This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).


Louis Jirik, on behalf of
Danielle Marie Jirik, a minor,


Auto-Owners Insurance Company,

Filed December 7, 1999
Shumaker, Judge

Rice County District Court
File No. C398186

John J. Carlson, Bass & Carlson, 431 South Seventh Street, Suite 2525, Minneapolis, MN 55415 (for appellant)

Kurt D. Johnson, Mark S. Ullery, Gislason, Dosland, Hunter & Malecki, P.L.L.P., 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073 (for respondent)



Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Harten, Judge.



U N P U B L I S H E D   O P I N I O N


Appellant Louis Jirik contends that even if a statutory limitation prevents his minor daughter from recovering underinsured motorist benefits, the language of his own insurance policy expands coverage beyond the limitation. We hold that the policy language excludes appellant from any such expanded coverage, and we affirm.


Teresa Jirik was driving her car when it collided with the rear of an unoccupied truck owned by Switzer's Nursery and Landscaping, Inc. Joseph Bierman had been the last driver of the truck before the collision. Teresa's passenger, her 13-year-old daughter Danielle, suffered severe injuries in the collision.

Teresa's car had $1,000,000 in liability and $500,000 in underinsured motorist insurance (UIM). Switzer's had liability insurance on the truck with a $250,000 limit. Bierman was covered by $100,000 in personal liability insurance. Danielle's father, Louis Jirik, carried $100,000 in UIM insurance through Auto-Owners Insurance Company on vehicles not involved in the collision.

To settle Danielle's injury claim, the insurers for Switzer's and Bierman paid their liability limits. Teresa's carrier paid $750,000 of its liability limit and its entire $500,000 UIM benefits. Danielle then claimed entitlement to her father's $100,000 UIM coverage, even though Auto-Owners insured no vehicle involved in the collision. Danielle claimed to be insured under the Auto-Owners policy as a resident relative of her father's household, although her mother and father were divorced and Danielle was living with her mother. Auto-Owners denied coverage.

Granting summary judgment in Auto-Owners' favor, the trial court held that Danielle cannot collect UIM benefits from her father's policy because she was insured under her mother's UIM policy. Danielle appealed. We affirmed, holding that, under Minn. Stat.  65B.49, subd. 3a(5) (1998), an insured who is injured while occupying a motor vehicle is limited to the underinsured motorist coverage (UIM) for that vehicle, even though the proceeds of the UIM coverage are applied to another at-fault underinsured vehicle. Jirik v. Auto-Owners Ins. Co., 595 N.W.2d 219 (Minn. App. 1999).

Appellant Louis Jirik petitioned the Minnesota Supreme Court for review. The supreme court ordered the petition "granted only on the issue of whether the insurance policy language expanded the underinsured coverage to include the circumstances of this case and is denied in all other respects." The supreme court remanded the issue to this court for determination.

Louis contends that Minn. Stat.  65B.49, subd. 7 (1998), allows an insurer to offer coverages beyond those mandated by statute. He then argues that the Auto-Owners policy expanded coverage to include Danielle despite the limitations of Minn. Stat.  65B.49, subd. 3a(5).



The interpretation of an insurance policy is a question of law. Jenoff, Inc. v. New Hampshire Ins. Co., 558 N.W.2d 260, 262 (Minn. 1997); Haarstad v. Graff, 517 N.W.2d 582, 584 (Minn. 1994). We are not bound by the district court's legal conclusions and may independently review questions of law. Hammer v. Investors Life Ins. Co. of N. Am., 511 N.W.2d 6, 8 (Minn. 1994). It follows that we may also review questions of law that the parties raised but the district court declined to decide.

An insurance policy is similar to other contracts because it constitutes an agreement between the parties. The court's function is "to determine what the agreement was and enforce it." Fillmore v. Iowa Nat'l Mut. Ins. Co., 344 N.W.2d 875, 877 (Minn. App. 1984). The extent of an insurer's liability is governed by the contract into which the parties have entered. Bobich v. Oja, 258 Minn. 287, 294, 104 N.W.2d 19, 24-25 (1960). In construing an insurance contract, the policy must be considered as a whole. Henning Nelson Constr. Co. v. Fireman's Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn. 1986). Appellate courts must not create an ambiguity where none exists in order to afford coverage. Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 34 (Minn. 1979).

We agree with Louis Jirik that Minn. Stat.  65B.49, subd. 7 (1998), allows an insurer to offer insurance coverages, which are not otherwise prohibited, beyond those required by statute. However, we do not agree with his interpretation of the Auto-Owners policy.

Auto-Owners' UIM endorsement in the policy provides that all terms and conditions applicable to uninsured motorist (UM) coverage apply as well to UIM coverage unless otherwise indicated.

The policy states that it will pay UM proceeds to a person covered by the liability insurance under the policy. Such person is defined to be someone, including a permissive user, who is legally responsible for damages resulting from the involvement of the person's automobile. The policy then provides:

If you are an individual, we extend this coverage. We will pay bodily injury damages which you are legally entitled to recover from the owner or driver of any uninsured motor vehicle. We give the same protection to any relative living with you who does not own a car.

Louis Jirik argues that this provision extends UIM coverage to any underinsured motor vehicle. However, he does not recognize the application of an express exclusion:

This coverage does not apply: (a) To any person injured while occupying * * * any motor vehicle not owned by that person if the owner has similar coverage which is available to that person.

Although he does not explain in his argument why the exclusion does not apply, it is likely that he has in mind the prohibition against collecting both liability and UIM benefits on the same at-fault vehicle. See Myers v. State Farm Mut. Auto. Ins. Co., 336 N.W.2d 288, 291 (Minn. 1983). But Danielle Jirik fits the exclusion.

She was injured while occupying a motor vehicle she did not own. The owner, her mother, had UIM coverage, the proceeds of which were available to Danielle. Danielle collected the entire UIM limit. To avoid the prohibition against collecting both UIM and liability benefits on the same at-fault vehicle, the parties applied the UIM proceeds to another at-fault, underinsured vehicle. Despite this application of proceeds, UIM coverage was available to Danielle only through the policy on the car in which she was riding.

Even if the Auto-Owners policy language can be read to expand coverage beyond the limitation in Minn. Stat.  65B.49, subd. 3a(5), an unambiguous exclusion prevents Danielle Jirik from recovering benefits from that policy.