This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Tom Vogel, et al.,





American Family Mutual Insurance Company, et al.,



Filed ­­­January 23, 2007


Dietzen, Judge


Stearns County District Court

File No. C5-04-5132


Mark G. McKeon, Willenbring, Dahl, Wocken & Zimmermann, PLLC, 318 Main Street, P.O. Box 417, Cold Spring, Minnesota 56320 (for appellants)


Steven R. Schwegman, Kenneth H. Bayliss, Quinlivan & Hughes, P.A., 400 South First Street, 600 Wells Fargo Center, St. Cloud, MN 56302-1008 (for respondents)


            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellants challenge the district court order and resulting judgment dismissing their claim, arguing that the district court erred in finding that appellants did not specifically request homeowner’s insurance from respondent Larson, and in not making findings on respondent’s alleged failure to perform certain statutory obligations.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


Appellants Tom and Carla Vogel were married in early 2003 and closed on the purchase of a home in June 2003.  Prior to that, Tom Vogel had owned and operated an insurance agency but was no longer active in the insurance business and used Eric Larson, an agent with American Family Mutual Insurance (American Family), to obtain insurance. 

The Vogels, who had received a quote from Larson for homeowner’s insurance prior to closing on their home, contend that they asked Larson to obtain a homeowner’s policy with American Family.  In November 2003, a fire damaged the Vogels’ home.  When the Vogels contacted Larson to report the loss, he informed them that he had not obtained an insurance policy for them.  The Vogels commenced legal action against American Family and Eric Larson.

            Prior to trial, the district court dismissed the claim against American Family and denied the Vogels’ motions for summary judgment.  The Vogels later voluntarily dismissed a negligence claim against Larson.  The matter proceeded to trial before the court on the Vogels’ claims against Larson for (1) breach of a contract to secure insurance; and (2) violation of Minn. Stat. § 72A.499, subd. 1, which requires insurance agents to notify applicants of adverse underwriting decisions.

At trial, the parties disputed whether insurance was requested.  Carla Vogel testified that she received an oral quote at Larson’s office in late May or early June and provided her social security number and all information that Larson requested.  She also obtained a quote from State Farm and gave both quotes to her husband.  Tom Vogel testified that he then called Larson to request insurance and asked what else they needed to do.  According to Vogel, Larson told him they would need pictures of the home and gave him his digital camera to take the photos.  After taking the photos, he met Larson at his office the day before the closing, gave him the camera, filled out a replacement cost analysis form, and requested a quote for auto insurance on his wife’s vehicle.

Larson’s version of the events is markedly different.  He and his assistant, Renee Henderer, both testified that Carla Vogel appeared at their office the day before the closing and requested a quote for homeowner’s insurance.  Larson told her that she needed to provide her social security number and other personal information to obtain an accurate quote and determine if the Vogels were eligible for coverage.  She declined to provide the information and stated her desire to insure with State Farm.

Larson provided Carla Vogel with a written quote dated June 23 based on the limited information she provided.  The quote stated that “[t]he rates shown above are only an estimate and subject to final determination by the company.  This is not a policy and no coverage is bound.”  (Emphasis in original).  The quote was computer generated and automatically enters the date it is issued and cannot be subsequently altered.

After the closing on the home, Larson and Henderer continued to request the information from Carla Vogel and photos of the house.  Henderer documented their attempts to obtain the information in the agency’s computer system, which automatically date stamps each entry and prohibits subsequent alteration.  Larson admitted that he loaned Vogel his digital camera to take photos of the home, but when Vogel returned the camera, no photos were saved in the camera.  Larson later contacted Vogel and told him that another American Family agent would be in the St. Cloud area and would take photos of the home.  Vogel then met the agent, and the photos of his home were taken.  When asked why he continued to seek the information and photos, Larson stated that he wanted to have the information necessary to complete the application for insurance should the Vogels decide to request it from American Family.  Both Larson and Henderer testified that they did not have enough information to submit an insurance application, and that they were not requested to do so. 

Following trial, the district court made its findings of fact, conclusions of law, and ordered dismissal of the case.  The district court concluded that Larson and Henderer’s testimony was more credible and found that the Vogels did not request insurance and, therefore, concluded there was no meeting of the minds and no contract to obtain insurance.  Judgment was entered and this appeal followed.



            The Vogels contend that the district court erred in concluding that no contract was formed between the parties to purchase a homeowner’s policy.  To challenge the district court’s conclusion, the Vogels attack the court’s underlying findings that (1) the Vogels did not request insurance; and (2) no meeting of the minds occurred. 

When reviewing a district court’s findings, “we view the record in the light most favorable to the judgment of the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  Whether a contract exists is generally an issue for the factfinder, which will only be overturned if “manifestly contrary to the evidence.”  Morrisette v. Harrison Int’l Corp., 486 N.W.2d 424, 427 (Minn. 1992).  “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.  And where the underlying findings of fact are sustainable (because not clearly erroneous), the district court’s “ultimate” findings must be affirmed in the absence of a demonstrated abuse of the district court’s discretion.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).

Contract formation requires the mutual assent of the parties.  Field-Martin Co. v. Fruen Milling Co., 210 Minn. 388, 389, 298 N.W. 574, 575 (1941).  Contract formation is an objective test, “judged by the words and actions of the parties and not by their subjective mental intent.”  Hill v. Okay Const. Co.,312 Minn. 324, 332, 252 N.W.2d 107, 114 (1977).  A contract to obtain insurance, like other contracts, requires the parties to express their mutual assent. See Russell v. O’Connor, 120 Minn. 66, 69, 139 N.W. 148, 149 (1912) (finding that a contract to obtain insurance existed where potential insured called insurance broker and requested one thousand dollars of insurance, and the broker stated that he would “attend to that right away”).

            The Vogels rely on Writers, Inc. v. W. Bend Mut. Ins. Co., 465 N.W.2d 419, 423 (Minn. App. 1991) to argue that Larson had a duty to provide insurance.  But Writers is a negligence case, and the Vogels abandoned their negligence claims prior to trial.  Instead, the issue here is whether a contract was formed.  To the extent that the existence of a duty sheds light on this issue, a duty to obtain insurance only exists where the potential insureds expressly requested that the agent obtain insurance and the agents expressly agreed to do so.  Writers, Inc, 465 N.W.2d at 423-24.

Here, there is ample evidence to support the district court’s finding that the Vogels did not request insurance.  Both Larson and Henderer testified that the Vogels did not request insurance and did not provide the information required to apply for the insurance policy.  The court credited their version of the events, and credibility determinations are left to the factfinder’s discretion.  See Minn. R. Civ. P. 52.01 (stating that “due regard” must be given to district court’s credibility determinations).  Further, the Vogels acknowledged that they did not (1) sign an application; (2) make any payments towards homeowner’s insurance; (3) have any payments deducted from their accounts through automatic funds transfer for homeowner’s insurance; or (4) receive a binder or declaration of coverage.

The Vogels argue that Larson’s requests for information and photos of the property after the closing substantiate their claim that they had requested insurance.  Here, the court found that the necessary information, namely, Carla’s social security number and other personal information, was not supplied.  Because the Vogels did not supply Carla’s social security number and other personal information, they could not apply for insurance.  The district court’s finding is not clearly erroneous.

            The Vogels also argue that the district court applied the wrong standard when it found that there was no “meeting of the minds.”  We agree that the phrase “meeting of the minds” may be misleading and that the test for contract formation is whether the parties have objectively expressed their mutual assent.  See Field-Martin Co, 210 Minn. at 388, 298 N.W. at 575 (identifying mutual assent as contract-formation standard); see also Holt v. Swenson, 252 Minn. 510, 516, 90 N.W. 2d 724, 728 (1958) (stating the “meeting of the minds” is a misleading test for contract formation).  Although the district court found that there was “no meeting of the minds,” it also concluded that Vogel did not request insurance or otherwise express an intent to contract.  On this record, the court’s determination that no contract was formed is supported by reasonable evidence and should not be disturbed.  Rogers, 603 N.W.2d at 656. 


            The Vogels argue that the district court erred by not making findings of fact on Larson’s performance of statutory obligations imposed by Minn. Stat. §§ 72A.494 and .502 (2006).[1]  The Vogels made no posttrial motions challenging the lack of findings.

            On appeal from a judgment where no posttrial motions were made, “the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.”  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976); see also Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) (stating that a posttrial motion “is a prerequisite” to appellate review).  The scope of review has been extended to also include “substantive questions of law that were properly raised during trial.” Alpha Real Estate Co. of
Rochester v. Delta Dental Plan of Minnesota
, 664 N.W.2d 303, 310 (Minn. 2003). 
The failure to make findings must be raised before the trial court, and cannot be raised first on appeal.  Metro. Fed. Sav. & Loan Ass’n v. Adams, 356 N.W.2d 415, 421 (Minn. App. 1984) (citing Nelson v. Nelson, 291 Minn. 496, 189 N.W.2d 413 (1971)), review denied (Minn. Jan. 2, 1985).  Thus, the Vogels have failed to preserve this issue for appeal.

But, even if we were to consider this issue, we conclude that appellant’s argument that Larson had a statutory duty to “provide a notice relating to information practices” under Minn. Stat. § 72A.494 and to obtain authorization under Minn. Stat. § 72A.502 lacks merit.  Minn. Stat. § 72A.494, subd. 1, requires insurance agents to provide notice about information practices “to each applicant or policyholder.”  Likewise, Minn. Stat. § 72A.502, subd. 1, prohibits insurance agents from collecting personal information “about a policyholder or an applicant” without authorization from the person.  An “applicant,”as defined by the statute, is “any person who seeks to contract for insurance coverage from an insurer.”  Minn. Stat. § 72A.491, subd. 4 (2006).  Here, the district court’s finding that the Vogels did not request insurance is supported by the record and not clearly erroneous.  Because the Vogels were not applicants, and Minn. Stat. §§ 72A.494 and .502 apply only to applicants, these statutes are inapplicable. 


[1] Minn. Stat. §§ 72A.494 and .502 (2002) were in effect at the time the Vogels allege Larson violated the statute.  The current statutes are unchanged, and, therefore, we analyze the claims under current law.