author: NEUMANN, Justice.

text:
    2001 ND 94
    Craig RASK and Leslie Rask, Plaintiffs and Appellees, v. NODAK MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    No. 20000311.
    Supreme Court of North Dakota.
    May 22, 2001.

      Tracy Vigness Kolb and Jerry W. Even-son (argued) of Zuger Kirmis & Smith, Bismarck, ND, for defendant and appellant.
    Jeffrey R. Hannig of Hannig & Associates, Moorhead, for plaintiffs and appel-lees.
   NEUMANN, Justice.

[¶ 1] Nodak Mutual Insurance Company (“Nodak Mutual”) appealed from a summary judgment. Because the district court correctly concluded the vehicle involved in the underlying action was an underinsured motor vehicle as a matter of law, we affirm.

I

[¶ 2] On November 28, 1998, near Car-rington, North Dakota, Amy Davis, Miranda Hagen, Ashley Rask, Beth Sondag, and Chynna Wass were involved in a one-car accident. Chynna Wass and her father, Randall Wass, owned the vehicle. Beth Sondag was driving with Chynna Wass’s permission at the time of the accident. Chynna Wass was a passenger and was killed. Ashley Rask was also killed. Amy Davis and Miranda Hagen sustained personal injuries. The four passengers, or their legal representatives, sued Beth Sondag.

[¶ 3] Randall Wass was the named insured under a State Farm Mutual Insurance Company (“State Farm”) policy, and the vehicle involved in the accident was an insured vehicle under the policy. The State Farm policy provided liability limits of $100,000 for each person and $300,000 for each accident. As a permissive user, Sondag was an insured under the State Farm policy.

[¶ 4] Sondag was also an insured under her parents’ policy with Center Mutual Insurance Company (“Center Mutual”). The Center Mutual policy also provided liability limits of $100,000 for each person and $300,000 for each accident. Thus, under the State Farm and Center Mutual policies, Sondag had available liability coverage totaling $200,000 per person and $600,000 per accident.

[¶ 5] In September 1999, the lawyers representing the four claimants agreed on a distribution plan for the $600,000 available under the two insurance policies. State Farm and Center Mutual paid the funds to the claimants according to the agreement, each paying a total of $300,000. The heirs of Ashley Rask received $187,500. The heirs of Chynna Wass received $187,500. Miranda Hagen received $160,000. Amy Davis received $65,000. State Farm and Center Mutual each paid half of the total amount to each claimant.

[¶ 6] Leslie Rask, the mother of Ashley Rask, was the named insured under a No-dak Mutual policy providing various types of coverage, including underinsured motor vehicle coverage of $100,000 per person and $300,000 per accident.

[¶ 7] After Leslie and Craig Rask settled their wrongful death claim against Sondag, the Rasks’ attorney notified No-dak Mutual of the settlement. Nodak Mutual informed the Rasks’ attorney that there was no basis for an underinsured motorist claim.

[¶ 8] The Rasks sued Nodak Mutual for underinsured motorist benefits, claiming Ashley Rask was a passenger in an underinsured motor vehicle. The Rasks moved the district court for partial summary judgment. The district court granted partial summary judgment, concluding the vehicle involved in the accident was an underinsured motor vehicle, but leaving open the issue of damages. The Rasks and Nodak Mutual stipulated to damages to resolve that issue for purposes of appealing the summary judgment. Based on that stipulation an appealable final judgment was entered.

[¶ 9] On appeal, Nodak Mutual argues the district court erred as a matter of law in determining the vehicle involved in the accident was an underinsured motor vehicle. In particular, Nodak Mutual contends the court erred by not considering both the State Farm and the Center Mutual policies, and the payments made under each of them, in its determination of whether the vehicle was underinsured.

II

[¶ 10] Summary judgment is appropriate if the only issues to be resolved are questions of law. Ziegelmann v. TMG Life Ins. Co., 2000 ND 55, ¶ 5, 607 N.W.2d 898. Interpretation of an insurance policy, including whether it is ambiguous, is a question of law that is fully reviewable on appeal. Id. at ¶ 5. We review a district court’s interpretation of an insurance policy by independently examining and construing the policy. DeCoteau v. Nodak Mut. Ins. Co., 2000 ND 3, ¶ 19, 603 N.W.2d 906. We look first to the language of the policy as a whole, and if the language is clear on its face, our inquiry is at an end. Dundee Mut. Ins. Co. v. Marifjeren, 1998 ND 222, ¶ 9, 587 N.W.2d 191.

[¶ 11] The Nodak Mutual policy's insuring clause pertaining to underinsured motor vehicle coverage provides:

We will pay damages for bodily injury:

1. caused by accident; and
2. arising out of the maintenance or use of an under-insured motor vehicle.

These must be damages an insured:

1. has not been compensated for; and
2. is legally entitled to recover from the owner or driver of an under-insured motor vehicle.

“Under-insured motor vehicle” is defined in the policy as follows:

Under-insured Motor Vehicle means a motor vehicle for which there is a bodily injury liability insurance policy, or bond providing equivalent liability protection, in effect at the time of the accident, but the applicable limit of bodily injury liability of such policy or bond:
a. is less than the applicable limit for under-insured motorist coverage under this policy; or
b. has been reduced by payments to other persons who sustained bodily injury in the accident to an amount less than the limit for under-insured motorist coverage under this policy.

[¶ 12] Nodak Mutual argues the district court erred in failing to consider the legislative intent of the statutory definition of underinsured motor vehicle under N.D.C.C. § 26.1-40-15.1(2). Nodak Mutual argues the district court erroneously looked only to the Nodak Mutual policy in determining whether Nodak Mutual was obligated to pay the Rasks benefits under the policy.

[¶ 13] Questions of statutory construction are questions of law and are fully reviewable on appeal. Ash v. Traynor, 2000 ND 75, ¶ 4, 609 N.W.2d 96. The primary purpose of statutory construction is to ascertain the intent of the legislature. Douville v. Pembina County Water Res. Dist., ND 2000 124, ¶ 9, 612 N.W.2d 270. In ascertaining legislative intent, we look first to the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Id. at ¶ 9. If the plain language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute. Lawrence v. N.D. Workers Comp. Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254. Thus, the same general rule applies when we interpret either statutes or contracts. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 130 n. 6 (N.D.1987) (quoting N.D.C.C. § 1-02-02, “[w]ords used in any statute are to be understood in their ordinary sense” and N.D.C.C. § 9-07-02, “[t]he language of a contract is to govern its interpretation”). Accordingly, we will not look beyond the plain language of the policy and statutory definitions of underinsured motor vehicle if the language is clear on its face.

[¶ 14] The statutory definition of an underinsured motor vehicle is virtually identical to the definition provided by the Nodak Mutual policy. Under N.D.C.C. § 26.1-40-15.1(2):

“Underinsured motor vehicle” means a motor vehicle for which there is a bodily injury liability insurance policy, or bond providing equivalent liability protection, in effect at the time of the accident, but the applicable limit of bodily injury liability of such policy or bond:
a. Is less than the applicable limit for underinsured motorist coverage under the insured’s policy; or
b. Has been reduced by payments to other persons injured in the accident to an amount less than the limit for underinsured motorist coverage under the insured’s policy-

The only substantive difference between the policy definition and the statutory definition is subsection (b) of the policy uses “who sustained bodily injury” and subsection (b) of the statute uses “injured.” For purposes of this appeal, the distinction is irrelevant.

[¶ 15] The district court concluded that in determining whether a vehicle is an underinsured motor vehicle, the only policy to consider is the policy insuring the motor vehicle involved in the accident — in this case, the Wass State Farm policy.

[¶ 16] Nodak Mutual argues the policy and statutory definitions (collectively “definition”) of underinsured motor vehicle require the applicable limits for bodily injury liability available to the injured person be less than the injured person’s own under-insurance coverage. Nodak Mutual asserts the definition provides that underin-sured motorist coverage does not apply until the limits of all available bodily injury liability bonds and policies have been exhausted, and the definition must be interpreted to include not only multiple motor vehicle liability policies, but all types of liability policies. Nodak Mutual asserts the Wass vehicle is not underinsured because the amounts the Rasks received through the State Farm policy insuring the vehicle and the Center Mutual policy insuring the driver totaled $187,500, and therefore exceeded Nodak Mutual’s under-insurance coverage limit of $100,000.

[¶ 17] The definition of underinsured motor vehicle is not ambiguous. Under the plain language of the definition, it is an underinsured motor vehicle, not an under-insured motor vehicle operator, that must be involved in the accident. It is the insured status of the vehicle that is determinative, not the insured status of the operator. To look to the insured status of the driver rather than the vehicle would render meaningless the language under N.D.C.C. § 26.1-40-15.3(1) requiring the damages arise “out of the ownership, maintenance, or use of such underinsured motor vehicle.” Because the accident did not arise out of the ownership, maintenance, or use of any of the vehicles owned by the Sondags and insured by Center Mutual, it would be inappropriate to look to those vehicles to determine whether the Wass vehicle involved in the accident was underinsured. The definition provides an underinsured motor vehicle is one for which there is a bodily injury liability policy, the applicable limit of which has been reduced by payments to other persons to an amount less than Nodak Mutual’s limit for underinsured coverage. In this case, the State Farm policy insuring the vehicle fits within this definition. The $93,750 paid to the Rasks under the policy is less than the $100,000 underinsured limit of the Nodak Mutual policy. Therefore, the Wass vehicle was underinsured as a matter of law.

[¶ 18] Nodak Mutual argues the legislative history of N.D.C.C. § 26.1-40-15.1(2) supports a contrary result. However, because the definition of underin-sured motor vehicle is unambiguous, we do not consider legislative history. See Lawrence, 2000 ND 60, ¶ 19, 608 N.W.2d 254.

[¶ 19] The cases Nodak Mutual relies upon to support its proposition that we should consider all applicable liability policies in determining whether a vehicle is an underinsured motor vehicle are unpersuasive in light of the specific language of the definition of underinsured motor vehicle in this case.

Ill

[¶ 20] The district court correctly concluded the vehicle involved was an under-insured motor vehicle. We affirm the district court’s judgment.

[¶ 21] MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE Y. SANDSTROM, JJ„ and GERALD W. VANDE WALLE, C.J., concur.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2001 ND 93
    Arthur SCHUCK, Plaintiff and Appellant, v. MONTEFIORE PUBLIC SCHOOL DISTRICT NO. 1, Defendant and Appellee.
    No. 20000299.
    Supreme Court of North Dakota.
    May 22, 2001.

      Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff and appellant.
    David E. Reich (argued), and Gary R. Thune (on brief), Pearce <& Durick, Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Arthur Schuck appealed the district court’s order for summary judgment dismissing his claims of breach of contract and wrongful discharge in violation of N.D.C.C. § 15-47-38. The district court found Schuck voluntarily resigned his position without exhausting available administrative remedies. Therefore, the district court held it lacked jurisdiction to hear Schuck’s claims and granted summary judgment in favor of the Montefiore Public School District. We affirm.

I

[¶ 2] Arthur Schuck was employed by the Montefiore Public School District (“District”) as an industrial arts teacher. He also served as the sophomore class advisor and head football coach for the District. On Saturday, May 1, 1999, Schuck drove a school bus owned by the District to Bismarck for a class project. Schuck was not insured to transport students and had not made arrangements with the superintendent to use the bus. Schuck was not insured to transport students in the bus because he did not attend a mandatory safety workshop, he elected to be excluded from mandatory random drug and alcohol testing, and he failed to submit to a mandatory physical examination.

[¶ 3] On Monday, May 3, 1999, the business manager of the school made a formal complaint to Principal Norris against Schuck for driving a bus without permission and without being qualified. The business manager had observed Schuck driving the bus on Saturday. Superintendent Kramer and Principal Norris met with Schuck that afternoon. Schuck acknowledged he drove the bus on Saturday. Superintendent Kramer stated he told Schuck this was a serious action and he planned to recommend to the school board Schuck be dismissed. Principal Norris also reported Superintendent Kramer said at the meeting he planned to recommend dismissal to the school board. Schuck claims Superintendent Kramer told him he was fired or terminated immediately-

[¶ 4] On May 5 the school board met. At the meeting, the school board agreed to contemplate discharging Schuck, scheduled a discharge hearing on May 17, 1999, and mailed a notice to Schuck in accordance with N.D.C.C. § 15-47-38. Superintendent Kramer called Schuck the same day and discussed the possibility of Schuck’s resignation as an alternative to going through the discharge hearing and whether the District would pay the balance of Schuck’s contract if he resigned.

[¶ 5] Schuck submitted his letter of resignation to Superintendent Kramer on May 6 and received his final check. The school board accepted his resignation on May 6. On May 7, Schuek received the notice of discharge hearing from the school board. Schuek conceded at oral argument he was not aware the school board had accepted his resignation when he received the notice of the hearing. Schuek did not pursue the hearing. Five months later, Schuek issued a complaint against the District alleging breach of contract and wrongful discharge. The district court summarily dismissed the complaint, holding it lacked jurisdiction because Schuek failed to exhaust his administrative remedies.

II

[¶ 6] Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without a trial. Jones v. Barnett, 2000 ND 207, ¶ 4, 619 N.W.2d 490. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.D.R.Civ.P. 56(c). However, the evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Mandan Educ. Ass’n v. Mandan Public School Dist. No. 1, 2000 ND 92, ¶ 6, 610 N.W.2d 64. The party opposing summary judgment cannot simply rely on factual assertions in a brief or pleadings and cannot rely on unsupported allegations; such conclusory assertions are insufficient to raise an issue of material fact. Jones, 2000 ND 207, ¶5, 619 N.W.2d 490. Factual issues become appropriate for summary judgment “when reasonable minds can draw but one conclusion from the evidence.” Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101. Whether the trial judge properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, ¶ 6, 615 N.W.2d 160.

m

.[4] [¶ 7] Schuek argues the district court erred in granting the summary judgment because genuine issues of material fact exist. But, the facts in dispute are not material to the trial court’s granting the summary dismissal based on a lack of jurisdiction. Schuek and the District do not dispute Schuek resigned and did not take the action necessary under N.D.C.C. § 15^47-38(2) to pursue a discharge hearing; therefore Schuek did not exhaust his available administrative remedies.

[¶ 8] We have consistently required employees to exhaust available administrative remedies prior to pursuing a claim in court. Cooke v. University of North Dakota, 1999 ND 238, ¶ 14, 603 N.W.2d 504; Tracy v. Central Cass Public School Dist., 1998 ND 12, ¶ 15, 574 N.W.2d 781; Long v. Samson, 1997 ND 174, ¶ 11, 568 N.W.2d 602; Thompson v. Peterson, 546 N.W.2d 856, 861 (N.D.1996); Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 83-84 (N.D.1991). This requirement allows the organization to minimize or eliminate any monetary injury to a person, enables the organization to use its expertise to resolve the issues, and promotes judicial efficiency by “unearthing the relevant evidence” and providing a record for judicial review. Cooke, 1999 ND 238, ¶ 10, 603 N.W.2d 504.

[¶ 9] The purpose of requiring exhaustion of remedies has its basis in the separation of powers doctrine. Tracy, 1998 ND 12, ¶ 14, 574 N.W.2d 781. In Soentgen, 467 N.W.2d at 82, we stated the rationale for requiring a party to exhaust available administrative remedies before suing for damages:

[A]n exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies.
Moreover, by insisting upon exhaustion even in these circumstances, courts accord recognition to the “expertise” of the organization’s quasi-judicial tribunal, permitting it to adjudicate the merits of the plaintiffs claim in the first instance. Finally, even if the absence of an internal damage remedy makes ultimate resort to the courts inevitable, the prior administrative proceeding will still promote judicial efficiency by unearthing the relevant evidence and by providing a record which the court may review, (quoting Westlake Community Hosp. v. Superior Court of Los Angeles Cty., 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, 416 (1976) (citations omitted))

[¶ 10] The trial court correctly dismissed Schuck’s claims for lack of jurisdiction because Schuck had failed to exhaust his available administrative remedies prior to pursuing his claim in court.

IV

[¶ 11] Schuck maintains he should be excused from the requirement to exhaust administrative remedies because, since he had already been discharged, pursuing the hearing was futile. Schuck’s argument appears to be that the issue of futility is a question of fact. But that argument fails because, as a matter of law, it is the school board, and not the superintendent, which has the authority to discharge teachers. N.D.C.C. § 15-47-38(2). The superintendent is entitled by statute to be present at the hearing on the contemplated discharge, but does not make the decision. Id. The statute does not allow the school board to delegate its duties under N.D.C.C. § 15-47-38(2) to the superintendent. Nor, despite Schuck’s contention that he was fired or terminated immediately by Superintendent Kramer, is there any evidence in the record that the procedures in N.D.C.C. § 15-47-38(3) were followed to dismiss Schuck immediately, or that Schuck was suspended immediately by unanimous vote of the school board as allowed in N.D.C.C. § 15-47-38(4). There is no evidence in the record that Schuck had any contact with the school board. As a matter of law, Schuck was not and could not have been discharged from his teaching position even under Schuck’s view of the facts.

[¶ 12] Shuck alternatively argues he should be excused from the requirement to exhaust administrative remedies because he had resigned and pursuing the hearing was futile. Schuck also contends he should be excused from the requirement to exhaust administrative remedies because his resignation was not an effective waiver of his rights to a discharge hearing. In this second argument, Schuck confuses resignation with waiver of rights. Schuck waived his rights to a discharge hearing by failing to request the hearing, not by resigning. Schuck and the District do not dispute Schuck did not request a hearing at any time. Therefore, the only remaining significance of his resignation is whether it made the request for a hearing futile.

[¶ 13] Schuck claims “[i]t is also impossible to believe that the School would have permitted Schuck to have the discharge hearing after they had accepted his resignation.” However, the school .board had scheduled a hearing, and Schuck conceded at oral argument he was not aware of the District’s acceptance of his resignation at the time he received the letter notifying him of the discharge hearing. Schuck took no action to pursue the discharge hearing. Because Schuck never requested a discharge hearing, the school board did not have the opportunity to grant the hearing. Schuck’s failure to take the action necessary to pursue the hearing obviates his argument.

[¶ 14] In Long, 1997 ND 174, 568 N.W.2d 602, the employee also argued exhaustion of his administrative remedies was futile. Long was terminated from his position as an assistant professor at University of North Dakota School of Medicine. Id. at ¶ 2. Long did not exhaust his administrative remedies; instead, he sued for breach of contract and tort claims. Id. at ¶ 3. We rejected Long’s argument of futility stating “[a]dministrative resolution of Long’s nonrenewal may have eliminated or mitigated damages and developed a record to sharpen issues and avoid judicial proceedings.” Id. at ¶ 13. We affirmed the district court’s dismissal of Long’s action, on the basis his failure to exhaust administrative remedies required dismissal of his lawsuit. Id. at ¶¶ 14-15.

[¶ 15] In Tracy, 1998 ND 12, ¶ 13, 574 N.W.2d 781, we stated when appellate processes are available and the remedies will provide adequate relief those remedies must be exhausted before seeking judicial remedies, unless exhaustion would be futile. Similar to Schuck in this case, the teacher in Tracy turned to the courts to correct a situation he did not attempt to cure at the outset. Id. at ¶ 12. Tracy, a teacher who had let his certification lapse, requested recommendations for re-certification from the superintendent and principal of Central Cass County School. Id. at ¶ 3. Both checked the “I do not recommend” box on the recommendation form. Id. Instead of requesting recommendations from the school board or a hearing before the Education Standards and Practices Board, Tracy resigned. Id. at ¶ 4. Tracy sued the Central Cass Public School District claiming tortious interference with his contract. Id. at ¶ 5. We concluded the district court correctly dismissed Tracy’s claim for lack of subject matter jurisdiction because Tracy failed to exhaust his administrative remedies. Id. at ¶ 15.

[¶ 16] Schuck’s claim is not the type of claim that dispenses with the exhaustion of administrative procedures requirement because exhaustion would be futile. Rather, this is just the kind of case that requires exhaustion of administrative remedies because of the need to resolve the issues at the earliest instance and to give the school board the opportunity to eliminate or mitigate damages.

.V

[¶ 17] Schuck contends the District’s failure to advise him of his rights under N.D.C.C. § 15-47-38 relieves Schuck of his obligation to exhaust his administrative remedies. Section 15-47-38(2), N.D.C.C., delineates the notice requirements of a school board contemplating discharge of a teacher.

The school board of any school district contemplating discharging a teacher for cause prior to the expiration of the term of the teacher’s contract shall notify the teacher in writing of that fact at least ten days prior to the date of contemplated discharge. The teacher must be informed in writing of the time and place for a special meeting of the school board to be held on the question of the teacher’s discharge prior to a final decision on the matter. The teacher must also be informed in writing of the teacher’s right to demand a specification of the reasons for discharge, which must, upon receipt of the demand of the teacher, be furnished not less than five days prior to the meeting to be held on the question of the teacher’s discharge.

The District sent a letter to Schuck on May 5, notifying him they contemplated his discharge and informing him a special meeting would be held on May 17 at the school. The District also informed Schuck of his right to demand a specification of the reasons for discharge and to contest the charges. Schuck received the letter on May 7. Schuck did not demand specification of the reasons for discharge or pursue his right to contest the charges at a hearing. The District complied with the notice requirements of N.D.C.C. § 15-47-38.

[¶ 18] Schuck’s failure to exhaust his administrative remedies is dispositive of this appeal, and we need not consider the District’s other arguments for affirming the district court judgment.

[¶ 19] We affirm the judgment of the district court.

[¶ 20] CAROL RONNING KAPSNER DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

      . Although the order itself is not appealable, we have held that an attempted appeal from an order or memorandum decision will be treated as an appeal from a subsequently entered consistent judgment, if one exists. Zueger v. Carlson, 542 N.W.2d 92, 94 n. 2 (N.D.1996). The record contains a subsequent judgment. The judgment is consistent with the order; therefore, we treat the appeal as being from the judgment.


author: SANDSTROM, Justice. VANDE WALLE, C.J., NEUMANN, Justice,

text:
    2001 ND 90
    Juanita D. JAMES, David M. James and Leanna Hudson, Plaintiffs and Appellants, v. Paul GRIFFIN and Julene Griffin, Defendants and Appellees.
    No. 20000216.
    Supreme Court of North Dakota.
    May 22, 2001.
    Rehearing Denied July 10, 2001.

      Dan D. Plambeck (submitted on brief), Stefanson, Plambeck & Foss, Moorhead, MN, for plaintiffs and appellants.
    Janel B. Fredericksen (submitted on brief), Smith & Strege, Wahpeton, ND, for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Juanita D. James, David M. James, and Leanna Hudson (collectively referred to as “James”) appealed from a judgment quieting title in Paul and Julene Griffin to a 4-feet by 173-feet piece of residential property. We conclude the trial court correctly ruled James failed to establish ownership of the disputed parcel of property under the doctrine of acquiescence, and we affirm.

I

[¶2] The parties own and occupy adjoining property. James owns Lot 4, and the Griffins own Lots 5 and 6, in Block 1 of Hubbard and Tyler’s Addition to the City of Wahpeton. George James, who was the husband of Juanita James and father of David James and Leanna Hudson, purchased Lot 4 from Arnold L. Olson through a warranty deed dated October 16,1945.

[¶ 3] George and Juanita James owned the property until September 5, 1979, when they gave the City of Wahpeton a warranty deed to the property because their house had been condemned. They vacated the property, a new house was placed there, and on November 20, 1979, the City gave them a quit claim deed to Lot 4, and they resumed occupancy. In 1997, Juanita James received Lot 4 from her husband’s estate, and she transferred the property to her children, reserving a life estate.

[¶ 4] In August 1995, the Griffins purchased Lots 5 and 6 from Elva Lambert, who had occupied the property from 1956 until its sale to the Griffins. The Griffins had the property surveyed in June 1998 to determine the actual platted lot line between Lots 4 and 5. The Griffins discovered James’s brick fireplace, gravel drive, and old garage foundation encroach on their property. According to James, the structures had been placed there long before 1979. The Griffins erected a fence on the actual plat line in 1998 in an attempt to prevent James from encroaching on their property.

[¶ 5] James began this quiet title action in April 1999. James alleged that prior to May 1998 and for a period substantially exceeding 20 years, the owners of Lots 4 and 5 mutually recognized as the boundary between their lots a line defined by a row of trees located four feet south of the north line of Lot 5, and James had acquired superior title to the disputed property under the doctrine of acquiescence. The Griffins counterclaimed, seeking to have title to the disputed property quieted in them.

[¶ 6] At the “Pretrial Conference and Bench Trial,” the trial court encouraged the parties to settle. After settlement negotiations proved unsuccessful, the court held the pretrial conference and alerted the parties to an issue neither side had addressed. The court noted the chain of title had been broken for a period of time in 1979 when James deeded the property to the City of Wahpeton. The court informed counsel of its intention to dismiss James’s lawsuit unless James could show continuous acquiescence during the entire 20 years preceding construction of the fence by the Griffins in 1998. James argued there was continuous acquiescence in the boundary line from 1945 until 1979, thereby satisfying the 20-year requirement. The court allowed the parties to present testimony and exhibits, and Juanita James, David James, and Leanna Hudson testified. The Griffins presented no evidence.

[¶ 7] The trial court ruled:

2. Plaintiffs have submitted no evidence showing that their predecessor in interest, the City of Wahpe-ton, mutually recognized with the adjoining lot owner, the boundary they now claim. It is undisputed that Plaintiffs regained ownership of the property by Quit Claim Deed from the City of Wahpeton dated November 20,1979. It is also undisputed that 20 years have not elapsed between November 20, 1979 and the time (1998) when Defendants placed a fence on the plat line after survey. Therefore, Plaintiffs cannot show at least twenty jrears mutual intent, agreement, and acquiescence to the boundary they claim ...
3. Plaintiffs’ claim that they are allowed to “tack” the period from first ownership (1945) to the present which would clearly be more than the twenty years required. “Tacking” is allowed ... However, “tacking” of any predecessor’s ownership still requires that all elements of the doctrine of acquiescence be shown during any predecessor’s interest in the property. In this case, there has been no evidence, much less clear and convincing evidence, showing that the City of Wahpeton mutually intended, agreed and acquiesced with the adjoining land owner concerning the boundary claimed by Plaintiffs during the City’s ownership of Plaintiffs’ Lot Four (4). Therefore, as a matter of law, “tacking” any period prior to 1979 is not allowed and the period from which to measure the minimum twenty-year requirement must commence after the property was deeded back to Plaintiffs’ predecessors from the City in 1979.
4. The brick fireplace, gravel drive and old garage foundation which encroach on Defendants’ property were all initiated prior to 1979 and for the reasons stated in the foregoing paragraph 3 of these Conclusions of Law cannot be used to “tack” to Plaintiffs’ ownership from and after 1979. No evidence was submitted that the City of Wahpeton even knew that any of these structures encroached on Defendants’ property nor was there any evidence submitted showing that even if the City knew of these encroachments, that these encroachments were intended by the City as a mutual acquiescence to a new boundary and not some sort of license type arrangement.

The court dismissed James’s complaint and quieted title in the Griffins.

[¶ 8] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. James’s appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 9] We reject James’s argument the trial court’s ruling should be treated as granting a motion for judgment on the pleadings under N.D.R.Civ.P. 12(c). The parties were allowed to present testimony, exhibits, and trial memoranda on the narrow factual issue of whether the City of Wahpeton recognized the boundary allegedly established by James. The trial court’s finding on that issue is governed by the clearly erroneous standard under N.D.R.Civ.P. 52(a). See Knutson v. Jensen, 440 N.W.2d 260, 262 (N.D.1989). Because James does not challenge the trial court’s finding that the City did not recognize the boundary during its ownership of the property in 1979, the legal question becomes whether James could establish acquiescence by relying on a continuous 20-year period of mutual recognition by the parties or their predecessors before the City became the owner of the property in 1979. Questions of law are fully reviewable on appeal. Thompson v. Associated Potato Growers, Inc., 2000 ND 95, ¶ 7, 610 N.W.2d 53.

[¶ 10] The doctrine of acquiescence was created to allow a person to acquire property when occupying part of a neighbor’s land due to an honest mistake as to the location of the true boundary, because the adverse intent requirement of the related doctrine of adverse possession could not be met under those circumstances. Production Credit Association v. Terra Vallee, Inc., 303 N.W.2d 79, 83-84 (N.D.1981). To establish a new boundary line by acquiescence, it must be shown by clear and convincing evidence that the parties recognized the new boundary line as a boundary, and not a mere barrier, for at least 20 years. Knutson, 440 N.W.2d at 262. Although acquiescence may be found from a party’s silence, or inferred from conduct, Ward v. Shipp, 340 N.W.2d 14, 16 (N.D.1983), the burden of proving acquiescence rests with the person claiming property to the exclusion of the true owner. Manz v. Bohara, 367 N.W.2d 743, 748 (N.D.1985).

[¶ 11] As in adverse possession, the principle of tacking is applicable to claims of acquiescence. Bernier v. Preckel, 60 N.D. 549, 557, 236 N.W. 243, 247 (1931). Thus, acquiescence in a boundary line is binding on the parties thereto and those claiming under them, and where successive adverse occupants hold in privity with each other under the same claim of title, the time limit for maintaining an action may be computed by the last occupants from the date the cause of action accrued against the first adverse user. Trautman v. Ahlert, 147 N.W.2d 407, 412 (N.D.1966). Our caselaw makes it clear that when tacking is relied upon to meet the 20-year period, it must result in a single continuous acquiescent possession. See, e.g., Brooks v. Bogart, 231 N.W.2d 746, 751 (N.D.1975); Ahlert, 147 N.W.2d at 411-12; Severson v. Simon, 110 N.W.2d 289, 292 (N.D.1961); Morgan v. Jenson, 47 N.D. 137, 141-42, 181 N.W. 89, 90-91 (1921). If a possession is not adverse to the true owner, it may not be tacked to satisfy the 20-year period. See McGee v. Stokes’ Heirs at Law, 76 N.W.2d 145, 151-52 (N.D.1956). Temporary possession in a government entity does not relieve the party claiming acquiescence or adverse possession from showing the government entity’s possession was adverse. See Grandin v. Gardiner, 63 N.W.2d 128, 132-33 (N.D.1954).

[¶ 12] The 20-year requirement for establishing acquiescence comes from the statutory period required for acquisition of title by adverse possession. Odegaard v. Craig, 171 N.W.2d 133, 137 (N.D.1969); Bernier, 60 N.D. at 557, 236 N.W. at 247. The statute of limitations for quiet title actions based on adverse possession or acquiescence is found in N.D.C.C. § 28-01-04, which provides:

No action for the recovery of real property or for the possession thereof may be maintained, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.

Unless James was possessed of the property at issue within 20 years before beginning the quiet title action, James is barred from maintaining an action to quiet title to the property based on the doctrine of acquiescence. See Haas v. Bursinger, 470 N.W.2d 222, 223 (N.D.1991). Under the plain terms of the statute, the 20-year period is measured back from the commencement of the action.

[¶ 13] James relies on cases from other jurisdictions to support the argument that the boundary was established by more than 20 years of acquiescence by the parties and their predecessors before the City took title to the property in 1979, and the title thereby acquired passed to any subsequent owners. None of the cases relied on by James involved acquiescent possessions by others, interrupted by a nonacquiescent possession of another. Moreover, this Court recognized in Terra Vallee, Inc., 303 N.W.2d at 84, “there is little uniformity among the states in [the] application and requirements” of acquiescence. James’s reliance on Ollinger v. Bennett, 562 N.W.2d 167, 170 (Iowa 1997), and Tewes v. Pine Lane Farms, Inc., 522 N.W.2d 801, 808 (Iowa 1994), is misplaced because those cases are based on an Iowa statute that, unlike the North Dakota statute, does not tie the statutory period to the commencement of the action. To the extent the Iowa cases or Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489, 497 n. 11 (1996), support James’s argument, we find the rule espoused in those cases impossible to harmonize with the plain language of N.D.C.C. § 28-01-04.

[¶ 14] Other courts have held that once prior acquiescence of a boundary has been destroyed, the statutory clock for obtaining title by acquiescence begins “ticking anew.” Salazar v. Terry, 911 P.2d 1086, 1089 (Colo.1996). See also Conklin v. Newman, 278 Ill. 30, 115 N.E. 849, 850 (1917); Patton v. Smith, 171 Mo. 231, 71 S.W. 187, 190 (1902). We believe the approach taken by these courts better serves the public interest in predictability and certainty in the area of property rights and real estate titles. See North Shore, Inc. v. Wakefield, 530 N.W.2d 297, 303 (N.D.1995); Kinu-Go v. J.P. Furlong Enterprises, Inc., 460 N.W.2d 694, 698 (N.D.1990). A rule allowing record title of property to be lost by a 20-year period of unadjudicated acquiescence occurring in the distant past does not foster predictability and certainty of property rights. See generally Owen L. Anderson & Charles T. Edin, The Growing Uncertainty of Real Estate Titles, 65 N.D.L.Rev. 1 (1989).

[¶ 15] We are guided by our statutes and caselaw on acquiescence. Section 28-01-04, N.D.C.C., requires a person seeking title by acquiescence to have been “possessed of the premises in question within 20 years before the commencement of such action.” (Emphasis added). James’s argument that the boundary line was established by a 20-year period of acquiescence before the City took title in 1979 would had to have been asserted at that time. Because there was no evidence indicating the City recognized the boundary claimed by James, the twenty-year period begins to run when the City relinquished its title. Because James did not show acquiescent possession of the premises in question for a period of 20 years before commencing the action, we conclude the trial court did not err in dismissing-James’s action and quieting title in the Griffins.

Ill

[¶ 16] The judgment is affirmed.

[¶ 17] CAROL RONNING KAPSNER, J., concurs.

VANDE WALLE, C.J.,

I concur in the result reached by Justice Sandstrom’s opinion.

NEUMANN, Justice,

dissenting

[¶ 18] Because I believe the twenty-year requirement for establishing acquiescence need not be the twenty years immediately before suit is brought, I respectfully dissent.

[¶ 19] Citing cases from other jurisdictions for support, James argues the boundary was established before the City took title to the property in 1979 by more than twenty years of acquiescence by the parties and their predecessors. At ¶ 13, the majority distinguishes the cases James cites, stating, “None of the cases relied on by James involved acquiescent possessions by others, interrupted by a nonacquiescent possession of another.” This statement skirts the issue that I deem dispositive: If James can show the boundary was established through acquiescence, it is irrelevant whether the City acquiesced during its two-month ownership. The City’s intervening ownership could not have destroyed the boundary, once it was established:

Where recognition and acquiescence have continued for the period of time prescribed by statutes concerning acquiescence or for the period required by statutes of limitations for acquisition of title by adverse possession, the presumption that the line is in fact the true ' line or that there has been an agreement fixing it as the true line becomes conclusive, and the line as acquiesced in is conclusively established as the boundary. As established it will control courses and distances called for in title deeds or grants, and the parties need not rely on paper title.

II C.J.S. Boundaries § 87 (1995) (footnotes omitted); see Crowden v. Grantland, 510 So.2d 238, 240 (Ala.1987) (stating that once title vests in a boundary through acquiescence by adjoining landowners, it can be divested only through conveyance or by losing the property to another adverse possessor); Lakeview Farm, Inc. v. Enman, 166 Vt. 158, 689 A.2d 1089, 1092 (1997) (stating that once a boundary is established by acquiescence, the line is conclusive upon successors in title); Arnold v. Robbins, 209 Wis.2d 428, 563 N.W.2d 178, 180 (App.1997) (stating that once acquiescence is established, the true owner is estopped from claiming title to the disputed land); Carter v. Hanrath, 885 P.2d 801, 804 (Utah Ct.App.1994), rev’d on other grounds, 925 P.2d 960 (Utah 1996) (stating that once the elements of boundary by acquiescence are established, there is a presumption of ownership).

[¶ 20] The majority insists James’s argument and the rule espoused in the cases James cites cannot be harmonized with N.D.C.C. § 28-01-04. I disagree. In my opinion, N.D.C.C. § 28-01-04, does not “tie the statutory period to the commencement of the action,” as the majority maintains at ¶ 13. Under N.D.C.C. § 28-01-04:

No action for the recovery of real property or for the possession thereof may be maintained, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.

This statute provides the statute of limitations for adverse possession and acquiescence eases. Odegaard v. Craig, 171 N.W.2d 133, 137 (N.D.1969). We borrow the length of the statute of limitations and use it as the measuring stick for the length of time necessary to establish acquiescence. However, N.D.C.C. § 28-01-04, does not provide that a plaintiff must have been in possession for twenty years immediately before bringing an action, and we have never held that a plaintiff must have been in possession for twenty years immediately before bringing an action. Rather, we have determined only that a boundary line must be recognized by the parties for at least twenty years, without reference to when the twenty years must occur. See, e.g., Knutson v. Jensen, 440 N.W.2d 260, 262 (N.D.1989) (“To establish a new boundary line by acquiescence, it must be shown by clear and convincing evidence that the parties recognized the new boundary line as a boundary, and not a mere barrier, for at least twenty years ” (emphasis added)); Production Credit Ass’n v. Terra Vallee, Inc., 303 N.W.2d 79, 85 (N.D.1981) (concluding that “to establish a new boundary line, it must be acquiesced in by the parties as the boundary between their lands for at least twenty years ” (emphasis added)).

[¶ 21] The majority maintains that James’s argument that the boundary line was established before the City took possession in 1979 had to have been asserted at that time. The majority opines, at ¶ 14, “A rule allowing record title of property to be lost by a 20-year period of unadjudicat-ed acquiescence occurring in the distant past does not foster predictability and certainty of property rights.” However, there is nothing unpredictable about unad-judicated acquiescence because:

Where recognition and acquiescence have continued for the period of time prescribed by statutes concerning acquiescence or for the period required by statutes of limitations for acquisition of title by adverse possession, the presumption that the line is in fact the true line or that there has been an agreement fixing it as the true line becomes conclusive, and the line as acquiesced in is conclusively established as the boundary.

11 Boundaries § 87 (1995) (footnote omitted). Furthermore, if the Court were to conclude the twenty-year requirement for establishing acquiescence need not be the twenty years immediately before suit is brought, a plaintiff would still be bound by the twenty-year statute of limitations for bringing suit, provided in N.D.C.C. § 28-01-04, which provides a plaintiff must have been in possession within twenty years of bringing an action.

[¶ 22] The trial court found James’s brick fireplace, gravel drive, and old garage foundation encroached on the Griffins’ property. The trial court found the Griffins erected a fence in 1998 on the actual property line to prevent James from encroaching on the Griffins’ property. The parties do not dispute that James was in possession of the disputed property until the Griffins erected the fence in 1998. Thus, James was possessed of the property at issue within twenty years before beginning quiet title action. Accordingly, in my opinion, James’s action is not barred by the statute of limitations provided in N.D.C.C. § 28-01-04.

[¶ 23] I would reverse and remand for the trial court to determine whether twenty years of acquiescence had in fact occurred prior to the City’s brief ownership in 1979.

[¶ 24] MARY MUEHLEN MARING, J, concurs.

      . Iowa Code § 650.14 (2000) provides:
      If it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.


author: SACKETT, C.J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Nicolas Adam LESSNER, Defendant-Appellant.
    No. 00-392.
    Court of Appeals of Iowa.
    March 14, 2001.
    Steven E. Ort of Bell, Ort & Cornell, P.C., New London, for appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Michael A. Riepe, County Attorney, for appellee.
    Considered by SACKETT, C.J., and ZIMMER and MILLER, JJ.
   SACKETT, C.J.

The question raised in this appeal is whether the district court retains jurisdiction to conduct a hearing on restitution defendant allegedly owed a crime victim while the defendant’s appeal of the criminal case is pending. We determine under the facts of this case the district court erred in finding it was without jurisdiction to hold a hearing on restitution while the criminal appeal was pending. We reverse and remand to the district court.

Defendant-Appellant Nicolas Lessner pled guilty to assault with intent to commit sexual abuse, in violation of Iowa Code section 709 .11 (1997). On April 26, 1999, he was sentenced to a term of imprisonment not to exceed two years and ordered to pay restitution to the victim and her father of $730.48. The judgment entry also provided, “Inasmuch as counseling is ongoing, a supplemental order may be necessary for future expenses.”

Lessner appealed challenging the validity of his guilty plea on a number of grounds but made no challenges to the ordered restitution. We affirmed his conviction. State v. Lessner, No. 99-0979, 2000 WL 504654 (Iowa Ct.App. Apr.28, 2000).

In January 2000, while Lessner’s appeal was pending, the State filed what it captioned “Amended Statement of Pecuniary Loss.” The statement alleged that the victim now sought $3,194.78 in restitution and asked for restitution for three items. The amounts itemized were $915.80 for St. Luke’s Hospital and $1,575.50 for a community mental health center. Additionally, the statement included $703.48 for an unidentified expense owed to the victim. The statement further noted that counseling services were ongoing and a supplemental order might be necessary.

In response to the amended statement Lessner filed what was captioned “Application for Hearing on Matters Related to Restitution.” He challenged the initial amount of restitution in the sentencing order and also challenged the itemized amounts in the amended request. On February 1, 2000, the district court determined it did not have jurisdiction to entertain the application because defendant’s criminal case was on appeal.

Lessner filed this appeal from the February 1, 2000, ruling, claiming the district court erroneously concluded it did not have jurisdiction to consider his application for a hearing on the matters relating to restitution.

Our review of a restitution order is for correction of errors at law. Teggatz v. Ringleb, 610 N.W.2d 527, 529 (Iowa 2000); State v. Watts, 587 N.W.2d 750, 751 (Iowa 1998). Restitution shall be ordered in all criminal cases in which the defendant pleads guilty or is found guilty. See Iowa Code § 910.2; Watts, 587 N.W.2d at 751.

The State contends that the district court did not have jurisdiction after the criminal case was appealed to consider the amount of restitution ordered at sentencing. The State correctly concedes, however, that the district court did have jurisdiction after the appeal was filed to consider supplemental restitution.

The time allowed for challenging restitution is addressed in Iowa Code section 910.7, which provides:

At any time during the period of probation, parole, or incarceration, the offender or the office or individual who prepared the offender’s restitution plan may petition the court on any matter related to the plan of restitution or restitution plan of payment and the court shall grant a hearing if on the face of the petition it appears that a hearing is warranted.

Iowa Code § 910.7. This section provides a defendant the opportunity for a restitution hearing at any time during the pendency of the restitution plan. State v. Izzolena, 609 N.W.2d 541, 552 (Iowa 2000). The district court had jurisdiction to consider Lessner’s challenges to the amended request.

The next question is defendant’s challenge to the restitution in the sentencing order. The record is unclear whether the original restitution amount was included in the amendment. However, whether it was or not is not relevant to our resolution of the issue.

A defendant challenging a restitution order entered as part of the original sentence has two options, to file a petition in district court under section 910.7, or to file a direct appeal. State v. Janz, 358 N.W.2d 547, 549 (Iowa 1984). Defendant did not challenge the restitution on appeal. He challenges the original restitution pursuant to section 910.7.

To be considered as part of the criminal proceedings a defendant’s petition under section 910.7 must be filed within thirty days after entry of the challenged order. State v. Blank, 570 N.W.2d 924, 926 (Iowa 1997). Defendant’s application was filed in January 2000, more than thirty days after the judgment entry in his criminal case was filed in April 1999. Therefore, the application should not have been considered part of the criminal proceedings. When a later action is initiated under section 910.7, the suit is civil in nature. See State v. Alspach, 554 N.W.2d 882, 884 (Iowa 1996).

It is the general rule that the trial court loses jurisdiction over the merits of a controversy once an appeal is perfected. Shedlock v. Iowa Dist. Court, 534 N.W.2d 656, 658 (Iowa 1995). An exception to the general rule, however, permits the trial court to retain jurisdiction over disputes between the parties, which are collateral to the subject matter of the appeal. Kirk v. Iowa Dist. Court, 508 N.W.2d 105, 108 (Iowa Ct.App.1993). See also Shedlock, 534 N.W.2d at 658 (contempt proceedings were collateral); Schettler v. Iowa Dist. Court, 509 N.W.2d 459, 463 (Iowa 1993) (sanctions found collateral); Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990) (attorney fees found collateral); Universal Coops., Inc. v. Tasco, Inc., 300 N.W.2d 139, 142 (Iowa 1981) (alternative method of service was collateral).

Defendant’s application was a separate civil proceeding, pursuant to section 910.7. The restitution issue was collateral to the subject matter of defendant’s direct appeal in the criminal action. The district court had jurisdiction to consider defendant’s application to reconsider the order of restitution in the judgment entry.

The district court should have scheduled a hearing and entertained defendant’s January 28, 2000, application for a hearing on restitution. We reverse and remand.

REVERSED AND REMANDED.

      . The amount shown only as payable to the victim in the amendment is $703.48 while the amount in the sentencing order was $730.48.


author: VOGEL, J.

text:
    STATE of Iowa, Appellee, v. Monte Ray MANSER, Appellant.
    No. 00-0565.
    Court of Appeals of Iowa.
    March 28, 2001.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, Kevin Parker, County Attorney, and Jane Orlanes, Assistant County Attorney, for appellee.
    Heard by HUITINK, P.J., and VOGEL and MAHAN, JJ.
   VOGEL, J.

Monte Ray Manser appeals the judgment and sentence entered upon his guilty plea to assault with injury in violation of Iowa Code sections 708.1 and 708.2(2). Manser contends that the district court exceeded its statutory authority when it imposed completion of a batterer’s education program as a term of sentence. Because we find the Iowa Code did not authorize the imposition of such sentencing term, we vacate the sentencing order of the district court and remand for resen-tencing.

Background Facts. As a result of Man-ser’s assault on Kelly Kohrs while she was holding her minor son, the State charged Manser with harassment, criminal mischief, child endangerment and assault with injury, and a harassment no contact order was issued. Pursuant to an agreement with the State, Manser stipulated to contempt for a violation of the no contact order and entered guilty pleas to assault with injury, and child endangerment. When the court imposed sentence on the assault with injury count, in addition to ordering a fine, surcharge and jail time, and specifying the date the no contact order would expire, it directed the defendant to complete a batterer’s education program. The Court did not order any form of probation. Manser contends that, as he was neither charged with nor pled guilty to a domestic abuse assault, imposition of the batterer’s education requirement constituted an illegal sentence.

Scope of Review. Our review is for correction of errors at law. Iowa R.App.P. 4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). A sentence must comply with all applicable statutes. If a sentence is not authorized by statute, it is void. State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994). A sentence imposed in accordance with applicable statutes will be overturned only for an abuse of discretion or a defect in the sentencing procedure, such as consideration of impermissible factors. State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983).

In determining an appropriate sentence a court may look to the facts and circumstances surrounding the crime. See State v. LeGrand, 501 N.W.2d 59, 63-64 (Iowa Ct.App.1993). A sentencing court may consider or rely on unprosecuted charges if they are admitted by the defendant or otherwise proven. State v. Black, 324 N.W.2d 313, 315 (Iowa 1982). A court may even look to facts underlying an acquitted offense so long as those facts were sufficiently established by the record and were significant to the sentencing issue. See State v. Longo, 608 N.W.2d 471, 474-75 (Iowa 2000). The relevant inquiry is whether the record before the sentencing court contains a reasonable basis for imposing the term in question. See State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998).

Batterer’s Treatment Program. A person convicted of a first or second offense or receiving a deferred judgment for domestic abuse assault must participate in a batterer’s treatment program. Iowa Code §§ 708.2A and 708.2B (1999). Although this type of treatment program was initially developed for domestic abuse offenders, nothing in the authorizing provisions limits its application to this group of defendants. Id. Accordingly, it would be available as a term of sentence for a non-domestic assault so long as its imposition was both-reasonable and otherwise authorized by statute.

The record before the district court, while admittedly scant, does indicate that imposition of a batterer’s treatment requirement was reasonable in light of the relationship between the parties. During sentencing the prosecutor stated the deposition of Kohrs revealed facts supportive of a charge of domestic abuse assault with injury, specifically referencing statements regarding Kohrs’ relationship with Manser and whether the two were living together at the time of the assault. Defense counsel disputed the prosecutor’s interpretation of the deposition testimony, and offered Kohrs’ deposition for the court’s review. When the court did not respond to this offer, defense counsel did not press the matter. Defense counsel did proceed to note facts revealed during the deposition that would support an inference of cohabitation at the time of the assault.

The court then stated my inclination is to believe that the batterer’s education program cannot hurt this guy and may well help with ... this kind of charge, and I’m included [sic] to lean toward the State.... The decision to impose a batterer’s education requirement finds support in the minutes of testimony and the police report, which indicate the assault occurred because Manser was enraged over an alleged affair between Kohrs and someone named Jason. The existence of the no contact order under Iowa Code section 708.7 is further evidence of the volatile nature of the relationship between Kohrs and Manser.

All the foregoing discloses that Manser committed assault upon an intimate, and perhaps domestic, partner. A batterer’s treatment program is aimed at educating and assisting someone in that very position. Given that sentencing courts should seek to rehabilitate defendants and protect the community from any further offenses, Iowa Code § 901.5 (1999), ordering Manser to attend and complete the program would have been a reasonable term of sentence, but only so long as imposition was statutorily authorized. Such authorization would have existed if Manser had been placed on probation, as a sentencing court may impose any reasonable probation condition to promote rehabilitation or community protection. Iowa Code § 907.6 (1999). As Manser was not placed on probation, the Iowa Code must contain some other specific grant of authority for requiring his attendance at the program.

Manser was sentenced for the crime of assault with injury, which is classified as a serious misdemeanor. Iowa Code § 708.2(2) (1999). Since Chapter 708 does not define any specific or particular sentence for this offense, the district court must be guided by general sentencing provisions. Under Chapter 903 the maximum sentence that can be imposed for a serious misdemeanor offense is a fine of at least two hundred fifty dollars but not to exceed one thousand five hundred dollars. In addition, the court may also order imprisonment not to exceed one year. Iowa Code § 903.1(b) (1999). Further sentencing options are found in section 901.5, which governs the court’s authority to grant a deferred judgment, suspend a sentence, impose fines and terms of incarceration, place a defendant on probation, order completion of substance abuse treatment, order revocation of operating privileges by the department of transportation, reconsider an imposed sentence, and deny certain benefits. Iowa Code § 901.5 (1999).

Neither these provisions, nor the other general-application sentencing provisions, sanction imposition of a batterer’s education or treatment program as a term of sentence. Cf. Iowa Code §§ 901.4A & 901.5(8) (1999) (authorizing, when appropriate, an order for a substance abuse evaluation and the completion of indicated treatment). As the Iowa Code does not contain a provision authorizing the imposition of a batterer’s treatment program under the facts in this case, the sentencing term was outside of the statutory limits, and the sentence is void. We therefore vacate the sentence and remand for resen-tencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . The Information charged Manser with harassment, first degree in violation of Iowa Code §§ 708.7(l)(b) and 708.7(2) (1999), criminal mischief in the fourth degree in violation of Iowa Code §§ 716.1 and 716.6 (1999), child endangerment in violation of Iowa Code § 726.6(3) (1999), and assault with injury in violation of Iowa Code §§ 708.1 and 708.2(2) (1999).

      . We note that the district court's judgment entry on the contempt finding is filed under a simple misdemeanor criminal case name, and references a violation of Iowa Code § 236.8. Violation of a harassment no contact order is not regulated by Chapter 236, but is governed by Iowa Code § 708.12. That section clearly ' states any violation of such a no contact order is punishable by a summaxy contempt proceeding, which is quasi-criminal in nature. See Iowa Code § 708.12(4) (1999). However, no objection was lodged in regard to these inconsistencies and error was not raised on appeal.

      .In addition to the dismissal of the harassment and criminal mischief counts, the plea agreement included imposition of a batterer's education program as a condition of Manser’s sentence. At the plea proceeding Manser consented to the plea bargain but reserved his right to object to the court’s ability to impose this requirement. The court accepted the plea bargain subject to that condition.

      . The judgment entry stated that the no contact order would expire on March 24, 2005, even though the harassment count -was dismissed. See Iowa Code § 708.12(3) (1999).

      . See, e.g., Iowa Code § 910.2 (1999) (governing restitution and community service); Iowa Code §§ 911.1-.2 (1999) (governing surcharges); Iowa Code § 915.100(2)(a) (1999) (governing victim restitution).


author: . BLATZ, Chief Justice.

text:
    Sheung KWONG, Petitioner, Appellant, v. DEPOSITORS INSURANCE COMPANY, Respondent.
    No. C5-00-242.
    Supreme Court of Minnesota.
    May 24, 2001.
    Paul Frederick McEllistrem, Minneapolis, for appellant.
    Timothy Paul Jung, Minneapolis, for respondent.
   OPINION

. BLATZ, Chief Justice.

Appellant Sheung Kwong seeks review of a court of appeals decision answering a certified question from the Hennepin County District Court. The certified question arose from Kwong’s suit against his insurer, respondent Depositors Insurance Company, following Depositors’ denial of Kwong’s claim for uninsured motorists benefits. The court of appeals was asked to decide whether a clause in Kwong’s automobile insurance policy, providing that Depositors will not be bound by any judgment for damages arising out of a suit between an insured and an uninsured motorist, is enforceable against Kwong where neither the uninsured motorists nor Depositors participated in the underlying suit. The court of appeals concluded that the clause was enforceable and thus Depositors was not required, as a matter of law, to pay Kwong uninsured motorist (UM) benefits based on the default judgment Kwong obtained against the at-fault uninsured motorists in his automobile accident. We reverse, answering the certified question from the district court in the negative and holding that the clause relied on by Depositors to deny payment of UM benefits to Kwong violates the public policy behind the No-Fault Act and is therefore unenforceable.

Kwong was injured in an automobile accident involving three vehicles. An uninsured automobile struck Kwong’s automobile as the uninsured automobile veered to avoid hitting a van that had failed to yield the right-of-way. The van was insured. By letter, Kwong notified Depositors of a potential UM claim. In response, Depositors wrote a letter to Kwong stating that it did not anticipate exposure to a UM claim because the driver of the insured van was primarily at fault.

Kwong filed suit in Hennepin County District Court against the driver of the insured van and its owner (insured motorists) and later added claims against the driver of the uninsured automobile and its owner (uninsured motorists). Kwong then notified Depositors that he had commenced a lawsuit against the uninsured motorists. The uninsured motorists did not answer the complaint, and Depositors did not intervene.

Kwong and the insured motorists conducted discovery, including depositions of all drivers involved. Upon completion of discovery, the district court ordered the parties to attend nonbinding arbitration. Prior to arbitration, Kwong settled with the insured motorists for $6,500 on a Pier-ringer release. The action continued to arbitration against the uninsured motorists, who were not present at the hearing. Following the arbitration hearing, the arbitrator awarded Kwong $30,000 in damages, plus costs. Based on this award, the district court entered a default judgment of $30,653.58 against the uninsured motorists.

Kwong forwarded a copy of the default judgment to Depositors, requesting payment of UM benefits. Depositors denied payment, relying on the following clause in its insurance policy:

Any judgment for damages arising out of a suit between an “insured” and an uninsured or underinsured motorist is not binding on us.

Kwong then commenced this suit against Depositors, claiming that Depositors’ refusal to pay was a breach of the insurance contract and that the clause violated the express language of the No Fault Act requiring payment of UM benefits for damages the insured is legally entitled to recover from an uninsured motorist. See Minn.Stat. § 65B.43, subd. 18 (2000). In addition, Kwong claimed that the clause violated the public policy underlying the No-Fault Act. In its answer, Depositors denied that the uninsured driver was at fault in the accident and denied that any judgment for damages arising out of a suit between Kwong and the uninsured motorists was binding on Depositors.

Kwong moved the district court for summary judgment, arguing that based on his judgment against the uninsured motorists Depositors was obligated to pay his UM claim as a matter of law. The district court denied Kwong’s motion for summary judgment and granted Depositor’s motion to compel certain discovery responses. Nonetheless, the district court granted Kwong’s subsequent motion to certify the following question to the court of appeals pursuant to Minn. R. Civ.App. P. 103.03(f):

Is a consent to sue clause in a contract for uninsured benefits which provides that “any judgment for damages arising out [of] a suit between an ‘insured’ and an uninsured or underinsured motorist is not binding on us” enforceable against the insured such that the insured cannot collect uninsured motorist coverage based upon a judgment rendered in a lawsuit in which neither the uninsured motorists nor the uninsured insurer participated?

The court of appeals answered in the affirmative and affirmed the district court’s denial of summary judgment. Kwong v. Depositors Ins. Co., 612 N.W.2d 184, 187-88 (Minn.App.2000). In this appeal, Kwong requests that we reverse the court of appeals and hold that the judgments-not-binding clause is not enforceable to bar his recovery because it contravenes the No-Fault Act and our precedent.

This appeal involves a certified question arising from a denial of summary judgment. As such, this court will review the record to determine whether any genuine issues of material fact exist and whether the law was correctly applied. Employers Mut. Cos. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998). No relevant fact questions are disputed here, and the question of whether an insurance contract provision is valid and enforceable is a question of law that we review de novo. Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998). We have recognized that so long as an insurance contract does not omit statutorily mandated coverage or otherwise contravene the applicable statutes, the contract governs the insurer’s liability. Am. Nat’l. Prop. & Cas. Co. v. Loren, 597 N.W.2d 291, 292 (Minn.1999). However, policy terms that conflict with the No-Fault Act will be held invalid. Malmin v. Minn. Mut. Fire & Cas. Co., 552 N.W.2d 723, 725 (Minn.1996).

The No-Fault Act requires that all insurance plans in the state provide a statutorily prescribed minimum of UM coverage, -which is defined as “coverage for the protection of persons insured under that coverage who are legally entitled to recover damages for bodily injury from owners or operators of uninsured motor vehicles ⅜ ⅜ *_» Minn.Stat. § 65B.43, subd. 18 (2000) (emphasis added). Essentially, the UM insurer must pay its insured the amount in damages that the uninsured motorist is legally obligated to pay, up to the limits of the UM coverage in the insurance contract. Depositors’ contract of insurance with Kwong provided for $50,000 of UM coverage. The issue here is whether the judgments-not-binding clause so conflicts with the statutory obligation to pay UM benefits that it is invalid and unenforceable.

Depositors' defends its judgments-not-binding clause on the basis that it does not deprive an insured of mandated UM benefits, but merely sets forth a procedure— consistent with the No-Fault Act — to be followed for establishing the uninsured motorist’s liability and damages. Kwong responds that the clause creates an unnecessary barrier to recovery of mandatory UM benefits and allows Depositors to dictate the method of processing a UM claim in a way that can require insureds to bring multiple lawsuits. Kwong argues that such forced duplicative litigation violates the principles of the No-Fault Act and will result in prejudice, wasted resources, and an unfair risk of inconsistent judgments.

We addressed the tension between insurance contract provisions that force duplication of litigation and the policy underlying the No-Fault Act in Malmin v. Minnesota Mutual Fire & Casualty Co., 552 N.W.2d at 727-28. In Malmin, the insured obtained a judgment against an underinsured motorist (UIM) and then sought UIM benefits from his insurer. Id. at 724. The insurer denied coverage because the insured had not complied with provisions in the insurance policy that required notice to the insurer of a potential UIM claim and the insurer’s written consent to sue the tortfeasor. Id. The district court denied the insured’s motion for summary judgment, concluding that the insurer was not bound by the insured’s judgment against the underinsured motorist because the insured had failed to comply with the notice and consent provisions of the insurance contract. Id. at 725. This result would have forced the insured to relitigate his underlying personal injury action — this time against his own insurer — in order to obtain statutorily mandated UIM benefits. However, the district court certified the consent to sue issue to the court of appeals. The court of appeals held the consent to sue clause void and unenforceable under the No-Fault Act. Malmin, 552 N.W.2d at 725. We agreed, reasoning that “forcing the insured to re-litigate his or her claim against a tortfea-sor simply because the insured neglected to obtain written consent from the insurer violates the public policy behind our No-Fault Act and erects unnecessary barriers to the insured’s recovery of UIM benefits.” Malmin, 552 N.W.2d at 728.

Depositors contends, and the court of appeals agreed, that the rationale of Mal-min does not apply here because this case involves UM benefits, and unlike UIM cases, there is no forced duplication of litigation in UM cases. In UIM cases, the tortfeasor is not considered an underin-sured motorist unless liability and damages in excess of the tortfeasor’s liability coverage are established. This generally requires the injured insured to first sue the underinsured motorist. See Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855, 857 (Minn.1993) (holding that recovery from the tortfeasor’s insurer is a condition precedent to a claim for UIM benefits). In contrast, an insured can establish entitlement to UM benefits just by suing his insurer, without making a claim directly against the uninsured motorist. Id. at 857-58 n. 4. Duplicate litigation is therefore unnecessary, according to Depositors. Kwong opted to sue only the uninsured motorists and thus, Depositors contends, the necessity of multiple lawsuits results from Kwong’s decision rather than from the legal requirement for recovery that existed in Malmin.

We recognize that there are differences between UM and UIM coverages, but despite these differences, the policy concerns addressed in Malmin apply here. In Mal-min, we noted that “the majority of state courts considering this issue have refused to enforce consent to sue clauses against insureds with otherwise valid claims for UIM benefits.” 552 N.W.2d at 727. Several of the cases we relied on applied the same reasoning to bar such clauses in cases involving UM insurance. Id. at 727-28. We conclude that regardless of whether applied to a UM or a UIM claim, consent to sue clauses are contrary to public policy because they present arbitrary barriers to the recovery of statutorily mandated benefits.

In the instant case, the judgments-not-binding clause erects a barrier to the insured’s recovery of UM benefits that contradicts recognized No-Fault Act principles of providing prompt payment of benefits to injured parties and easing the burden of litigation. See Minn.Stat. § 65B.42 (2000). Kwong notified Depositors of the potential UM claim, sued the insured and uninsured motorists, notified Depositors of the commencement of litigation, obtained a valid default judgment against the uninsured motorists, and presented it to Depositors for payment. In barring the conclusiveness of this valid judgment as against Depositors, the judgments-not-binding clause delays the payment of UM benefits and forces Kwong to relitigate issues that have already been established in the underlying litigation, contrary to the purposes of the No-Fault Act.

Notwithstanding the conflict between the clause and the No-Fault Act, we recognize, as we did in Malmin, that the insurer has some legitimate concerns about protecting its interests. Those interests can be adequately safeguarded by requiring that the insurer “receive notice of, and an opportunity to participate in, the insured’s personal injury claim * * *.” Malmin, 552 N.W.2d at 728. Here, it is undisputed that Depositors received notice and an opportunity to intervene in the lawsuit against the uninsured motorists. Depositors elected not to participate. Because the judgments-not-binding clause violates the policy underlying the No-Fault Act, and Depositors had the opportunity to protect its interests, we hold that the judgments-not-binding clause cannot be enforced to prevent Kwong’s recovery of UM benefits based on his judgment against the uninsured motorists.

Contrary to the court of appeals’ conclusion, State Farm Mutual Automobile Insurance Co. v. Galloway, 373 N.W.2d 301 (Minn.1985), does not require a different result. In Galloway, this court was presented with a “consent to settlement” clause that denied UM benefits to an insured who had settled with the insured tortfeasors without her insurer’s consent. Id. at 303. The trial court held, and the court of appeals agreed, that the consent to settlement clause violated the No-Fault Act and could not be enforced to deny Galloway’s recovery of UM benefits. Galloway, 373 N.W.2d at 303-04. In contrast, the insurer defended the clause as a valid means of protecting its subrogation rights. Id. We held that the clause was invalid because the UM carrier’s “inchoate subro-gation right must yield to the [insured’s] right to control [the] personal injury action ⅛ * *.» af gQg_ yye ⅛61.6⅛]»6 concluded that the insured may settle with the insured tortfeasor without the insurer’s consent and still seek UM benefits. Id. Despite the factual and procedural differences between Galloway and this case, our opinion in Galloway and our holding here both reflect our general concern that insureds be allowed to maintain control over their own claims within the statutory framework of the No-Fault Act.

Depositors’ argument is not based, however, on this holding. Instead, Depositors argues that our focus should be on other language in Galloway that recognized the validity of a consent to settlement clause as applied to the UM claimant’s settlement with an uninsured motorist. This language was fueled by our concern that the UM insurer not be subject to an unfair disadvantage by the insured’s independent settlement with the uninsured motorists. Galloway, 373 N.W.2d at 306-07. That concern is not present, however, in the circumstances we face here. This case involves a judgment against the uninsured motorist, not a settlement, and thus the subrogation rights of the insurer are not at risk. Furthermore, providing Depositors with notice and the opportunity to intervene satisfies any general concern we expressed in Galloway for ensuring that the insurer’s interests are adequately protected.

Finally, we disagree with the court of appeals’ reliance .on dicta in Galloway for its conclusion that Kwong was required to proceed in one of three specified ways to recover claims against both an insured and uninsured tortfeasor and failed to do so. While we stated that “[i]n deciding how best to proceed with her personal injury lawsuit and her uninsured motorist arbitration claim, [the insured] had several alternatives,” id. at 304, the subsequent recitation of three alternatives was not intended to be an exclusive list of the avenues to recovery. Thus, Galloway does not foreclose Kwong from proceeding as he did to recover UM benefits.

Accordingly, in recognition of the policy underlying the No Fault Act, we hold that a judgments-not-binding clause will not be enforced to allow a UM insurer to avoid payment of damages established by a valid judgment against uninsured motorists where the UM insurer has received notice of and an opportunity to intervene in the suit against the uninsured motorists. This matter is remanded so that the district court may proceed in accordance with this decision.

Reversed and remanded; certified question answered in the negative.

      . In this letter, Depositors noted that under joint and several liability the insured motorists need only be shown to be 15% responsible for the accident in order to be held responsible for 100% of the damages. Because Depositors believed that no reasonable jury would find the insured motorists less than 50% liable. Depositors stated that it did not anticipate exposure to a UM claim.

      . Notice of the arbitration hearing was sent only to the attorneys for Kwong and the insured motorists. Because the uninsured motorists had defaulted, they were not served with notice. See Minn. R. Civ. P. 5.01.

        .See Pierringer v. Roger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). We have long accepted the use of Pierringer releases, in which the injured party settles his claims with some of the defendants, releasing those defendants from further liability and participation in the litigation against the nonsettling defendants. Frey v. Snelgrove, 269 N.W.2d 918, 921 (Minn.1978). Although the negligence of the settling defendants may be presented as evidence in the ongoing litigation, the exposure of the settling defendants is fixed by the Pierringer release regardless of subsequent determinations of fault. Id. at 922.

      . Rule 103.03(i) allows an appeal from an order that denies a motion for summary judgment "if the trial court certifies that the question presented is important and doubtful."

      5. Although the district court characterized this policy provision as a "consent to sue” clause, the provision does not include consent to sue language. Instead, the clause provides that Depositors will not be bound by any judgment for damages resulting from a suit between an insured and an uninsured or un-derinsured motorist. For convenience, we will refer to this provision as the "judgments-not-binding” clause. Because the insurer will not have to honor any judgment the insured obtains against an uninsured motorist, this clause, in practical effect, requires the insured to bring a direct action against the insurer in order to recover UM benefits, but does not expressly instruct the insured to do so. Although the effect of the judgments-not-binding clause is broader than that of a consent to sue clause, the parties rely primarily on consent to sue cases to support their respective positions and we agree that the consent to sue analysis provides a useful framework within which to decide this case.

      . Notably, the clause at issue here purports to deny the conclusiveness of any judgment in a suit between the insured and either an uninsured or an underinsured motorist. Depositors conceded at oral argument that Malmin precludes enforcement of Depositors' judgments-not-binding clause in a UIM context.

      . We reject Depositors' argument that requiring the UM insurer to intervene in the insured's lawsuit against the uninsured tort-feasor would be impracticable. Depositors contends that intervention is not an adequate solution because it would create "a wave of pro se litigants” that would become an “unpredictable factor” in the litigation. Adopting this argument, the district court noted that by intervening in the suit against the uninsured motorist, the insurer would be placed in the “untenable position” of having adverse interests to both the insured and the uninsured motorists. Depositors, however, does not adequately explain how the situation will be different if the judgments-not-binding clause is enforceable, given that the uninsured motorist might still be named as a defendant in a lawsuit brought directly against the insurer. This involvement of the uninsured motorist would foster the same concerns that Depositors raises in its arguments opposing intervention.


author: PAUL H. ANDERSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Daniel Glen MYERS, Petitioner, Appellant.
    No. C7-00-1134.
    Supreme Court of Minnesota.
    June 7, 2001.

      John Stuart, Public Defender, Susan K. Maki, Asst. Public Defender, Minneapolis, for appellant.
    Mike Hatch, Atty. Gen., Susan Gaertner, Ramsey County Atty., Darrell C. Hill, Asst. Ramsey County Atty., St. Paul, for respondent.
   OPINION

PAUL H. ANDERSON, Justice.

Appellant Daniel Glen Myers asks us to determine whether the district court abused its discretion when it sentenced him to a consecutive sentence. Myers pleaded guilty to one felony count of obstructing legal process under Minn.Stat. § 609.50, subds. 1(2) and 2(1) (2000), and one misdemeanor count of driving under the influence of alcohol. He also pleaded guilty to an unrelated felony theft count. On the obstructing legal process count, the Ramsey County District Court imposed a sentence of imprisonment for a term of 1 year and 1 day to be served consecutively to a federal bank robbery sentence. The court imposed the sentence consecutively because it found that the way in which Myers committed the crime of obstructing legal process constituted a “crime against a person” under Minnesota Sentencing Guidelines II.F.l. The Minnesota Court of Appeals affirmed, holding that the district court did not abuse its discretion in imposing a consecutive sentence because when Myers obstructed the legal process, his actions posed a special risk to human life. We affirm.

On April 14, 1999, at approximately 2:30 p.m., a dispatcher informed a Minnesota State Trooper, who was on routine patrol in Ramsey County, that a 911 cellular telephone caller was following a vehicle being driven by someone who the caller thought might be intoxicated. The officer located the vehicle and was able to position his squad car behind the vehicle as it was moving westbound on Interstate 694. The officer observed the vehicle swerve back and forth onto the shoulder, and at the intersection of Interstate 694 and Silver Lake Road in New Brighton, the officer activated his squad car’s emergency lights and proceeded to stop the vehicle. Before coming to a complete stop, the vehicle sideswiped the guardrail.

When the officer got out of his car and approached the vehicle, he observed that the driver was a male who later identified himself as appellant Daniel Glen Myers. The officer detected an alcohol odor emanating from Myers, so he had Myers sit in his squad car. When questioned, Myers stated that he had consumed two beers and that a leg injury prevented him from performing a field sobriety test. The officer then administered a preliminary breath test. The test results indicated a blood-alcohol level of above .10. Myers was then arrested for driving under the influence, and the officer informed Myers that he would be taken to the Mounds View Police Department where an intoxi-lyzer test would be administered.

As the officer drove Myers to the police department, Myers indicated that he needed to speak to the officer, so the officer opened the window in the plexiglass divider separating the front and back seats of his squad car. As the officer approached the intersection of Highway 10 and County Road I in Mounds View, Myers — without warning — lunged forward, forcing his head, arms, and chest through the opened window into the front seat. Myers then grabbed the officer’s handgun with both hands. The officer managed to stop his squad car in the left lane of Highway 10 and to place the shift lever in park. The officer then struggled with Myers who continued to attempt to remove the officer’s handgun from its holster. The officer later testified that during the ensuing struggle, he feared for his life, but his focus was to ensure that his handgun remained in his holster. At one point, Myers made a frantic grab for the steering wheel and the shift lever of the squad car. As the struggle continued, the officer radioed for help from other police officers. He then unfastened his seatbelt and got out of the squad car.

When the officer got out of the squad car, Myers was through the plexiglass window up to his waist. The officer then drew his gun and ordered Myers to get into the back seat. Myers then yelled, “shoot me, just shoot me, shoot me in the head! I can’t go to jail!” Myers made no attempt to return to the back seat until other police officers arrived at the scene. During the struggle, the officer sustained a small cut on the right side of his face near his right eye, the strap used to retain his shoulder microphone was torn off, and his nametag was pulled loose. The officer was subsequently transported to Unity Hospital for treatment of his injury. Myers was not injured.

One of the assisting officers transported Myers to the Mounds View Police Department where the implied consent advisory was read to him. Myers spoke with an attorney and agreed to take a breath test. The test, which was administered within 2 hours of the time of driving, indicated that Myers had a blood-alcohol concentration of .16. Myers was subsequently charged by complaint with one count of obstructing legal process in violation of Minn.Stat. § 609.50, subds. 1(2) and 2(1) (maximum sentence 5 years imprisonment or fine of $10,000, or both), and he was also charged with one count of driving under the influence of alcohol in violation of Minn.Stat. § 169.121, subds. 1(3) and 3(b) (1998) (maximum sentence 90 days imprisonment or $700 fine, or both).

On April 4, 2000, Myers pleaded guilty to both counts and an additional unrelated count of felony theft. One week later, Myers was sentenced on all three counts, but the only sentence at issue in this case is the sentence imposed for obstructing legal process. On the obstructing legal process count, the state urged the district court to impose a consecutive sentence under Minnesota Sentencing Guidelines II. F.l on the grounds that Myers committed a “crime against a person.” The court agreed and found that Myers committed a “crime against a person” when he lunged through the plexiglass window and attacked the officer. Consequently, the court imposed a 1 year and 1 day sentence to be served consecutively upon the discharge of Myers’ federal bank robbery sentence. In addition, Myers was fined $50 and ordered to pay restitution to the officer for the officer’s medical expenses.

Myers appealed to the court of appeals, challenging the district court’s decision to impose a consecutive sentence on the obstructing legal process count. The court of appeals affirmed in an unpublished decision, holding that the district court did not abuse its discretion in concluding that obstructing legal process was a crime against a person for which a consecutive sentence could be imposed. Myers appeals the decision of the court of appeals and argues that the district court erred when it imposed a consecutive sentence because obstructing legal process is not a “crime against a person.”

We review a sentence imposed by a district court under an abuse of discretion standard. State v. Ford, 539 N.W.2d 214, 229 (Minn.1995). While this standard recognizes the court’s broad discretion in sentencing, it is not a limitless grant of power. State v. Warren, 592 N.W.2d 440, 451 (Minn.1999). Nonetheless, we have consistently declined to interfere with a court’s discretion in sentencing unless the sentence imposed is disproportionate to the offense. State v. Hough, 585 N.W.2d 393, 397 (Minn.1998). Minnesota Sentencing Guidelines II.F.l permits a district court to impose a permissive consecutive sentence when “a prior felony sentence for a crime against a person has not expired or been discharged and one or more of the current felony convictions is for a crime against a person, ⅜ * We have not previously defined “crime against a person” as it is used in II.F.l when determining whether obstructing legal process is a crime against a person. Because this is a legal issue, we review it de novo. State v. Ronquist, 600 N.W.2d 444, 447 (Minn.1999).

Implicit in the district court’s sentencing of Myers to consecutive sentences is a finding that Myers’ prior felony was a crime against a person and that his sentence for this offense was not discharged at the time of sentencing for the obstructing legal process offense. The court then determined Myers’ obstructing legal process offense was a crime against a person and imposed a consecutive sentence. As noted earlier, we have never considered whether obstructing legal process can constitute a “crime against a person,” but we have determined that in certain circumstances, property crimes can be classified as crimes against a person for the purpose of imposing a consecutive sentence. State v. Notch, 446 N.W.2d 383, 385 (Minn.1989).

In Notch, we considered the use of permissive consecutive sentencing under Minnesota Sentencing Guidelines II.F.2 for two burglary offenses against the same victim. 446 N.W.2d at 384. An express prerequisite to reliance on II.F.2 as a basis for permissive consecutive sentencing is that the current conviction be for “crimes against different persons.” Id. at 385. Although burglary is generally considered a property crime rather than a crime against a person, we looked beyond the crime’s classification to the defendant’s underlying conduct to determine whether the crime, as committed, was a crime against a person. Id. at 385. We stated:

Just as the court is allowed to look at the underlying conduct to determine if the defendant committed an offense in a particularly serious way, the court ought to be allowed to look at the underlying conduct in determining whether a crime, as committed, was a crime against a person. * * ⅜ We therefore need not decide whether all burglaries with a dangerous weapon and all burglaries of occupied dwellings are crimes meriting treatment as crimes against the person under section II.F.

Notch, 446 N.W.2d at 385. We then concluded that because the defendant brandished a knife after he unlawfully gained access to the victim’s house, the burglary constituted a “crime against a person.” Id. at 384-85. However, because the crimes in Notch were against one person, we determined that the consecutive sentence was an unexplained departure from the guidelines, and we modified the sentences to run concurrently. Id. at 386. Likewise, obstructing legal process, while not classified or labeled as a crime against a person, may be a crime against a person if the defendant’s underlying conduct in committing the crime poses a special danger to human life. Id. at 385 (citing State v. Nunn, 297 N.W.2d 752, 754 (Minn.1980)). In the instant case, Myers attempted to overpower a police officer and take away his handgun while the officer was driving his vehicle to the police station. Myers and the officer struggled for control of the vehicle and the handgun, and during the struggle, the officer feared for his life and was injured. Because the way in which this crime was committed constituted a special danger to the officer’s life, we conclude that the district court did not err in determining that Myers committed a crime against a person when he obstructed legal process.

Although we have concluded that the district court did not err in determining that Myers committed a crime against a person, we also must determine whether the court abused its discretion in imposing a consecutive sentence. Ford, 539 N.W.2d at 229. As we have already stated, when an offense constitutes a “crime against a person,” Minnesota Sentencing Guidelines II.F.l permits a district court to impose a consecutive sentence “[w]hen a prior felony sentence for a crime against a person has not expired or been discharged and one or more of the current felony convictions is for a crime against a person, ⅜ * In the instant case, there is no dispute that at the time of sentencing, Myers’ sentence for his federal bank robbery felony had not yet expired. Furthermore, Myers did not dispute that his federal bank robbery felony conviction constituted a crime against a person. As a result, once the district court found that Myers committed a crime against a person when he obstructed legal process, the court was permitted to impose a consecutive sentence. Myers has asserted no additional grounds for why the court’s sentence was improper. Accordingly, we hold that the court did not abuse its discretion when it imposed a consecutive sentence under Minnesota Sentencing Guidelines II.F.l because the way in which the crime was committed constituted a crime against a person.

Affirmed.

      . The felon}' theft charge related to an incident that occurred on March 31, 1999 when Myers was apprehended for stealing tools from the Saint Paul Rice Street Sears store. In exchange for the three guilty pleas, the Washington County Attorney’s office dropped a complaint charging Myers with four counts of second-degree assault and one count of gross misdemeanor theft relating to an incident at the Mills Fleet Farm in Oakdale.

      . At the time of sentencing, Myers had an undischarged felony conviction for bank robbery with an offense date of March, 1, 1989 in Ventura, California.

      . The charged offense punishes one who “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties.” Minn.Stat. § 609.50, subd. 1(2). Only in the penalty provision does the statute contemplate action affecting a person by imposing different penalties if the action created a risk of or caused death or substantial bodily harm or was accompanied by force or violence or the threat thereof. Minn.Stat. § 609.50, subd. 2.