This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








Great West Casualty Company,





Carolina Casualty Insurance Company,

Respondent (A05-1619, A05-1804),

Appellant (A05-1773),


Select Transportation, Inc.,

d/b/a M & M Trucking, et al.,

Defendants (A05-1619, A05-1773),

Appellants (A05-1804),


Renee Vance as Successor

Trustee to Carrielee Perez,

Trustee for the heirs and next of kin

of Kevin Vance,

Appellant (A05-1619),

Respondent (A05-1804).


Filed June 20, 2006

Affirmed; motion granted
Harten, Judge


Kanabec County District Court

File No. 33-C4-02-000547


Michael W. McNee, Andrea E. Reisbord, Tamara L. Novotny, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN  55416 (for respondent Great West Casualty Company)


Frederick L. Grunke, Rajkowski Hansmeier, Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN  56302 (for Carolina Casualty Insurance Company)


John R. Crawford, Daniel Hintz, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, MN  55425 (for Select Transportation)


Peter D. Gray, Paula Duggan Vraa, Mark A Bradford, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN  55402 (for Renee Vance)


            Considered and decided by Stoneburner, Presiding Judge, Dietzen, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            These consolidated appeals involve the determination of the extent of liability coverage afforded under two insurance policies, one issued by respondent Great West Casualty Company (Great West) and the other issued by appellant Carolina Casualty Insurance Company (Carolina Casualty), for damages resulting from the death of Kevin Vance, who was struck and killed by a truck owned and operated by Shawn Everhardt.  On appeal from the district court’s grant of summary judgment to appellant/respondent Renee Vance, who serves as the successor trustee for Vance’s heirs, this court determined that fact issues existed and reversed and remanded the matter for trial.  See Great West Cas. Co. v. Carolina Cas. Ins. Co., Nos. A03-1609, A03-1835, 2004 WL 950283 (Minn. App. May 4, 2004) (Great West I).  Following a three-day bench trial, the district court issued detailed findings and determined that coverage was available under the policy issued by Carolina Casualty to appellant Select Transportation, Inc. (Select), because Everhardt was operating under an implied lease with Select at the time of the accident; the district court further determined that Great West, which had issued a non-trucking use policy on Everhardt’s truck, was not liable because Everhardt was operating “in the business of” Select at the time of the accident.

            Because the district court’s findings are reasonably supported by the evidence and are not clearly erroneous, and because those findings support the district court’s conclusions of law, we affirm.



            On 14 August 2001, Everhardt drove his truck through an intersection and struck and killed 29-year-old Kevin Vance as he was crossing the street.  This dispute over insurance coverage involves Everhardt’s activities in the days immediately preceding the accident.

            In July 2001, Everhardt had been in contact with Mahna Sorrell (formerly Mahna Dauer) regarding a potential job.  Sorrell was co-owner of Mad Dog Trucking and had leased two trucks to Select, which had a contract to haul materials at a job site for Murphy Rigging & Erecting Company.  At some point after the Murphy Rigging job began, Select’s owner, Mark Christensen, told Sorrell that he was in need of another driver.  Sorrell thought of Everhardt and mentioned that she knew a driver who was looking for work.

            Sorrell thereafter met with Everhardt and helped him fill out Select’s contractor operating agreement, a copy of which she had obtained from her office.  Sorrell testified that she made it clear that Everhardt would be working for Select, not for Mad Dog, and that she delivered the agreement to Select shortly thereafter.

            Select had four trailers hauling at the Murphy Rigging site.  When the job began, there were four drivers at the site, two from Mad Dog and two from Select:  Jeremiah Mitchell and Michael LaPlant.  Everhardt came to the site with his truck soon after LaPlant stopped driving at the Murphy Rigging site, thereby maintaining the number of drivers at four.

            Before working at the Murphy Rigging site, Everhardt never met with anyone from Select.  Sorrell told him that he could start work on 7 August and what his pay rate would be from Select, and told him to follow a Mad Dog driver to the job site.  Everhardt received a Mn/DOT oversized load permit log and Select job tickets on his first day at the job site.  But unlike other drivers working for Select, Everhardt never went through a drug screen or background check, never showed Select any evidence of licensing, and never gave Select any information on previous employers.

            Everhardt hauled materials at the site on 7, 8, and 13 August 2001.  On 13 August, someone from Murphy Rigging complained to Select driver Jeremiah Mitchell that Everhardt was driving without placards.  Placards are signage placed on a truck’s doors that identify the name of the motor carrier leasing or owning the truck, the carrier’s ICC number, and the truck number.  Mitchell contacted Christensen, who told him to instruct Everhardt to go to Select that night after work so that he could sign a contract and obtain placards.  Mitchell passed this information on to Everhardt, who did not go to Select that night.

            When Everhardt appeared for work on 14 August, Mitchell told him that he was not needed that day and that he had to get placards at Transport Graphics and then go to Select to finish some paperwork.  Everhardt stayed at the Murphy Rigging site for five to ten minutes and then drove to a shop to borrow some tools from a friend to fix his radiator, which had been leaking for several days.  After waiting approximately 15 to 20 minutes for his friend, Everhardt left to purchase gas at a nearby station before continuing to Transport Graphics and then on to Select.  En route to the service station, Everhardt struck and killed Kevin Vance.  At the time, Everhardt was not pulling a trailer (“bobtailing”).

            Sergeant Paul Davis of the Minnesota State Patrol came to the accident site to investigate.  Davis was a field inspector with Mn/DOT and was responsible for identifying the motor carrier following accidents involving commercial vehicles.  Everhardt told Davis that he was driving for Select and was subleased through Mad Dog.  Based on his investigation, Davis concluded that Select was the responsible motor carrier at the time of the accident.

            Copies of the Select job tickets for each day that Everhardt worked at the Murphy Rigging job site were received into evidence at trial, listing Everhardt’s truck number as “52.”  Select submitted invoices to Murphy Rigging for each day that Everhardt had worked, indicating Everhardt’s truck number and the number of hours he worked.  Contractor settlement sheets for the weeks ending 10 August and 17 August 2001 were also received into evidence, indicating Everhardt’s truck number, address, and social security number.  Penny Qually, a Select employee, testified that she completed the settlement sheets, obtained the information from Christensen to complete those sheets for Everhardt, and had never completed a sheet for someone who was not a driver for Select.

            Following the Great West I remand, the district court held a three-day trial.  Based on the evidence, the court issued a number of findings and concluded that (1) an implied lease existed between Everhardt and Select; (2) Everhardt’s vehicle qualified for coverage under the after-acquired auto clause in Select’s policy with Carolina Casualty; and (3) Carolina Casualty was obligated to provide liability coverage.  With respect to the Great West policy issued to Everhardt, the district court concluded that coverage was excluded because Everhardt was operating his truck “in the business of” Select at the time of the accident.  This appeal follows.


1.         Motion to Strike.

            Great West has moved to strike certain documents in Vance’s appendix and any references to those documents; Carolina Casualty and Select have joined in Great West’s motion.  The challenged documents consist of the order and judgment entered in the underlying wrongful death action.  During trial of this declaratory judgment action, Vance sought to admit these documents into evidence, but counsel for Great West, Carolina Casualty, and Select all objected on the grounds that the documents were irrelevant to the coverage issues before the district court.  The district court sustained the objections, and the documents were not admitted into evidence.

            Under certain circumstances, this court may consider material outside the record on appeal.  See Crystal Beach Bay Ass’n v. Koochiching County, 309 Minn. 52, 56-57, 243 N.W.2d 40, 43 (1976) (“Although an appellate court is ordinarily limited to a consideration of matters contained in the record before it, we think it has inherent power to look beyond the record where the orderly administration of justice commends it.”).  In particular, we may consider public records on essentially uncontroverted documentary evidence that is not included in the district court file.  See Franke v. Farm Bureau Mut. Ins. Co., 421 N.W.2d 406, 409 n.1 (Minn. App. 1988), review denied (Minn. 25 May 1988).  But we may decline to take judicial notice when the district court has specifically refused to receive those documents into evidence.  See Indep. Sch. Dist. No. 404 v. Castor, 670 N.W.2d 758, 766 (Minn. App. 2003) (striking transcript of arbitration proceeding that district court declined to receive as evidence).

            Because (1) the documents were not part of the record before the district court and were expressly excluded from that record; (2) we do not need the documents to decide the coverage issues now before us; and (3) Vance does not assert that the documents should be considered in the interest of justice, but merely included the documents to provide us with background information, we grant Great West’s motion to strike.

2.         Review of District Court Findings.

            Carolina Casualty and Select both challenge several of the district court’s findings.  Findings of fact, whether based on oral or documentary evidence, “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  On review, we view the record in the light most favorable to the district court’s findings and will not reverse merely because we might view the evidence differently.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Because the challenged findings all have some support in the record and many are based on credibility determinations within the district court’s discretion, we are not “left with the definite and firm conviction that a mistake has been made” and conclude that the district court’s findings are not clearly erroneous.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).

3.         Implied Lease.

            Carolina Casualty and Select challenge the district court’s determination that an implied lease existed between Select and Everhardt; Great West joins in their arguments.  To determine whether an implied lease agreement exists, a court examines the totality of the contacts between the parties.  Northland Ins. Co. v. Bennett, 533 N.W.2d 867, 872 (Minn. App. 1995).  In Great West I, 2004 WL 950283, at *4, this court concluded that summary judgment was inappropriate because “the level and nature of the contacts between Select and Everhardt [were] highly disputed.”  Here, following a three-day trial, the district court made numerous findings regarding the parties’ contacts.  Based on these findings, the district court determined that “there is sufficient evidence to conclude that Select had direct knowledge of Everhardt working at the job site and that there was an implied lease between Everhardt and Select.”

            Carolina Casualty and Select challenge the court’s conclusion, claiming that a lease cannot be implied when the parties subjectively believe otherwise.  But the parties’ subjective beliefs are only part of the analysis that involves consideration of the totality of the contacts between the parties.  Northland, 533 N.W.2d at 872.  While Everhardt may have expressed some subjective belief that he was leased to Mad Dog, he also testified that had he referenced the agreement, he would have concluded that he was in fact leased to Select.  Any purported belief on Select’s part that Everhardt was not leased to it is belied by the statements of Christensen, who ordered Mitchell to direct Everhardt to obtain placards and complete paperwork for Select, and who told Sorrell after the accident that Everhardt was under lease with Select.  Other actions by Select employees further support an implied lease, to-wit: Select employees processed Everhardt’s job tickets, invoiced his hours to Murphy Rigging, and indicated that Select never paid a driver to haul without first having a lease in place.  These findings, which are based on the record and are not clearly erroneous, support the district court’s determination that an implied lease existed between Select and Everhardt.

4.         Coverage as After-Acquired Auto.

            Carolina Casualty challenges the district court’s determination that Everhardt’s truck is an after-acquired auto under the terms of its policy with Select.  Noting that Everhardt’s truck was not specifically listed or named in the policy, the district court focused on the after-acquired vehicle policy clause that specifically states:

[A]n “auto” you acquire will be a covered “auto” for that coverage only if:


a.  We already cover all “autos” that you own for that coverage or it replaces an “auto” you previously owned that had that coverage; and

b.  You tell us within 30 days after you acquire it that you want us to cover it for that coverage.


Thus, in order to be covered as an after-acquired auto, three requirements must be met:  (1) the insured (Select) must “acquire” an auto; (2) that auto must replace an auto that Select previously owned; and (3) the insured must request coverage for the auto within 30 days after acquisition.

            With respect to the first requirement, the district court made no express finding regarding Select’s acquisition of Everhardt’s truck.  Nevertheless, Vance urges that the district court’s determination that an implied lease relationship existed between the parties necessitates a finding that Select “acquired” Everhardt’s truck.  In particular, Vance notes that federal and state trucking regulations require the lessor of a truck to grant exclusive possession, control, and use of the truck to the lessee motor carrier for the duration of the lease.  See 49 C.F.R. § 1057.12(c) (2005); Minn. R. 7800.2600 (2005); Northland, 533 N.W.2d at 872 (stating that “public policy reason for these provisions is to protect the public by preventing common errors from evading liability for accidents caused by their drivers”).  Vance further notes that Select’s contractor operating agreement, which was signed by Everhardt, granted Select “exclusive possession, control and use” of Everhardt’s vehicle for the one-year duration of the agreement.  We agree with Vance’s arguments and conclude that Select “acquired” Everhardt’s truck under the lease relationship implied between the parties.

            With respect to the second requirement, the district court determined that Everhardt’s truck replaced an auto previously owned by Select.  The district court cited the following evidence to support this determination:

Michael LaPlant, a Select driver, worked at the Murphy Rigging site when the job first began in mid-July of 2001.  At some point prior to Everhardt beginning work, LaPlant left.  It is unclear exactly when LaPlant left, but based on the fact that there were only four trailers on the site, clearly Everhardt replaced LaPlant on the job site.  Furthermore, because the Murphy Rigging job was the only work Select had remaining as it wound down its operations in expectation of the cancellation of its insurance policy with Carolina, LaPlant and his vehicle were no longer operating for Select.  Select had no work for LaPlant other than the Murphy Rigging job.  It seems only logical that Everhardt was hired and his vehicle was leased in order to replace LaPlant, not only on the job site itself, but at Select in general, as there was no other work being done by Select.


The district court also made the following finding to support its determination that Everhardt was intended to replace LaPlant:

  60.       Select’s insurance policy with Carolina lists a number of trucks that are “covered autos” under the policy.  The underwriting file also lists a number of drivers working for Select.  As of the date of the accident, none of the twelve trucks listed were operating for Select and none of the drivers named in the underwriting file were driving for Select.  In fact, the Murphy Rigging job was the only job Select had left as Select was intending to wrap up the business entirely when its policy with Carolina lapsed on August 24, 2001, as a result of nonpayment of the premium.  Michael LaPlant was a named driver in the policy.


While Carolina Casualty asserts that any inference of a temporal connection between the retirement of LaPlant’s truck and the acquisition of Everhardt’s is contradicted by other evidence in the record, the district court’s above reasoning and finding amply support its determination that Everhardt’s truck replaced a previously listed vehicle.

            Finally, with respect to the third requirement, the district court concluded that because the accident occurred within 30 days after Everhardt signed Select’s agreement, notice to Carolina Casualty was not required.  Minnesota caselaw provides that coverage for a newly acquired vehicle is automatic and does not require notice when “a coverage question arises during the period in which notice is to be given.”  Quaderer v. Integrity Mut. Ins. Co., 263 Minn. 383, 390, 116 N.W.2d 605, 610 (1962) (footnote omitted); see Badger State Mut. Cas. Co. v. Swenson, 404 N.W.2d 877, 879 (Minn. App. 1987) (insured’s failure to notify insurer of acquisition of automobile within 30 days does not defeat claim for coverage).  By its terms, the Carolina Casualty policy does not require notice until 30 days after acquisition of a replacement auto.  We therefore conclude that the district court did not err in determining that Select was not required to notify Carolina Casualty of its acquisition of Everhardt’s truck, when the accident occurred just 22 days after Everhardt executed an agreement to haul for Select.

            Given our decision to uphold the district court’s determination that coverage was afforded by the after-acquired auto provisions of the Carolina Casualty policy, we agree with the district court and conclude that we “need not address whether liability for coverage exists under any other portion of Carolina’s policy or under the state and federal endorsements.”

5.         Exclusion Under Great West Policy.

            Vance challenges the district court’s determination that coverage was excluded under the terms of the Great West policy because Everhardt was operating his truck “in the business of” Select at the time of the accident.  Select joins Vance in urging reversal of the district court’s determination that no coverage is afforded under the Great West policy.

            The Great West policy issued to Everhardt contained the following exclusion:

15.  Trucking Operations


This insurance does not apply to:


a.         A covered “auto” while used to carry property in any business; or

b.         A covered “auto” while used in the business of anyone to whom the “auto” is rented, leased, or loaned.


In Great West I, 2004 WL 950283, at *3, we discussed this policy language as follows:

            We have previously held that the phrase “in the business of” in a similar Great West policy was not ambiguous.  Steele v. Great W. Cas. Co. 540 N.W.2d 886, 889-90 (Minn. App. 1995), review denied (Minn. Feb. 9, 1996).  In Steele, we stated that “[a]mbiguity does not arise merely because a policy must be read with some care.”  Id.  Ultimately, in Steele we declined to find an ambiguity in the policy and noted that the repeated mention of “non-trucking use” in the text of the policy and a definition that equated “trucker” with business use enabled this court to determine whether Great West’s policy applied.  Id. at 890.  Since the policy before us contains the same language, phrases, and definitions, we find that the plain language of this policy does not present a patent ambiguity.

            The question then becomes whether the phrase “in the business of” in the Great West policy presents a latent as opposed to patent ambiguity.  A latent ambiguity is one that arises where the defect


does not appear on the face of language used or an instrument being considered.  It arises when language is clear and intelligible and suggests but a single meaning, but some extrinsic fact or some extraneous evidence creates a necessity for interpretation or a choice between two or more possible meanings.


Black’s Law Dictionary 883 (6th ed. 1990).  Here, the phrase “in the business of” is susceptible to at least two possible interpretations.  These are that (1) the phrase is limited to hauling a load for one who has leased the truck (auto); or (2) the phrase includes undertaking any activities that ultimately benefit the lessee.

            What is troubling here is that the applicability of paragraph 15(b) of Great West’s policy and the determination of whether its language is ambiguous are dependent on a series of factual determinations that are disputed.  There may be a latent ambiguity or no ambiguity over whether Everhardt was acting “in the business of” Select at the time of the accident.  To decide, one must resolve disputed evidence and determine the relationship between Everhardt and Select.  This includes determining what Select knew regarding Everhardt’s work at the job site, and the nature of Select’s instructions to Mitchell regarding Everhardt on the morning of the accident.  After reviewing the record and the arguments on appeal, it is evident that there are numerous genuine issues of material fact, the resolution of which is necessary to deciding this issue.  Accordingly, summary judgment was not appropriate.


On remand, citing Steele v. Great W. Cas. Co., 540 N.W.2d 886, 889-90 (Minn. App. 1995), review denied (Minn. 9 Feb. 1996), the district court concluded that because Everhardt’s actions on the morning of the accident were all related to the trucking use of the vehicle, Everhardt was acting “in the business of” Select when the accident occurred.

            Vance argues that the district court ignored the “law of the case” as set out by this court in Great West I.  But this court specifically stated that “[t]here may be a latent ambiguity or no ambiguity over whether Everhardt was acting ‘in the business of’ Select at the time of the accident” and that summary judgment was inappropriate due to the existence of fact issues.  Id., 2004 WL 950283, at *3.  Thus, after weighing the evidence and resolving these fact issues on remand, the district court was not required to find an ambiguity and could determine that none existed.  See Steele, 540 N.W.2d at 889-90 (concluding that exclusionary phrase “non-trucking use” was not ambiguous and was intended to provide coverage for use of semi-tractor only for nonbusiness purposes).

            Vance continues to assert that a latent ambiguity exists when the facts of this case are applied to exclusion 15.b., which must be resolved against Great West and in favor of coverage.  Vance points to six of the district court’s 64 findings to support her claim that Great West’s policy can be interpreted differently from the interpretation given it by the district court.  But as Great West replies, the mere fact that parties disagree on coverage or advance differing interpretations of policy language does not render a policy ambiguous.  See, e.g., Ross v. City of Minneapolis, 408 N.W.2d 910, 914 (Minn. App. 1987), review denied (Minn. 23 Sept. 1987).  After evaluating testimony from eight witnesses and considering 43 exhibits admitted into evidence during a three-day trial, the district court determined that a business or trucking use need not be limited to hauling a load; rather, as in this case, a business use can include other activities, such as driving to get placards and complete paperwork at the carrier’s direction, stopping for repairs, and purchasing fuel in order to be able to haul for the carrier.

            Accordingly, we conclude that the district court did not err in determining that Everhardt’s activities on the day of the accident ultimately benefited Select, the lessee, and that Everhardt was operating “in the business of” Select at the time of the accident.  As evidenced by its minimal monthly premium of $27, Great West’s non-trucking use policy was intended to provide coverage only in very limited circumstances.

            Finally, the parties raise a number of other arguments that we have fully considered but find unpersuasive.  Given our decision to affirm the district court’s determination that coverage is not available under the Great West policy, we agree with the district court’s conclusion that the Great West policy does not provide Minnesota no-fault benefits.

            Affirmed; motion granted.

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