This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Bradley Baumgarten, et al.,



Milavetz, Gallop & Milavetz, P.A., et al.,


Filed May 25, 1999


Halbrooks, Judge

Hennepin County District Court

File No. C8-98-1822

Peter J. Krieser, Susan F.K. Bieniek, Krieser & Bieniek, 11650 Wayzata Blvd., Minnetonka, MN 55305 (for appellants)

Kay Nord Hunt, Phillip A. Cole, Barry A. O'Neil, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Foley, Judge.[*]



Appellant Bradley Baumgarten challenges the district court's grant of summary judgment in favor of respondents in a legal malpractice action. Baumgarten argues: (1) respondents' negligence caused loss of one cause of action and damage to another; (2) respondents engaged in deceit with a view to their own gain; and (3) respondents were unjustly enriched. Because we conclude there are no genuine issues of material fact and the district court properly applied the law, we affirm.


On May 4, 1987, appellant Bradley Baumgarten was involved in a one-vehicle rollover accident. Baumgarten was a passenger in the vehicle driven by Lorin Miller and owned by Michael Shaw, a musician in the Shaw Band. Baumgarten and Miller had working relationships with Shaw. Baumgarten set up and ran the lights during band performances, and Miller set up the band equipment.

After retaining and discharging an attorney, Baumgarten retained respondent Greg Malush of Milavetz and Associates, P.A. (n/k/a Milavetz, Gallop & Milavetz, P.A), on June 3, 1988. Malush discussed Baumgarten's case with the firm's workers' compensation specialist, respondent Gary Meyer. After a significant delay caused by Baumgarten's failure to follow through with medical treatment recommendations and testing, Meyer filed a claim on behalf of Baumgarten with the Department of Labor and Industry in January 1992. In the interim, Baumgarten had been involved in a subsequent motor vehicle accident in October 1989, which he claimed exacerbated his injuries sustained in the May 1987 accident. During the same time frame, Baumgarten gave and then revoked his authority to file a workers' compensation claim. Baumgarten first discharged the Milavetz firm in December 1991. Within weeks of the discharge, Baumgarten asked Malush and the firm to resume representation of him.

The Shaw Band did not have workers' compensation insurance, so the claims were administered by the Special Compensation Fund as provided in Minn. Stat. § 176.183 (1998). Although the claim was initially denied on the ground that Baumgarten was an independent contractor, the parties subsequently settled the claim in March 1993. The settlement included a lump-sum payment of $27,000 to Baumgarten. The stipulation left unresolved the issue of whether Baumgarten was an employee or an independent contractor. The Special Compensation Fund and the Shaw Band also agreed to assign Baumgarten their subrogation interests.

In April 1993, Malush brought a liability action on Baumgarten's behalf against Shaw and Miller. The complaint alleged negligence against both Shaw and Miller, as well as gross negligence against Miller. Shaw and Miller moved for summary judgment. A hearing was held on the summary judgment motion in March 1994.

The district court granted summary judgment with respect to Shaw and denied summary judgment with respect to Miller. The court concluded Baumgarten was precluded from bringing a civil action against Shaw under Minn. Stat. § 176.031 (1998) because he had elected the workers' compensation remedy. Baumgarten's negligence and gross negligence claims against Miller survived. After the summary judgment ruling, the insurer for the vehicle offered $25,000 to settle the remaining claims against Miller. The offer was subsequently increased to $50,000 in an offer of judgment.

On July 7, 1994, Baumgarten again discharged Malush and the Milavetz firm. In correspondence dated July 8, 1994, Malush informed Baumgarten of the procedural status of the case and advised him to seek a new attorney promptly. The trial was to be bifurcated. First, issues regarding the status of Baumgarten and Miller and various questions of insurance coverage would be tried to the court. The second trial would determine Baumgarten's damages. The Milavetz firm later filed an attorneys' lien.

After discharging the Milavetz firm, Baumgarten retained Robert Van Nostrand of the Van Drake law firm. Van Nostrand advised Baumgarten he could settle with Miller, then bring a malpractice claim against the Milavetz firm due to its mishandling of the case. When the liability insurer increased its offer to $80,000, Van Nostrand recommended that Baumgarten accept the settlement. Van Nostrand informed Baumgarten he would attempt to draft the settlement instrument in a manner that would benefit Baumgarten in a subsequent malpractice action against the Milavetz firm. Baumgarten received $61,725, and $18,275 was deposited with the court pursuant to the Milavetz lien.

Baumgarten then brought the instant malpractice action in Hennepin County District Court. Baumgarten alleged: (1) he would have obtained the $300,000 National Indemnity policy limit and $30,000 in additional no-fault benefits but for the negligence of the Milavetz attorneys; (2) the Milavetz attorneys' negligence aggravated his physical and psychological injuries; (3) the Milavetz attorneys violated Minn. Stat. § 481.071 (1998) by making misrepresentations regarding his right to compensation in a civil action despite settlement of the workers' compensation claim; and (4) the Milavetz firm was unjustly enriched by the $18,275 deposit in accordance with its lien.

Respondents moved for summary judgment. The district court granted respondents' motion for summary judgment and dismissed Baumgarten's complaint. This appeal followed.


On appeal from summary judgment, this court reviews the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The evidence is viewed in the light most favorable to the nonmoving party. Id.

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

To prevail in a legal malpractice action, the plaintiff must prove: (a) the existence of an attorney-client relationship; (b) acts amounting to negligence or breach of contract; (c) that such acts were the proximate cause of the plaintiff's damages; and (d) that but for [the] defendant's conduct, the plaintiff would have been successful in the action. Failure to prove any one of these elements defeats the plaintiff's case.

Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994) (citation omitted). There is no dispute as to the existence of an attorney-client relationship here.


Baumgarten sets forth two negligence theories. First, Baumgarten alleges respondents' advice to settle the workers' compensation claim was negligent because they did not understand the election of remedies provision in Minn. Stat. § 176.031 (1998). Next, Baumgarten asserts, given the uncertainty over his employment status and in light of the election of remedies problem, respondents were negligent for not first pursuing a declaratory judgment action to determine Baumgarten's employment status at the time of the accident.

A. Negligent Advice Regarding Election of Remedies

An attorney must exercise a degree of care and skill that is reasonable under the circumstances. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). An error in judgment will not create liability if it is an honest exercise of professional judgment. Id. at 113. But failure to use reasonable care to obtain information necessary to exercise professional judgment is negligence, even when the advice is given in good faith. Id.

An employee injured in the course of his employment may not sue a co-employee for simple negligence after pursuing and receiving a lump-sum settlement for a workers' compensation claim. Minn. Stat. § 176.061, subd. 1 (1998); Kohler v. State Farm Mut. Auto. Ins. Co., 416 N.W.2d 469, 471 (Minn. App. 1987) (applying earlier, identical version of the same statute). The statute does not preclude an action against a co-employee for gross negligence or intentional tort. Minn. Stat. § 176.061, subd. 5(c) (1998); Kohler, 416 N.W.2d at 471 n.2.

Minn. Stat. § 176.031 provides for exclusive liability of employers under the Workers' Compensation Act, replacing any other employer liability to an employee. Klemetsen v. Stenberg Constr. Co., 424 N.W.2d 70, 71-72 (Minn. 1988). But if an employer is uninsured, an employee may elect to bring either a workers' compensation claim or a civil claim. Minn. Stat. § 176.031; Klemetsen, 424 N.W.2d at 72. An employee's election to bring a workers' compensation claim does not preclude a negligence action against a third-party tortfeasor. Klemetsen, 424 N.W.2d at 72.

Because Baumgarten, on the advice of respondents, elected to pursue a workers' compensation claim against Shaw, his uninsured "employer," he was precluded from suing Shaw in district court. See Minn. Stat. § 176.031. Baumgarten now argues respondents were not aware of the effect of the election they advised him to make. But Baumgarten failed to present any evidence showing respondents did not understand the election of remedies. In fact, Baumgarten gave deposition testimony that based on respondent Meyer's advice, he understood he could accept the workers' compensation settlement and maintain a claim against Miller. Baumgarten also admitted Meyer fully explained the release of any further claims against Shaw.

Baumgarten points to a January 1994 letter from Malush as evidence he did not understand the election of remedies. But the letter did not specifically address the claim against Shaw; it merely addressed Baumgarten's ability to bring a bodily injury claim generally. The assertion that this letter, sent nearly a year after the workers' compensation settlement, suggests Baumgarten was given negligent advice, is speculative at best. It is certainly insufficient to overcome summary judgment. See Fownes v. Hubbard Broadcasting, Inc., 302 Minn. 471, 474, 225 N.W.2d 534, 536 (1975) (holding speculation is insufficient to show a genuine issue of material fact under Minn. R. Civ. P. 56).

B. Declaratory Judgment

Baumgarten further argues respondents failed to exercise reasonable care by not bringing a declaratory judgment action to determine his employment status prior to electing a remedy.

Any person interested under a * * * contract * * * , or whose rights, status, or other legal relations are affected by a * * * contract * * * may * * * obtain a declaration of rights, status, or other legal relations thereunder.

Minn. Stat. § 555.02 (1998). Baumgarten relies on State Farm Mut. Auto Ins. Co. v. Skluzacek, 208 Minn. 443, 448, 294 N.W. 413, 415 (1940), for the proposition that a declaratory judgment action may be brought to determine employment status, and thus coverage, under an insurance policy. Baumgarten's expert opined that failure to determine employment status by declaratory judgment, where the status is in question, prior to electing remedies under Minn. Stat. § 176.031, constitutes negligence.

Respondents point out Skluzacek involved a declaratory judgment action brought by an insurance company, id. at 445, 294 N.W. at 414, and argue the declaratory judgment action was not available to Baumgarten in the underlying case because he was not a party to the insurance policy. Minnesota appellate courts have not addressed this question, and we need not decide it to resolve the present controversy. We do note, however, that a number of foreign jurisdictions have held a party in Baumgarten's position lacks standing to determine coverage by a declaratory judgment action. See, e.g., Farmers Ins. Exch. v. District Court for Fourth Judicial Dist., 862 P.2d 944, 948 (Colo. 1993) (holding an injured third party lacks standing to bring a declaratory judgment action to determine coverage under an insurance policy); Rhodes v. Lucero, 444 P.2d 588, 589 (N.M. 1968) (holding plaintiff lacked standing to bring declaratory judgment action against insurer prior to obtaining judgment against insured); Hale v. Fireman's Fund Ins. Co. of Am., 302 P.2d 1010, 1014 (Or. 1956) (same); Park v. Safeco Ins. Co., 162 S.E.2d 709, 710 (S.C. 1968) (same).

Generally, "[w]hen qualified expert opinion with adequate foundation is laid on an element of a claim, a genuine issue of material fact exists." Admiral Merchants Motor Freight, Inc. v. O'Connor & Hannan, 494 N.W.2d 261, 266 (Minn. 1992). But since negligence here rests solely on a legal question that has not been squarely addressed in Minnesota, we conclude respondents' approach was "within the bounds of an honest exercise of professional judgment." Wartnick, 490 N.W.2d at 113.


Even assuming, arguendo, respondents' advice was negligent, Baumgarten's claim was nevertheless properly dismissed because he cannot show that but for respondent's conduct he would have received a more favorable outcome.

A. "Lost Claim"

Baumgarten contends that respondents, by advising him to elect the workers' compensation settlement, caused him to lose his direct liability claim against Shaw. A client asserting legal malpractice must prove that but for his attorney's negligence, "he had a meritorious cause of action originally." Fiedler v. Adams, 466 N.W.2d 39, 42 (Minn. App. 1991) (quotation omitted), review denied (Minn. Apr. 29, 1991). To survive a summary judgment motion on causation in a legal malpractice case, a party alleging the loss of a cause of action "must show that he would have survived summary judgment on the underlying, but foregone, claim." Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn. 1994). But Minnesota courts "disapprove of allowing a client who has become dissatisfied with a settlement to recover against an attorney solely on the ground that a jury might have awarded him more * * * ." Id. n.6 (citing Glenna v. Sullivan, 310 Minn. 162, 170, 245 N.W.2d 869, 873 (1976)).

As the district court below aptly concluded,

[w]hen a claimant elects a remedy, and when he agrees to settle a claim or lawsuit, he necessarily forfeits other remedies and/or underlying claims.

Pursuant to Minn. Stat. § 176.031, Baumgarten only had one claim against Shaw. He could have elected to bring it as either a workers' compensation claim or a civil claim. He elected to bring and settle a workers' compensation claim. He now complains his settlement was insufficient.

Notably, Baumgarten admitted that respondent Meyer had fully explained all aspects of the workers' compensation settlement, including the release of any further claims against Shaw. In the stipulation for settlement, Baumgarten signed his initials on each of eight pages, affirming that he had read each page, that respondent Meyer had fully explained the settlement, and Baumgarten understood its terms and scope. At his deposition, Baumgarten testified he would not change his answers to those questions. Nevertheless, he claims it was respondents' negligence that caused his claimed damages.

Baumgarten did not lose his claim; he settled it. Under the rule in Glenna, Baumgarten cannot demonstrate that respondents' alleged negligence caused his claimed damages. See Glenna, 310 Minn. at 170, 245 N.W.2d at 873 (stating "[t]o allow a client who becomes dissatisfied with a settlement to recover against an attorney solely on the ground that a jury might have awarded them more than the settlement is unprecedented); see also Yusefzadeh v. Ross, 932 F.2d 1262, 1265 (8th Cir. 1991) (holding summary judgment appropriate where plaintiff failed to show but for attorney's negligence he would have obtained an advantage); Blue Water Corp., Inc. v. O'Toole, 336 N.W.2d 279, 284 (Minn. 1983) (holding a finding of causation may not rest on impermissible conjecture).

Baumgarten relies on First Bank v. Olson, 557 N.W.2d 621 (Minn. App. 1997), review denied (Minn. Mar. 18, 1997), in support of the proposition that a plaintiff need not take an underlying case to a jury verdict in order to demonstrate causation in a subsequent malpractice action. Id. at 624. But in First Bank, it was alleged that transactional malpractice forced the clients into otherwise unnecessary litigation. Id. The situation here is quite different. Baumgarten was not subjected to unnecessary litigation. He had potential claims against both Shaw and Miller. He settled both claims, thereby avoiding the inherent risks of trying the claims. Under Glenna, he may not now claim he should have received more.

B. "Damaged Claim"

Baumgarten also contends respondents' advice damaged his cause of action against Miller. He argues the workers' compensation settlement would have estopped him from claiming to be an independent contractor. Therefore, in order to avoid the Minn. Stat. § 176.061, subd. 1, election problem and access the insurance policy, he would have been forced to prove Miller was an independent contractor. Baumgarten asserts that, but for the workers' compensation settlement, he would have been more likely than Miller to be found an independent contractor. Therefore, the election of remedies damaged his cause of action against Miller.

"As a general rule, estoppel is an affirmative defense which must be set forth in a pleading." Sports Page, Inc. v. First Union Mgmt., Inc., 438 N.W.2d 428, 431 (Minn. App. 1989) (quotation omitted). Even if judicial estoppel did properly apply to the facts of the underlying case, Baumgarten has not produced any evidence showing it was pled.

Furthermore, the district court's pretrial order clearly contemplated that "issues regarding the status of [Baumgarten] and * * * Miller, and various questions of insurance coverage * * *" were to be tried to the court in the first stage of the bifurcated trial. Any suggestion the order did not mean what it clearly stated is mere speculation and insufficient to defeat summary judgment. See Fownes, 302 Minn. at 474, 225 N.W.2d at 536.


Finally, Baumgarten's misrepresentation and unjust enrichment claims are wholly unsupported and without merit. Both claims are asserted without argument or authority and are, therefore, waived. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.