This opinion will be unpublished and

may not be cited except as provided by

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







Karen Posthumus and Jeffrey Posthumus,

both individually and as parents and natural guardians of

Kristin Posthumus, Kayla Posthumus and Mariah Posthumus,





Paul Brey, et al.,



Tena Van Kampen,




Filed June 20, 2006


Lansing, Judge


Freeborn County District Court

File No. C4-03-1572


Robert Bennett, Andrew J. Noel, Flynn, Gaskins & Bennett, L.L.P., 333 South Seventh Street, Suite 2900, Minneapolis, MN 55402 (for appellants)


Todd Lundquist, Lundquist Law Offices, 1019 South Front Street, P.O. Box 3046, Mankato, MN 56002-3046; and


Deborah Eckland, Kenneth J. Mayer, Goetz & Eckland, P.A., Suite 400, 43 Main Street Southeast, Minneapolis, MN 55414 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N


            This appeal from a judgment taxing costs and disbursements presents issues on the scope of an insured’s duty to cooperate with an insurer and the determination of who is a prevailing party.  Because the duty to cooperate under the insurance policy precludes an insured from waiving the right to tax costs and disbursements and because the insured driver, rather than the underinsured policyholder, is the prevailing party, we affirm.


Tena Van Kampen was driving a motor vehicle owned by her son-in-law, Jeffrey Posthumus, when it was struck by a vehicle driven by Paul Brey and owned by Rispens Seeds, Inc.  Posthumus’s wife, Karen Posthumus, and their three daughters were passengers in Van Kampen’s car.

Karen and Jeffrey Posthumus, on behalf of the injured family members, sued  Brey, Rispens Seeds, and Van Kampen for negligence.  Van Kampen, as the driver of the Posthumus vehicle, was an insured under the Posthumuses’ automobile insurance policy with Westfield Insurance Company.  The Posthumuses notified Westfield of the suit, and Westfield provided defense counsel for Van Kampen.

The Posthumuses negotiated a settlement with Brey and Rispens Seeds’ insurer and dismissed both Brey and Rispens Seeds from the action.  At trial, Van Kampen was the only remaining defendant.  On the issue of liability, the jury determined that Van Kampen was not negligent.  The jury also determined that the Posthumuses sustained approximately $1.7 million in damages.  The district court ordered judgment for Van Kampen, together with costs and disbursements.  On the same day, the district court judge received a letter from Van Kampen stating that, as the mother and grandmother of the injured parties, she did not want to pursue costs and disbursements against the Posthumuses.  In light of the damages determination, Westfield tendered to the Posthumuses its policy limit of $50,000 for underinsured-motorist benefits. 

Based on Van Kampen’s letter, the Posthumuses moved to amend the district court’s findings of fact, conclusions of law, and order for judgment.  They requested that the order reflect Van Kampen’s waiver of costs and disbursements, state that Westfield had no independent right to pursue costs and disbursements, and include Karen Posthumus as a prevailing party because Westfield had paid her $50,000 in underinsured-motorist coverage.  The district court expanded the findings and conclusions but reaffirmed its determination that Van Kampen was the prevailing party.  The district court also concluded that, once Westfield undertook Van Kampen’s representation, she had a duty to cooperate with Westfield and could not unilaterally waive the prevailing-party right to pursue costs and disbursements.  Following the issuance of the amended order, Van Kampen’s attorney filed a notice of taxation of costs and disbursements.

The Posthumuses raise two issues on appeal.  First, they contend that the district court erred by not recognizing Van Kampen’s waiver of costs and disbursements, and, second, they contend that Karen Posthumus is a prevailing party entitled to costs and disbursements from Westfield.



The prevailing party in a district court action is entitled to recover costs and “reasonable disbursements paid or incurred.”  Minn. Stat. §§ 549.02, subd. 1, .04, subd. 1 (2004).  Although taxation of costs and disbursements is a waivable right, the district court determined that Van Kampen could not unilaterally waive her right to pursue costs and disbursements once Westfield undertook her representation as an insured under the Posthumuses’ policy because the policy required Van Kampen to cooperate with Westfield’s control of the litigation.  See, e.g., Fussner v. Andert, 261 Minn. 347, 362, 113 N.W.2d 355, 364 (1962) (addressing party’s waiver of right to costs and disbursements after prevailing on appeal); Elk River Enters., Inc. v. Adams, 357 N.W.2d 139, 141 (Minn. App. 1984) (addressing waiver of right to costs and disbursements in context of new trial).  Interpretation of an insurance contract is a question of law, which we review de novo.  Auto-Owners Ins. Co. v. Forstrom, 684 N.W.2d 494, 497 (Minn. 2004).

As the driver of the Posthumus vehicle, Van Kampen was an “insured” for purposes of coverage, and Westfield was obligated to “pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident.”  In return Westfield retained the right to “settle or defend, as [it] consider[s] appropriate, any claim or suit asking for these damages.”  The policy further states that Westfield will pay all defense costs incurred and that a person seeking coverage must “[c]ooperate with [Westfield] in the investigation, settlement or defense of any claim or suit.”  Westfield’s policy also provides that its terms cannot be waived without Westfield’s consent.  We interpret language in an insurance contract according to its plain meaning.  Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn. 2002). 

The Westfield insurance policy gives Westfield the authority to decide whether to settle a claim for damages and requires Van Kampen’s cooperation in settling any claim.  A settlement is generally viewed as an agreement for release of a claim.  Black’s Law Dictionary 1404-05 (8th ed. 2004).  Costs and disbursements are not part of the cause of action, but they constitute expenses incurred to litigate the cause of action.  Lienhard v. State, 431 N.W.2d 861, 864 (Minn. 1988).  The plain meaning of claim encompasses not only the aggregate cause of action but also a subsidiary assertion of a legal right to payment that is incorporated within the aggregate action.  See Black’s Law Dictionary 264 (defining claim to include any assertion of existing right to payment).  The plain meaning of claim includes the assertion of the right to payment of costs and disbursements.

Van Kampen prevailed against the Posthumuses’ negligence claim and was therefore entitled to tax costs and disbursements.  By waiving this right without the agreement of Westfield, Van Kampen essentially attempted to unilaterally settle the claim for costs and disbursements.  Because the insurance policy requires Van Kampen to cooperate and expressly grants Westfield the authority to settle a claim without limiting its power to preverdict claims, Van Kampen had a duty to cooperate with Westfield and could not waive payment of costs and disbursements without Westfield’s consent.  See Steen v. Those Underwriters at Lloyds, 442 N.W.2d 158, 162 (Minn. App. 1989) (finding breach of cooperation clause when insured entered settlement agreement without insurer’s consent), review denied (Minn. Aug. 15, 1989).  As required by the policy, Westfield provided defense counsel for Van Kampen, and Van Kampen, as the insured, was therefore required to cooperate with attempts to recover the expenses of this defense.  Van Kampen did not have Westfield’s consent to waive costs and disbursements.  Westfield specifically notified Van Kampen that her request to waive costs and disbursements would constitute a breach of her obligations under the insurance policy.

The Posthumuses suggest that, as an insured, Van Kampen’s decision to waive costs and disbursements should take priority over the right of the insurer to recoup those expenses.  But the insurer is not attempting to usurp the role of the client; it only seeks to enforce the language of its insurance policy.  Although the duty to cooperate is not absolute if it is against the insured’s interests, an insurer that has provided a defense may reasonably expect cooperation when its actions are prudent and not against the insured’s interests.  Id. Neither the Posthumuses nor Van Kampen herself have argued that Westfield’s attempt to recoup defense expenses is against Van Kampen’s interest.  Van Kampen’s attempt to waive costs and disbursements triggered Westfield’s notice that it would pursue an action against Van Kampen for the amount recoverable for costs and disbursements, approximately $18,000, for breaching her duty as an insured.  The record suggests that it is against Van Kampen’s interest to invite litigation for failure to cooperate.

Finally, the Posthumuses argue that the district court was obligated to honor Van Kampen’s waiver because Minn. Stat. § 60A.41(a) (2004) and their insured-insurer relationship with Westfield precludes Westfield from a subrogation action.  Section 60A.41 and Westfield’s policy prohibit the insurance company from “proceed[ing] against its insured in a subrogation action where the loss was caused by the nonintentional acts of the insured.”  Id.  Westfield, however, is not a party to the action and has not participated in a subrogation action against the Posthumuses as prohibited by the statute.


            To determine whether a party has prevailed in an action, the court considers which party has generally succeeded in the action.  Borchert v. Maloney, 581 N.W.2d 838, 840 (Minn. 1998).  When a party obtains a verdict in its favor, it is ordinarily considered the prevailing party.  Id. (focusing on who prevailed on merits of underlying action).  The district court determined that Van Kampen was the prevailing party and rejected the Posthumuses’ argument that Westfield’s postverdict payment of underinsured-motorist benefits made Karen Posthumus a prevailing party relative to Westfield.  We review the district court’s determination of the prevailing party for an abuse of discretion.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).

            Westfield’s postverdict payment did not make Karen Posthumus a prevailing party.  Westfield was not a party to the litigation.  Although the jury verdict determined the amount of the Posthumuses’ damages, Westfield’s payment of underinsured benefits was based on its contractual obligation under the insurance policy.  See Gerdesmeier v. Sutherland, 690 N.W.2d 126, 131 (Minn. 2004) (holding that party status is not prerequisite to binding effect of jury’s determination of damages).  The district court did not abuse its discretion by determining that Karen Posthumus was not a prevailing party entitled to tax costs and disbursements against Westfield.


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