 1, 2003, and that Pietsch and his corporations are not entitled to insurance payments for those services. The legal basis for Progressive’s claim is that Pietsch violated the prohibition against the corporate practice of medicine.
Citing Isles Wellness, Inc. v. Progressive N. Ins. Co., 689 N.W.2d 561 (Minn. App. 2004), the district court concluded that a corporation is not prohibited from employing chiropractors; Weide, a licensed chiropractor, worked for Pietsch’s corporations and rendered services during the suspension period; and that Minn. Stat. § 319B.08 (2004) provides a 90-day grace period within which a disqualified chiropractor may transfer his practice, and that Pietsch made his transfer within that period.
D E C I S I O N
Motions to dismiss under Minn. R.
Civ. P. 12.02(e) are reviewed de novo. Leonard v. Nw. Airlines, Inc., 605 N.W.2d 425, 428 (
The district court ruled that, under
the court of appeals decision in Isles Wellness,
it was permissible for Pietsch’s corporations to employ a chiropractor. On review, the supreme court reversed the
court of appeals, holding that “the corporate practice of medicine doctrine
Of course, the district court granted the motion before it had the benefit of the supreme court’s holding. Nevertheless, the dismissal was in error. Progressive has adequately stated a claim of violation of the law prohibiting the corporate practice of chiropractic. Thus, we reverse and remand for further proceedings on that claim.
The district court also held that, notwithstanding the issue of the applicability of the corporate-practice-of-medicine law, Minn. Stat. § 319B.08 (2004) provides a 90-day period during which a disqualified chiropractor may transfer his practice. That section provides that, when the owner of a professional firm becomes disqualified to practice, the owner’s interest must be acquired by other qualified persons or entities within 90 days after the disqualification. Minn. Stat. § 319B.08, subd. 1(a)(1) (2004).
Statutory construction is a question
of law, which we review de novo.
Private Cause of Action and Jurisdiction
Pietsch contends that the corporate-practice-of-medicine law does not create a private cause of action and that the issue may be raised only as an affirmative defense in a lawsuit alleging a violation of that law. Pietsch offers no authority for this proposition. Furthermore, in Isles Wellness, Progressive was allowed to assert as a counterclaim a violation of the corporate-practice-of-medicine law. 703 N.W.2d at 527 (affirming chiropractor’s counterclaim alleging violation of corporate-practice-of-medicine doctrine). Neither the court of appeals nor the supreme court found the assertion of a private cause of action impermissible.
Pietsch also claims that Progressive
has failed to allege a justiciable controversy as required by Minn. Stat.
§ 555.01 (2004), and, therefore, the district court does not have
jurisdiction over the action. Pietsch
did not raise this issue below, and the district court, which assumed
jurisdiction, did not rule on the question.
Therefore, we decline to consider the issue on appeal. See
Thiele v. Stitch, 425 N.W.2d 580, 582 (
Motion to Amend the Complaint
The district court did not rule on Progressive’s
motion to amend its complaint and thus there is no issue for us to review.
Reversed and remanded.