This opinion will be unpublished and

may not be cited except as provided by

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




Christopher Kohn, judgment creditor,



Brian Ross,

Judgment Debtor,

Allstate Insurance Company, garnishee,


Filed April 7, 1998


Willis, Judge

Olmsted County District Court

File No. C196867

Eric D. Larson, Jeffrey A. Hanson, Dunlap & Seeger, P.A., 206 South Broadway, 505 Marquette Bank Building, Rochester, MN 55903 (for appellant)

Richard L. Pemberton, Jr., Kenneth W. Dodge, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Appellant judgment creditor challenges the district court's denial of his motion for leave to file a supplemental complaint against respondent garnishee. We affirm.


On September 3, 1994, appellant Christopher Kohn attended a party held outside the residence of Corey Boysen in Byron, Minnesota. Judgment debtor Brian Ross attended the party but left twice because he was involved in several fights. The second time Ross left the party, several friends accompanied him to Rochester in a car owned by Ross's father.

At the suggestion of one of his friends, Ross agreed to drive the friend and four other people from Rochester back to the Boysen residence. He admits he knew several of the individuals had gang affiliations. Ross claims that before leaving Rochester, one member of the group asked Ross for his car keys, and Ross threw them to him. Ross testified at deposition that one or more of the group members put something in the trunk of Ross's car, but he was too far away from the car to see what it was. Ross and his companions then returned to the Boysen residence.

Shortly after arrival at the Boysen residence, Ross again gave his car keys to one of his companions, and Ross left the area while that person opened the car trunk. Ross testified that he then saw at least two of his passengers enter onto the Boysen property and at least one was carrying a gun case. One or more shotguns were discharged near the Boysen residence. A shotgun pellet struck Kohn as he sat by a bonfire on the Boysen property; he lost his left eye as a result of the injury. Ross returned to his car, waited for his companions to return, and drove them back to Rochester.

At the time of the incident, respondent Allstate Insurance Company ("Allstate") insured Ross under two insurance policies: an automobile policy covering the car Ross drove the night of the party and his father's homeowner's policy. Kohn commenced an action against Ross, Boysen, and Boysen's mother and grandparents in October 1995. The district court granted summary judgment in favor of Boysen's grandparents, denied Ross's summary judgment motion, and granted Kohn's motion to amend his complaint to allege conspiracy and punitive damages claims against Ross.

Kohn's amended complaint alleged that Ross was "negligent" and "negligently operated his motor vehicle" when he (1) assisted in loading several shotguns in his car and transported people to the Boysen residence, "knowing that these individuals constituted a risk of harm to others"; (2) positioned his motor vehicle and his companions with the shotguns so that they "would fire" around the Boysen property, "thereby causing injury to [Kohn]"; and (3) assisted his companions in removing the shotguns from the car, after which two shotguns were discharged, injuring Kohn. The amended complaint also alleged that Ross conspired with others for the purpose of illegally discharging two shotguns, which was a proximate cause of Kohn's injury. After initially accepting a tender of Ross's defense, Allstate withdrew on the ground that Kohn's amended complaint alleged bodily injury resulting from conduct excluded from coverage by both the automobile and homeowner's policies.

Kohn and Ross entered into a settlement agreement pursuant to Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982). The district court ordered a judgment in the amount of $200,000 against Ross pursuant to the agreement. Allstate denied liability under both its automobile and homeowner's policies, and Kohn moved for leave to file a supplemental complaint against Allstate. The court denied the motion and dismissed the garnishment action with prejudice. This appeal followed.


Kohn argues that the district court erred in denying his motion for leave to file a supplemental complaint against Allstate.

[W]here [a] garnishee denies liability, the creditor may move the court * * * 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. The supplemental complaint shall set forth the facts upon which the creditor claims to charge the garnishee. If probable cause is shown, the motion shall be granted.

Minn. Stat. § 571.75, subd. 4 (1996); Poor Richards, Inc. v. Chas. Olson & Sons & Wheel Serv. Co., 380 N.W.2d 225, 227 (Minn. App. 1986) (stating that finding of probable cause in this context "depends on whether the evidence shows probable grounds for believing that the garnishee might be held liable under the policy") (quoting Gudbrandsen v. Pelto, 205 Minn. 607, 610, 287 N.W. 116, 117-18 (1939)).[1] Probable cause is "some showing by evidence which fairly and reasonably tends to show the existence of the facts alleged." Id. (quoting Gudbrandsen, 205 Minn. at 609, 287 N.W. at 117).

Whether Allstate is liable as a garnishee depends on the language of the automobile and homeowner's insurance policies. See Roloff v. Taste of Minnesota, 488 N.W.2d 325, 326 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). The construction and interpretation of an insurance contract is a question of law that this court reviews de novo. Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn. 1997).

Allstate contends that the automobile policy does not provide coverage for Kohn's injuries. We agree. When determining whether an automobile policy covers an injury, courts must consider three factors: (1) whether the vehicle was an "active accessory" in causing the injury; (2) whether an act of independent significance caused a break in the causal link between the use of the vehicle and the injury; and (3) whether the insured was using the automobile for transportation purposes at the time the injury occurred. Continental Western Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn. 1987).

The car was not an active accessory to Kohn's injury nor was the operation of the car for transportation purposes causally related to Kohn's injury. The car served only to transport Ross and his companions to the scene of the incident and the shooting could have occurred just as easily had Ross and his companions arrived at the Boysen residence on foot. See Holm v. Mutual Service Cas. Ins. Co., 261 N.W.2d 598, 603 (Minn. 1977) (stating where police officer left his vehicle to make arrest and committed a battery, "battery could as easily have occurred had [the officer] come upon the stationary motorcycle while on foot"). We conclude that the district court correctly denied Kohn's motion for leave to file a supplemental complaint against Allstate based on the provisions of the automobile policy.

Allstate also contends that exclusions in the homeowner's policy preclude liability for Kohn's injury. This court will narrowly interpret exclusions in insurance contracts against the insurer. Hennings v. State Farm Fire & Cas. Co., 438 N.W.2d 680, 683 (Minn. App. 1989), review denied (Minn. June 9, 1989). "[A]ny ambiguity in the language * * * must be construed in favor of the insured." Henning Nelson Constr. Co. v. Fireman's Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn. 1986).

The homeowner's policy does not cover bodily injury resulting from:

[a]n act or omission intended or expected to cause bodily injury or property damage. This exclusion applies even if the bodily injury or property damage is of a different kind or degree, or is sustained by a different person or property, than that intended or expected * * * .

Allstate argues that Ross's intent to cause bodily injury must be inferred from his acts. Where insureds have planned and participated in incidents where bodily injury resulted from the discharge of firearms, the Minnesota Supreme Court has inferred as a matter of law that the insureds intended to cause the injury and found the acts subject to the "intentional-injury" exclusion in the insureds' homeowner's policies. See e.g., Continental Western Ins. Co. v. Toal, 309 Minn. 169, 244 N.W.2d 121 (1976); Woida v. North Star Mut. Ins. Co., 306 N.W.2d 570 (Minn. 1981). In Toal, the insureds stated that while they did not intend to shoot anyone during a robbery, they did intend to threaten people with a gun and use it if necessary to accomplish the robbery. 309 Minn. at 171-72, 244 N.W.2d at 123. The supreme court found that the "insureds intentionally prepared themselves to inflict serious injury in order to facilitate the armed robbery" and inferred an intention to cause bodily harm. Id. at 177-78, 244 N.W.2d at 125-26. Similarly, in Woida, (1) the insured planned with a group of other men to drive to a construction site and shoot at a truck occupied by guards; (2) some members of the group shot at the truck, injuring one of the guards; and (3) everyone in the group knew that the truck was occupied when the shots were fired. 306 N.W.2d at 573-74. Although it was not determined who actually fired the shots, the supreme court inferred as a matter of law that the insured intended to cause injury because the participants' actions were calculated, and determined the injury was subject to the intentional-injury exclusion in the insured's homeowner's policy. Id. at 572-74.

Kohn claims that Ross was negligent, but the factual allegations of the amended complaint describe intentional wrongdoing by Ross. The facts alleged are similar to those in Woida: (1) that Ross actively planned and conspired with several individuals to return to the Boysen property with shotguns for the purpose of shooting the guns; (2) that one or more individuals fired those guns on the Boysen property knowing that other people were present; and (3) that Kohn suffered an injury as a result of the shootings. Although the complaint does not allege that Ross actually fired a gun, and there is no evidence that he did, his conduct compels the conclusion that as a matter of law his acts or omissions were intended to cause bodily injury and are thereby subject to the intentional-injury exclusion of the homeowner's policy. Because of our decision, we need not address whether other exclusions in the homeowner's policy apply.

We conclude that because Kohn did not show probable cause that Allstate would be liable for the judgment against Ross under either the automobile insurance policy or the homeowner's policy, the district court did not err in denying Kohn's motion for leave to file a supplemental complaint against Allstate.


[ ]1 Poor Richards involved Minn. Stat. § 571.51 (1984), which the legislature has since repealed and replaced by Minn. Stat. § 571.75. 1990 Minn. Laws ch. 606, art. 3 §§ 7, 39. The relevant provisions of the two statutes are substantially the same.