This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Progressive Casualty Insurance Company,



Ivan J. Fiedler,

Julieann K. Kulas,

Linda M. Adair, trustee for the heirs

and next-of-kin of Frank E. Wunderlich, deceased,

Kevin J. Kurtz,


Brian Fiedler,


Filed June 3, 1997


Short, Judge

Stearns County District Court

File No. C6954269

Scott A. Brehm, Scott A. Brehm & Associates, Parkdale Plaza, Suite 310E, 1660 South Highway 100, Minneapolis, MN 55416 (for respondent)

Daniel Eller, Daniel Eller Law Office, P.O. Box 638, St. Cloud, MN 56302 (for appellant Fiedler)

Stephen D. Gabrielson, Holman & Gabrielson, 350 Corporate Center, 26 North Sixth Avenue, St. Cloud, MN 56302 (for appellant Kulas)

Daniel E. Fobbe, Cragg & Fobbe, 310 Norwest Bank Building, 1011 First Street South, Hopkins, MN 55343 (for appellant Adair)

Krister D. Johnson, Nelson Hanson Personal Injury Attorneys, 1010 West St. Germain, Suite 440, St. Cloud, MN 56301 (for appellant Kurtz)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.


SHORT, Judge

This case arises from the collision of two uninsured motor vehicles. On appeal from a grant of summary judgment, the drivers and passengers of both automobiles argue the trial court erred in concluding the accident was not covered under a no-fault policy maintained by one of the drivers for another vehicle. We affirm.


On appeal from summary judgment, this court determines whether genuine issues of material fact exist and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While we view the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts that create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn. 1995).


The drivers and passengers of both automobiles involved in the accident (appellants) argue the trial court erred by admitting into evidence a statement the insurer took from Ivan Fiedler (Fiedler), one of the drivers, within 30 days of the motor vehicle accident. Pursuant to Minn. Stat. § 602.01 (1996),

[a]ny statement secured from an injured person at any time within 30 days after such injuries were sustained shall be presumably fraudulent in the trial of any action for damages for injuries sustained by such person or for the death of such person as the result of such injuries. No statement can be used as evidence in any court unless the party so obtaining the statement shall give to such injured person a copy thereof within 30 days after the same was made.

The exclusionary clause of the statute, like the presumption of fraudulence, only applies to statements given by an injured person who seeks to recover in an action for the injuries sustained. Hillesheim v. Stippel, 283 Minn. 59, 65, 166 N.W.2d 325, 330 (1969). The statute does not bar the admission of statements in other types of actions, even if closely related to a personal injury action. See, e.g., Dike v. American Family Mut. Ins. Co., 284 Minn. 412, 420, 170 N.W.2d 563, 567 (1969) (holding no statutory protection existed for statement made by injured insured in his declaratory judgment action against insurer to determine coverage for motor vehicle accident); Hillesheim, 283 Minn. at 64-65, 166 N.W.2d at 329 (concluding statute did not apply to statement given by injured defendant in personal injury case). Although the policy of "eliminat[ing] the sharp practices that so often prevail in personal injury cases" would support a broader application of Minn. Stat. § 602.01, the statute does not permit such an interpretation. Id. (stating statute did not protect statement of injured driver, "much as [the court] would prefer to have it apply to any injured person from whom a statement is taken * * * ").

The insurer took a statement from Fiedler less than 30 days after he was seriously injured in the motor vehicle accident and failed to show or give him a copy of the statement until nearly a year later. However, because this is not an injured person's action for damages, but an insurer's declaratory judgment action against an insured, the statute does not protect Fiedler's statement. Therefore, the trial court properly considered the statement in deciding the insurer's motion for summary judgment.


Appellants argue coverage exists for claims arising from the collision under the insurance policy Ivan Fiedler maintains on a different automobile. Fiedler's policy provides coverage for vehicles driven by the insured other than the insured vehicle, but excludes

[b]odily injury or property damage arising out of the ownership, maintenance or use of any vehicle, other than your insured car, which is owned or furnished or available for regular use by you or a relative.

The policy defines "relative" as "a person living in your household, related to you by blood, marriage or adoption * * * ." These provisions unambiguously exclude coverage "where an automobile not covered by the insurance is owned by the named insured or a member of the same household, or where an automobile is furnished for regular use to either the named insured or a member of the same household." Simon v. Milwaukee Auto. Mut. Ins. Co., 262 Minn. 378, 385, 115 N.W.2d 40, 45-46 (1962) (construing indistinguishable exclusion) (emphasis omitted). The purpose of such an exclusion is to exclude liability where members of the same household use automobiles interchangeably. Id. at 392, 115 N.W.2d at 49-50. Absent this exclusionary clause, a family could pay insurance premiums on only one automobile and expect that vehicle's policy to cover all of the family's vehicles. Id. at 392, 115 N.W.2d at 50.

The appellants do not dispute the trial court's finding that Fiedler's brother, Brian, owned the vehicle Fiedler was driving at the time of the accident. Therefore, policy coverage turns on whether Brian may be classified as Fiedler's "relative," i.e., "a person living in [Fiedler's] household, related to [Fiedler] by blood, marriage or adoption."

The term "household" is generally synonymous with "family" and includes "those who dwell together as a family under the same roof." Firemen's Ins. Co. v. Viktora, 318 N.W.2d 704, 707 (Minn. 1982) (quoting Van Overbeke v. State Farm Mut. Auto. Ins. Co., 303 Minn. 387, 392, 227 N.W.2d 807, 810 (1975)). The factors relevant to a determination of whether a person is a member of a named insured's household are: (1) whether the parties live under the same roof; (2) in a close, intimate, and informal relationship; (3) where the intended duration is likely to be substantial; and (4) where it is consistent with the informality of the relationship. Viktora, 318 N.W.2d at 706 (quoting Pamperin v. Milwaukee Mut. Ins. Co., 197 N.W.2d 783, 788 (Wis. 1972)). Courts analyze the duration-of-stay element in the broader sense of the relationship of the persons to each other and to the household, rather than in the narrow sense of the duration of individual visits. American Family Mut. Ins. Co. v. Thiem, 498 N.W.2d 279, 283 (Minn. App.), aff'd in relevant part, 503 N.W.2d 789 (Minn. 1993). Furthermore, a person may belong to more than one household. See, e.g., Krause v. Mutual Serv. Cas. Co., 399 N.W.2d 597, 602 (Minn. App. 1987) (concluding child was member of households of both divorced parents).

The appellants argue the trial court erred in determining, as a matter of law, that Fiedler shared a household with his brother Brian. The police and insurance documents generated as a result of the accident listed Fiedler as residing in his parents' house. However, the evidence before the trial court on the summary judgment motion included Fiedler's statements that he: (1) lived with Brian at the time of the accident; (2) had been sharing a house with Brian for approximately four months; (3) slept alternatively at Brian's house, another brother's house, or his parents' house; (4) called Brian's house "my place"; and (5) called his parent's house "my mom's place." Although Fiedler did not spend every night at the house he shared with Brian, the brothers had a close relationship and resided together as a family under one roof. Moreover, the manner in which the Fiedlers share vehicles, both insured and uninsured, is precisely the type of situation against which the policy exclusion is intended to guard. Given these facts, we must conclude the trial court did not err in determining as a matter of law that Brian Fiedler was a member of Ivan Fiedler's household, rendering the policy exclusion for vehicles owned by a "relative" applicable. Because the appellants failed to raise a material issue of fact as to policy coverage, the trial court properly granted summary judgment in favor of the insurer.


Appellants also argue the trial court abused its discretion by refusing to consider a supplemental affidavit submitted by Fiedler together with a "motion for reconsideration" after the court granted summary judgment. Court rules require that a party responding to a dispositive motion submit a memorandum of law and supplementary affidavits at least nine days prior to the hearing on the motion. Minn. R. Gen. Pract. 115.03. The record does not remain open for the submission of new evidence after a trial court has ordered summary judgment. Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983). Therefore, a trial court may not consider new evidence on a "motion for reconsideration," and this court may not consider such evidence on appeal. Midway Nat'l Bank v. Bollmeier, 462 N.W.2d 401, 404-05 (Minn. App. 1990), affirmed, 474 N.W.2d 335 (Minn. 1991); see Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996) (recognizing that rules of civil procedure do not provide for "motion[s] for reconsideration"), review denied (Minn. Dec. 23, 1996); see also Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 716 (Minn. App. 1997) (noting information in supplemental affidavit was known at time of summary judgment motion and should have been produced, if at all, at that time), review denied (Minn. Apr. 27, 1997).

Fiedler's supplemental affidavit, submitted one month after the trial court granted the insurer summary judgment, alleged facts intended to establish he was a member of his parents' household rather than Brian's household. Under these circumstances, the trial court properly refused to consider the untimely affidavit. If the appellants had insufficient time to respond to the insurer's motion for summary judgment, the proper remedy would have been to request a continuation of the motion, which they failed to do. See Montgomery v. American Hoist & Derrick Co., 350 N.W.2d 405, 408 (Minn. App. 1984) (explaining that party tardily responding to summary judgment motion should have requested continuation to afford sufficient preparation time). Because Fiedler's supplementary affidavit is not part of the record in these proceedings, it cannot create a genuine issue of material fact for trial.