This opinion will be unpublished and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
Marie Guess, as Trustee for the Heirs
and Next of Kin of Michael L. Guess,
Mark Priore, Special Administrator for
the Estate of Richard E. Conry, deceased,
Aviation Charter, Inc., et al.,
Filed August 29, 2006
St. Louis County District Court
File No. 69-CX-04-602863
R. White, MacKenzie & Gustafson, Ltd.,
Michael B. Padden, Padden & Associates, P.L.L.C., 782 Northwestern Building, 275 East Fourth Street, St. Paul, Minnesota 55101 (for appellant)
Michael C. Lindberg, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, Minnesota 55425-1582 (for respondents)
Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
This is an appeal of the district court’s grant of summary judgment on appellant’s lawsuit against respondent Aviation Charter for defense and indemnity of appellant’s claims against the co-employee’s estate under Minn. Stat. § 181.970, subd. 1 (2004), and on appellant’s lawsuit against respondent Beech Transportation for vicarious liability under Minn. Stat. § 360.0216 (2004). Because the employer and the co-employee were immune from suit pursuant to the workers’ compensation law, the district court properly granted summary judgment in favor of respondents, and we affirm.
25, 2002, a plane carrying Senator Paul Wellstone crashed during an approach to
Guess’s heirs and next of kin sued Conry’s estate for gross negligence; sued Aviation Charter, as Conry’s employer, for defense and indemnity under Minn. Stat. § 181.970 (2004); and sued Beech, as the owner of the aircraft, for vicarious liability under Minn. Stat. § 360.0216 (2004). Respondents moved for summary judgment or dismissal of the action.
The district court ruled that because Conry was the assigned pilot-in-command, most radio communications were conducted by Guess, and Aviation’s policy provided that the pilot-in-command should operate the flight controls during the landing, a fact-finder could conclude that Conry was piloting the plane when it crashed. Accordingly, genuine issues of material fact existed on the claim of Conry’s gross negligence. Nevertheless, the court granted summary judgment to respondents, concluding that appellant’s exclusive remedy was under the workers’ compensation act and that appellant could not recover against Aviation Charter under Minn. Stat. § 181.970 or against Beech under Minn. Stat. § 360.0216. Pursuant to a stipulation by the parties, the district court entered final judgment as to respondents under Minn. R. Civ. P. 54.02. This appeal follows.
D E C I S I O N
reviewing summary judgment, an appellate court must determine (1) whether
there are any genuine issues of material fact and (2) whether the district
court erred in its application of law. State by Cooper v. French, 460 N.W.2d 2,
court granted summary judgment to Aviation Charter, Guess’s employer, on
appellant’s claim under Minn. Stat. § 181.970, subd. 1 (2004), ruling that
under Minn. Stat. § 176.031 (2004), the workers’ compensation act was
appellant’s exclusive remedy. “The
workers’ compensation system in
the workers’ compensation law, a co-employee who works for the same employer
“is not liable for a personal injury incurred by another employee unless the injury
resulted from the gross negligence of the coemployee[.]”
Resolution of this issue requires application of the supreme court’s recent decision in Stringer, 705 N.W.2d at 754–60, which addressed co-employee immunity under the workers’ compensation act. The Stringer opinion was released after the district court issued its decision. Appellant argues that under the current posture of the present case, in which the district court denied summary judgment as to Conry’s estate, Conry’s estate remains a viable defendant and its liability is subject to further adjudication before the district court. Further, Conry’s estate did not seek review of the district court’s decision in light of Stringer. Consequently, appellant contends Stringer has no application. We disagree.
are not seeking to have this court overturn the decision denying summary
judgment to Conry’s estate and we are not deciding that issue. Instead, respondents seek a determination on their
liability in light of Stringer. Further, while the district court did not
have the opportunity to address Stringer,
the case is unquestionably before this court and we must consider it. In addition, this court will affirm summary
judgment “if it can be sustained on any grounds.” Myers Through
Myers v. Price, 463 N.W.2d 773, 775 (
appellant’s arguments, we first address whether she can prevail on the co-employee
action under the workers’ compensation statute.
In Stringer, the court ruled
that to establish a gross-negligence claim against a co-employee, there must be
a showing that (a) the co-employee had a personal duty toward the employee, the
breach of which resulted in the employee’s injury, if the action was not part
of the co-employee’s general administrative duties, and (b) the injury arose
from the co-employee’s gross negligence.
Stringer, 705 N.W.2d at
754. For such a personal duty to exist,
“the coemployee must have (1) taken direct action toward or have directed
another to have taken direct action toward the injured employee, and (2) acted
outside the course and scope of employment.”
also sued respondent Aviation Charter, seeking defense and indemnity under
Minn. Stat. § 181.970, subd. 1 (2004).
Under that section, an employer has an obligation to defend and
indemnify its employee for civil damages claimed against the employee when the employee
was acting in the performance of his duties, unless the employee was guilty of
“intentional misconduct, willful neglect of the duties of the employee’s
position, or bad faith.”
Indemnify is defined as “[t]o reimburse (another) for a loss suffered because of a third party’s act or default.” Black’s Law Dictionary 772 (7th ed. 1999). Applying indemnity under section 181.970 would require Aviation Charter to indemnify Conry’s estate for its liability for Conry’s acts causing the losses to appellant. But under the workers’ compensation law, as discussed above, Aviation Charter and Conry’s estate are immune from liability. Appellant therefore cannot prevail on her claims under Minn. Stat. § 181.970, subd. 1.
claims that under
parties proffer various arguments, the determinative question here is whether
Beech can be vicariously liable under Minn. Stat. § 360.0216 when Conry,
its agent, is immune from liability. An
employer’s vicarious liability is based on its employee’s tortious acts
occurring while conducting the employer’s business. Nadeau
v. Melin, 260
The decision of the district court granting summary judgment to respondents is affirmed.