This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
a/k/a State Farm Fire and Casualty Company,
Reversed and remanded
Dakota County District Court
File No. C7-04-6027
Stephen R. O’Brien,
William L. Moran, Scott G. Williams, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN 55101 (for respondent)
Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.
Appellant-creditor challenges the district court’s denial of her motion to make respondent-garnishee a party to this action and to serve a supplemental complaint on respondent, arguing that the district court erroneously concluded that there was not probable cause to believe that respondent might be liable under the insurance policy. We reverse and remand.
In April 2003, a dog owned by debtors Michael and Dawn Steinmetz bit Dawn Steinmetz’s half sister, appellant-creditor Beth McGlothlin. At the time of the injury, McGlothlin was 25 years old. The Steinmetzes are the named insureds on an insurance policy issued by respondent-garnishee State Farm Insurance Company that was in effect when the injury occurred.
McGlothin filed a complaint alleging negligence against the Steinmetzes. McGlothlin and the Steinmetzes entered into a stipulated settlement to protect their respective interests, pursuant to Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982) (holding that when defendant-insured, whose insurer is disputing coverage, settles with plaintiff-claimant and stipulates to a judgment incorporating settlement terms, plaintiff-claimant may seek to collect on that judgment in garnishment proceeding against insurer). On McGlothlin’s motion, the district court entered a $300,000 judgment in favor of McGlothlin.
Thereafter, McGlothlin moved for leave to add State Farm as a party and to file a supplemental complaint against State Farm under Minn. Stat. § 571.75, subd. 4 (2006). The district court denied the motion, holding that McGlothlin had not established probable cause that State Farm might be liable under the insurance policy for the debt. This appeal followed.
D E C I S I O N
McGlothlin argues that the district court’s denial was based on its erroneous determination that McGlothlin failed to establish probable cause that State Farm might be liable for the debt owed to her. Under Minnesota law,
where the garnishee denies liability, the creditor may move the [district] court at any time before the garnishee is discharged, on notice to both the debtor and the garnishee for an order making the garnishee a party to the civil action and granting the creditor leave to file a supplemental complaint against the garnishee and the debtor. . . . If probable cause is shown, the motion shall be granted.
Minn. Stat. § 571.75,
subd. 4. The existence of probable cause in
an insurance case “depends on whether the evidence shows probable grounds for
believing that the garnishee might be held liable under the policy.” Rohrer
v. Rick, 529 N.W.2d 406, 407‑08 (Minn. App. 1995) (quotation
omitted). To establish probable cause as
to liability, the creditor must present evidence that fairly and reasonably
tends to show the existence of the facts alleged.
As with other
insurance-coverage issues, we review a district court’s probable-cause
determination de novo, Health Pers. v. Peterson, 629 N.W.2d 132, 134 (Minn. App. 2001), review denied (
The State Farm insurance policy provides coverage for bodily injuries and property damage for which the insureds are liable and for necessary medical expenses incurred or “medically ascertained” within three years from the date of an accident that caused bodily injury to a person at the insured location with the permission of the insureds. But this coverage does not extend to the insureds or their relatives who are residents of the insureds’ household when the injury is sustained. McGlothlin, a relative of the insureds, is entitled to coverage under the policy only if she was not a resident of the Steinmetz household when she was injured. Thus, to establish probable cause that State Farm might be liable under the insurance policy, McGlothlin must present evidence that fairly and reasonably tends to show that she was not a resident of the Steinmetz household when she suffered the dog bite.
Whether one is a resident of
another’s household is a fact question. Auto-Owners Ins. Co. v. Harris by Harris, 374 N.W.2d
795, 797 (
We articulated a second set of factors
for consideration in Wood v. Mut. Serv.
Cas. Ins. Co., which includes “(1) age of the person; (2) whether a
separate residence is established; (3) self-sufficiency of the person; (4)
frequency and the duration of the stay in the . . . home; and (5)
intent to return [to the home].” 415
N.W.2d 748, 750 (Minn. App. 1987), review
denied (Minn. Feb. 12, 1988). We also
observed that, although not dispositive, courts may consider whether the
person’s belongings remain in the home and whether the person uses the home’s
address as his or her mailing address.
In support of her argument that she was not a resident of the Steinmetz household when she was injured, McGlothlin presented her own affidavit and those of Michael and Dawn Steinmetz. McGlothlin averred that, at the time of her injury, she was not viewed as a resident of the Steinmetz household. Rather, she was a resident of her parents’ home in Bloomer, Wisconsin, which had been her primary residence since she was five years old and where she kept her personal belongings, including her clothing and her dogs and cat. She was not self-sufficient at the time of her injury. Instead, she relied on her parents to pay her living expenses and debts. McGlothlin’s affidavit also established that she votes, registers her vehicles, and obtains car insurance in Wisconsin.
While McGlothlin was working in Hopkins during 2002 and 2003, she drove directly from her parents’ home to work on Monday mornings. She then slept at the Steinmetz home Monday night through Thursday night and returned to her parents’ home after work on Friday. McGlothlin paid the Steinmetzes approximately $150 per month in rent for this arrangement, which McGlothlin characterized as a temporary “tenancy” that was not “formal, . . . not intimate, or close.” McGlothlin had a bedroom, bathroom, and refrigerator to herself in the basement. Because McGlothlin “preferred to keep to [her]self in the area [she] rented,” she rarely ate meals or interacted with Michael and Dawn Steinmetz. McGlothlin was responsible only for chores related to her bedroom and bathroom, although she sometimes voluntarily fed and walked the dogs at the residence. McGlothlin advised her employer to stop using the Steinmetz address to correspond with her after it began doing so without her request.
In their respective affidavits, Michael and Dawn Steinmetz stated that they treated McGlothlin “like a tenant” and “did not view her as a member of [their] household” or as an insured under their insurance policy. Rather, they considered McGlothlin’s parents’ home her residence. Her tenancy in their home was temporary and solely for the purpose of saving time and money on commuting. The Steinmetzes’ affidavits confirmed that McGlothlin paid rent and usually did not interact with them very much.
An application of the Viktora and Wood factors to the record evidence makes this a close case. As she concedes, McGlothlin and the Steinmetzes lived at the same residence, thus satisfying the first Viktora factor. But as to the second Viktora factor, McGlothlin’s relationship with the Steinmetzes at the time of her injury was not close, intimate, or informal. Rather, McGlothlin kept to herself and rarely interacted with the Steinmetzes.
Regarding the third Viktora factor, the evidence establishes that the duration of the living arrangement was substantial. Although McGlothlin and the Steinmentzes viewed McGlothlin’s tenancy as temporary, their affidavits confirm that this arrangement existed during 2002 and 2003, and there is no indication that this arrangement was intended to cease on a particular date or that it was for a limited period of time. See, e.g., Mut. Serv. Cas. Ins. Co. v. Olson, 402 N.W.2d 621, 624 (Minn. App. 1987) (holding that third Viktora factor was satisfied when son spent most weekends, some weekdays, and prior three summers at mother’s home and arrangement was not intended to be temporary), review denied (Minn. May 20, 1987). But the second part of the third Viktora factor—whether the intended duration of the living arrangement is such that the parties would consider the arrangement when contracting for insurance—is less clear. The absence of a close relationship between McGlothlin and the Steinmetzes and the infrequency of their interactions because of their respective schedules support the conclusion that the Steinmetzes did not consider McGlothlin when they contracted for insurance. See Johnson, 419 N.W.2d at 129 (holding that it was unlikely that brother considered his sister when their relationship was distant, they did not interact frequently because of their respective schedules, and brother’s presence in home was temporary).
The Wood factors are similarly divided. Regarding the first Wood factor, McGlothlin’s age at the time of her injury—25 years
old—neither precludes nor requires a finding that she was a resident. See,
That the Viktora and Wood factors are evenly divided convinces us that the evidence establishes probable grounds that a reasonable fact-finder might determine that McGlothlin was not a resident of the Steinmetz home and that State Farm, therefore, is liable to McGlothlin under the insurance policy. See Rohrer, 529 N.W.2d at 407-08 (holding that probable cause exists when “evidence shows probable grounds for believing that the garnishee might be held liable under the policy” (emphasis added) (quotation omitted)). Accordingly, the district court erroneously determined that probable cause was lacking.
Reversed and remanded.
 Factors one and two generally are satisfied by a
showing that the alleged resident and the named
insured “dwell together as a family under the same roof.” Firemen’s Ins. Co. v.
Viktora, 318 N.W.2d
704, 707 (
 The district court relied on Ill. Farmers Ins. Co. v. Neumann, 596 N.W.2d 685 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999), to support its conclusion that McGlothlin was not a resident of the Steinmetz home. The precise issue presented in Neumann is whether a person was a “resident of residence premises.” 596 N.W.2d at 687. The Neumann court described this term as broader than the term “resident of a household,” which we consider here. Id.
 When she did not work on Friday, McGlothlin drove to her parents’ home after work on Thursday and returned to the Steinmetz home on Monday night.
 Additional evidence that is not present here and was not before the district court (such as the term of the insurance contract and the date on which the Steinmetzes signed it) likely would assist the fact-finder in determining the degree to which it is likely that the Steinmetzes considered the living arrangement when they contracted for things such as insurance.