C4-00-832

Mid-Century Insurance Company,

an Illinois corporation,

Respondent,

vs.

American Family Mutual Insurance Co.,

a Wisconsin corporation,

Appellant.

Filed October 3, 2000

Affirmed

Toussaint, Chief Judge

Hubbard County District Court

File No. C699400

Daniel Austin Beckman, Gislason & Hunter, L.L.P., P.O. Box 5297, Minnetonka, MN 55343-2297 (for respondent)

Charles Romaine Powell, Robert M. Light, Powell, Powell & Light, P.O. Box 908, Bemidji, MN 56619-0908 (for appellant)

Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

A privately owned vehicle insured by appellant and being used to deliver the United States mail collided with a snowmobile. This action was brought to determine which no-fault carrier has priority to pay no-fault benefits to the snowmobile driver. On cross-motions for summary judgment, the district court found that the mail-delivery vehicle was “being used in the business of transporting * * * property” under the no-fault priority provisions, Minn. Stat. § 65B.47, subd. 2 (1998), and, therefore, its insurer had priority to pay no-fault benefits to the snowmobile occupant. We affirm.

D E C I S I O N

“On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990)(citation omitted).

Here, appellant claims the trial court erred in its interpretation of the no-fault priority provisions. Statutory interpretation is a question of law that this court reviews de novo. Meister v. Western Nat’l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn. 1992).

The no-fault act sets out which no-fault insurer has priority for payment of no-fault benefits. Minn. Stat. § 65B.47 (1998). Generally, injured persons go to their own personal auto insurer for no-fault benefits. Id. at subd. 4. But under certain circumstances, where the character or use of an involved vehicle is of a business nature, the priority for payment of no-fault benefits shifts to the insurer of the business vehicle. Id. at subd. 1-3. These circumstances include when a non-occupant of a motor vehicle (such as a snowmobiler) is struck by a vehicle being used in the business of transporting persons or property. Id. at subd. 1-3.

This court has rejected a narrow construction of this “being used in the business of transporting persons or property” language. Home Mut. Ins. Co. v. Snyder, 356 N.W.2d 780, 785 (Minn. App. 1984). In Snyder, a potato farmer was using his truck to deliver his potatoes to retail outfits when the truck was involved in an accident. Id. at 782. The insurer for the truck claimed that this priority provision requires that “the vehicle must be used in the sense that trucking-, bus-, or taxicab-company vehicles are used ‘in the business of’ transporting persons or property, that is ‘for hire’.” Id. at 785. This court diagreed, stating the no-fault act should be liberally construed:

The no-fault statute is remedial in nature, requiring a liberal interpretation. Thus, the narrow construction urged by Home Mutual will not stand. Snyder was clearly using the truck in the business of transporting potatoes to his outlets in Iowa.

Id. While the transportation of potatoes was just one aspect of the business of farming, this court found that it was sufficient to meet the statutory requirements.[1] Id. at 784.

Here, the parties stipulated that, at the time of the accident, the vehicle owned and driven by Ronald Craig was being used to deliver the United States mail in the course and scope of his employment. Based upon these facts, the trial court determined that the Craig vehicle was a vehicle “being used in the business of transporting * * * property” (i.e., mail) at the time it struck the snowmobile, and therefore, the insurer of the Craig vehicle had priority for no-fault benefits paid to the snowmobile occupant.

We conclude that the trial court correctly interpreted and applied the law to the undisputed facts. Here, the plain language of the priority provision focuses on the use of the vehicle at the time of the accident. Minn. Stat. § 65B.47, subd. 1 (“if the accident causing the injury occurs while the vehicle is being used in the business of transporting persons or property * * *”) (emphasis added). Like the potato farmer in Snyder, the Craig vehicle was being used to transport and deliver mail at the time of the accident. Therefore, the trial court did not err in granting summary judgment against the insurer for the Craig vehicle, finding that it had priority for payment of no-fault benefits to the snowmobile occupant.

Appellant argues that a vehicle cannot be used “in the business of transporting” property unless the owner of the vehicle has some ownership interest in the underlying business, and here, Craig was a mere employee using his personal vehicle to accomplish the "business” of the United States government. Appellant claims that this interpretation better serves the underlying purpose of the priority provisions, as expressed by no-fault commentator Michael K. Steenson:

The rationale [for the business priority provisions] is that loss arising from accidents involving business vehicles should be placed on the owners of those vehicles as a cost of doing business.

Steenson, 1 Minnesota No-Fault Automobile Insurance, pp. 126 (2nd Ed. 1999). But we conclude that a plain reading of the statute focuses only on the use of the vehicle at the time of the incident. See Minn. Stat. § 645.16 (1998) (the letter of the law will not be disregarded under the pretext of pursuing its spirit).

Finally, appellant argues that even if it has priority for payment of no-fault benefits to the snowmobile occupant, such no-fault coverage is validly excluded by its insurance contract. This argument was not raised in its initial appellate brief and is therefore waived. In re: A.R.M., 611 N.W.2d 43, 50-51 (Minn. App. 2000).

Affirmed.

^[1] Under the current statute, many of the “for hire” vehicles (buses, commuter vans, and certain taxicab occupants) that would fall under such a narrow interpretation have now been excepted from this subdivision by statutory amendment. Minn. Stat. § 65B.47, subd. 1a (1) - (6) (1998).