This opinion will be unpublished and
                    may not be cited except as provided by
                 Minn. Stat. § 480A.08, subd. 3 (1994)

                            State of Minnesota
                             in Court of Appeals
                                C5-96-736

     John A. Dalsin & Sons, Inc.,
     Appellant,


vs.

Travelers Insurance Companies, d/b/a The

Travelers, defendant/third-party plaintiff,
     Respondent,
     Berkley Insurance Services, Inc.,

defendant/third-party defendant,
     Respondent.


Filed October 15, 1996
Affirmed
Thoreen, Judge

Hennepin County District Court

File No. 94-1007

Dudley R. Younkin, Stutzman Building, 733 East Seventh Street, St. Paul, MN
55106; L.T. Merrigan, Merrigan, Quayle, Brandt & Ostenso, 25 Ninth Avenue
North, Hopkins, MN 55343 (for Appellant)

Brooks F. Poley, Winthrop & Weinstine, P.A., 3000 Dain Bosworth Plaza, 60
South Sixth Street, Minneapolis, MN 55402 (for Respondent Travelers)

Mary Steenson, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods
Tower, Minneapolis, MN 55402-3787 (for Respondent Berkley)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and
Thoreen, Judge.(*)
        [Footnote] (*)Retired judge of the district court,
        serving as judge of the Minnesota Court of Appeals
        by appointment pursuant to Minn. Const. art. VI,
        § 10.
                                     
                        Unpublished Opinion

THOREEN, Judge (Hon. Philip D. Bush, District Court Trial Judge)

Respondent purchase Appellant John A. Dalsin & Sons, Inc. (Dalsin) sued
respondent Travelers Insurance Companies (Travelers) and Berkley Insurance
Services (Berkley), seeking recovery for workers' compensation benefits
that Dalsin had paid to a worker. Following settlement discussions, and
without actually agreeing to the amount of benefits payable, the parties
stipulated to a dismissal of Dalsin's lawsuit. A judgment of dismissal with

prejudice was entered. The parties thereafter disagreed on the amount of
benefits payable, and Dalsin brought a motion to vacate the dismissal,
arguing that it had reasonably believed that Travelers had accepted
Dalsin's assumptions regarding the level of benefits payable. The district
court denied Dalsin's motion, and Dalsin appealed. We affirm.
                                     
                               Facts

Dalsin was awarded a roofing contract in Tennessee. Through Berkley, Dalsin
purchased a contract of workers' compensation insurance from Travelers.
Dalsin later sued Berkley and Travelers, seeking recovery for Minnesota
workers' compensation benefits owed to a worker.

The parties arrived at a settlement, which provided:
        
        Travelers agrees to pay the amount of benefits owed
        under its Tennessee workers' compensation policy * *
        *. Travelers and [Dalsin] agree that the total
        amount owed under Tennessee law * * * is $______.

The parties never filled in the amount owed, and they never signed this
settlement agreement.

Dalsin's attorney mailed Travelers' attorney a letter stating that Berkley
and Dalsin had agreed to settle the balance of the claim contingent on
Travelers paying $175,000. In a later letter, however, Dalsin's attorney
confirmed that Travelers was ``willing to pay whatever benefits are payable
under Tennessee law.'' In another letter, Dalsin's attorney indicated that
he believed the amount of Tennessee benefits payable under Travelers'
policy was $140,927.27, plus attorney fees. The letter requested that
Travelers notify Dalsin if Travelers' calculation of Tennessee benefits
differed from Dalsin's.

After judgment was entered on the parties' stipulation of dismissal, an
adjuster for Travelers evaluated the workers' compensation benefits under
Tennessee law at between $9,408 and $56,448.
                                     
                              Decision

Dalsin claims the district court erred by refusing to vacate the judgment
of dismissal because of mistake or inadvertence, under Minn. R. Civ. P.
60.02(a). The district court's decision whether to vacate a judgment will
be upheld on appeal absent an abuse of discretion. Tomscak v. Tomscak,
352 N.W.2d 464, 466 (Minn. App. 1984). The district court's findings
will be upheld on appeal unless they are clearly erroneous. In re
Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993), review denied
(Minn. Aug. 16, 1993).

We conclude that there was no clear abuse of discretion. While there is
some evidence that Dalsin's counsel believed the parties had agreed that
$175,000 was payable under Tennessee law, the district court found that
Dalsin knew the parties had not agreed on the amount of the settlement.
This finding is supported by a letter from Dalsin's counsel to Travelers,
indicating that Dalsin expected that Travelers would pay ``whatever
benefits are payable under Tennessee law.'' Furthermore, as the district
court noted, the parties left the actual amount of the settlement agreement
blank, and the parties did not sign the agreement, suggesting that the
parties had not finally agreed upon the amount of Tennessee benefits to be
paid.

Dalsin also claims that it should be relieved from the stipulation of
dismissal under rule 60.02(a) as a result of excusable neglect. In Kurak
v. Control Data Corp., 410 N.W.2d 34 (Minn. App. 1987), the court
recognized the rule that a party should not be penalized for his attorney's
mistakes where the party was not involved in the decisions leading to the
dismissal of the action. Id. at 36. But unlike Kurak,

involving the dismissal of an action as a result of a procedural rule
that did not involve the party himself, here we assume that Dalsin itself
participated in the settlement and stipulation of dismissal. See
Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973)
(denying relief under rule 60.02 where party was personally guilty of
inexcusable neglect).

Dalsin also claims that it should be relieved from the stipulation of
dismissal as a result of fraud, misrepresentation, or other inequitable
conduct, pursuant to rule 60.02(c). A motion for relief on these grounds
must be supported by clear and convincing evidence of the alleged
misconduct that prevented the movant from fully and fairly presenting its
case. Regents of the Univ. of Minn. v. Medical, Inc., 405 N.W.2d
474, 480 (Minn. App. 1987), review denied (Minn. July 15, 1987),
cert. denied, 484 U.S. 981 (1987). Clear and convincing evidence is
more than a preponderance of the evidence, although less than proof beyond
a reasonable doubt. Weber v. Anderson, 269 N.W.2d 892, 895 (Minn.
1978). ``Clear and convincing proof will be shown where the truth of the
facts asserted is `highly probable.''' Id.
The district court found that at the time Travelers agreed to the
settlement, it had not yet determined the amount of workers' compensation
benefits payable under Tennessee law. The court found that Travelers'
silence regarding the amount of those benefits did not amount to ``anything
more than a lack of knowledge about what the benefit level would be.'' The
court did not believe that there was any evidence presented to support
Dalsin's claim of fraud, misrepresentation, or inequitable conduct by
Travelers. These findings are supported by the record, and the court did
not abuse its discretion by finding a lack of clear and convincing evidence
to prove fraud or misrepresentation by Travelers.

Finally, Dalsin moved to vacate the judgment under an estoppel theory,
citing Minn. R. Civ. P. 60.02(f), which provides for a vacation for ``[a]ny
other reason justifying relief from the operation of the judgment.'' This
clause is ``designed to cover unforeseen contingencies, * * * is exclusive
of clauses (a) through (e) and [is] not applicable if relief properly falls
under another clause.'' Western Lake Superior Sanitary Dist. v.
Interpace Corp., 454 N.W.2d 449, 452 (Minn. App. 1990). Dalsin's claim
for relief appropriately alleged a claim of mistake or excusable neglect,
or fraud or misrepresentation; therefore, Dalsin's claim for relief under
Minn. R. Civ. P. 60.02(f) is not proper.
Affirmed.