This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-300

Stacy L. Otto,
Appellant,

vs.

Robert Christianson, et al.,
Defendants,

Jamie Gowdy, as Special Administrator for the Estate of Terry Pearson,
Respondent.

Filed September 18, 2007

Affirmed; motion granted in part

Minge, Judge

Roseau County District Court

File No. 68-C2-05-000413

Alan B. Fish, Rita Fish-Whitlock, Alan B. Fish, P.A., 102 Second Avenue Northwest, Roseau, MN 56751 (for appellant)

Stephen O. Plunkett, Bassford & Remele, 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402; and

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

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

MINGE, Judge

Appellant challenges the district court’s award of summary judgment on his personal-injury claim against respondent estate. On appeal, respondent moves to strike portions of the appendix to appellant’s brief. We affirm and deny in part and grant in part the motion to strike.

FACTS

On January 4, 2005, an ambulance owned by Roseau Area Hospital & Homes (Roseau Hospital) and driven by emergency medical technician (EMT) Terry Pearson collided with a garbage truck near Greenbush, Minnesota. The garbage truck was driven by Robert Christianson and owned by Hammer Sanitation. At the time of the accident, appellant Stacy Otto, also an EMT, was in the back of the ambulance, attending to a patient. Both Pearson and Otto were employees of Roseau Hospital. Pearson and the patient died at the accident scene. Otto sustained injuries as a result of the crash and received benefits under the Minnesota Workers’ Compensation Act.

On April 28, 2005, Otto commenced a civil action against Christianson; Dennis Lunde, doing business as Hammer Sanitation; and Roseau Hospital. On February 22, 2006, Otto filed a motion to amend his complaint to add the estate of Terry Pearson (the estate) as a defendant. The district court granted the motion to amend. Otto’s amended complaint alleged that he “was a passenger in an ambulance driven by a co-employee [Pearson]” and that Pearson “failed to maintain a proper lookout in a grossly negligent manner, without even scant care, not paying the slightest attention to the consequences or used no care at all in the operation of the emergency vehicle.”

On April 27, 2006, the district court granted summary judgment in favor of Roseau Hospital, dismissing the action against the hospital. The district court found that Roseau Hospital employed Otto and Pearson, that Pearson was operating the ambulance “in the ordinary and customary course of [his] employment,” and that Otto “has elected to claim, has received[,] and continues to receive compensation” under the workers’ compensation scheme. The district court concluded that Otto’s claim against the hospital was “barred by the exclusive remedy provision of the Worker[s’] Compensation Act.”

The Pearson’s estate moved for dismissal under Minn. R. Civ. P. 12.02. The estate argued that because the district court had already determined that Pearson was acting “‘in the ordinary and customary course of [his] employment with Roseau Hospital as an emergency medical technician’ at the time of the accident,” the estate was entitled to co-employee immunity under the Workers’ Compensation Act.

Because both parties submitted affidavits and other matters outside the pleadings, the district court converted the estate’s rule 12 motion into a motion for summary judgment. The district court found that appellant and Pearson were co-employees of Roseau Hospital, that Pearson was operating the ambulance “in the ordinary and customary course” of his employment, and that Otto had “elected to claim, has received, and continues to receive compensation under the Minnesota Workers’ Compensation Act.” In its accompanying memorandum of law, the district court ruled that because Pearson was acting in the ordinary and customary course of his employment at the time of the accident, Pearson owed Otto no personal duty as a matter of law. The district court granted summary judgment.

This appeal follows. Following the submission of Otto’s brief, the estate moved this court for an order striking portions of the appendix to Otto’s brief.

D E C I S I O N

The first issue is whether the district court erred by granting summary judgment in favor of the estate based on the Workers’ Compensation Act’s co-employee immunity provision.

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). No genuine issue of material fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted). A genuine issue for trial must be established by “sufficient evidence to permit reasonable persons to draw different conclusions.” Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006). On appeal, we “view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn. 1998).

“The workers’ compensation system in Minnesota is based on a mutual renunciation of common law rights and defenses by employers and employees alike.” Minn. Stat. § 176.001 (2006). An employer “is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.” Minn. Stat. § 176.021, subd. 1 (2006). “The liability of an employer prescribed by [the workers’ compensation] chapter is exclusive and in the place of any other liability . . . .” Minn. Stat. § 176.031 (2006).

Under Minnesota workers’ compensation law, “[a] coemployee working for the same employer is not liable for a personal injury incurred by another employee unless the injury resulted from the gross negligence of the coemployee or was intentionally inflicted by the coemployee.” Minn. Stat. § 176.061, subd. 5(c) (2006) (emphasis added). The district court found that Otto failed to allege that Pearson intended to injure him. Otto does not dispute this finding on appeal, and we confine our analysis to the gross-negligence portion of Minn. Stat. § 176.061, subd. 5(c).

The Minnesota Supreme Court has ruled that only under limited circumstances may an employee recover against a co-employee for the co-employee’s negligence. Wicken v. Morris, 527 N.W.2d 95, 98 (Minn. 1995). To establish such a claim, the injured employee must satisfy a two-prong test. Id. There must be a showing that (1) the co-employee had a personal duty toward the employee, and (2) the injury arose from the co-employee’s gross negligence. Stringer v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746, 754 (Minn. 2005).

A. Personal-Duty Requirement

Whether there is a personal duty is a question of law, which we review de novo. Id. at 755. For a personal duty to exist, “the coemployee must have (1) taken direct action toward or have directed another to have taken direct action toward the injured employee, and (2) acted outside the course and scope of employment.” Id. at 757 (citations omitted). A claim based on gross negligence must meet both of these personal-duty requirements.

Otto contends that by granting his motion to amend the complaint to add the estate as a defendant, the district court already “conclusively” decided the personal-duty issue in his favor. But the summary-judgment standard differs in significant respects from the standard to amend a complaint. A district court will grant leave to amend a complaint “when justice so requires.” Minn. R. Civ. P. 15.01. The district court has broad discretion to permit amendment of a complaint. St. James Capital Corp. v. Pallet Recycling Assocs., 589 N.W.2d 511, 516 (Minn. App. 1999). Otto’s assertion that the district court already “conclusively” decided this issue is erroneous. Accordingly, we move to an examination of whether Pearson, the driver, was acting outside the course and scope of his employment at the time of the accident.

Otto contends that Pearson operated the ambulance outside the scope and course of his employment. “When an employee engages in acts exceeding his authorization, including the violation of an instruction or rule, he is acting outside the course and scope of his employment.” Stringer, 705 N.W.2d at 761. The Minnesota Supreme Court has distinguished between “the performance of authorized acts in a prohibited manner and the performance of prohibited acts.” Lange v. Minneapolis-St. Paul Metro. Airports Comm’n, 257 Minn. 54, 57, 99 N.W.2d 915, 918 (1959). The Lange court explained that the performance of prohibited acts falls “outside the scope or sphere of employment and does not come within the protection of the statute.” Id. In sum, “if the employee is performing work which has been forbidden, as distinguished from doing his work in a forbidden manner, he is not acting in the course of his employment.” Id.

In Lange, the claim was made by the estate of an employee who worked as an airport supervisor. Id. at 55, 99 N.W.2d at 917. Although the supervisor was a licensed pilot, flying airplanes was not part of his job duties. Id. The employer prohibited him from flying during work hours, but the supervisor, in violation of his employer’s instructions, flew an airplane while working. Id. The airplane crashed, and the supervisor was killed. Id. The supreme court determined that the supervisor was not acting within the scope of his employment and allowed the claim. Id. at 59, 99 N.W.2d at 919.

Here, as found by the district court, Roseau Hospital employed Pearson to “operat[e] ambulances on highways in Roseau County, Minnesota for the purpose of transporting Roseau Hospital patients to various locations.” This is not disputed. Unlike the situation in Lange, Pearson was performing an authorized act. Even Otto’s assertions that Pearson was operating the ambulance in a prohibited manner are not sufficient to transform Pearson’s driving into a prohibited act. In its order granting summary judgment, the district court found that “[t]he ambulance was operated by Terry Pearson in the ordinary and customary course of [his] employment with Roseau Hospital as an emergency medical technician.” In its analysis, the district court stated that it

has already made the legal determination that Mr. Pearson was in the ordinary and customary course of his employment with Roseau Hospital as an emergency medical technician at the time of the accident. . . . [S]ince this Court has already made the legal determination that Pearson was acting in the ordinary and customary course of employment, there can be no personal duty as a matter of law.

(Emphasis added.) The district court was apparently referring to its prior order granting Roseau Hospital’s motion for summary judgment. In its memorandum accompanying that prior order, the district court found that Pearson was operating the ambulance “in the ordinary and customary course of [his] employment.”

Otto disputes the district court’s inclusion of the language “at the time of the accident” and contends that this misrepresents the district court’s previous ruling. Otto contends that the particular way in which Pearson was operating the ambulance was not authorized by the hospital-employer and, therefore, Pearson was not acting within the course and scope of his employment at the time of the accident. Specifically, Otto argues that Pearson exceeded the speed limit on a non-emergency run, failed to pay appropriate attention, and failed to activate the vehicle’s siren. Otto also cites the special training that Pearson underwent to become an ambulance driver, claiming that Pearson knew “that he could not disregard traffic laws unless [he was] on an emergency run.” Appellant contends that the district court erred by failing to consider these allegations in its summary-judgment dismissal of his case. But the district court’s previous ruling that Pearson was acting within the scope of his employment was not limited in any way and can be interpreted to mean “at the time of the accident.” Having handled the case from its inception, the district court was in the best position to interpret its previous determination.

In reviewing the record, we conclude that at the time of the accident Pearson was performing an authorized act by driving an ambulance, and that even though he was doing so in an improper manner, Pearson was acting within the scope of his employment. Because recovery on Otto’s personal-injury claim is barred unless Pearson’s conduct at the time of the accident was outside the course and scope of his employment, our determination that Pearson was, at that time, within the course and scope of his employment means that the personal-duty requirement is not met and requires that we uphold the district court’s decision to grant summary judgment.

B. Gross-Negligence Requirement

Otto contends that he has shown that his injuries resulted from Pearson’s gross negligence. See Minn. Stat. § 176.061, subd. 5(c). Pointing to the accident reconstructionist’s reports and photographs depicting the “violent nature” of the accident, appellant contends that Pearson’s driving conduct constitutes gross negligence. But because we conclude that the district court properly granted summary judgment under the personal-duty requirement, we need not address the gross-negligence element of Minn. Stat. § 176.061, subd. 5(c). Stringer, 705 N.W.2d at 763.

II.

The next issue is whether the district court erred by concluding that collateral estoppel precludes appellant’s claim. “Collateral estoppel prevents a party from relitigating issues if (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party in the prior case; and (4) there was a full and fair opportunity to be heard on the issue.” In re Trust Created by Hill, 499 N.W.2d 475, 484 (Minn. App. 1993), review denied (Minn. July 15, 1993).

In its memorandum accompanying its order granting respondent-estate’s motion for summary judgment, the district court reasoned: “The Court has already made the legal determination that Mr. Pearson was in the ordinary and customary course of his employment with Roseau Hospital as an emergency medical technician at the time of the accident . . . .” (Emphasis added.) The district court concluded that because it had “already made the legal determination that Pearson was acting in the ordinary and customary course of employment, there can be no personal duty as a matter of law.”

Otto contends that the district court improperly relied on its previous finding because it never actually determined that Pearson was acting in the course of his employment “at the time of the accident.” Otto also argues that this finding was “non-essential” to the dismissal of his case against Roseau Hospital, and that the district court failed to analyze acts which he asserts took Pearson outside the course and scope of his employment. The estate claims that the district court’s previous ruling precludes appellant from relitigating the issue.

When the district court granted Roseau Hospital’s motion for summary judgment, Otto was a party to the case and had a full and fair opportunity to be heard. The district court made a final judgment on the merits, and whether Pearson was acting in the course and scope of his employment was at issue. Therefore, the district court did not err in its application of the collateral-estoppel doctrine.

III.

The final issue is whether this court should strike portions of the appendix to Otto’s brief and disregard the references to those documents in the text of his brief. The estate argues that these documents must be stricken because they were not part of the summary-judgment record.

“The papers filed in the [district] court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App. P. 110.01. The court “may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). If a party includes in its brief documents that are outside of the appellate record, we will strike the documents. Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).

The contested portion of Otto’s appendix consists of two accident-reconstruction reports from Elkin Consulting. In its motion to strike, the estate argues that neither report was part of the record underlying the motion to dismiss and therefore neither is properly before this court on appeal. The estate further contends that Otto’s brief contains numerous references to the allegations in the accident-reconstruction reports. The estate urges this court to strike the documents based on its reasoning in Urban v. Am. Legion Post 184, 695 N.W.2d 153, 158 n.1 (Minn. App. 2005), aff’d, 723 N.W.2d 1 (Minn. 2006). In Urban, the respondent moved to strike documents included in the appendix to the appellant’s brief. 695 N.W.2d at 158 n.1. The documents had been filed with the district court after the summary-judgment hearing. Id. The district court did not indicate whether it had considered the documents in its summary-judgment determination. Id. The court of appeals granted the motion to strike, noting that we have “limited our review to the papers actually considered by the district court in making its summary-judgment determination.” Id.

A. March 13 Report

In his first report, dated March 13, 2006, traffic reconstructionist William Elkin opined that Pearson was driving the ambulance at excessive speeds of between 65 and 75 miles per hour and was not on an emergency run. Elkin also opined that Pearson was violating state law at the time of the accident by failing to operate the ambulance’s siren. Elkin’s report concluded that Pearson “was willfully indifferent to and deliberately disregarded the safety of others on the roadway, his patient’s safety and the safety of the attending medical technician. His actions were reckless, grossly negligent and contributed to the cause of th[e] collision.” This document was attached to a March 2006 memorandum of law in support of Otto’s motion to amend the complaint to add the estate as a defendant, and the document was served on the estate in response to discovery requests. Because the document was part of the district court record prior to the summary-judgment hearing, we conclude that that the document is appropriately part of the appellate record and deny this portion of the motion to strike.

B. December 5 Report

The second accident-reconstruction report, dated December 5, 2006, focuses on Pearson’s failure to engage the ambulance’s siren. The hearing on respondent’s motion for summary judgment was held on November 27, 2006, and this report, “to supplement discovery,” was not served until December 7, 2006. There is no indication that the district court granted the parties leave to supplement the record following the summary-judgment hearing. Based on Urban’s reasoning, we conclude that this document is not properly part of the record on appeal, and we grant that portion of the motion to strike. However, even if considered part of the record, the limited additional evidence in this second report would not affect our determination that Pearson was within the course and scope of his employment.

Affirmed; motion granted in part.

Dated: