author: MINGE, Judge. STONEBURNER, Judge HALBROOKS, Judge

text:
    Patricia A. FREY, as trustee for the heirs and next of kin of Stephen J. Frey, and Aven Frey, et al., Respondents, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, et al., Appellants.
    No. A06-2445.
    Court of Appeals of Minnesota.
    Jan. 8, 2008.

      Timothy P. McCarthy, Jeffrey D. Bores, Chestnut & Cambronne, P.A., Minneapolis, MN, for respondents.
    Robert W. Kettering, Jr., Douglas D. McGhee, Arthur, Chapman, Kettering, Smetak & Pikala, PA, Minneapolis, MN, for appellants.
    Considered and decided by HALBROOKS, Presiding Judge; STONEBURNER, Judge; and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant insurer challenges the district court summary judgment determination that reduced-liability (drop-down) limit provisions in automobile insurance coverage for resident family members is ambiguous, unenforceable, and inapplicable to respondent claimant. Although we agree with appellant that the drop-down limit for resident family members are enforceable, we conclude that the drop-down limit set forth in this policy does not apply to respondent. Accordingly, we affirm.

FACTS

On November 27, 2004, seventeen-year-old appellant Nathan Frey was involved in a one-vehicle accident while driving on Interstate 35 in Lakeville. The passengers in the car were Nathan’s father (Stephen Frey), Nathan’s mother (Patricia Frey), Nathan’s sister (Aven Frey), and Aven’s fiancé, Thomas Alexander. Aven’s fiancé and Stephen Frey were killed in the accident. Aven Frey, who was a college student in Iowa at the time of the accident, and her mother Patricia sustained injuries.

Stephen Frey owned the vehicle, which was covered under a Minnesota automobile insurance policy issued to Stephen and Patricia (the Freys) by appellant United Services Automobile Association (USAA). The policy contained bodily injury liability limits of $300,000 per person or $500,000 per accident. The exclusions section of the policy contained a drop-down limit for bodily-injury liability coverage to $30,000 per person or $60,000 per accident when a “covered person” was legally liable to pay “a member of that covered person’s family residing in that covered person’s household.” It is undisputed in this case that Nathan Frey was a covered person under the insurance policy. USAA denied coverage to Aven Frey for amounts above the policy's drop-down limits because USAA claimed Aven was residing with her brother Nathan.

Upon denial of coverage, respondents Aven Frey and Patricia Frey, individually and on behalf of the estate of Stephen Frey, filed suit against USAA and Nathan Frey seeking to have the drop-down limits on coverage for resident family members declared invalid under Minnesota law and to have Aven declared eligible to receive compensation within the remaining $500,000 policy limits. The parties moved for summary judgment. The district court granted respondents’ motion. This appeal follows. For convenience, the parties are referred to in the singular as USAA and Aven.

ISSUES

I. Is reduction of bodily-injury coverage for resident family members in an automobile insurance policy valid and enforceable?

II. On the undisputed facts in this case, was Aven a family member residing with Nathan and subject to the reduced limit under the policy?

ANALYSIS

I.

The first issue is whether an automobile insurance policy that provides for reduced-liability (drop-down) limits on bodily-injury coverage for resident family members is valid and enforceable. This is a matter of first impression in this court. Whether an insurance policy exclusion is valid and enforceable is a question of law that this court reviews de novo. Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998). The district court found the drop-down limit unenforceable because it contravenes coverage required by law, is ambiguous, and violates reasonable expectations of the insured.

A. Compliance with the Law

Minnesota courts have a well-settled two-part test for determining the legal enforceability of insurance contract provisions. If the policy provisions (1) do not omit coverage required by law and (2) do not contravene applicable statutes, then the extent of the insurer’s liability is governed by the terms of the contract entered into by the parties. Am. Family Mut. Ins. Co. v. Ryan, 330 N.W.2d 113, 115 (Minn.1983).

As for the first prong, the USAA policy purchased by Stephen Frey does not omit coverage required by Minnesota’s automobile insurance laws. See Minn. Stat §§ 65B.001-84 (2006). The provision at issue is listed in the exclusion section of the liability portion of the policy and reads as follows:

C. There is no coverage for [bodily injury] for which a covered person becomes legally responsible to pay a member of that covered person’s family residing in that covered person’s household. This exclusion applies only to the extent that the limits of liability for this coverage exceed $30,000 for each person or $60,000 for each accident.

By statute, policies must include a minimum of $30,000 of bodily-injury coverage to one person in any one accident and a minimum of $60,000 of bodily-injury coverage to two or more persons in any one accident. Minn.Stat. § 65B.49, subd. 3(1) (2006). Because the drop-down exclusion provides the required minimum coverage, we conclude that USAA’s policy satisfies the first prong of the test for an enforceable insurance contract.

The second prong of the test for an enforceable insurance contract is that the policy provisions not otherwise contravene applicable statutes. Ryan, 330 N.W.2d at 115. The district court concluded that USAA’s policy was invalid and unenforceable because USAA’s reduction of coverage for family members (i.e., a status-based exclusion) is not one of the enumerated grounds for cancellation or reduction of liability coverage under Minnesota’s law. See Minn.Stat. § 65B.15 (2006). But section 65B.15 deals with cancellation or reduction in limits during the policy period. Id. The statute enumerates eight grounds whereby an insurer may cancel or reduce liability coverage “during the policy period of any policy.” Minn.Stat. § 65B.15, subd. 1 (2006) (emphasis added). Because the statute only governs changes in coverage during the policy’s term, it is not applicable to the drop-down provision at issue here. See Royal Ins. Co. v. W. Cas. Ins. Co., 444 N.W.2d 846, 848 (Minn.App.1989) (holding statutory requirements of Minn. Stat. § 65B.15, subd. 1 inapplicable because insurer did not cancel policy during the term of policy). Because Minn.Stat. § 65B.15 does not apply in this case, the district court erred in finding that the drop-down provision in USAA’s policy is invalid and unenforceable under that statute.

We also note that although there is no explicit statutory prohibition on drop-down coverage, the Minnesota Department of Commerce’s 2005 procedure manual had disapproved of drop-down limits on bodily-injury coverage of resident family members. Minn. Dep’t of Commerce, Private Passenger (Personal) Automobile Insurance, 7 (2005). That disapproval was withdrawn and there is no claim that this policy provision violates or violated a regulation of the Minnesota Department of Commerce or other state agency. We conclude that USAA’s policy does not contravene applicable Minnesota law.

B. Ambiguity

We next consider Aven’s claim that the phrase “resident of your household” in USAA’s insurance policy is ambiguous. Whether the language of an insurance policy is ambiguous is a question of law. St. Paul Fire & Marine Ins. Co. v. Nat’l Computer Sys., Inc., 490 N.W.2d 626, 631 (Minn.App.1992), review denied (Minn. Nov. 17, 1992). Interpretation of insurance policy language and application of the policy to the facts in a case are also questions of law that this court reviews de novo. Franklin v. W. Nat’l Mut. Ins. Co., 574 N.W.2d 405, 406 (Minn.1998). Any ambiguity is to be resolved against the insurer and in accordance with the reasonable expectations of the insured. St. Paul Fire & Marine Ins. Co., 490 N.W.2d at 631.

The Minnesota Supreme Court has previously adjudicated the ambiguity of phrases regarding household residents in insurance policies. In Lott v. State Farm Fire & Cas. Co., 541 N.W.2d 304, 307 (Minn.1995), the court held that the undefined phrase “resident of your household” in a homeowner’s insurance policy was unambiguous. The Lott court arrived at its decision simply by comparing the language in Lott to that considered in two prior decisions and concluding that the language at issue was very similar. Id. One of the prior decisions relied on by the Lott court was Firemen’s Ins. Co. v. Viktora, 318 N.W.2d 704, 706 (Minn.1982), where the court concluded that the phrase “residents of the Named Insured’s household” in a homeowner’s insurance policy was clear and unambiguous. The second was Tollefson v. Am. Family Ins. Co., 302 Minn. 1, 5, 226 N.W.2d 280, 283 (1974), where the court held that the phrase “residents of the same household” in an automobile insurance policy was unambiguous.

Because the Minnesota Supreme Court has previously held that the phrase “resident of your household” and similar phrases are unambiguous in insurance policies, we conclude that the language “resident of your household” in USAA’s policy is likewise unambiguous. Therefore, the policy language is sufficiently clear to be enforceable.

C. Reasonable-Expectations Doctrine

The third issue is whether the drop-down provision so violates the reasonable expectations of the insured as to render the provision unenforceable.

The doctrine of reasonable expectations protects the objectively reasonable expectations of the insured even if close study of the insurance policy would negate those expectations. Jostens, Inc. v. Northfield Ins. Co., 527 N.W.2d 116, 118 (Minn.App.1995), review denied (Minn. Apr. 27, 1995). The insurance policy need not be ambiguous for the doctrine to apply. Atwater Creamery Co. v. W. Nat’l Mut. Ins. Co., 366 N.W.2d 271, 278 (Minn.1985). In determining the reasonable expectations of the insured, a court considers (1) ambiguity in the language of the contract; (2) whether the insured was told of important, but obscure, conditions and exclusions or the placement of major exclusions is misleading; and (3) whether the particular provision is one known by the public generally. See id. The doctrine is generally applied when an insurance policy has been misrepresented or misunderstood, or when a legal technicality would defeat the insured’s objectively reasonable expectations. Reinsurance Ass’n of Minn. v. Johannessen, 516 N.W.2d 562, 565-66 (Minn.App.1994). The doctrine of reasonable expectations does not destroy the insured’s obligation to read the policy, but only holds an insured to a reasonable understanding of that policy. Hubred v. Control Data Corp., 442 N.W.2d 308, 311 (Minn.1989).

The first factor in the Atwater analysis looks at whether the provision in the insurance policy is ambiguous. We have already determined that the phrase “resident of your household” in USAA’s policy is not ambiguous. Consequently, we conclude that the first factor favors USAA.

The second Atwater factor concerns the obscurity of the provision at issue. The exclusion at issue in Atwater was located within one of the insurance policy definitions and the court refused to enforce it because it was hidden. Atwater, 366 N.W.2d at 276-79. Federal courts have also found exclusions based on policy definitions that were in supplementary documents not presented to the insured to be “hidden.” Wessman v. Mass. Mut. Life Ins. Co., 929 F.2d 402, 406 (8th Cir.1991). Where a policy exclusion lies in the “exclusion” section of a policy, Minnesota courts have held that it is not hidden and that the insured should therefore reasonably expect the clause to limit coverage. Bd. of Regents of Univ. of Minn. v. Royal Ins. Co. of Am., 517 N.W.2d 888, 891 (Minn.1994); Merseth v. State Farm Fire & Cas. Co., 390 N.W.2d 16, 18 (Minn.App.1986), review denied (Minn. Aug. 13, 1986).

In this case, the drop-down limit of coverage for family members is contained in the exclusions section of USAA’s policy. In order to fully understand what the provision means, the reader of the policy must refer to policy definitions of “covered persons” and “family member.” However, the definition of the owner and drivers as “covered persons” is what one would expect, and the phrase “family member” is not technical. More important, the drop-down provision is in the section that is clearly labeled “exclusions;” it is not hidden. Also, as previously noted, the doctrine of reasonable expectations does not eliminate the insured’s obligation to read the policy. Because this was not a hidden exclusion, we conclude that the second factor favors USAA.

The remaining Atwater factor is whether there is general public awareness of drop-down provisions. We do not disagree with the district court that the drop-down in liability coverage may be a surprise to most policy holders. The insurance-buying public may assume that injured family members have the benefit of the full policy limits. However, this court has previously held that in the absence of an ambiguity, a hidden major exclusion, or other special circumstances, the doctrine of reasonable expectations is inapplicable. Levin v. Aetna Cas. and Sur. Co., 465 N.W.2d 99, 102 (Minn.App.1991), review denied (Minn. Mar. 27, 1991); Centennial Ins. Co. v. Zylberberg, 422 N.W.2d 18, 23 (Minn.App.1988); Merseth, 390 N.W.2d at 18. For the courts to assay public awareness of what is expected in an insurance policy is a speculative task that we decline to undertake based on this record. Accordingly, we conclude that the reasonable-expectations doctrine does not render the drop-down limit unenforceable.

D. Conclusion

Based on the foregoing, we conclude that drop-down limits on bodily-injury coverage for resident family members in the automobile insurance policy at issue in this case do not violate Minnesota automobile insurance coverage requirements, áre sufficiently clear to be enforceable, and do not violate the reasonable-expectations doctrine. As a result, we conclude that such a provision is valid and enforceable.

II.

The second issue is whether respondent Aven Frey was a family member residing with Stephen and Nathan Frey and thus subject to the drop-down coverage in the policy. It is undisputed here that Aven Frey is a “family member.” This case turns on whether Aven was residing in the Stephen and Nathan Frey household at the time of the accident.

Whether an individual is a resident relative of an insured is normally a factual question. Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 55, 142 N.W.2d 299, 300 (1966); State Farm Fire & Cas. Co. v. Lawson, 406 N.W.2d 20, 22 (Minn.App.1987), review denied (Minn. June 30, 1987). However, when the significant, underlying facts are not in dispute, and when there is sufficient information in the record, whether an individual is a resident relative may be decided as a matter of law. Am. Family Mut. Ins. Co. v. Thiem, 503 N.W.2d 789, 790-91 (Minn.1993). Here, the parties filed cross-motions for summary judgment and in so doing represented that the material facts were not in dispute. See id. (stating by submitting cross-motions for summary judgment, parties “tacitly agreed that there exist no genuine issues of material fact”). Because the district court did not directly address or decide whether Aven resided in the Frey household and because in this appeal both parties have requested that this court make that determination on the basis of the undisputed facts in the record, we will do so.

A. Factual Analysis

Determination of residence is an exacting task. To do so, Minnesota courts have examined the nature of the claimant’s relationship with the social unit that makes up the insured’s household and not simply at the claimant’s connection to the place where the insured lives. Lott, 541 N.W.2d at 307. In looking at the nature of that relationship, we consider three factors: (1) whether the claimant and the insured are living under the same roof; (2) whether the claimant and the insured are living in a close, intimate, and informal relationship; and (3) where the intended duration is likely to be substantial, whether it is consistent with the informality of the relationship and reasonable to conclude that the parties would consider the relationship in contracting about insurance. Viktora, 318 N.W.2d at 706 (quoting Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 197 N.W.2d 783, 788 (1972)); see also Lott, 541 N.W.2d at 307-08.

In this case, the Frey family’s move from New Mexico to Minnesota coincided with Aven’s move to Iowa to attend college. These moves occurred three years prior to the accident. Aven returned to her parents’ household for holidays and school breaks, including summer breaks following her first and third year of college. When looking at the very limited time that Aven stayed at the Frey house during the three years after she started college, we conclude that the weight of the evidence is that Aven did not “dwell together under the same roof,” as her brother or her father.

As for the second factor, we recognize that Aven undoubtedly had a close, intimate, and informal relationship with her family. Subject to the natural separation of an away-from-home college student from siblings and parents, this bond might well continue for a lifetime. However, there is a difference between being “close” and living together. Here, there is nothing to indicate that Aven was living in that close relationship at the time of the accident. She was engaged and was living with her fiancé. She and her fiancé had pets, certain household items, and access to each other’s bank accounts. They never intended to move back in with her parents. To the extent the emphasis is placed on the word “living,” Aven was living with her fiancé rather than her parents and brother. The second factor is not met.

The third factor is not clearly stated by the Viktora court. We understand it to ask the following: whether, based on the intended duration of Aven’s stay at the Frey household and the informality of the family relationship, Stephen Frey likely considered Aven as part of the family in contracting for car insurance. We note that if the Freys did consider Aven to be part of the household, they would be expected to list her on the Minnesota policy with the rest of family. Skarsten v. Dairyland Ins. Co., 381 N.W.2d 16, 19 (Minn.App.1986) (determining that inclusion of a college student daughter as an insured on the family car was strong evidence that both parents and daughter considered her to be a member of the household), review denied (Minn. Mar. 27, 1986). Although all of the other Freys are listed in the policy, Aven is not. Instead, Aven’s parents had contracted with USAA for a separate Iowa automobile insurance policy listing Aven as the sole operator on an Iowa vehicle. This suggests that Stephen Frey did not consider Aven part of the household for the purposes of insurance coverage. Based on the foregoing analysis, we conclude that under the Viktorar-Pamperin factors, Aven was not a resident of the Frey household.

In addition to the Pamperin formula, this court has used a five factor approach in determining residency: (1) age of the person; (2) whether a separate residence is established; (3) self-sufficiency of the person; (4) frequency and the duration of the stay in the family home; and (5) intent to return. Wood v. Mut. Serv. Cas. Ins. Co., 415 N.W.2d 748, 750 (Minn.App.1987), review denied (Minn. Feb. 12, 1988).

Here, at the time of the accident, Aven Frey was 21 years old and had been attending college in Iowa for more than three years. She was an adult for all legal purposes. The age factor weighs against Aven being a resident of the Frey household.

Next we consider the self-sufficiency factor. Aven’s parents paid for her college tuition, housing, health and car insurance and provided her with a car for her use. Although Aven did work during college, her earnings were not adequate to pay these expenses. Her financial dependence supports her being treated as a member of the Frey household.

The remaining factors are a mixture of presence, living arrangements, and apparent intent. Aven essentially lived at college. However, she still had a strong attachment to the Frey household. She did not stay in Iowa for college breaks or holidays. Aven spent most of her first summer break at her parents’ house in Minnesota. During her third summer break, Aven and her fiancé both stayed at her parents’ house for two months. During the school year, Aven and her fiancé visited her parents during school breaks and holidays. Because she was still living with her fiancé during these visits, and the visits were temporary, they provide little support for finding her to be a resident of the Frey household.

Other considerations point toward a separate residence. At the time of the accident, Aven was in the fall semester of her fourth year at college. She received virtually all of her mail at her college address, and was a registered voter in Iowa. Aven became engaged to be married during spring of her third year at college. At the time of the accident, Aven had been living on campus with her fiancé. She and her fiancé traveled together during college breaks; they bought and sold a car together and acquired two cats, furniture, and other household belongings. During their summer breaks, they stored their furnishings in a storage locker in Iowa. During her second summer break, Aven and her fiancé took classes at Colorado College and lived together there. Upon graduation from college, Aven and her fiancé planned to marry, stay in Iowa while studying for graduate school exams, and then move to either California or Germany. Aven only periodically stayed at the Frey house, and she did not intend to return to the Frey house. For most purposes, Aven had begun a new life with her fiancé. It was a closer, more intimate relationship than Aven’s relationship with her brother or her father.

On balance, the Wood factors indicate that Aven was not residing with her parents and brother at the time of the accident. Coupled with the foregoing Vikto-ra-Pamperin analyses, we conclude that Aven Frey was not a member of the Frey household under USAA’s policy and that coverage for her injuries is not restricted by the drop-down provision.

B. Rule of Construction

The conclusion that Aven was not residing in her parents’ household is reinforced by the principle that this court reads exclusions in insurance contracts narrowly against the insurer. Hubred, 442 N.W.2d at 310. An insurance contract should be read as a whole. Mitsch v. Am. Nat’l Prop. & Cas. Co., 736 N.W.2d 355, 358 (Minn.App.2007). When unambiguous, courts should not torture insurance terms to find an ambiguity. See Roloff v. Taste of Minn., 488 N.W.2d 325, 326 (Minn.App.1992), review denied (Minn. Oct. 20, 1992). But when a provision of an insurance contract is capable of different interpretations, it is applied in favor of the claimant. Travelers Indem. Co. v. Bloomington Steel & Supply Co., 718 N.W.2d 888, 894 (Minn.2006).

The determination of residence is difficult and susceptible to varying interpretations. See In Re Seidel, 204 Minn. 357, 361, 283 N.W. 742, 743 (1939) (“The word ‘reside’ is often used to express a different meaning according to the subject-matter.”). This is especially true with college students, who are in a transition period in their lives. Insurers often argue that college students are not members of their parents’ household where, in contrast to this case, non-residence limits or defeats a claim. E.g., Schoer v. West Bend Mut. Ins. Co., 473 N.W.2d 73, 74 (Minn.App.1991) (insurer arguing that first-year technical college student who “lives out of a suitcase” when away from home not a member of his mother’s household); Morgan v. Ill. Farmers Ins. Co., 392 N.W.2d 37, 38-39 (Minn.App.1986) (insurer arguing 21-year-old college student not member of household), review denied (Minn. Oct. 22, 1986). As these cases demonstrate, the issue of residence is not an uncommon subject of conflict and inconsistency.

Although uncertainty cannot be eliminated, the policy could define the term “resident” to reduce the uncertainty of its application. For example, one insurer’s policy stated that the term “resident of your household” included “your unmarried and unemancipated child away at school.” Crump v. State Farm Mut. Auto. Ins. Co., 961 F.2d 725, 726 (8th Cir.1992). Insurers can also require insureds to specify the members of their household that the insured expects to be covered by the policy, similar to how the insured lists all of the drivers of an automobile insurance policy. Aetna Cas. & Sur. Co. v. DeBruicker, 838 F.Supp. 215, 222 (E.D.Pa.1993).

Because of the inherent uncertainty in the application of a residency exclusion to college students and others and because the insurers are in a position to take reasonable steps to minimize the uncertainty, exclusions from coverage should be read narrowly. This applies to the policy provision at issue in this case and reinforces the finding of coverage.

DECISION

USAA’s automobile insurance policy drop-down limit on bodily-injury coverage for resident family members is valid and enforceable under Minnesota law. Based on the facts in this record, we conclude that Aven Frey was not residing with a covered party under the policy. As a result, the reduced policy limits do not apply to her claim.

Affirmed.

STONEBURNER, Judge

(concurring specially).

I concur in all but the “Rules of Construction” portions of the opinion.

HALBROOKS, Judge

(dissenting).

I respectfully dissent.

I agree with the majority that the drop-down limit on bodily-injury coverage for resident family members is valid and enforceable in Minnesota. But under the applicable case law and the undisputed facts on this case, I would hold that Aven Frey was a resident of her parents’ household at the time this accident occurred.

In determining whether an individual is a resident relative of an insured’s household, the supreme court has set out three factors to consider, including whether the relative was

(1)[ljiving under the same roof; (2) in a close, intimate and informal relationship; and (3) where the intended duration is likely to be substantial, where it is consistent with the informality of the relationship, and from which it is reasonable to conclude that the parties would consider the relationship “... in contracting about such matters as insurance or in their conduct in reliance thereon.”

Firemen’s Ins. Co. of Newark v. Viktora, 318 N.W.2d 704, 706 (Minn.1982) (quoting Pamperin v. Milwaukee Mut. Ins. Co., 55 Wis.2d 27, 197 N.W.2d 783, 788 (1972)). Later, this court listed five factors to be considered, including:

(1) age of the person;
(2) whether a separate residence is established;
(3) self-sufficiency of the person;
(4) frequency and the duration of the stay in the family home; and
(5) intent to return.

Wood v. Mut. Serv. Cas. Ins. Co., 415 N.W.2d 748, 750 (Minn.App.1987), review denied (Minn. Feb. 12,1988).

Before applying these factors to this case, it is instructive to briefly review cases in which our courts have addressed this issue. First, cases in which the relative was determined not to be a resident will be analyzed.

In one such case, a 19-year-old relative was involved in an accident while driving an uninsured vehicle owned by his brother, who lived in the family home near Marshall with his parents. Van Overbeke v. State Farm Mut. Auto. Ins. Co., 303 Minn. 387, 387-90, 227 N.W.2d 807, 808-09 (1975). The district court found that when the relative was emancipated, provided for his own financial needs with no assistance from his parents, resided, was employed and went to school in Mankato, and intended Mankato to be his residence, he was not a resident of his brother’s household. Id. at 391-92, 227 N.W.2d at 810. The supreme court, upholding the findings as supported by the evidence, ruled that the fact that the relative continued to use his parents’ address as a mailing address for some purposes did not refute the findings by the district court that he resided in Mankato, rather than at the family home, at the time of the accident. Id.

In another such case, a recent high school graduate sought coverage as a resident relative under his parents’ policy after an accident. French v. State Farm Mut. Auto. Ins. Co., 372 N.W.2d 839, 840 (Minn.App.1985). After graduation, French had moved to an apartment, earning his living as a construction worker. Id. Although he moved back to his parents’ home for a few months after the construction season ended, he left again, due to his parents’ concern about the hours he kept. Id. He then stayed with friends or slept in his car for several months. Id. French was financially independent, did not have a key to his parents’ home, did not sleep there, and did not call or visit until shortly before the accident, when he enlisted in the Navy and joined his parents for a farewell dinner. Id. The district court granted summary judgment in favor of the insurer, determining based on these undisputed facts that French was not a resident of his parents’ home at the time of the accident. Id. at 843. The fact that French used his parents’ address on his driver’s license, a lapsed insurance policy, and his automobile registration was not determinative. Id. at 840, 843.

There are several cases that involve facts similar to the present case, in which a college student lived away from his or her parents while attending college, visited the family home during holidays and breaks, and was not financially self-supporting. In one such case, at the time of the accident, the 24-year-old college student attended the University of Minnesota, and lived off-campus in a duplex. Skarsten v. Dairyland Ins. Co., 381 N.W.2d 16, 17 (Minn.App.1986), review denied (Minn. Mar. 27, 1986). She returned to the family home one or two weekends a month and on holidays, where she had her own room and left some of her belongings and which she considered to be her permanent address. Id. at 18. Although employed at various jobs since high school, Skarsten had never been self-sufficient. Id. She received some student loans and grants and was supported by her father, who claimed her as a dependent on his tax returns for five of the six previous years. Id. On these undisputed facts, this court held as a matter of law that she resided in the family home. Id. at 17, 20. In addition to the above facts, this court noted that the policy named the college student as an insured on the family car, which was strong evidence that both Skarsten and her parents considered her to be a member of the household. Id. at 19; see Morgan v. Ill. Farmers Ins. Co., 392 N.W.2d 37, 40 (Minn.App.1986) (following Skarsten on similar facts and holding that where college student often lived at parents’ home, stored personal possessions there, was financially supported by her parents, and had an intimate relationship with them resulted in a determination that the student was a resident relative), review denied (Minn. Oct. 22, 1986).

Schoer v. W. Bend Mut. Ins. Co., 473 N.W.2d 73, 74, 76 (Minn.App.1991), involved a 21-year-old college student who lived in and attended a technical institute in Jackson at the time of the accident. He returned to his mother’s home in Wisconsin as often as possible and considered it to be his permanent residence. Id. at 76. He was not totally self-sufficient and received financial support from his mother when needed. Id. On this record, this court held that the jury finding that the young man was a resident of his mother’s home was not contrary to the weight of the evidence. Id. at 77.

Turning to the facts of this case and analyzing them in light of the Viktora and Wood factors, it is undisputed that Aven and her family did not reside full-time under the same roof. See Viktora, 318 N.W.2d at 706 (stating that residing under the same roof a factor). She was a fourth-year college student in Iowa, living in a college dormitory with her fiancé, and returning to her parents’ home for holidays and some school breaks. But the fact that Aven resided in a college dormitory does not necessarily mean that she was not a “resident” of her family’s home within the meaning of relevant case law; instead, all of the factors must be considered. See, e.g., Skarsten, 381 N.W.2d at 19 (holding college student was a resident despite fact she was not physically residing under same roof as insured); Schoer, 473 N.W.2d at 74, 77 (holding that college student was resident despite fact he resided away from family home while attending technical institute). As to the factor examining whether Aven and her family were in a close, intimate, and informal relationship, that is undoubtedly the case. See Viktora, 318 N.W.2d at 706 (stating that nature of relationship a factor).

Aven’s father, Stephen Frey, was the named insured on the policy providing coverage for the vehicle involved in this accident; Stephen, Aven’s mother Patricia, and her brother Nathan and sister Elsa, but not Aven herself, were named as operators on that policy. Stephen Frey was also the named insured on the Iowa policy that insured the vehicle that Aven used at college in Iowa, which was titled in her mother’s name, and on which Aven was the sole named operator.

Aven was 21 years old, and 21-year-old college students living at school have been considered residents of their parents’ homes. See, e.g., Schoer, 473 N.W.2d at 76 (holding fact that college student was 21 at the time of accident did not preclude him from being a resident of his mother’s household); Morgan, 392 N.W.2d at 38 (holding that college student, who was 21 years old at the time of the accident, was considered a resident of her parents’ household). But age, by itself, is not determinative. Emancipated individuals who were younger than 21 have been held to not be a resident of their parents’ household. See, e.g., Van Overbeke, 303 Minn. at 392, 227 N.W.2d at 810 (holding that emancipated 19-year-old was not a resident of his parents’ household); French, 372 N.W.2d at 843 (holding that the young age of relative, who had graduated from high school the year before the accident, might ordinarily weigh in favor of finding him to be a resident of parents’ household, but the fact that he was emancipated led to the conclusion that he did not reside with parents at time of accident).

The financial self-sufficiency of the individual is a very significant factor in determining whether the individual is a resident relative. See Wood, 415 N.W.2d at 750 (setting out self-sufficiency as a factor). When young adults were self-supporting, whether in college or not, they were found to not be residents of their parents’ homes. See, e.g., Van Overbeke, 303 Minn. at 392, 227 N.W.2d at 810 (holding that student who rented his own apartment, provided for all his own financial needs with no assistance from his parents, worked, and attended school was not a resident of parents’ home); Fruchtman v. State Farm Mut. Auto. Ins. Co., 274 Minn. 54, 57, 142 N.W.2d 299, 301 (1966) (holding that 27-year-old son who had been self-supporting since high school, had completed college and medical school, and was in army was not resident of parents’ household); French, 372 N.W.2d at 843 (holding that relative who had been totally self-supporting and did not receive money from parents was not resident of parents’ home).

When young adults were not self-supporting or relied on their parents for some support, residency has generally been found. Schoer, 473 N.W.2d at 76 (holding that college student who was not totally self-supporting and received some financial support from mother was resident of mother’s household); Wood, 415 N.W.2d at 751 (holding that where relative who joined army at 17 and depended on parents for some support, although he sent most of his money home and his parents could use it or send it to him as needed, was resident of parents’ household); Morgan, 392 N.W.2d at 39 (holding that college student who received financial support from parents, who claimed student as a dependent on their tax returns, was resident relative); Skarsten, 381 N.W.2d at 18-19 (holding that unemployed college student who was supported by her father, who claimed her as a dependent on tax returns for five of six previous years, but who also received student loans and grants, was resident relative). Here, it is undisputed that Aven’s parents financially supported her, paying for her room, board, and tuition at college, as well as providing her with a car and insuring it. While Aven held several part-time jobs while at college, including working at the college dining hall, a veterinary hospital, and a café, she never earned enough income to pay state or federal income tax or to be financially self-sufficient.

After considering the relevant case law and the facts of this case, I would conclude that as a matter of law Aven was a resident of her family’s home when this accident occurred.

      . Although the move from New Mexico to Minnesota is an unusual feature of this case, Aven's physical separation from the Frey household would be the same if the family had been in Minnesota all along.

      . We note that drafting insurance policy exclusions has been the subject of critical judicial comment. See Hayes v. Home Life Ins. Co., 168 F.2d 152, 154-55 (D.C.Cir.1948) (“If the [insurance] companies were permitted to write clear clauses of liability at one point and obscure negations of liability at another, and to maintain successfully the prevalence of the latter over the former, the temptation to sell one clause and defend on the other would be dangerous.”).

      . We do not address the question of whether Aven Frey would be a resident under the Minnesota No-Fault Act. But we do notice that the statutory language suggests a more inclusive definition, and that in the context of uncertainty, coverage is preferred by law. See Minn.Stat. § 65B.43, subd. 5 (2006).

      . This court declines an invitation to adopt a rule that we will always find against the insurer. See Crossett v. St. Louis Fire and Marine Ins. Co., 289 Ala. 598, 269 So.2d 869, 874 (1972) (holding that insurance policies will be read against the drafter when excluding or extending coverage based on household residency).


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2007 ND 207
    Nancy Juanita BREWER, Petitioner and Appellant v. Francis G. ZIEGLER, Director, Department of Transportation, Respondent and Appellee.
    No. 20070152.
    Supreme Court of North Dakota.
    Dec. 20, 2007.

      Mark A. Friese (argued) and Timothy Q. Purdon (appeared), Vogel Law Firm, Fargo, for petitioner and appellant.
    Andrew Moraghan (argued) and Michael Trent Pitcher (appeared), Office of Attorney General, Bismarck, for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] Nancy Brewer appealed from a district court judgment affirming the Department of Transportation’s (“Department”) suspension of Brewer’s driving privileges for 91 days. We hold Brewer’s license was suspended in accordance with the law, and we affirm.

I

Facts

[¶2] On October 29, 2006, Highway Patrolman Robert Arman observed a van pull off Main Avenue in West Fargo onto a “field or abandoned parking lot.” Arman was at that time responding to another call in Casselton. When he returned about 30 minutes later, he noticed the van was still parked in the lot, and he decided to approach the van to “see if everything was okay.” When he arrived, Nancy Brewer was standing outside the vehicle and her husband, wearing a seatbelt in the front passenger seat, was leaning outside the vehicle with “vomit on his face.” Nancy Brewer told the officer her husband was sick because he had too much to drink at dinner. She also told the officer she had consumed one drink. Arman smelled a strong odor of alcohol while talking to Nancy Brewer, and he noticed she had red and bloodshot eyes. He administered a horizontal gaze nystagmus test (“HGN”), which she failed. Brewer then consented to take an SD-2 screening breath test, which reflected she had a blood alcohol concentration above the legal limit. Ar-man placed Brewer under arrest for being in actual physical control of a vehicle while under the influence of intoxicating liquor, in violation of N.D.C.C. § 39-08-01. An Intoxilyzer test was later conducted, also indicating a blood alcohol level above the legal limit.

[¶ 3] The Department subsequently suspended Brewer’s license for 91 days. She requested and received a hearing on the suspension, which was upheld by the hearing officer and the district court.

II

Standard of Review

[¶ 4] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an administrative suspension of a driver’s license. Johnson v. North Dakota Dep’t of Transp., 2004 ND 148, ¶ 5, 683 N.W.2d 886. We exercise a limited review in appeals involving driver’s license suspensions, and we affirm the agency’s decision unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Id.; N.D.C.C. § 28-82-46. “If the hearing officer’s findings of fact are supported by a preponderance of the evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law, we will not disturb the decision.” Borowicz v. North Dakota Dep’t of Transp., 529 N.W.2d 186, 187 (N.D.1995). “We will ‘not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.’ ” Id. (quoting Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979)). “When an ‘appeal involves the interpretation of a statute, a legal question, this Court will affirm the agency’s order unless it finds the agency’s order is not in accordance with the law.’ ” Harter v. North Dakota Dep’t of Transp., 2005 ND 70, ¶ 7, 694 N.W.2d 677 (quoting Phipps v. North Dakota Dep’t of Transp., 2002 ND 112, ¶ 7, 646 N.W.2d 704). The “interpretation of a statute is a question of law fully reviewable on appeal.” State v. Fasteen, 2007 ND 162, ¶ 8, 740 N.W.2d 60.

Ill

Jurisdiction to Arrest

[¶ 5] Brewer asserts Highway Patrolman Arman did not have jurisdiction to arrest her in a privately owned lot, because the patrolman’s geographical jurisdiction only extends to state property and highways. A law enforcement officer acting outside the officer’s jurisdiction is without official capacity and without official power to arrest. State v. Demars, 2007 ND 145, ¶21, 738 N.W.2d 486; State v. Littlewind, 417 N.W.2d 361, 363 (N.D.1987); see also Davis v. North Dakota Dep’t of Transp., 467 N.W.2d 420, 423 (N.D.1991).

[¶ 6] The powers of highway patrol officers are specified under N.D.C.C. § 39-03-09, which provides in relevant part:

The superintendent and each member of the highway patrol shall have the power:
1. Of a peace officer for the purpose of enforcing the provisions of this title relating to operators’ licenses, the provisions of title 24 relating to highways, and of any other law regulating the operation of vehicles or the use of the highways, and in addition the highway patrol shall enforce all laws relating to the use or presence of alcoholic beverages in motor vehicles.
2. To make arrests upon view and without warrant for any violation committed in the person’s presence of any of the provisions of this title relating to operators’ licenses, or of title 24 relating to highways or to other laws regulating the operation of vehicles or the use of the highways.
11. To exercise general police powers over all violations of law committed on state property.
12. To exercise general police powers over all violations of law committed in their presence upon any highway and within the highway right of way or when in pursuit of any actual or suspected law violator.

[¶ 7] We must construe this statute to determine if Arman had authority to arrest Brewer in the private lot. “The primary purpose of statutory construction ... is to ascertain legislative intent.” Dimond v. State Board of Higher Educ., 2001 ND 208, ¶ 8, 637 N.W.2d 692. Legislative intent must initially “ ‘be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning.’ ” VanKlootwyk v. Baptist Home, Inc., 2003 ND 112, ¶ 12, 665 N.W.2d 679 (quoting Public Serv. Comm’n v. Wimbledon Grain Co., 2003 ND 104, ¶ 20, 663 N.W.2d 186).

[¶ 8] Under N.D.C.C. § 39-03-09(11) and (12), the general powers of highway patrol officers extend over violations of law committed on state property or upon any highway or highway right-of-way. Referring to these subsections, Brewer asserts a highway patrol officer does not have jurisdiction to arrest a person who is not at the time of arrest located on a highway or state property. Brewer has too narrowly construed the powers given highway patrol officers under N.D.C.C. § 39-03-09.

[¶ 9] Under N.D.C.C. § 39-03-09(1) highway patrol officers have the power of peace officers for the purpose of enforcing the provisions of title 39 and for enforcing “all laws relating to the use or presence of alcoholic beverages in motor vehicles.” Under N.D.C.C. § 39-03-09(2) highway patrol officers also have authority to make arrests for any violation committed under title 39 in their presence.

[¶ 10] “ ‘Statutes must be construed as a whole and harmonized to give meaning to related provisions, and are interpreted in context to give meaning and effect to every word, phrase, and sentence.’ ” VanKlootwyk, 2003 ND 112, ¶ 12, 665 N.W.2d 679 (quoting Wimbledon Grain Co., 2003 ND 104, ¶21, 663 N.W.2d 186). To determine whether Arman had authority to arrest Brewer while she was located in the vacant West Fargo lot, we must construe Arman’s express powers under N.D.C.C. § 39-03-09, in harmony with this Court’s interpretation of conduct prohibited under N.D.C.C. § 39-08-01.

[¶ 11] In State v. Novak, 338 N.W.2d 637, 640 (N.D.1983), this Court concluded N.D.C.C. §§ 39-08-01 and 39-10-01, construed together, prohibit a person from being in actual physical control of a vehicle while under the influence of alcohol on private property and state highways. In reaching that conclusion, this Court stated, “to do otherwise ‘... would defeat the purpose of the statute which seeks to protect all against the real danger caused by drunken drivers whether on the highway, a parking lot or elsewhere within the state.’ ” Novak, at 640 (quoting State v. Valeu, 257 Iowa 867, 134 N.W.2d 911, 913 (1965)). In Wiederholt v. North Dakota Dep’t of Transp., 462 N.W.2d 445, 451 (N.D.1990), this Court followed Novak and applied the statute’s prohibition to a driver whose vehicle was located in a private farmyard.

[¶ 12] Under the Novak and Wiederholt precedent, an individual who is in actual physical control of a vehicle while under the influence of alcohol, whether located on a public highway or on private property, is in violation of the prohibited conduct under N.D.C.C. § 39-08-01. We conclude a highway patrol officer, who has the express power under N.D.C.C. § 39-03-09 to enforce the provisions of title 39 and to enforce all laws relating to the use or presence of alcoholic beverages in motor vehicles, has the concomitant power and jurisdiction to arrest a person who is located on private property while violating the provisions of those laws. We, therefore, hold Highway Patrolman Arman had jurisdiction and authority to arrest Brewer for violating N.D.C.C. § 39-08-01 while she was parked on a private lot in West Fargo.

IV

Department’s Jurisdiction to Suspend License

[¶ 13] Relying on Aamodt v. North Dakota Dep’t of Transp., 2004 ND 134, ¶ 23, 682 N.W.2d 308, Brewer asserts the Department did not have jurisdiction to suspend her license because Arman failed to check the “odor of alcoholic beverage” as a basis for probable cause to arrest in the report he filed with the Department under N.D.C.C. § 39-20-03.1(3). That statute provides in relevant part:

The law enforcement officer, within five days of the issuance of the temporary operator’s permit, shall forward to the director a certified written report in the form required by the director and the person’s operator’s license taken under subsection 1 or 2. If the person was issued a temporary operator’s permit because of the results of a test, the report must show that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while in violation of section 39-08-01, or equivalent ordinance, that the person was lawfully arrested, that the person was tested for alcohol concentration under this chapter, and that the results of the test show that the person had an alcohol concentration of at least eight one-hundredths of one percent by weight or, with respect to a person under twenty-one years of age, an alcohol concentration of at least two one-hundredths of one percent by weight. (Emphasis added.)

[¶ 14] In Aamodt, this Court held an arresting officer must include in the report filed with the Department the grounds for probable cause to arrest, and failure to include that information precludes the Department from suspending driving privileges. This case is not controlled by Aam-odt.

[¶ 15] In Aamodt, the arresting officer filed a report with the Department showing the only grounds for probable cause to arrest was an “odor of alcoholic beverage.” The Department conceded the explanation provided in the report was an insufficient basis for the arrest, but argued that failure should not deprive the Department of authority to suspend driving privileges. We concluded the information in the report was insufficient to sustain a license suspension:

In this case, the certified written report, which is the Report and Notice Form, stated the probable cause was an “odor of alcoholic beverage.” The Department concedes this is insufficient to show probable cause, but argues that failure to comply with the statutory requirement should not deprive it of authority to suspend Aamodt’s driving privileges.
When determining whether to suspend a person’s driving privileges, the Department must determine whether there were reasonable grounds to believe the person was driving or was in actual physical control of a vehicle while under the influence of alcohol, whether the person was properly tested, and whether the person’s blood-alcohol level exceeded the legal limit.
Driving privileges cannot be taken away without some basis. Requiring reasonable grounds before taking away a person’s driving privileges ensures the law is not too slanted in favor of the Department and protects those who should not be punished. Without a finding of probable cause, there is no basis for taking away a person’s driving privileges. Aamodt was entitled to know what the officer was relying on.
We conclude the statutory provision at issue is a basic and mandatory provision and therefore the Department had no authority to suspend Aamodt’s driving privileges.

Aamodt, 2004 ND 134, ¶¶ 15, 23, 25-26, 682 N.W.2d 308.

[¶ 16] Here, Arman testified that he inadvertently neglected to check “odor of alcoholic beverage” on the report as a ground for probable cause. However, Ar-man did check “failed field sobriety test(s)” and “failed screening test” as grounds for probable cause. He also wrote in the report that Brewer had “failed HGN” and had “failed SD-2.” Unlike the inadequate report in Aamodt, the report filed by Ar-man included sufficient information to demonstrate his basis for finding probable cause to arrest Brewer. The report filed by Arman included adequate probable cause information to constitute a valid report for the Department to suspend Brewer’s license. We conclude Brewer’s assertion the Department lacked jurisdiction to suspend her license is without merit.

V

Unlawful Seizure

[¶ 17] Brewer asserts Patrolman Ar-man did not have probable cause to arrest her and she was, therefore, unlawfully seized under the federal and state constitutions.

[¶ 18] The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secured in their persons, houses, papers and effects, against unreasonable searches and seizures.” The Fourth Amendment prohibitions against unreasonable searches and seizures is applicable to the states through the Fourteenth Amendment. Fasteen, 2007 ND 162, ¶ 6, 740 N.W.2d 60. Brewer has not marshaled a separate state constitution argument and we will treat her objection as a Fourth Amendment issue.

[¶ 19] “Not all citizen-law enforcement encounters implicate a citizen’s Fourth Amendment rights.” Rist v. North Dakota Dep’t of Transp., 2003 ND 113, ¶ 8, 665 N.W.2d 45. “No seizure within the context of the Fourth Amendment occurs when an officer approaches a parked vehicle ‘if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response.’ ” Id. (quoting State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992)). “[I]t is not a seizure for an officer to walk up to and talk to a person in a public place. A seizure occurs within the context of the Fourth Amendment only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478 (citations omitted). A caretaking encounter does not foreclose an officer from making observations that lead to a reasonable and articulable suspicion, and if, when approaching a parked vehicle in a caretaking encounter, an officer discovers something causing reasonable suspicion or probable cause, the officer may further investigate, seize, and even arrest. Rist, 2003 ND 113, ¶ 12, 665 N.W.2d 45; Lapp v. North Dakota Dep’t of Transp., 2001 ND 140, ¶ 14, 632 N.W.2d 419.

[¶20] The hearing officer found that Arman approached Brewer’s vehicle “intending to see whether anyone was in need of assistance and to see whether it was minors stopped there.” That finding is supported by the record. Patrolman Arman testified he observed Brewer’s van pull off Main Avenue onto a field or abandoned parking lot when he was responding to another call in Casselton. He testified that, upon returning 30 minutes later, he noticed Brewer’s van was still parked in the field and he decided to approach the van to “see if everything was okay.” This testimony supports the hearing officer’s finding and conclusion that Arman was at that time conducting a caretaking operation.

[¶ 21] Arman testified, “I just pulled in and asked if everything was okay.” While talking to Nancy Brewer, Arman noticed her eyes were red and bloodshot. Brewer voluntarily told the officer that her husband was sick because he had too much to drink at dinner and that she had also consumed an alcoholic beverage. Having heard Brewer’s statements and having observed Brewer’s appearance, the officer was justified in further investigating the situation. Arman then administered an HGN test, which Brewer failed. Brewer also consented to take an SD-2 screening breath test, and the results reflected she had a blood alcohol concentration above the legal limit. At that point, Arman had probable cause to place Brewer under arrest for violating N.D.C.C. § 39-08-01. We are unpersuaded by Brewer’s argument that her constitutional rights against unlawful seizure were violated by Patrolman Arman. We hold Arman acted properly under the circumstances and Brewer’s arrest was lawful.

VI

Admissibility of Screening Test Results

[¶ 22] Brewer asserts Arman’s failure to give her an implied consent advisory, as required under N.D.C.C. § 39-20-14, requires exclusion of the preliminary breath test results obtained by Arman upon administering the SD-2 test. Relevant to this proceeding, the statute provided:

The officer shall inform the person that refusal of the person to submit to a screening test will result in a revocation for up to three years of that person’s driving privileges. If such person refuses to submit to such screening test or tests, none may be given, but such refusal is sufficient cause to revoke such person’s license or permit to drive.

[¶ 23] The implied consent advisory informs a person that refusal to submit to a screening test will result in revocation of the person’s driving privileges. The advisory is meant to inform a person of the severe consequences of refusing to take a screening test. Here, Brewer consented to take a screening test without the advisory being given to her. Brewer cites no authority to support her argument that preliminary test results must be excluded when a person voluntarily submits to a screening test without being given the implied consent advisory. Because Brewer did not refuse to take the screening test, she was not prejudiced by Arman’s failure to give the advisory, and her argument is without merit.

[¶24] Brewer asserts the only permissible purpose for using the results of an onsite chemical screening test under N.D.C.C. § 39-20-14, is to determine whether a further test should be given. Brewer argues it was inappropriate, therefore, for Patrolman Arman to consider the SD-2 screening test result in determining whether there was probable cause to arrest Brewer.

[¶ 25] Although N.D.C.C. § 39-20-14 provides that an onsite screening test may be used only for determining whether or not a further test should be given to ensure there is probable cause for arrest, this Court has held the statute would be rendered meaningless if construed to require that an officer make an arrest prior to conducting an onsite screening test. State v. Woytassek, 491 N.W.2d 709, 712 (N.D.1992). See also State v. Schimmel, 409 N.W.2d 335, 339 (N.D.1987). “The sole purpose of an onsite screening test is to assist a law enforcement officer in deciding whether there are reasonable grounds to arrest an individual.” Nichols v. Backes, 461 N.W.2d 113, 114 (N.D.1990). We conclude it was appropriate for Patrolman Arman to utilize the results of Brewer’s onsite screening breath test as a basis for determining probable cause to arrest Brewer for violating N.D.C.C. § 39-08-01.

VII

Admissibility of the HGN Test Results

[¶ 26] Relying on City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D.1994), Brewer asserts Arman did not perform other field sobriety tests in addition to the HGN test, and, therefore, the HGN test results were not admissible without first providing scientific foundation by expert testimony. Because the Department did not offer expert foundation testimony, Brewer asserts the HGN test results were inadmissible and should not have been considered by the hearing officer in deciding whether Arman had probable cause to arrest Brewer.

[¶ 27] In McLaughlin, 512 N.W.2d at 707-708 (citations omitted), this Court discussed the foundation required for admitting HGN test results:

Under the circumstances of this case, where the HGN test was given in conjunction with other field sobriety tests that formed the basis for the officer’s opinion testimony on the defendant’s intoxication, we conclude that it was not reversible error to admit the officer’s testimony about HGN test results without scientific foundation by expert testimony. We agree with those cases holding that the only foundation required is a showing of the officer’s training and experience in administering the test, and a showing that the test was in fact properly administered. With that foundation, the HGN test results are admissible only as circumstantial evidence of intoxication, and the officer may not attempt to quantify a specific BAC based upon the HGN test. (Emphasis in original.)

Brewer’s interpretation of the McLaughlin holding is too restrictive. In McLaughlin, this Court concluded that HGN test results are admissible as circumstantial evidence of intoxication without requiring scientific foundation by expert testimony. 512 N.W.2d at 708. However, this Court further concluded that, without additional foundation, “the officer may not attempt to quantify a specific BAC based upon the HGN test.” Id. Under McLaughlin, the use of HGN test results as circumstantial evidence of intoxication, without requiring scientific foundation by expert testimony, is not dependent upon the officer conducting other field sobriety tests.

[¶ 28] Here, Arman performed both an HGN test upon Brewer and, with her consent, also conducted an SD-2 breath test. He concluded she failed both tests, giving him probable cause to arrest her for being in actual physical control of a vehicle while under the influence. We conclude that, under these circumstances and for the purpose of showing probable cause, the HGN test results were properly admitted and considered by the hearing officer.

VIII

Sufficiency of the Evidence

[¶ 29] Brewer asserts there was insufficient admissible evidence at the hearing to support the hearing officer’s decision to suspend her driver’s license. By statute, the Department can suspend a driver’s license upon finding that a person is in actual physical control of a vehicle while under the influence of alcohol at concentrations above the legal limits. See N.D.C.C. § 39-20-04.1. We exercise a limited review under N.D.C.C. § 28-32-46 in appeals involving driver’s license suspensions or revocations. Johnson v. North Dakota Dep’t of Transp., 2004 ND 148, ¶ 5, 683 N.W.2d 886. “We defer to the administrative agency’s ruling by not making independent findings of fact or by substituting our own judgment for the agency’s.” Rist, 2003 ND 113, ¶ 6, 665 N.W.2d 45.

[¶ 30] The hearing officer found:

[Arman] approached the vehicle intending to see whether anyone was in need of assistance and to see whether it was minors stopped there.... Ms. Brewer informed Trooper Arman that she had been driving and pulled over because her husband became sick_ Ms. Brewer admitted to having consumed one alcoholic drink.... Trooper Arman smelled an odor of an alcoholic beverage coming from Ms. Brewer ... Ms. Brewer was given the HGN and the clues observed indicated impairment. Trooper Arman observed Ms. Brewer’s bloodshot eyes.... Ms. Brewer consented to and submitted to the screening test, which was administered by Trooper Ar-man, a certified operator, on an approved unit using the approved method. The screening test reflected that Ms. Brewer had an alcohol concentration above the legal limit. Ms. Brewer was placed under arrest and given the implied consent advisory.

Based upon those findings, the hearing officer concluded:

Trooper Arman had reasonable grounds to believe that Ms. Brewer was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor in violation of North Dakota Century Code section 39-08-01 or equivalent ordinance. Ms. Brewer was placed under arrest and properly tested in accordance with North Dakota law.

[¶ 31] We conclude the hearing officer’s findings' are supported by a preponderance of the evidence, and there is sufficient admissible record evidence to support the hearing officer’s decision.

IX

Conclusion

[¶ 32] We hold the arresting officer had probable cause and jurisdiction to arrest Brewer for violating N.D.C.C. § 39-08-01. We further hold the hearing officer’s findings of fact are supported by a preponderance of evidence, the conclusions of law are sustained by the findings of fact, and the decision is supported by the conclusions of law. We, therefore, affirm the judgment upholding the hearing officer’s suspension of Brewer’s driving privileges for 91 days.

[¶ 33] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., DONOVAN J. FOUGHTY, D.J., concur.

[¶ 34] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.

      . Subsection (11) was amended (S.L. 2007, ch. 317, § 1), effective August 1, 2007, subsequent to the relevant date of this case, to provide:
      To exercise general police powers over all violations of law committed on state owned or leased property. (Emphasis added.)

      . Effective August 1, 2007, the statute provides refusal to submit to a screening test will result in a revocation of driving privileges for up to four years. S.L. 2007, ch. 325, § 6.


author: GILBERTSON, Chief Justice.

text:
    2007 SD 125
    Robert MARSCHKE, Plaintiff and Appellant, v. Nathan J. WRATISLAW, Individually and d/b/a Montana Muscle and Classics, LLC, Defendant and Appellee.
    No. 24218.
    Supreme Court of South Dakota.
    Argued Oct. 2, 2007.
    Decided Dec. 5, 2007.

      Murl L. Woods, Rapid City, South Dakota, Attorney for plaintiff and appellant.
    Quentin L. Riggins, Pamela Snyder-Varns of Gunderson, Palmer, Goodsell and Nelson, Rapid City, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] On January 24, 2006, Robert Marschke (Marschke) filed a summons and complaint against Nathan J. Wratislaw, individually and d/b/a Montana Muscle and Classics, LLC (Montana Muscle) (collectively “Wratislaw”), in the South Dakota Seventh Judicial Circuit. On April 24, 2006, Wratislaw filed a motion to dismiss for lack of personal jurisdiction pursuant to SDCL 15 — 6—12(b). The circuit court granted Wratislaw’s motion to dismiss. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The following factual account is undisputed by the parties. Marschke is a resident of Pennington County, South Dakota. Wratislaw is a resident of Stevens-ville, Montana. Montana Muscle is a Montana LLC licensed to sell used cars. Wratislaw is the managing member of Montana Muscle.

[¶ 3.] Marschke sought to purchase a car like the one he had owned during his youth, a Fiat 850 Spyder. Looking for the car, he searched the Internet auction site eBay.com (eBay) in April 2005. On the site, Marschke found a 1971 Fiat at auction that was owned by Wratislaw. Marschke again visited eBay in May 2005 and found that the car was still posted for sale. Wratislaw’s Montana Muscle and Classics Website was linked to the eBay posting and his toll free telephone number was also displayed on the auction page for the 1971 Fiat. At no time did Marschke place a bid for the vehicle on eBay. Instead, while Marschke was on a business trip in Illinois, he called Wratislaw’s toll free number to discuss the vehicle.

[¶ 4.] Marschke talked to Wratislaw by phone on at least two occasions; finally, offering to purchase the 1971 Fiat for $3,300.00, which Wratislaw accepted. On May 18, 2005, Wratislaw’s office manager sent Marschke an e-mail requesting his full name, address and telephone numbers so that a purchase agreement could be prepared and mailed to him. On May 20, Marschke arranged for a friend to wire-transfer $500.00, for the down payment, from her Wisconsin bank account to Wra-tislaw’s bank account in Montana. On May 26, after his return to South Dakota, Marschke wire-transferred Wratislaw the balance of the purchase price. Wratislaw mailed an unsigned purchase agreement to Marschke, which he signed in South Dakota on June 4, 2005 and mailed back to Wratislaw. Wratislaw then executed the agreement at the office of Montana Muscle in Stevensville, Montana.

[¶ 5.] Thereafter, Wratislaw referred Marschke to a motor carrier, Western Automotive Transport, with whom Marschke made arrangements to transport the vehicle from Stevensville to Billings, Montana. Marschke executed a transport agreement with Western Automotive and paid for the cost with his credit card. After arriving in Billings, Montana, the vehicle was then towed to Rapid City, South Dakota by Tom Renner, Marschke’s employer, who had agreed to bring the vehicle back to South Dakota since he was in Billings on business.

[¶ 6.] Once Marschke took possession of the vehicle in South Dakota, he decided that it was not in the condition that he expected. After failing to obtain satisfaction from Wratislaw, Marschke filed his summons and complaint in Pennington County, South Dakota, on January 24, 2006. On February 9, Wratislaw received service of process at his place of business in Stevensville, Montana. On April 24, Wratislaw filed a motion to dismiss for lack of personal jurisdiction under SDCL 15 — 6—12(b)(2) and insufficient service of process under SDCL 15 — 6—12(b)(4). The motion was heard on June 30, 2006; at which time the circuit court granted Wra-tislaw’s motion to dismiss for lack of personal jurisdiction.

[¶ 7.] Marschke appeals raising the following issue:

Whether the circuit court erred in granting Wratislaw’s motion to dismiss for lack of personal jurisdiction.

STANDARD OF REVIEW

[¶ 8.] Issues pertaining to a circuit court’s jurisdiction are questions of law that we review under the de novo standard. Grajczyk v. Tasca, 2006 SD 55, ¶ 8, 717 N.W.2d 624, 627 (citing State ex rel LeCompte v. Keckler, 2001 SD 68, ¶ 6, 628 N.W.2d 749, 752) (citations omitted). In Guthmiller v. Deloitte Touche, LLP, 2005 SD 77, 699 N.W.2d 493, we discussed the proper standard of review for a motion to dismiss under SDCL 15-6-12(b):

A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. “Our standard of review of a [circuit] court’s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment — is the pleader entitled to judgment as a matter of law?” Thus, all reasonable inferences of fact must be drawn in favor of the non-moving party and we give no deference to the [circuit] court’s conclusions of law.

Id. ¶ 4, 699 N.W.2d at 496 (quoting Vitek v. Bon Homme County Bd. of Comr’s, 2002 SD 100, ¶ 7, 650 N.W.2d 513, 516) (internal citations omitted).

[¶ 9.] The only evidence submitted to the circuit court in this case consisted of documentary evidence, including affidavits and declarations. “We review a [circuit] court’s determination regarding personal jurisdiction based on written submissions in the light most favorable to the nonmoving party.” Daktronics, Inc. v. LBW Tech Co., Inc., 2007 SD 80, ¶ 3, 737 N.W.2d 413, 416 (citations omitted).

ANALYSIS AND DECISION

[¶ 10.] Whether the circuit court erred in granting Wratislaw’s motion to dismiss for lack of personal jurisdiction.

[¶ 11.] Marschke argues that Wratis-law’s use of the Internet to sell the 1971 Fiat 850 Spyder and the negotiation, contracting for the sale, payment and other related activities that occurred beyond the boundaries of Montana and involved a South Dakota resident, supply the underpinning for the circuit court’s personal jurisdiction over Wratislaw in this matter.

[¶ 12.] The venerable United States Supreme Court cases, International Shoe Co. v. State of Wash., Office of Unemployment, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), can be read together to construe two types of personal jurisdiction — general and specific. A court asserts general jurisdiction over a nonresident defendant when he has continuous activities in the forum and the activities are substantial enough to make reasonable the court’s jurisdiction over him for a cause of action unrelated to those activities. Int’l Shoe Co., 326 U.S. at 317, 66 S.Ct. at 159, 90 L.Ed. 95 (citations omitted); Helicopteros, 466 U.S. at 414-15, 104 S.Ct. at 1872, 80 L.Ed.2d 404 (citation omitted); Burger King Corp., 471 U.S. at 475-76, 105 S.Ct. at 2184, 85 L.Ed.2d 528 (citations omitted). Where the nonresident defendant does not have continuous contact with the forum, but only sporadic activity or an isolated act, a court is said to assert specific jurisdiction over him when it asserts such jurisdiction in relation to a cause of action arising out of the activity or act. Int’l Shoe Co., 326 U.S. at 317, 66 S.Ct. at 159, 90 L.Ed. 95 (citations omitted); Helicopteros, 466 U.S. at 414, 104 S.Ct. at 1872 n. 8, 80 L.Ed.2d 404 (citation omitted); Burger King Corp., 471 U.S. at 476, 105 S.Ct. at 2184 n. 18, 85 L.Ed.2d 528 (citation omitted). In this case we consider whether the circuit court erred in its determination not to assert specific jurisdiction over Wratislaw with respect to the subject matter at issue.

[¶ 13.] We initially make a twofold inquiry into whether a circuit court may assert personal jurisdiction over a nonresident defendant:

First, the court must determine whether the legislature granted the state court jurisdiction over defendants who do not meet the traditional bases for personal jurisdiction. In South Dakota, this legislative approval is found in the state’s Long Arm Statute. ... Next, the court must determine whether the proposed assertion of jurisdiction comports with federal due process requirements.

Denver Truck and Trailer Sales, Inc. v. Design and Bldg. Services, Inc., 2002 SD 127, ¶ 9, 653 N.W.2d 88, 91. In this case, Wratislaw concedes the circuit court’s jurisdiction under our “Long Arm Statute.” Thus, our analysis need only consider whether assertion of personal jurisdiction over this matter is consistent with Wratis-law’s 14th Amendment right to due process.

[¶ 14.] The due process inquiry requires determining whether a non-resident defendant had sufficient minimum contacts with the forum, such that assertion of personal jurisdiction does not offend “traditional notions of fair play and substantial justice.” Daktronics, 2007 SD 80, ¶ 5, 737 N.W.2d 413, 416 (quoting Int’l Shoe Co., 326 U.S. at 316, 66 S.Ct. at 158, 90 L.Ed. 95 (citations omitted)). There must also be some act by which the defendant purposefully availed himself of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws. Id. (citing Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d 528 (quotation omitted)). “This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a court of the forum solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.... ” Id. (quoting Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d 528 (quotation omitted)). Moreover, the defendant’s conduct and connection with the forum must be such that he could reasonably anticipate being haled into a forum court. Id. ¶ 5, 737 N.W.2d at 417 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980) (citations omitted)).

[¶ 15.] Interpreting United States Supreme Court precedent regarding the due process requirements, we apply a three-step test to determine whether sufficient minimum contacts exist. Id. ¶ 6 (citing Frankenfeld v. Crompton Corp., 2005 SD 55, ¶ 17, 697 N.W.2d 378, 384 (citing Rothluebbers v. Obee, 2003 SD 95, ¶ 26, 668 N.W.2d 313, 322)). Under this test:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its laws. Second, the cause of action must arise from [the] defendant’s activities directed at the forum state. Finally, the acts of [the] defendant must have substantial connection with the forum state to make the exercise of jurisdiction over [the] defendant a reasonable one.

Id. (citing Frankenfeld, 2005 SD 55, ¶ 17, 697 N.W.2d 378, 384 (citing Rothluebbers, 2003 SD 95, ¶ 26, 668 N.W.2d at 322; Denver Truck, 2002 SD 127, ¶ 11, 653 N.W.2d at 91; Opp v. Nieuwsma, 458 N.W.2d 352, 355-56 (S.D.1990))).

[¶ 16.] Clearly, the existence of a contract is not dispositive of the issue. The fact that Marschke signed the contract in South Dakota does not by itself carry the day for him. In addressing this issue, the United States Supreme Court in Burger King Corp., stated:

If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot. The Court long ago rejected the notion that personal jurisdiction might turn on “mechanical” tests, International Shoe Co [ ], 326 U.S. at 319, 66 S.Ct. at 159, [90 L.Ed. 95], or on “conceptualistic ... theories of the place of contracting or of performance.” Hoopeston Canning Co. v. Cullen, 318 U.S. [313], 316, 63 S.Ct. [602], 604, [87 L.Ed. 777]. Instead, we have emphasized the need for a “highly realistic” approach that recognizes that a “contract” is “ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.” Id. at 316-317, 63 S.Ct. at 604-05, [87 L.Ed. 777],

Id. at 478-479, 105 S.Ct. at 2185, 85 L.Ed.2d 528 (emphasis original).

[¶ 17.] We first turn to Wratis-law’s use of the Internet as a medium for advertising his business and the sale of the 1971 Fiat. Wratislaw maintained a Website under the name “www.smoothrides.com” through which he advertised his business, Montana Muscle. When he posted the 1971 Fiat for sale on eBay, he included his toll-free telephone number and link to his Website.

[¶ 18.] Since Marschke did not buy the vehicle through eBay or bid on it through the Internet auction, Wratislaw’s use of eBay in this case constitutes no more than an extension, via Web link, of his own advertisement Website. We determine that any contact created through the use of the Internet as an advertising medium is attenuated. Wratislaw’s use of the Internet in this case was no different than posting a vehicle for sale, with a telephone number, in Deals on Wheels (see Ochs v. Nelson, 538 N.W.2d 527 (S.D.1995) for a description of the print advertising medium ) and we have never held that such a single act, by itself, constitutes a basis for asserting personal jurisdiction.

[¶ 19.] Finally, Marschke argues that the negotiations that occurred between Wratislaw and him, Wratislaw’s mailing of the unsigned contract to South Dakota for Marschke’s signature, and the manner in which payment was conveyed to Wratislaw constitute sufficient minimum contacts. The cause of action clearly arises out of Wratislaw’s sale of the 1971 Fiat to Marschke and we will assume arguendo that Wratislaw directed the sale at South Dakota. As we previously noted, the United States Supreme Court has held that a contract with a nonresident party is not alone sufficient to establish minimum contacts. See supra ¶ 16 (quoting Burger King Corp., 471 U.S. at 478, 105 S.Ct. at 2185, 85 L.Ed.2d 528). Thus, in applying the third step in our test we must determine if the sum total of the rest of Wratis-law’s acts when added to the contract constitute sufficient minimum contacts. In that respect, we think it is useful to compare the circumstances in this case to those underlying our recent decision in Daktronics, where we concluded there were sufficient minimum contacts.

[¶ 20.] The California defendant entered into a three-year consulting contract with a South Dakota corporation for the purpose of assisting the corporation’s effort to secure oversees contracts. Daktronics, 2007 SD 80, ¶ 1, ¶ 9, 737 N.W.2d at 415-16, 417. Prior to the agreement, the defendant made telephone calls and sent emails and faxes to South Dakota. Id. ¶ 9, 737 N.W.2d at 417. The defendant visited the corporation’s headquarters in South Dakota at the corporation’s expense. There, the two parties discussed the potential business venture. After her South Dakota visit, the defendant directed more communications to the corporation in South Dakota. Once the agreement was finalized, the defendant directed status reports and requests for reimbursement to South Dakota. Payments for services and reimbursements were sent to the defendant from South Dakota. The crux of disputed facts in the case centered on which party initiated contact or first solicited the other’s business. Id. ¶ 10, 737 N.W.2d at 417.

[¶ 21.] In the instant case, after Marschke discovered the 1971 Fiat on eBay, he contacted Wratislaw by telephone on at least two occasions to arrange terms of sale. Wratislaw sent an e-mail to Marschke to obtain his full name and mailing address. Marschke then arranged for the purchase price to be wire-transferred to Wratislaw’s bank account in Montana. Wratislaw mailed an unsigned contract to Marschke; after which Marschke signed and returned it to Wratislaw, who in turn signed it in Montana. Finally, after receiving the name of a motor carrier from Wratislaw, Marschke paid for and made his own arrangements for transporting the vehicle to South Dakota. See Miller v. Weber, 1996 SD 47, ¶ 10, 546 N.W.2d 865, 868 (considering it to be a factor that the defendant did not arrange to ship cattle to South Dakota in a case where we determined that minimum contacts were lacking).

[¶ 22.] We found the opinion of the United States Court of Appeals for the Third Circuit in General Electric Co. v. Deutz AG, 270 F.3d 144 (3rdCir.2001), to be relevant to our decision in Daktronics and again find it relevant in the instant case. The court stated:

Specific jurisdiction frequently depends on physical contacts with the forum. Actual presence during pre-contractual negotiations, performance, and resolution of post-contract difficulties is generally factored into the jurisdictional determination. Remick v. Manfredy, 238 F.3d 248, 255-56 (3dCir.2001); [Mellon Bank (East) PSFS, Nat. Ass’n v.] Farino, 960 F.2d [1217], 1223-24 [(3rdCir.1992)]. In modern commercial business arrangements, however, communication by electronic facilities, rather than physical presence, is the rule. Where ... long-term relationships have been established, actual territorial presence becomes less determinative. Burger King [Corp.], 471 U.S. at 476, 105 S.Ct. 2174, [85 L.Ed.2d 528].

Id. at 150-51 (emphasis added). The court also went on to state that, as a factor, the length of the venture the parties seek to enter outweighs consideration of which party initiated the relationship. Id. at 151 (citing Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 150 (3dCir.1992)).

[¶ 23.] Marschke relies heavily upon the case of Aero Toy Store v. Grieves, 279 Ga.App. 515, 631 S.E.2d 734 (2006). Therein, the plaintiff, a resident of Georgia, conducted an extensive internet correspondence with a car dealership in Florida over a BMW that was up for auction on eBay. Id. at 735. Based on this correspondence, the plaintiff was the successful high bidder. Thereafter, the defendant shipped the car to the plaintiff in Georgia. Id. at 736. In finding sufficient minimum contacts to maintain the action in Georgia, the court noted that the seller had regularly solicited business in Georgia through the Internet and derived substantial revenue of at least $193,199 from sales to that state. Also, previously at least 11 individuals from Georgia had submitted the high bid on defendant’s e-Bay internet auctions.

[¶ 24.] Unlike in Daktronics, there was no long-term relationship between Marsch-ke and Wratislaw. Moreover, unlike Aero Toy, the sum total of Wratislaw’s transactions in South Dakota could be characterized as a “one shot deal” — the sale to Marschke. Therefore, that Wratislaw had no physical contact with South Dakota before, during or after the period relevant to the sale of the 1971 Fiat, is a factor that we consider. In the context of this “one shot deal,” we also find it pertinent that Marschke initiated the telephone calls and negotiations leading to the $3,300.00 purchase with Wratislaw. That Wratislaw sent a solitary e-mail into Cyberspace to obtain Marschke’s contact information so that the unsigned contract could be mailed to him in South Dakota does not constitute a significant contact among these facts. Apart from the fact that there was a purchase agreement between Marschke and Wratislaw, the direction that it was sent and the manner in which Wratislaw received payment do not constitute significant factors in our determination.

[¶ 25.] Wratislaw was not incorporated, headquartered or licensed to do business in South Dakota. See Frankenfeld, 2005 SD 55, ¶ 5, 697 N.W.2d at 381 (citing that the same factors were absent in a case where minimum contacts were lacking). Neither did he maintain an office or employees in South Dakota. See id. He did not own real estate or maintain bank accounts here. See id. He did not manufacture, distribute or sell products within the state, and in this case neither did he make delivery of any sale item to South Dakota. See id. In short, Wratislaw had no presence in South Dakota and his only connection with the state was through one isolated sale of a 1971 Fiat 850 Spyder to Marsehke. See id.

[¶ 26.] Analysis of the alleged contacts between Wratislaw and South Dakota, including his use of the Internet in this case, do not alone or taken together support any contention of the existence of sufficient minimum contacts to support personal jurisdiction.

[¶ 27.] Affirmed.

[¶ 28.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . On his eBay posting for the 1971 Fiat, Wra-tislaw notified potential bidders that he would not accept bids from bidders without prior bidding history unless they first called him. Marschke had no prior eBay bidding history.

      . In his affidavit in support of his reply to defendant’s motion to dismiss, Marschke states that during this initial phone call he informed Wratislaw that he was from South Dakota.

      .From the record it is not evident whether Marschke received the purchase agreement before or after his payment in full was wired to Wratislaw.

      . Wratislaw later withdrew his motion as to insufficient service of process.

      . The provisions of South Dakota’s "Long Arm Statute” are codified under SDCL 15 — 7— 2.

      . This Court has not previously addressed a nonresident defendant’s utilization of the Internet as a basis for establishing personal jurisdiction. As the actual sale in this case did not take place on the Internet we leave for another day a resolution of that issue. We do so as we are to reject "any talismanic jurisdictional formulas; ‘the facts of each case must [always] be weighed’ in determining whether personal jurisdiction would comport with 'fair play and substantial justice.’ ” Burger King Corp., 471 U.S. at 485-86, 105 S.Ct. at 2189, 85 L.Ed.2d 528 (citation omitted). Since the solicitation did take place on the Internet, we acknowledge the evolution of that medium. In some jurisdictions that has led to a different type of analysis noted below. However, other jurisdictions have rejected this different type of analysis concluding that traditional due process analysis such as is found in Burger King Corp. is sufficient for internet transactions.
      Albeit for different reasons, both Marschke and Wratislaw direct us to the opinion of the United States District Court for the Western District of Pennsylvania in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997), for a rationale under which to determine whether a nonresident defendant’s particular use of the Internet constitutes a basis for personal jurisdiction consistent with due process. Recognizing a looming "global revolution” due to the ability through the Internet to conduct business worldwide from a desktop, and that the law in the area of determining jurisdiction over such activities was in its infancy, the court in Zippo Mfg. Co. set out to establish a standard by which jurisdictional determinations could be made. Id. at 1123. Opining that "the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet,” id. at 1124, the court articulated a "sliding scale” as follows:
      At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. E.g. CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6thCir.1996). At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise personal jurisdiction. E.g. Bensusan Restaurant Corp., v. King, 937 F.Supp. 295 (S.D.N.Y.1996). The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site. E.g. Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328 (E.D.Mo.1996).

        Id.

      We observe that specialized tests have been adopted in an attempt to place manageable limits on a state's reach over use of the Internet by nonresident defendants and that the “sliding scale” enunciated in Zippo Mfg. Co. is the most prevalent of these tests. Fenn v. Mleads Enterprises, Inc., 137 P.3d 706, 712 n. 15 (Utah 2006); Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 FSupp2d 1154, 1159 (W.D.Wis.2004); Wisconsin Inv. Bd. v. Schraeder, No. 03-CV-62, 2004 WL 1146448 at *5 (WisCir Feb 9, 2004). The United States Court of Appeals, Eighth Circuit also discussed this issue in Lakin v. Prudential Securities, 348 F.3d 704 (8thCir.2003). In comments ancillary to its holding, in which it found the Zippo standard insufficient for the analysis of the general jurisdiction issue in that case, id. at 711, the court expressed an opinion that the Zippo standard could be applied to Internet cases involving questions of specific jurisdiction. Id.

      . In his affidavit in support of his motion to dismiss, Wratislaw acknowledged that on occasion he had posted cars for sale on eBay. He also stated that there was no method or design by which the decision to post on eBay was made. He said that sometimes a car would be posted when it had been on his lot too long.

      . We make this assumption arguendo because it could also be argued that Wratislaw directed no activity at South Dakota. Marschke initiated contact with Wratislaw by directing at least two phone calls to his place of business in Montana. One could argue that an enforceable contract for sale of the 1971 Fiat was formed when Marschke directed his $3,300.00 payment to Wratislaw’s bank account in Montana, where Wratislaw accepted it. See SDCL 57A-2-201(3)(c) (Statute of Frauds). It could then be argued that after consummating the sale, Wratislaw directed the 1971 Fiat from one end of his Montana car lot to the other, where Marschke’s shipping agent took possession of the vehicle for eventual transport to South Dakota.

      . Wratislaw states in his affidavit that to the best of his knowledge he had never before sold a vehicle to anyone in South Dakota.