This opinion will be unpublished and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
Stacy L. Otto,
Robert Christianson, et al.,
Jamie Gowdy, as Special Administrator for the Estate of Terry Pearson,
Affirmed; motion granted in part
Roseau County District Court
File No. 68-C2-05-000413
Alan B. Fish, Rita Fish-Whitlock, Alan B. Fish, P.A., 102
Second Avenue Northwest,
Stephen O. Plunkett, Bassford & Remele,
Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.
Appellant challenges the district court’s award of summary judgment on his personal-injury claim against respondent estate. On appeal, respondent moves to strike portions of the appendix to appellant’s brief. We affirm and deny in part and grant in part the motion to strike.
January 4, 2005, an ambulance owned by Roseau Area Hospital & Homes (
On April 28, 2005, Otto commenced a civil action against Christianson; Dennis Lunde, doing business as Hammer Sanitation; and Roseau Hospital. On February 22, 2006, Otto filed a motion to amend his complaint to add the estate of Terry Pearson (the estate) as a defendant. The district court granted the motion to amend. Otto’s amended complaint alleged that he “was a passenger in an ambulance driven by a co-employee [Pearson]” and that Pearson “failed to maintain a proper lookout in a grossly negligent manner, without even scant care, not paying the slightest attention to the consequences or used no care at all in the operation of the emergency vehicle.”
April 27, 2006, the district court granted summary judgment in favor of
The Pearson’s estate moved for dismissal under Minn. R. Civ. P. 12.02. The estate argued that because the district court had already determined that Pearson was acting “‘in the ordinary and customary course of [his] employment with Roseau Hospital as an emergency medical technician’ at the time of the accident,” the estate was entitled to co-employee immunity under the Workers’ Compensation Act.
Because both parties submitted affidavits and other matters outside the pleadings, the district court converted the estate’s rule 12 motion into a motion for summary judgment. The district court found that appellant and Pearson were co-employees of Roseau Hospital, that Pearson was operating the ambulance “in the ordinary and customary course” of his employment, and that Otto had “elected to claim, has received, and continues to receive compensation under the Minnesota Workers’ Compensation Act.” In its accompanying memorandum of law, the district court ruled that because Pearson was acting in the ordinary and customary course of his employment at the time of the accident, Pearson owed Otto no personal duty as a matter of law. The district court granted summary judgment.
This appeal follows. Following the submission of Otto’s brief, the estate moved this court for an order striking portions of the appendix to Otto’s brief.
The first issue is whether the district court erred by granting summary judgment in favor of the estate based on the Workers’ Compensation Act’s co-employee immunity provision.
an appeal from summary judgment, we ask two questions: (1) whether there are
any genuine issues of material fact and (2) whether the [district] court
erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2,
workers’ compensation system in
Minnesota Supreme Court has ruled that only under limited circumstances may an
employee recover against a co-employee for the co-employee’s negligence. Wicken
v. Morris, 527 N.W.2d 95, 98 (
A. Personal-Duty Requirement
there is a personal duty is a question of law, which we review de novo.
contends that by granting his motion to amend the complaint to add the estate
as a defendant, the district court already “conclusively” decided the
personal-duty issue in his favor. But
the summary-judgment standard differs in significant respects from the standard
to amend a complaint. A district court
will grant leave to amend a complaint “when justice so requires.”
contends that Pearson operated the ambulance outside the scope and course of
his employment. “When an employee
engages in acts exceeding his authorization, including the violation of an
instruction or rule, he is acting outside the course and scope of his
employment.” Stringer, 705 N.W.2d at 761.
The Minnesota Supreme Court has distinguished between “the performance
of authorized acts in a prohibited manner and the performance of prohibited
acts.” Lange v. Minneapolis-St. Paul Metro. Airports Comm’n, 257
Lange, the claim was made by the
estate of an employee who worked as an airport supervisor.
as found by the district court, Roseau Hospital employed Pearson to “operat[e]
ambulances on highways in Roseau County, Minnesota for the purpose of
transporting Roseau Hospital patients to various locations.” This is not disputed. Unlike the situation in Lange, Pearson was performing an authorized act. Even Otto’s assertions that Pearson was
operating the ambulance in a prohibited manner are not sufficient to transform
Pearson’s driving into a prohibited act.
In its order granting summary judgment, the district court found that
“[t]he ambulance was operated by Terry Pearson in the ordinary and customary
course of [his] employment with
has already made the legal
determination that Mr. Pearson was in the ordinary and customary course of his
(Emphasis added.) The district court was apparently referring
to its prior order granting
Otto disputes the district court’s inclusion of the language “at the time of the accident” and contends that this misrepresents the district court’s previous ruling. Otto contends that the particular way in which Pearson was operating the ambulance was not authorized by the hospital-employer and, therefore, Pearson was not acting within the course and scope of his employment at the time of the accident. Specifically, Otto argues that Pearson exceeded the speed limit on a non-emergency run, failed to pay appropriate attention, and failed to activate the vehicle’s siren. Otto also cites the special training that Pearson underwent to become an ambulance driver, claiming that Pearson knew “that he could not disregard traffic laws unless [he was] on an emergency run.” Appellant contends that the district court erred by failing to consider these allegations in its summary-judgment dismissal of his case. But the district court’s previous ruling that Pearson was acting within the scope of his employment was not limited in any way and can be interpreted to mean “at the time of the accident.” Having handled the case from its inception, the district court was in the best position to interpret its previous determination.
In reviewing the record, we conclude that at the time of the accident Pearson was performing an authorized act by driving an ambulance, and that even though he was doing so in an improper manner, Pearson was acting within the scope of his employment. Because recovery on Otto’s personal-injury claim is barred unless Pearson’s conduct at the time of the accident was outside the course and scope of his employment, our determination that Pearson was, at that time, within the course and scope of his employment means that the personal-duty requirement is not met and requires that we uphold the district court’s decision to grant summary judgment.
B. Gross-Negligence Requirement
Otto contends that he has shown that his injuries resulted from Pearson’s gross negligence. See Minn. Stat. § 176.061, subd. 5(c). Pointing to the accident reconstructionist’s reports and photographs depicting the “violent nature” of the accident, appellant contends that Pearson’s driving conduct constitutes gross negligence. But because we conclude that the district court properly granted summary judgment under the personal-duty requirement, we need not address the gross-negligence element of Minn. Stat. § 176.061, subd. 5(c). Stringer, 705 N.W.2d at 763.
next issue is whether the district court erred by concluding that collateral
estoppel precludes appellant’s claim.
“Collateral estoppel prevents a party from relitigating issues if (1)
the issue is identical to one in a prior adjudication; (2) there was a final
judgment on the merits; (3) the estopped party was a party in the prior case;
and (4) there was a full and fair opportunity to be heard on the issue.” In re
Trust Created by Hill, 499 N.W.2d 475, 484 (
its memorandum accompanying its order granting respondent-estate’s motion for
summary judgment, the district court reasoned: “The Court has already made the
legal determination that Mr. Pearson was in the ordinary and customary course
of his employment with
Otto contends that the district court improperly relied on its previous finding because it never actually determined that Pearson was acting in the course of his employment “at the time of the accident.” Otto also argues that this finding was “non-essential” to the dismissal of his case against Roseau Hospital, and that the district court failed to analyze acts which he asserts took Pearson outside the course and scope of his employment. The estate claims that the district court’s previous ruling precludes appellant from relitigating the issue.
the district court granted
The final issue is whether this court should strike portions of the appendix to Otto’s brief and disregard the references to those documents in the text of his brief. The estate argues that these documents must be stricken because they were not part of the summary-judgment record.
papers filed in the [district] court, the exhibits, and the transcript of the
proceedings, if any, shall constitute the record on appeal in all cases.”
contested portion of Otto’s appendix consists of two accident-reconstruction
reports from Elkin Consulting. In its
motion to strike, the estate argues that neither report was part of the record
underlying the motion to dismiss and therefore neither is properly before this
court on appeal. The estate further
contends that Otto’s brief contains numerous references to the allegations in the
accident-reconstruction reports. The
estate urges this court to strike the documents based on its reasoning in Urban v. Am. Legion Post 184, 695 N.W.2d
153, 158 n.1 (Minn. App. 2005), aff’d,
723 N.W.2d 1 (Minn. 2006). In Urban, the respondent moved to strike
documents included in the appendix to the appellant’s brief. 695 N.W.2d at 158 n.1. The documents had been filed with the
district court after the summary-judgment hearing.
A. March 13 Report
In his first report, dated March 13, 2006, traffic reconstructionist William Elkin opined that Pearson was driving the ambulance at excessive speeds of between 65 and 75 miles per hour and was not on an emergency run. Elkin also opined that Pearson was violating state law at the time of the accident by failing to operate the ambulance’s siren. Elkin’s report concluded that Pearson “was willfully indifferent to and deliberately disregarded the safety of others on the roadway, his patient’s safety and the safety of the attending medical technician. His actions were reckless, grossly negligent and contributed to the cause of th[e] collision.” This document was attached to a March 2006 memorandum of law in support of Otto’s motion to amend the complaint to add the estate as a defendant, and the document was served on the estate in response to discovery requests. Because the document was part of the district court record prior to the summary-judgment hearing, we conclude that that the document is appropriately part of the appellate record and deny this portion of the motion to strike.
B. December 5 Report
The second accident-reconstruction report, dated December 5, 2006, focuses on Pearson’s failure to engage the ambulance’s siren. The hearing on respondent’s motion for summary judgment was held on November 27, 2006, and this report, “to supplement discovery,” was not served until December 7, 2006. There is no indication that the district court granted the parties leave to supplement the record following the summary-judgment hearing. Based on Urban’s reasoning, we conclude that this document is not properly part of the record on appeal, and we grant that portion of the motion to strike. However, even if considered part of the record, the limited additional evidence in this second report would not affect our determination that Pearson was within the course and scope of his employment.
Affirmed; motion granted in part.