author: MINGE, Judge.

text:
    In the Matter of GLAXOSMITHKLINE PLC.
    No. A04-2150.
    Court of Appeals of Minnesota.
    April 18, 2006.

      Mike Hatch, Attorney General, Michael J. Vanselow, Deputy Attorney General, Paul B. Civello, Assistant Attorney General, St. Paul, MN, for appellant State of Minnesota.
    Michael A. Lindsay, Dorsey & Whitney LLP, Minneapolis, MN; and Sara D. Schotland (pro hac vice), Cleary Gottlieb Steen <& Hamilton, Washington, D.C., for respondent GlaxoSmithKline pic.
    William F. Mohrman, Mohrman & Kaar-dal, Minneapolis, MN, for amicus curiae Pharmaceutical Research and Manufacturers of America.
    Considered and decided by MINGE, Presiding Judge; TOUSSAINT, Chief Judge; and RANDALL, Judge.
   OPINION

MINGE, Judge.

Appellant challenges the district court’s denial of its motion disputing respondent’s claims of confidentiality as to certain documents produced by respondent pursuant to appellant’s civil investigatory demand. Because we find that the terms of a protective order and a confidentiality agreement provide appellant with the right to challenge such designations, because the documents are not protected from disclosure under Minn.Stat. § 13.39 (2004), and because First Amendment protections do not prevent disclosure of the documents, we reverse and remand.

FACTS

On May 30, 2003, appellant Minnesota Attorney General (the state) served a civil investigatory demand (CID) on respondent GlaxoSmithKline pic (GSK) pursuant to Minn.Stat. § 8.31, subd. 2(a) (2004). The CID alleged that GSK “has combined or conspired ... to refuse to supply prescription drugs to Canadian pharmacies engaged in the sale of GSK’s drugs to Minnesota purchasers,” in violation of the Minnesota Antitrust Law of 1971, Minn. Stat. §§ 325D.51, 325D.53, subds. 1(1), (3) (2002). The CID requested documents and information related to the sale of GSK drugs in Canada and the means used by GSK to monitor purchases by Minnesota consumers at Canadian pharmacies.

Before producing materials requested by the CID, GSK demanded that the parties enter into a confidentiality agreement (the agreement). According to the agreement, GSK had the right to initially designate documents as confidential, and the state could challenge such designation. Once the parties signed the agreement on August 4, 2003, GSK began producing documents. However, discovery disagreements arose, and in May 2004, the district court granted the state’s motion to compel GSK to comply with the CID. Subsequently, GSK designated some documents as privileged under the First Amendment. GSK offered to voluntarily produce 1,000 allegedly privileged documents if the state agreed to enter into a protective order. The parties negotiated a proposed order (the order), which the district court adopted on July 10, 2004. It largely mirrored the language of the agreement. Although GSK voluntarily produced numerous documents, certain others were in dispute. After an in camera review of 120 documents, the district court required GSK to produce only a small portion of the disputed documents.

In September 2004, the state moved the district court to declare that 44 documents stamped as “confidential” by GSK were not confidential. GSK opposed the motion, arguing that the documents were confidential under the agreement and the order, were nonpublic investigative data under the Minnesota Government Data Practices Act and contained communications protected by the First Amendment. After a hearing on the state’s motion, the state delivered to the district court a copy of the complaint in an antitrust action the state intended to file in Ramsey County District Court against GSK. The complaint refers to, quotes, and attaches many of the documents contested at the motion hearing. On October 13, 2004, the district court denied the state’s motion to declare that such documents were not confidential.

The state took two routes to appeal the October 13 order. First, the state filed a petition for discretionary review, which this court denied on December 7, 2004. Second, the state filed an appeal as of right, which this court dismissed for lack of appellate jurisdiction on December 21, 2004. _ The Minnesota Supreme Court granted further review of both orders. Meanwhile, the state finished its investigation of GSK and filed an antitrust complaint in Ramsey County District Court. On July 14, 2005, the supreme court reversed this court’s dismissal of the state’s appeal as of right and remanded. In re Glaxosmithkline plc, 699 N.W.2d 749 (Minn.2005). The state’s appeal now comes before this court on remand.

ISSUES

1. Do the agreement and the order permit the state to challenge GSK’s confidentiality designations?

2. Does the Minnesota Government Data Practices Act prohibit the state from disclosing the documents received from GSK?

3. Is there a First Amendment right that protects the confidentiality of the documents?

ANALYSIS

Because the factual basis of the confidentiality of any specific document is not before us, this appeal addresses legal, not factual, disputes. “A de novo standard of review is used to determine whether the district court erred in its application of the law.” Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn.1997); see also Wiegel v. City of St. Paul, 639 N.W.2d 378, 381 (Minn.2002) (reviewing statutory interpretation de novo).

I.

The first issue is whether the district court correctly interpreted the agreement and the order as precluding the state’s challenge to the GSK confidentiality designation. “There is a presumption in favor of a common-law right of access to civil court records.” State ex rel. Humphrey v. Philip Moms Inc., 606 N.W.2d 676, 686 (Minn.App.2000), review denied (Minn. Apr. 25, 2000). But in a complex case an umbrella protective order can serve an important purpose and facilitate discovery. Id. (noting that protective orders can be appropriate if “based on the producing party’s good-faith assertion that [documents] are confidential”). The terms of a contract (and a stipulated order) are given their plain and ordinary meaning. See Metro. Sports Facilities Comm’n. v. Gen. Mills, Inc., 470 N.W.2d 118, 128 (Minn.1991) (discerning the intent of the parties from the plain language of the agreement).

Here, the district court found that both the agreement and the order contained a commitment by the state to protect as confidential all information produced. The agreement and the order provide that GSK can designate as confidential any trade secret under MinmStat. § 13.37, subd. 1(b) (2002), or any document that could be the subject of a protective order under Minn. R. Civ. P. 26.03. However, the agreement and the order further state that if GSK designates a document as confidential, the state can object to such designation by giving GSK ten days’ notice, at which time GSK can file a motion to prevent disclosure.

GSK produced more than 1,000 allegedly privileged documents pursuant to the terms of the agreement and order. The state agreed to respect and preserve the confidentiality of all documents whose designation it did not challenge. As the Minnesota Supreme Court stated, “The district court’s conclusion that the state’s request was precluded by the Protective Order or the Confidentiality Agreement does not consider that both documents specifically authorized the state to object to GSK’s confidentiality designations and to seek district court review.” In re Glaxosmithkline plc, 699 N.W.2d at 755-56 n. 3. While this statement was not essential to the supreme court’s decision, we find it persuasive that its interpretation of the discovery agreements mirrors our own.

GSK argues in the alternative that the state implicitly waived the right to contest the confidentiality of the documents, notwithstanding the plain language of the agreement and the order. Generally, a party who cooperates with discovery because it has received assurances that information would be kept secret has a reliance interest that the court will protect.

Judicial estoppel prevents a party that has taken one position in litigating a particular set of facts from later reversing its position when it is to its advantage to do so. It is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories.

Bauer v. Blackduck Ambulance Ass’n, 614 N.W.2d 747, 749 (Minn.App.2000) (quotation omitted).

In Bauer, this court reasoned that when an employee held herself out as an employee by accepting workers’ compensation benefits, she could not later rescind her employee status to also sue in tort. Id. at 750. Bauer is distinguishable. Unlike the employee in that case, the state has not taken contrary positions in this case. The language of the agreement and the order simply states that the state will not disclose any documents unless it has reason to question the claim to confidentiality.

We conclude that the state is not es-topped from challenging the confidentiality designations made by GSK. The state made a discrete challenge to a select body of documents, as provided under the terms of both the agreement and the order. The district court erred as a matter of law by declaring that the state had no right to challenge the designation.

II.

The second issue is whether the district court properly interpreted the provisions of the Minnesota Government Data Practices Act (MGDPA), Minn.Stat. §§ 13.01-.90 (2004). The MGDPA is generally a law of access. It “establishes a presumption that government data are public and are accessible by the public.” Minn.Stat. § 13.01, subd. 3. Yet the MGDPA identifies certain types of nonpublic data. See Minn.Stat. § 13.39. The MGDPA “attempts to reconcile the rights of data subjects to protect personal information from indiscriminate disclosure with the right of the public to know what the government is doing. The act also attempts to balance those competing rights within a context of effective government operation.” Itasca County Bd. of Comm’rs v. Olson, 372 N.W.2d 804, 807 (Minn.App.1985) (quotation omitted). The statute is intended to benefit the government, protecting specific kinds of data until the government entity finishes its investigation and decides whether to file a civil action.

GSK argues that the MGDPA prohibits the release of active investigative data in pending civil actions. See Minn.Stat. § 13.39, subd. 3. At the outset, we note that this argument is difficult to press because courts have found that the legislature enacted section 13.39 “to prevent government agencies from being at a continual disadvantage in litigation by having to prematurely disclose their investigative work product to opposing parties or the public.” Star Tribune v. Minn. Twins P’ship, 659 N.W.2d 287, 298 (Minn.App.2003). However, we also recognize that this statement was made in the context of litigation by a newspaper to obtain data and is not determinative of claims by a party seeking to keep data from being disclosed.

A. Minn.Stat. § 13.39, subd. 2.

The MGDPA provides that “data collected by state agencies, political subdivisions, or statewide systems as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic data.” Minn.Stat. § 13.39, subd. 2. The MGDPA defines protected nonpublic data as information which by state or federal law is neither public nor “accessible to the subject of the data.” Minn.Stat. § 13.02, subd. 13. Under this definition, the documents produced by GSK cannot be classified as protected nonpublic data. This is because GSK provided the state with the documents; GSK, as the subject of the documents, obviously had access to them.

In addition to the accessibility basis for disclosure, the state points out that the law allows it (the state) to disclose protected nonpublic data if it (the state) determines that any of three factors is applicable. See Minn.Stat. § 13.39, subd. 2. The state argues that the district court erred by not recognizing the state’s discretion and in not considering the factors. See Minn.Stat. § 13.39, subd. 2. The factors are “aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest.” Id. The MGDPA plainly gives discretion to the governmental entity conducting the investigation to decide whether one of those factors justifies the disclosure. See id. We note that the state agency is the party that the legislature intended to protect from constant and untimely disclosure. See Wiegel, 639 N.W.2d at 383 n. 3; Star Tribune, 659 N.W.2d at 298.

We conclude the district court erred when it determined that the documents are “protected nonpublic data” under Minn.Stat. § 13.39, subd. 2, and when it determined that the state lacked the authority to make the documents public, if the conditions in subdivision 2 were met.

B. Minn.Stat. § 13.39, subd. 3.

The district court applied subdivision 3 to bar the state’s motion for disclosure. Among other provisions, that subdivision states that active civil investigative data which are nonpublic may become public if the data are “made part of a court record.” Minn.Stat. § 13.39, subd. 3. The state argued that by filing a summons and complaint and by referring to the documents at issue in and attaching them to the complaint, the documents became part of a court record and, therefore, public. See Minn.Stat. § 13.39, subd. 3. The district court disagreed.

This court must determine whether the documents constitute court records because they are exhibits to pleadings. “Generally, private documents generated during discovery that are not filed with the court are not considered ‘judicial records.’ ” Star Tribune, 659 N.W.2d at 296. The common-law presumption of access only extends to documents that have been filed with the court. Id. “Although the case law refers to a common law presumption that the public and media may inspect judicial records, generally that presumption extends only to documents which have been filed with the court such as pleadings and settlement agreements.” State ex rel. Mitsubishi Heavy Indus. Am., Inc. v. Cir. Ct., 233 Wis.2d 1, 11-12, 605 N.W.2d 868, 874 (Wis.2000) (citations omitted) (cited with approval in Star Tribune, 659 N.W.2d at 296). Documents that may otherwise be considered active civil-investigative data would lose their confidential status upon the filing of a contested case with the Office of Administrative Hearings. Westrom v. Minn. Dep’t of Labor & Indus., 686 N.W.2d 27, 36 (Minn.2004). We conclude that once the state filed its pleadings in this case, they become “court records” and that under section 13.39, subdivision 3, any active civil-investigative data that are part of the pleadings, including exhibits, became public.

III.

The final issue is whether the district court erred as a matter of law in finding that the First Amendment protected the documents in question from disclosure. Minn. R. Civ. P. 26.03 allows a party to move, with good cause, for a protective order. This First Amendment claim by GSK was brought under this rule.

A. Petitioning Activity

The right to petition one’s government is a protected right under the First Amendment. “It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors.” Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139, 81 S.Ct. 523, 530, 5 L.Ed.2d 464 (1961). This right extends equally to corporate citizens as it does to private citizens. Senart v. Mobay Chem. Corp., 597 F.Supp. 502, 506 (D.Minn.1984).

Here, GSK asserts that documents that were prepared as part of exercising its petitioning rights are privileged from disclosure by the First Amendment. GSK contends that the Noerr-Pennington doctrine establishes that concerted petitioning activity is not an antitrust violation. See United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669-70, 85 S.Ct. 1585, 1593, 14 L.Ed.2d 626 (1965); Noerr Motor Freight, 365 U.S. at 138-40, 81 S.Ct. at 530-31. GSK argues that this logic provides protection against unwanted disclosure of the documents in question. However, as the Minnesota Supreme Court already noted in this case, “the conclusion that there is a First Amendment privilege for ‘petitioning documents’ is not clearly recognized in case law.” In re Glaxosmithkline plc, 699 N.W.2d at 756 n. 3.

In the federal courts, this claim of protection against disclosure has been rejected. N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 666 F.2d 50, 53 (4th Cir.1981) (finding that “[t]here is no authority for fitting the Noerr-Pennington doctrine into the ‘privilege’ exception” under Fed.R.Civ.P. 26); see Associated Container Transp. (Austl.) Ltd. v. United States, 705 F.2d 53, 59 (2d Cir.1983) (holding that a company could not invoke Noerr-Pennington doctrine as a basis for withholding materials sought through a CID issued by the U.S. Department of Justice). Thus, Noerr-Pennington does not provide a discovery privilege. We conclude that it also does not prevent the disclosure of documents GSK supplied related to contacts with governmental entities absent a clear showing that the standard for protection of associational activity is met. The district court erred as a matter of law in finding that a petitioning privilege prevented disclosure of the documents.

B. Associational Activity

GSK also asserts that a privilege based on its First Amendment associational privacy rights protects the documents from disclosure. “Constitutional freedom of association protects the right of an individual to associate with others for the purpose of expressing and advancing ideas and beliefs.” Metro. Rehab. Servs., Inc. v. Westberg, 386 N.W.2d 698, 700 (Minn.1986). “One of those precious associational freedoms is the right of ‘like-minded persons to pool their resources in furtherance of common political goals.’ ” Minn. Fifth Cong. Dist. Indep.-Republican Party v. State ex rel. Spannaus, 295 N.W.2d 650, 652 (Minn.1980) (quoting Buckley v. Valeo, 424 U.S. 1, 22, 96 S.Ct. 612, 636, 46 L.Ed.2d 659 (1976)). Minnesota courts will fashion discovery relief, in the form of a protective order, to protect the freedom of association. See, e.g., Eilers v. Palmer, 575 F.Supp. 1259 (D.Minn.1984); Caucus Distribs., Inc. v. Comm’r of Commerce, 422 N.W.2d 264, 267-68 (Minn.App.1988), review denied (Minn. June 10, 1988); State v. Colonna, 371 N.W.2d 629 (Minn.App.1985).

The overarching purpose of the First Amendment is to protect the expression of ideas, not elevate privacy to handicap public expression. St. Cloud Newspapers, Inc. v. Dist. 712 Cmty. Schools, 332 N.W.2d 1, 7 (Minn.1983) (holding that the Open Meeting Law does not violate the rights of free speech or free assembly). The state argues that First Amendment protections do not extend as a shield to keep unlawful activity in the dark. “Freedom of association permits individuals to associate for lawful purposes and provides a right to join with others to pursue goals independently protected by the First Amendment.” United States v. Wilson, 154 F.3d 658, 665 (7th Cir.1998) (quotation omitted) (emphasis added). In addition, associating purely for financial gain does not come under the umbrella of First Amendment protection. Metro. Rehabilitation Seros., 386 N.W.2d at 700.

GSK asserts that disclosing the documents would have a chilling effect on its ability to freely associate. Associational privacy has been elevated over disclosure when there is a group that has been an object of harsh retaliation and disclosure is not just embarrassing, but threatening to the personal safety, if not very survival, of its members. See NAACP v. Ala., 357 U.S. 449, 462-63, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488 (1958). Resolution of such a claim of privacy requires that a court balance the right against the state’s interest in publicly prosecuting violations of its antitrust laws. See Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 205-06 (Minn.1986) (balancing interests and denying access to settlement documents to protect individual litigants from further intrusion into private matters). Clear and compelling circumstances must exist to shield associational privacy from disclosure.

There is no evidence on the record before us to substantiate the claim that the proposed public disclosure would interfere with the associational rights of GSK or subject GSK and the firms with which it may be associated to discrimination- or retaliation. The bald assertion that interference will occur is not adequate. We determine that the district court abused its discretion in prohibiting disclosure on this ground.

GSK also asserts that the documents are privileged to protect the privacy interests of third parties. A number of the documents that GSK produced to the state were created by PhRMA, for members of its association. However, for the same reasons this court declines to find such a privilege for GSK, we also decline to find one for PhRMA. The record is devoid of any evidentiary support for such a position.

The district court did not determine specifically which documents were protected under either the alleged petitioning or associational privileges. Neither party cites any authority for the proposition that documents and communications made under the auspices of, or as a result of, exercising a First Amendment right are confidential and protected from disclosure. The district court erred as a matter of law by creating a blanket privilege under the First Amendment.

DECISION

We conclude that the state had the right to challenge GSK’s confidentiality designations under the plain language of both the agreement and the order. Moreover, nothing in the Minnesota Government Data Practices Act precludes disclosure in this case of otherwise nonconfidential documents. Finally, the First Amendment does not prevent disclosure of the documents at issue. Accordingly, we reverse and remand for a determination of which documents may be released pursuant to the agreement and order, the only surviving basis for nondisclosure.

Reversed and remanded.

      . It does not appear that the notice/motion procedure was followed in this dispute. However, GSK has not raised this issue and, under the circumstances, it does not appear GSK was prejudiced by the state’s taking the initiative to file the motion.

      . We also note that application of the judicial-estoppel doctrine is not expressly recognized in Minnesota. See State v. Larson, 605 N.W.2d 706, 713 n. 11 (Minn.2000); Johnson v. Wright, 682 N.W.2d 671, 681 (Minn.App.2004).

      . In discussing this issue, we only consider whether the MGDPA protects government data from disclosure as presented in this case. We do not consider the relationship between the provisions of the MGDPA and other bases for confidentiality, including claims of trade secrets and confidentiality agreements.

      . The Fourteenth Amendment makes First Amendment protections applicable against the states. Bloom v. O’Brien, 841 F.Supp. 277, 279 (D.Minn.1993) (citing Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 880, 87 L.Ed. 1324 (1943), and Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 95 S.Ct. 1239, 1241, 43 L.Ed.2d 448 (1975)).

      . "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const, amend. I (emphasis added).

      . Pharmaceutical Research and Manufacturers of American (PhRMA) is an amicus curiae in this matter.


source: Caselaw Access Project

author: SHUMAKER, Judge.

license: Public Domain

text:
    Connie CROSSMAN, as Trustee for the Next of Kin of Richard Crossman, deceased, Respondent, v. Michael S. LOCKWOOD, et al., Appellants.
    No. A05-1372.
    Court of Appeals of Minnesota.
    April 18, 2006.

      Kelly A. Jeanetta, Miller O’Brien, Minneapolis, MN, for respondent.
    Timothy R. Murphy, Stephen M. Warner, O’Neill & Murphy, L.L.P., St. Paul, MN, for appellants.
    Considered and decided by SHUMAKER, Presiding Judge; HALBROOKS, Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

SHUMAKER, Judge.

In this wrongful-death action, the district court denied appellants’ summary-judgment motion premised on the contention that a verdict favorable to appellants in a prior subrogation action by respondent’s decedent’s insurer collaterally es-tops respondent from relitigating causal negligence in this lawsuit. The court certified as important and doubtful the question of whether respondent or respondent’s decedent was in privity with the insurer in the subrogation action so as to make collateral estoppel applicable. We answer the question in the negative.

FACTS

While Richard Crossman Sr. was driving his car, it collided with a dump truck that appellant Michael Lockwood was driving during the course of his employment by appellant Simonson Construction, Inc. Crossman was injured and his car was damaged.

Crossman collected collision-insurance proceeds from his automobile insurer, Auto-Owners Insurance Co., for the damage to his car. About a year after the accident, he died, and medical evidence relates the accident as a contributing cause of his death.

Without knowledge of Crossman’s death, and without his prior consent, Auto-Owners started a subrogation action against Lockwood and Simonson for the recovery of its collision-insurance payment to Cross-man and Crossman’s deductible amount of $500. Later, Auto-Owners voluntarily dismissed Crossman and his deductible claim from the subrogation lawsuit.

Before his death, Crossman retained a law firm to represent him in a possible claim against Lockwood and Simonson. After his death, his surviving spouse, Connie Crossman, was appointed trustee for the next-of-kin to prosecute a wrongful-death action against Lockwood and Simon-son, and the law firm retained an accident reconstructionist, Roger Burgmeier, for that lawsuit.

In the meantime, Auto-Owners’ subro-gation lawsuit was pending, and Connie Crossman’s attorneys sought to monitor it because the liability issue was the same as that in the wrongful-death case. Lockwood and Simonson’s attorneys opposed any formal or informal involvement of the Crossman lawyers in the subrogation action. Nevertheless, the Crossman lawyers were able to obtain some information about the matter from Auto-Owners’ counsel, attended and participated in the depositions of Connie Crossman and Richard Crossman Jr., provided Auto-Owners’ counsel with Burgmeier’s accident-reconstruction report, and attended the subro-gation trial as spectators. The Crossman lawyers were not permitted to participate in any other aspect of the subrogation case, and there is no evidence that they had any role in the litigation procedures or strategies in that case.

In the subrogation trial, Auto-Owners attempted to establish Lockwood’s negligence through cross-examination of Lockwood and Lockwood’s accident reconstruc-tionist and through testimony by Connie Crossman and Richard Crossman Jr. The latter two individuals did not see the accident occur. Auto-Owners did not use Burgmeier’s testimony, even though the district court had ruled in limine that such testimony was admissible.

In his report, Burgmeier described the accident-reconstruction methods he had used and concluded that “[t]he sole cause of this collision was the failure of Mr. Lockwood to maintain a proper lookout and maintain proper control of his vehicle. Had he done so this collision would have been avoided.”

Lockwood, the only surviving witness to the accident, testified that Crossman Sr. purposely swung his car into the path of his truck as he was trying to go around Crossman’s car in the oncoming traffic lane.

The jury found both Lockwood and Crossman Sr. negligent but determined that Crossman’s negligence was the sole cause of the collision.

When Connie Crossman commenced the instant wrongful-death action, Lockwood and Simonson moved for summary judgment on the ground that she had been in privity with Auto-Owners in the subrogation action and that collateral estoppel precluded the relitigation of the issue of causal negligence.

The district court denied the summary-judgment motion and ruled that there was no collateral estoppel bar to the relitigation of the causal-negligence issue. The court noted that the subrogation action had been commenced without Crossman Sr.’s knowledge and he was not given the opportunity to consult with his insurer before that lawsuit was started; the trustee was not consulted during the pendency of the subrogation case; neither the Burg-meier report nor his testimony was presented as evidence in the subrogation trial; although Connie Crossman and Richard Crossman Jr. testified, their testimony was limited and they were not given a chance to tell their whole story; and the Cross-man lawyers were not allowed to attend pretrial motions, participate in voir dire, receive discovery, cross-examine witnesses, or consult with Auto-Owners’ counsel regarding what witnesses to call or what trial strategy to use.

The court thereafter certified as important and doubtful the following question:

Whether privity exists between the [trustee] in the instant action and ... Auto-Owners Insurance Co., in a prior action involving the same operative facts such that application of the doctrine of collateral estoppel is appropriate.

ISSUE

After paying collision-insurance proceeds to its insured as a result of a two-vehicle accident, the insurer, without the consent, joinder, or participation by the insured, brought a subrogation action against the driver of the other vehicle and his employer. The jury found causal negligence only against the insured, who had died before the subrogation trial, allegedly from injuries he suffered in the accident.

Was the decedent or decedent’s trustee in privity with the insurer in the subrogation action so that collateral estoppel bars the relitigation of causal negligence in a wrongful-death lawsuit?

ANALYSIS

On review of a question certified as important and doubtful after the denial of a summary-judgment motion, “we review the record to determine whether a genuine issue of material fact exists and whether the law was correctly applied.” Murphy v. Allina Health Sys., 668 N.W.2d 17, 20 (Minn.App.2003), review denied (Minn. Nov. 18, 2003). Whether collateral estoppel applies is a mixed question of law and fact subject to de novo review. Falgren v. State Bd. of Teaching, 545 N.W.2d 901, 905 (Minn.1996).

There is no material dispute about the underlying facts, although the parties differ as to the significance of those facts in answering the certified question.

The application of collateral estop-pel so as to preclude relitigation of an issue depends on the answers to four questions:

1. Is the issue to be precluded identical in both actions?
2. Was there a final judgment on the merits in the prior action?
3. Was the party against whom collateral estoppel is asserted either a party in the previous action or in privity with a party to that action?
4. Did the party against whom estoppel is asserted have a full and fair opportunity to be heard on the issue in question in the previous action?

Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn.1982).

The first two questions are undisputed and must be answered in the affirmative. There was a final judgment on the merits in the subrogation action, which included the identical issue of causal negligence in both that action and the present lawsuit. It is also undisputed that neither Richard Crossman Sr. nor Connie Cross-man, as trustee, was a party to the subro-gation action. But Lockwood and Simon-son contend that the Crossmans were in privity with Auto-Owners in the subrogation case.

The Minnesota Supreme Court has stated that “[tjhere is no prevailing definition of privity which can be automatically applied.... ” Margo-Kraft Distribs., Inc. v. Minneapolis Gas Co., 294 Minn. 274, 278, 200 N.W.2d 45, 47 (1972). Thus, the circumstances of each case must be examined to determine the nature and extent of the relationship between a formal party and the person alleged to have been in privity with that party. Id. The court gave examples based on the Restatement, Judgments, § 83, cmt. a: “Those in privity would include, according to the Restatement, ‘those who control an action although not parties to it ...; those whose interests are represented by a party to the action ...; successors in interest to those having derivative claims....”’ Margo-Kraft Distribs., 294 Minn, at 278, 200 N.W.2d at 47-48.

This court has held that the “rationale behind the requirement of privity is closely associated with the fourth requirement of Ellis, thus effectively merging consideration of the two.” Miller v. Northwestern Nat’l Ins. Co., 354 N.W.2d 58, 61 (Minn.App.1984). Therefore, the party to be estopped “must have its interests sufficiently represented in the first action so that the use of collateral estoppel is not inequitable.” Id. (citation omitted). A person’s interests are sufficiently represented in an action “where the record demonstrates controlling participation and active self-interest in the litigation.” Brunsoman v. Seitz, 414 N.W.2d 547, 550 (Minn.App.1987) (citation omitted), review denied (Minn. Jan. 15,1988).

The record does not reveal that the Crossmans had any controlling participation or active self-interest in the subro-gation action. The Crossman lawyers did not participate in any aspect of the subro-gation case except the depositions of Connie Crossman and Richard Crossman Jr. And this was in the role of assisting their clients in understanding questions and providing clear answers. Nor did the Cross-mans or their lawyers have any control over anything that occurred in the subro-gation case.

But the most telling fact that reveals the lack of sufficient representation of the Crossmans in the subrogation action is the handling of the liability issue. Auto-Owners presented no affirmative evidence as to the occurrence of the accident. Its only favorable eyewitness had died. Connie Crossman heard a crash but did not see the accident happen. Richard Crossman Jr. was inside his house and did not see the accident happen. Only Burgmeier, the accident reconstructionist, had affirmative evidence favorable to the Crossman theory of liability, and Auto-Owners chose not to present that evidence in its $3,937.86 sub-rogation lawsuit.

On the other hand, Lockwood and Si-monson presented the testimony of Lockwood — then the only eyewitness — and of an accident reconstructionist, who supported Lockwood’s theory of the accident.

Although Auto-Owners had an interest in proving that Lockwood was causally negligent, it chose to forgo the use of the only affirmative evidence available to do so. This is not to fault Auto-Owners for making an economic decision, as Lockwood and Simonson acknowledge in their memorandum in support of their motion in li-mine to exclude the Burgmeier report and testimony. Rather, Auto-Owners’ economic incentive and the Crossman interests in the wrongful-death action are not the same even on the identical liability issue.

On this record, it cannot reasonably and plausibly be said that the Crossmans had any control over any aspect of the subro-gation action or that they enjoyed an active self-interest in that matter such that they were sufficiently represented by Auto-Owners. It would be inequitable to apply collateral estoppel to preclude the Crossmans from relitigating the issue of causal negligence in the accident between Crossman Sr. and Lockwood.

Lockwood and Simonson cite Reil v. Benjamin, 584 N.W.2d 442 (Minn.App.1998), review denied (Minn. Nov. 17, 1998), as controlling. After an automobile accident with Benjamin, Reil received workers’-compensation benefits. The compensation insurer sought to recover its payments in a subrogation action against Benjamin. Initially, Reil agreed to consolidate his separate claim against Benjamin with the subrogation action, and his attorney signed an agreement on Reil’s behalf that stated that the facts, legal issues, witnesses, and documentary evidence would be identical in both matters. The agreement provided that Reil’s complaint was to be consolidated with the subrogation case and that the trials would be consolidated as well. Before the trial, Reil chose not to consolidate his claim with the subrogation action. The jury found that Benjamin was not negligent in the subrogation trial and, when Reil sued Benjamin separately, she asserted collateral estoppel because negligence had been determined in the prior action. The district court applied collateral estoppel and granted Benjamin’s summary-judgment motion.

Relying on Reil’s stipulation that the facts, legal issues, witnesses, and other evidence were identical in both actions, the court of appeals affirmed. The court apparently concluded that the stipulation, coupled with the trial in which presumably all the identical evidence was presented, established privity.

Reil does not control here. The liability evidence, which is the key to success in both the subrogation action and the wrongful-death lawsuit, is significantly different, and that is a difference that did not exist in Reil.

Finally, in a footnote in their appellate brief, Lockwood and Simonson discuss the offensive use of collateral estoppel and suggest that the Crossmans’ strategy was to wait to see what the outcome of the subrogation action would be, anticipating that Lockwood would be found causally negligent, and then use that determination in the wrongful-death action. The Cross-mans’ lawsuit, although foreseeable when the subrogation action went to trial, was not sufficiently developed to be presented persuasively. On this record, we cannot conclude that the Crossmans’ strategy was the improper use of offensive collateral estoppel.

DECISION

The district court correctly ruled that there was no privity between respondent and decedent’s insurer in a prior property-damage subrogation action and, thus, the doctrine of collateral estoppel does not apply so as to preclude relitigation of the issue of causal negligence in this wrongful-death lawsuit.

Certified question answered in the negative.


author: WORKE, Judge.

text:
    STATE of Minnesota, Appellant, v. Theodore Harold JOHNSON, Respondent.
    No. A05-1971.
    Court of Appeals of Minnesota.
    April 18, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Martin J. Costello, Russell J. Platzek, Katrina E. Joseph, Hughes & Costello, St. Paul, MN, for appellant.
    Douglas V. Hazelton, Minneapolis, MN, for respondent.
    Considered and decided by DIETZEN, Presiding Judge; WILLIS, Judge; and WORKE; Judge.
   OPINION

WORKE, Judge.

On appeal from a pretrial order granting a motion to suppress evidence of intoxication and dismiss charges of third-degree DWI, the state argues that the district court clearly erred in ruling that the officer, who saw that the engine compartment of respondent’s motorcycle was illuminated by purple recessed lighting, did not have an objective legal basis to stop respondent because the low-level lighting did not actually violate the statute prohibiting unauthorized colored lighting on vehicles. Because the light configuration on respondent’s motorcycle violated Minn.Stat. § 169.64 (2004), the district court erred in dismissing the charges against respondent. We reverse and remand for further proceedings.

FACTS

On July 21, 2005, a police officer observed a Harley Davidson motorcycle displaying a purple light in the engine compartment in the lane next to the officer at a red light. The entire engine, an area of approximately one and one-half square feet, was illuminated purple by recessed lighting, such that the metal and chrome of the engine were illuminated purple. The officer followed the motorcycle to the next red light. Believing the motorcycle’s light configuration to be illegal, the officer conducted a traffic stop of the motorcycle and identified the driver as respondent Theodore Harold Johnson. As a result of the traffic stop and the subsequent DWI investigation, respondent was charged with third-degree driving while impaired, in violation of Minn.Stat. § 169A.20, subd. 1(1) (2004), and third-degree operating a motor vehicle with an alcohol concentration of .10 or more within two hours, in violation of Minn.Stat. § 169A.20, subd. 1(5) (2004).

At a pretrial hearing, respondent moved the district court to suppress evidence gathered as a result of the stop arguing that the officer lacked a reasonable, articu-lable suspicion for the stop, and requested that the charges be dismissed. The district court granted respondent’s motion and dismissed the charges. This appeal follows.

ISSUE

Did a reasonable, articulable suspicion exist to justify the traffic stop of respondent’s motorcycle?

ANALYSIS

A mixed question of law and fact requires the appellate court “to apply the controlling legal standard to historical facts” as determined by the district court. State v. Wiemasz, 584 N.W.2d 1, 8 (Minn.1998) (footnote omitted). “The [district] court’s factual findings are subject to a clearly erroneous standard of review.” State v. Critt, 554 N.W.2d 93, 95 (Minn.App.1996), review denied (Minn. Nov. 20, 1996). But “when reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the [district] court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). Whether a statute has been properly construed is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

In general, state and federal constitutions allow an officer to conduct a limited investigatory stop of a motorist if the state can show that the officer had a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); see also Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985). In order to justify such an investigatory stop, “[t]he police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articula-ble facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” State v. Pike, 551 N.W.2d 919, 921-22 (Minn.1996) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). Generally, “if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle.” State v. George, 557 N.W.2d 575, 578 (Minn.1997); see also, e.g., State v. Pleas, 329 N.W.2d 329, 333 (Minn.1983) (upholding a stop based on an officer’s observation of a broken windshield, no front license plate, and upside down rear license plate); State v. Barber, 308 Minn. 204, 241 N.W.2d 476, 476 (1976) (upholding a stop based on an officer’s observation that a vehicle’s license plates were wired on rather than bolted on).

Appellant argues that there was a reasonable, articulable suspicion sufficient to justify stopping respondent, and that the district court’s ruling should be reversed and the charges against respondent reinstated. The district court ruled that, while the officer may have had a subjective good-faith belief that a statute was being violated by the light configuration, there was no objective legal basis concluding that the purple light constituted a violation of the law. The district court reasoned that because the light was of a “low level,” it was only a “glow,” and it was not “distracting” or “unsafe,” it did not constitute a “display” of lights under Minn.Stat. § 169.64, subd. 2 (2004), and, therefore, no objective legal basis existed for the traffic stop of respondent’s motorcycle.

Here, the purple light configuration on respondent’s motorcycle violates Minn.Stat. § 169.64, subd. 2, which states that “[u]nless otherwise authorized by the commissioner of public safety, no vehicle shall be equipped, nor shall any person drive or move any vehicle or equipment upon any highway with any lamp or device displaying a red light or any colored light other than those permitted in this chapter.” (Emphasis added.) Appellant’s argument requires us to interpret the meaning of “display.” The primary object of statutory interpretation is to discern and effectuate the intention of the legislature. Minn.Stat. § 645.16 (2004); Olmanson v. LeSueur County, 693 N.W.2d 876, 879 (Minn.2005). In doing so, when the meaning of the statutory term is clear, we apply the statute’s plain meaning. Molloy v. Meier, 679 N.W.2d 711, 723 (Minn.2004). We construe words and phrases in accordance with common usage, Sprint Spectrum LP v. Commissioner of Revenue, 676 N.W.2d 656, 662 (Minn.2004), and in the context of the entire statutory provision. ILHC of Eagan, LLC v. County of Dakota, 693 N.W.2d 412, 419 (Minn.2005).

The definition of “display” is “[t]o present or hold up to view,” and “[t]o exhibit ostentatiously; show off.” The American Heritage College Dictionary, 400 (3d ed.2000). Based on the officer’s testimony, it is clear that the light did not shine on the ground, could not be seen from behind or in front of the motorcycle, and was only visible from the side. However, the statute does not contain these exceptions to the colored-light prohibition. Further, the statute does not make exceptions for colored lights of a “low level,” that are only a “glow,” or are not “distracting” or “unsafe.” It appears that the purple light on respondent’s motorcycle was for decorative purposes rather than additional illumination. This satisfies the plain meaning of display — respondent was showing off his motorcycle by displaying a purple light to illuminate the engine area. Regardless, whether the lighting was for decorative purposes or additional illumination, it is not permissible under the statute.

DECISION

Because the light configuration on respondent’s motorcycle violated MinmStat. § 169.64 (2004), a reasonable, articulable suspicion existed for the traffic stop and, therefore, the district court erred in dismissing the charges against respondent.

Reversed and remanded.


text:
    PROFESSIONAL FIDUCIARY, INC., et al., Respondents, v. Steven A. SILVERMAN, et al., Appellants.
    No. A05-1322.
    Court of Appeals of Minnesota.
    May 2, 2006.

      Patrick H. O’Neill, Jr., Stephen M. Warner, O’Neill & Murphy, LLP, St. Paul, MN, for respondents.
    Lewis A. Remele, Jr., Kevin P. Hickey, Robin Ann Williams, Bassford Remele, Minneapolis, MN, for appellants.

      Considered and decided by MINGE, Presiding Judge; TOUSSAINT, Chief Judge; and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

MINGE, Judge.

Appellants Steven Silverman and Progressive Casualty Insurance present a certified question whether respondent Professional Fiduciary, personal representative for the estate of Kory Erickson, is precluded from bringing a malpractice claim against attorney Silverman because (1) the personal representative is conflicted by its association .with Western National Insurance, a party adverse to the decedent in the lawsuit out of which the malpractice claim arose; (2) the malpractice suit is a de facto, impermissible assignment of the decedent’s claim against Silverman; or (3) the malpractice suit is an impermissible contribution claim against Silverman. Because we conclude that there is no evidence that respondent is conflicted, or that the action is an assignment or contribution claim, we answer the certified question in the positive.

' FACTS

This matter started with a three-vehicle accident. The car driven by decedent Kory Erickson accidentally crashed into a car operated by Sara Jean Meuhlhauser, causing Meuhlhauser’s vehicle to collide with a truck owned by Hartmann Well Drilling and Service, driven by Brian Hartmann (jointly Hartmanns), and insured by Western National Insurance. On impact, pipes fell from the Hartmann truck, killing Muehlhauser’s daughter, Sa-lina, a passenger in the Muehlhauser vehicle. Salina Muehlhauser’s next of kin commenced a wrongful death action against Erickson, his wife (as the owner of the car), and Hartmanns. The decedent and his wife were represented by Silverman, an attorney employed by their insurance company, appellant Progressive.

As co-defendants, Hartmanns and Er-icksons were adverse to each other. Kory Erickson’s wife was ultimately dismissed as a defendant and Erickson had only $30,000 in insurance coverage. Appellants allege that decedent Erickson and the Muehlhauser family wanted more liability to fall on Hartmanns because Hartmanns had substantial insurance coverage and because other than his limited insurance coverage, Erickson lacked resources to satisfy a judgment. Hartmanns brought an unsuccessful motion for directed verdict on the ground that Erickson’s negligence was the sole cause of .the accident.

During closing arguments, the attorney for the Hartmann defendants argued first and suggested a jury award of $75,000. Silverman- argued next. Because he felt that the jury was offended by the suggestion of a low award, Silverman observed that an award could be as high as $1,000,000, but refused to name a number saying that the jury must ultimately determine the appropriate amount. The jury returned a verdict of $495,000 apportioning 50% of the fault to Erickson and 50% to Hartmanns. Because the defendants were jointly and severally liable for the entire award and because Erickson had no personal assets, Western National paid everything except Erickson’s $30,000 policy limit which was paid by Progressive. Western National’s attorney blamed the large award on Silverman’s million dollar comment regarding damages during closing argument.

Subsequent to the trial, Erickson died. Western National brought a contribution claim and obtained a judgment against the decedent in the amount of $217,500 for his share of the jury award that it had paid. Although the family did not initiate a probate proceeding, as a judgment creditor, Western National sought the appointment of a personal representative for the estate. Western National believed that the estate had a malpractice claim against Silverman. The decedent’s widow was notified of the proceeding and of Western National’s hope that the personal representative would bring a malpractice claim. She did not object. At Western National’s suggestion, respondent Professional Fiduciary was appointed personal representative for Erickson’s estate.

Professional Fiduciary retained probate counsel. Counsel submitted the facts surrounding Silverman’s representation of Erickson in the Muehlhauser wrongful-death action to an expert for review and the expert concluded that Silverman departed from the standard of care owed to decedent Erickson. Professional Fiduciary, in its capacity as personal representative, then filed a malpractice suit against Silver-man and, because he was a staff attorney for Progressive, against appellant Progressive.

Appellants moved for summary judgment, arguing that Professional Fiduciary could not maintain the action. Although the district court denied appellants’ motion, it agreed to certify the question raised in appellants’ summary judgment motion for immediate appeal under Minn. R. CivApp. P. 103.03(i). The question certified is:

Can an adverse party in an underlying lawsuit use its status as a creditor under Minnesota probate law to obtain the right to bring a legal malpractice claim against the opposing attorney in the name of the estate of the attorney’s client?

ANALYSIS

I.

Minn. R. Civ.App. P. 103.03(i) provides that an appeal may be taken to this court from an order that denies a motion for summary judgment if the district court “certifies that the question presented is important and doubtful.” In deciding a certified question arising from denial of summary judgment, “we review the record to determine whether a genuine issue of material fact exists and whether the law was correctly applied.” Murphy v. Allina Health Sys., 668 N.W.2d 17, 20 (Minn.App.2003), review denied (Minn. Nov. 18, 2003). Absent genuine issues of material fact, appellate courts review certified questions de novo. Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998).

Although the district court in this case properly certified the question as “important and doubtful” under Minn. R. Civ. App. P. 103.03(i), this court evaluates whether the issue set forth in the certified question accurately reflects the record. See, e.g., Murphy, 668 N.W.2d at 19 (rephrasing certified question). The question submitted is as follows:

Can an adverse party in an underlying lawsuit use its status as a creditor under Minnesota probate law to obtain the right to bring a legal malpractice claim against the opposing attorney in the name of the estate of the attorney’s client?

As framed, the certified question implies that Western National is bringing the malpractice claim against Silverman. There is no evidence in the record that Professional Fiduciary, as the personal representative, is simply an agent of Western National. We conclude that it is not helpful to the disposition of the litigation to answer the question as certified. Instead, we rephrase the certified question by noting that the creditor used its status to appoint a personal representative who then pursued a malpractice claim against-the decedent’s former attorney. The reformulated question reads as follows:

Can the personal representative of an estate maintain a malpractice claim against the decedent’s former attorney even though (1) a judgment creditor of the decedent initiated the probate proceeding and the personal representative’s appointment and urged the malpractice claim, (2) that creditor’s judgment was based on its contribution claim against the decedent as co-defendant, and (3) the alleged malpractice occurred in the action that gave rise to the contribution claim?

We turn to the merits.

n.

Appellants argue that the respondent personal representative may not bring a malpractice claim against attorney Silver-man because (1) the personal representative is conflicted by its association with Western National, a party adverse to the decedent in the underlying lawsuit; (2) the malpractice suit is a de facto, impermissible assignment to Western National of the decedent’s claim against Silverman; or (3) the malpractice suit is an impermissible contribution claim against Silverman.

Under Minnesota law, personal representatives may bring suit on behalf of the estate. MinmStat. § 524.3-703(c) (2004) (“Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent ... has the same standing to sue and be sued in the courts of this state ... as the decedent had immediately prior to .death.”); see. also Minn.Stat. § 524.3-715(22) (2004) (authorizing a personal representative to prosecute or defend claims, or proceedings for the protection of the estate and of the personal representative in the performance of duties). This power extends to maintaining a malpractice action against the decedent’s lawyer. Johnson v. Taylor, 435 N.W.2d 127, 129 (Minn.App.1989), review denied (Minn. Apr. 19,1989).

1. Personal Representative Conflict

Appellants argue that the personal representative in this - matter is barred from pursuing this claim because of a conflict of interest. The record before us does not establish that Western National is a party to the malpractice action, or that Professional Fiduciary, as the personal representative, is beholden to Western National. Professional Fiduciary has a fiduciary duty to the estate to evaluate and pursue claims that would benefit the estate. See Minn.Stat. §§ 524.3-703(c), 524.3-715(22). There is no evidence before us to indicate that respondent is not independent or has breached its fiduciary duties to the estate. And even if the personal representative is successful in recovering from the appellant, before Western National can be paid on its claim,"the decedent’s wife is entitled to her statutory elective share and the expenses of the decedent’s funeral and other associated costs and administrative costs must be paid. See' Minn.Stat. §§ 524.2-402-^04, 524.3-715(18), 524.3-719 (2004). If at trial, the finder of fact determines that Professional Fiduciary is not independent but is beholden to Western National, or that net proceeds from any recovery against Silver-man go to Western National, defenses discussed in the next sections of this opinion may be applicable. Absent such a finding, appellants are not entitled to summary judgment.

2. Malpractice Claim Impermissibly Assigned

The next aspect of the certified question is whether the maintenance of this action per se constitutes an impermissible assignment of a malpractice claim. In Minnesota, legal-malpractice claims are not assignable to non-client third parties. Wagener v. McDonald, 509 N.W.2d 188, 193 (Minn.App.1993). Appellants concede that no assignment occurred here. But they argue that a de facto assignment occurred when Western National’s nominee was appointed as the personal representative of the decedent’s estate.

While no precedent on this point exists in probate law, our supreme court has determined that maintenance of a legal-malpractice claim by the bankruptcy estate is akin to transfer by operation of law rather than transfer by assignment and is permissible. Appletree Square I, Ltd. P’ship v. O’Connor & Hannan, 575 N.W.2d 102, 105 (Minn.1998). In reaching its conclusion, the Appletree court referred to Johnson in the probate law context as an example of a transfer by the operation of law, rather than by an outright assignment. Id. It stated that “[acquisitions of this nature, where the entity bringing the action merely is representing the original holder, do not come within the traditional definition of an assignment.” Id.

The Appletree court noted that a liquidating agent, appointed under the plan for reorganization, brought the malpractice claim “in its representative capacity pursuant to section 1123(b)(3)(B) of the [Bankruptcy] Code.” Id. at 106. Furthermore, the liquidating agent was not entitled to any recovery from the prosecution of the claim, but was required to distribute all proceeds to the creditors as set out in the debtor’s reorganization plan. Id. The court concluded:

[M]erely investing a representative with responsibility to pursue a claim belonging to the bankruptcy estate does not by itself constitute an assignment [, and] [w]hile we recognize that there may be serious public policy considerations regarding the assignment of legal malpractice claims, we need not address that issue, given our conclusion that there has not been an assignment in this case.

Id.

Appellants argue that Appletree is not on point because in that case, the creditor who appointed the liquidating agent was not party adverse to the debtor in the underlying lawsuit from which the legal-malpractice claim arose. Although this argument may have merit, appellants concede that no assignment occurred here. And Appletree makes the point that a liquidating agent, or other entity acting in a representative capacity, does not personally benefit from pursuing a legal-malpractice claim; rather the claim is prosecuted for the benefit of the estate. Id.

Appellants also rely on a recent federal bankruptcy case to assert that liquidating agents cannot prosecute legal-malpractice claims where the benefit will only inure to the creditors and not to the estate. See Moratzka v. Senior Cottages of America, No. Civ. 05-809, 2005 WL 2000185 (D.Minn. Aug. 18, 2005). Moratzka is not helpful. The federal district court held the bankruptcy trustee lacked standing to bring a claim that, under Minnesota law, ran directly to the creditor rather than to the estate because the claim is not an asset of the estate. Id. at ⅜3. Furthermore, the bankruptcy trustee’s complaint alleged damages to creditors but not damage to the estate. Id.

Here, respondent Professional Fiduciary has alleged damage to Erickson and his estate on the ground that Silverman’s alleged malpractice increased the size of the judgment against Erickson and his estate. Unlike Moratzka this is not a case where the claim is so identified with one creditor of the decedent that that creditor is entitled to the proceeds. As previously stated, the expenses of Erickson’s probate and his widow’s elective share have priority over any creditor claim and any value of the claim against Silverman may be less than such expenses and share.

To obtain summary judgment, Silver-man would have to establish that Western National, rather than the estate, is the real party in interest. Based on the record on appeal and the certified question, the district court could not and did not conclude that Professional Fiduciary was not independent or failed to respect its fiduciary duty to the estate in bringing its malpractice action against Silverman. Thus, we cannot conclude that an assignment to Western National has occurred.

3. Malpractice Suit as Contribution Claim against Decedent’s Former Attorney

The third aspect of this certified question is whether the maintenance of this malpractice claim is tantamount to an impermissible contribution claim against attorney Silverman. Minnesota law prohibits a party from bringing a contribution claim against an opposing lawyer. Melrose Floor Co. v. Lechner, 435 N.W.2d 90, 91-92 (Minn.App.1989); Eustis v. David Agency, Inc., 417 N.W.2d 295, 299 (Minn.App.1987). This prohibition is “based on the public policy that permits a lawyer to make decisions for a client without concern for personal liability in contribution claims to persons the client sues.” Lechner, 435 N.W.2d at 91.

Western National asserted a contribution claim against the decedent and his estate before the malpractice claim commenced. That judgment is the basis for Western National’s status as a creditor and interested person in the decedent’s estate. In this sense, Western National/Hartmanns might ultimately benefit from the claim against Silverman. However, as we have previously stated, Professional Fiduciary is filing a malpractice claim against Silverman on behalf of the decedent’s estate. Although Erickson’s financial circumstances apparently made it impossible for him to pay his uninsured liability to the Muehlhausers, the record does not disclose, and the certified question does not present the issue of, whether it was immaterial to Erickson whether the uninsured liability was modest or enormous. Perhaps he was vulnerable to wage garnishment or other creditor remedies, or, perhaps, he was in financial ruin regardless. On this record, we cannot assume Erickson had no interest in minimizing his liability or that an apparent judgment proof defendant has no interest in a vigorous defense.

Also, we note that the estate is a separate entity. As a fiduciary, Professional Fiduciary has a duty to evaluate the merits of the claim on behalf of the estate and not to maintain a grudge action. This shields Silverman from the possibility of a vendetta. The priorities within the estate, to say nothing of the problems of proving actual malpractice against Silverman, make it far from certain that any part of Western National’s contribution claim will be satisfied in this action. Thus, on the record before us and at this stage of the litigation, it is improper to preclude the personal representative from bringing a malpractice claim against Silverman. Therefore, we answer the reformulated certified question in the affirmative.

DECISION

Certified question answered in the affirmative.

      . The parties have neither briefed nor argued and we do not consider the merits of respondent’s malpractice claim against appellants.


author: PETERSON, Judge.

text:
    Ted HARRISON, Jr., a minor, by Audrey HARRISON, his guardian ad litem, Respondent, v. Amy HARRISON, et al., Appellants.
    No. A05-1038.
    Court of Appeals of Minnesota.
    May 2, 2006.

      Kay N. Hunt, Robert J. King, Lommen, Abdo, Cole, King & Stageberg, P.A., Minneapolis, MN, for respondent.
    William L. Davidson, Brian A. Wood, Sara J. Lathrop, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, MN, for appellants.
    Considered and decided by PETERSON, Presiding Judge; KLAPHAKE, Judge; and HUDSON, Judge.
   OPINION

PETERSON, Judge.

This appeal is from a summary judgment in an action brought by a minor child against his parents alleging negligent maintenance and installation of the child passenger restraint system'that the child was riding in when he was injured in a motor-vehicle collision. Appellants argue that the district court erred in concluding that the exception from Minn.Stat. § 169.685, subd. 4(a) (2004), created by Minn.Stat. § 169.685, subd. 4(b), applies to the minor child’s action against his parents. We affirm.

FACTS

The parties stipulated to the following facts for purposes of their cross-motions for summary judgment.

Three-year-old respondent Ted Harrison, Jr. (Teddy) was a passenger in a motor vehicle driven by his mother, appellant Amy Harrison. Teddy was seated in the right rear seating position, directly behind the front passenger seat, and was secured in a child-safety seat, which is also known as a “child passenger restraint system.” Another vehicle collided with the Harrison vehicle and caused the Harrison vehicle to leave the roadway and roll over several times. The collision caused Teddy to be released from his safety seat, ejected from the vehicle, and injured.

The safety seat that Teddy was in when the collision occurred was manufactured by Century Products Company and was purchased new for Teddy by his parents. The safety seat uses a two-slotted buckle mechanism that is situated in the seat bottom between the child’s legs. The inbound slot had not been used for many months. On the day of the collision, Teddy’s father, appellant Ted Harrison, Sr., had secured Teddy in the safety seat. Harrison customarily put Teddy into the safety seat, pulled the seat’s harness with the attached tongue over Teddy’s head, secured the tongue in the outbound buckle slot until he heard a click, and pulled upward on the harness to ensure that it was securely fastened. This is the procedure that he used just before the collision.

The Minnesota State Patrol investigated the collision and observed that the harness of the safety seat was unlatched at the scene of the collision. The safety seat was strapped into the Harrison vehicle with the vehicle’s seat belt, but it was tipped over to the left, away from the right rear passenger-side window and door and nearly horizontal to the rear seat.

The state patrol experimented with the safety seat during the days following the collision and observed that the harness tongue could be pulled free of the outbound buckle slot even though the buckle mechanism had seemed to “click” into place when the tongue was inserted into the outbound buckle slot. The state patrol ultimately discovered that a coin in the inbound, unused slot of the buckle mechanism caused this false-latch phenomenon. The state patrol noted dirt and debris on the coin and concluded that the coin had been in the buckle mechanism for some time.

Ted Harrison was primarily responsible for maintaining Teddy’s car safety seat. He cleaned out the seat approximately twice per week by removing the seat from the vehicle and wiping it or shaking it out. He knew from the seat’s instruction manual that he needed to keep debris out of the buckle slots. He had last cleaned the seat just a few days before the collision.

Ted Harrison was also primarily responsible for installing the safety seat in the Harrison vehicle. He knew that the vehicle shoulder/lap-belt restraint harness had to be converted from the emergency locking mode to the automatic locking mode, which allowed the vehicle’s seat belt to automatically lock into place as it was fed into the retractor and alleviated the need for a safety locking clip on the vehicle seat belt when it was used with a car safety seat. Harrison typically installed the safety seat by pulling the seat belt all the way out, threading it through the back of the safety seat, and latching it to the vehicle buckle mechanism. The seat belt would then click as it reentered the vehicle seat-belt retractor, indicating that the vehicle seat belt was locked into place. Harrison would lean his body weight onto the car seat to ensure that the vehicle seat belt retracted as far as possible. After the seat belt was locked, Harrison would make sure that everything was tight by attempting to move the child safety seat. He had installed the child passenger restraint system in the vehicle after cleaning it a few days before the accident.

A product-liability claim was asserted on Teddy’s behalf against the Century Products Company, alleging defective design of the child passenger restraint system. The claim was settled. In a separate lawsuit, Teddy sued his parents, alleging negligent maintenance and installation of the child passenger restraint system. Both parties brought motions for summary judgment. For purposes of the cross-motions for summary judgment, the parties agreed that the Harrisons were negligent in the maintenance and installation of Teddy’s car seat.

Appellants argued in the district court that they were entitled to summary judgment as a matter of law because Minn. Stat. § 169.685, subd. 4(a) (2004), prohibits the introduction of proof of the use or failure to use a child passenger restraint system in automobile litigation and, therefore, respondent’s claim was barred. Respondent argued in the district court that he was entitled to summary judgment because the exception from Minn.Stat. § 169.685, subd. 4(a), found at Minn.Stat. § 169.685, subd. 4(b), controls under the stipulated facts. The district court concluded that the exception applies to respondent’s action and granted respondent’s motion for summary judgment and denied appellants’ motion for summary judgment. This appeal followed.

ISSUE

Does the exception from Minn.Stat. § 169.685, subd. 4(a) (2004), created by Minn.Stat. § 169.685, subd. 4(b), apply to respondent’s action against appellants?

ANALYSIS

On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Here, the parties have stipulated to the facts, and no genuine issues of material fact exist. The only issue before us is whether the district court erred in interpreting Minn.Stat. § 169.685, subd. 4 (2004), which states:

(a) Except as provided in paragraph (b), proof of the use or failure to use ... a child passenger restraint system as described in subdivision 5, or proof of the installation or failure of installation of ... a child passenger restraint system as described in subdivision 5 shall not be admissible in evidence in any litigation involving personal injuries or property damage resulting from the use or operation of any motor vehicle.
(b) Paragraph (a) does not affect the right of a person to bring an action for damages arising out of an incident that involves a defectively designed, manu-factored, installed, or operating ... child passenger restraint system. Paragraph (a) does not prohibit the introduction of evidence pertaining to the use of a ... child passenger restraint system in an action described in this paragraph.

Statutory construction is a question of law, which this court reviews de novo. Ryan Contracting, Inc. v. JAG Inv., Inc., 634 N.W.2d 176, 181 (Minn.2001). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

Appellants argue that the exception from Minn.Stat. § 169.685, subd. 4(a), created by Minn.Stat. § 169.685, subd. 4(b), allows evidence of the installation or failure of installation of a child passenger restraint system to be admitted only in a product-liability case for defective design, manufacture, installation, or operation. Therefore, appellants contend, the district court erred in ruling that evidence of the installation or failure of installation of a child passenger restraint system is admissible in this action because respondent sued appellants under a negligent-installation theory, not a product-liability theory.

Under the canons of interpretation that apply when we construe statutes, “words and phrases are construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a special meaning, ... are construed according to such special meaning.” Minn.Stat. § 645.08(1) (2004).

Citing City of Coon Rapids v. Suburban Eng’g, Inc., 283 Minn. 151, 153, 167 N.W.2d 493, 494 (1969), appellants argue that the phrase, “defective installation,” denotes a product-liability context under Minnesota case law and that by its plain meaning, the phrase does not apply to a parent placing a car seat in the back seat of a motor vehicle and strapping a child into the car seat. In City of Coon Rapids, the complaint alleged that “the . city sustained damages resulting from defective installation of a storm sewer.” 283 Minn, at 153, 167 N.W.2d at 494. But City of Coon Rapids involved a fraud claim, not a product-liability claim, and, therefore, it does not demonstrate that either “defective installation” or “defectively installed” is a technical phrase or a phrase that has acquired a special meaning that denotes a product-liability context. See id. at 155-58, 167 N.W.2d at 495-97 (addressing fraud claim).

In common usage, “install” means, “[t]o connect or set in position and prepare for use,” The American Heritage Dictionary of the English Language 907 (4th ed.2000) [hereinafter American Heritage Dictionary ], and “defective” means, “[hjaving a defect; faulty.” Id. at 475. Applying these common meanings to interpret Minn. Stat. § 169.685, subd. 4(b), “a defectively installed child passenger restraint system” means a child passenger restraint system that has a defect or is faulty because of the way that it was connected or set in position and prepared for use.

Furthermore, Minn.Stat. § 169.685, subd. 4(b), states that the limitation in Minn.Stat. § 169.685, subd. 4(a), “does not affect the right of a person to bring an action for damages arising out of an incident that involves a defectively designed, manufactured, installed, or operating ... child passenger restraint system.” (Emphasis added.) The phrase, “an action for damages arising out of an incident that involves a defectively installed child passenger restraint system” does not describe only a product-liability action. It describes an action brought under any theory of liability that seeks recovery of damages that arose out of a certain type of incident. Whether the exception applies to a particular action depends on the nature of the incident from which damages arose, rather than on the theory of liability. If the incident involves a defectively installed child passenger restraint system, the exception applies.

In common usage, “incident” means “[a] definite and separate occurrence; an event.” American Heritage Dictionary 886. Applying this meaning to Minn.Stat. § 169.685, subd. 4(b), the exception applies to an action for damages arising out of an occurrence or event that involves a child passenger restraint system that has a defect or is faulty because of the way that it was connected or set in position and prepared for use.

Because a motor-vehicle collision is obviously an occurrence or an event, and appellants stipulated that they were negligent in the maintenance and installation of the child safety restraint system in which respondent was riding when he was injured in a collision, respondent’s action against appellants is an action for damages arising out of an occurrence or event that involved a child passenger restraint system that had a defect or was faulty because of the way that it was set in position and connected or adjusted for use.

Appellants argue that interpreting Minn. Stat. § 169.685, subd. 4(b), so that the exception it creates applies when a parent defectively installs a child passenger restraint system will make the limitation in Minn.Stat. § 169.685, subd. 4(a), inapplicable in any case involving the use of a child passenger restraint system because every child passenger restraint system is installed into a vehicle before it is used. But not all litigation that involves the use of a child passenger restraint system also involves a claim that the child passenger restraint system was defectively designed, manufactured, installed, or operated. Under the plain language of Minn.Stat. § 169.685, subd. 4(b), the exception applies, and Minn.Stat. § 169.685, subd. 4(a), does not prohibit the introduction of evidence pertaining to the use of a child passenger restraint system, only when an action is brought to recover damages that arose out of an incident that involved a defectively designed, manufactured, installed-, or operating child passenger restraint system.

Appellants also argue that a statement made by the senate author of the legislation that created the exception codified at Minn.Stat. § 169.685, subd. 4(b), demonstrates that the legislature intended the exception to apply only to product-liability actions. But “[wjhen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn.Stat. § 645.16 (2004). When the words of Minn.Stat. § 169.685, subd. 4(b), are construed according to their common and approved usage, the application of Minn.Stat. § 169.685, subd. 4(b), to respondent’s action against appellants is clear and free from all ambiguity. Under the plain meaning of the statute, the exception applies to respondent’s action, and we may not disregard the plain meaning of the statute. See also MBNA Am. Bank, N.A. v. Comm’r of Revenue, 694 N.W.2d 778, 780 (Minn.2005) (stating that absent ambiguity, court cannot avoid plain meaning of words of statute to give effect to spirit of law).

DECISION

The district court correctly determined that the exception from Minn.Stat. § 169.685, subd. 4(a), created by Minn. Stat. § 169.685, subd. 4(b), does not apply only to a product-liability action. The district court correctly determined that the exception applies to respondent’s action.

Affirmed.

      . Minn.Stat. § 169.685, subd. 5 (2004), states:
      (a) Every motor vehicle operator, when transporting a child under the age of four on the streets and highways of this state in a motor vehicle equipped with factory-installed seat belts, shall equip and install for use in the motor vehicle, according to the manufacturer’s instructions, a child passenger restraint system meeting federal motor vehicle safety standards.
      (b) No motor vehicle operator who is operating a motor vehicle on the streets and highways of this state may transport a child under the age of four in a seat of a motor vehicle equipped with a factory-installed seat belt, unless the child is properly fastened in the child passenger restraint system.

      . 1999 Minn. Laws ch. 106, § 1, is codified at Minn.Stat. § 169.685, subd. 4(b) (2004).


author: RANDALL, Judge.

text:
    James D. STUEDEMANN and Jeanne R. Stuedemann, as co-trustees for the heirs and next of kin to Jolene Stuedemann, Decedent, Appellants, v. Tony Allen Roman NOSE, Respondent, R-Home of Woodbury, Inc., Respondent, Robert Ritter and Donna Ritter, individually and as proprietors of Prolawn Landscaping, Respondents, Kevin Flynn, Respondent.
    No. A05-1524.
    Court of Appeals of Minnesota.
    May 9, 2006.

      Arlo H. Yande Vegte, Arlo H. Vande Vegte, P.A., Long Lake, MN, for appellants,
    Tony Allen Roman Nose, Stillwater, MN, pro se respondent.
    Louise Dovre Bjorkman, Mark A. Sol-heim, Marcus R. Sanborn, Larson King, LLP, St. Paul, MN, for respondent R-Home of Woodbury.
    Diane B. Bratvold, Richard C. Scatter-good, Karen B. Andrews, Rider Bennett, LLP, Minneapolis, MN, for respondents Robert and Donna Ritter.
    Bruce P. Candlin, Bruce P. Candlin & Associates, St. Paul, MN, for respondent Kevin Flynn.
    Considered and decided by LANSING, Presiding Judge; RANDALL, Judge; and HUDSON, Judge.
   OPINION

RANDALL, Judge.

In this appeal from summary judgments, appellants argue that that the district court erred by dismissing their wrongful-death negligence claims against a foster home, the owners of the foster home, and the foster home’s psychologist. Appellants’ daughter was murdered by a resident of the foster home. Because we conclude that respondents satisfied any duty they might have had and that respondents’ allegedly negligent conduct was not the proximate cause of appellants’ daughter’s death, we affirm.

FACTS

From 1997 to June 1999 and from August 1999 to July 2000, Tony Allen Roman Nose lived at Sherwood Home, a group foster home in Woodbury operated by respondent R-Home of Woodbury, Inc. (R-Home). Respondents Robert and Donna Ritter are the sole shareholders and officers of R-Home. Respondent Kevin Flynn is a psychologist who provides counseling and chemical-dependency treatment for the residents of R-Home group foster homes.

Roman Nose has a history of violent behavior, drug and alcohol abuse, and defiant behavior. In June 1999, while in Montana visiting his family for the summer, Roman Nose consumed alcohol and marijuana and attacked a man with a baseball bat. Upon his return to Sherwood Home in August 1999, he had several instances of conflict with other residents, one time throwing a fork at a resident’s face. Roman Nose was diagnosed with a chemical-dependency problem, although he passed more than 20 drug tests administered between January and July 2000. He had several curfew violations and unexcused absences from school. Roman Nose also had a tendency to leave Sherwood Home for short periods of time without permission.

While at Sherwood Home, Roman Nose had a treatment plan to address his chemical-dependency and conflict-resolution problems. Roman Nose met with Flynn regularly to discuss chemical dependency, anger management, and behavior problems. Roman Nose also attended group meetings run by Flynn at Sherwood Home and Alcoholics Anonymous meetings. Flynn was ill during April 2000 and unable to perform his counseling duties.

On July 10, 2000, at about 8:00 p.m., Roman Nose and another Sherwood Home resident left Sherwood Home after being told that they did not have permission to leave. A Sherwood Home house parent followed Roman Nose and the other resident and indicated nonverbally that they were to return to Sherwood Home. The other resident returned shortly and reported that Roman Nose said that he would come home in a little while. Although Roman Nose occasionally left Sherwood Home without permission, he always returned and did not have a history of running away. Robert Ritter told the house parent to wait a while before calling the police to give Roman Nose an opportunity to return on his own. At about 11:00 p.m., because Roman Nose had not yet returned, the house parent called the police and reported that Roman Nose had run away.

Roman Nose spent that evening drinking beer, smoking marijuana, and using cocaine with Andrew Rieman and Jolene Stuedemann. Later that evening, Roman Nose sexually assaulted Stuedemann and then stabbed her multiple times with a screwdriver. State v. Roman Nose, 649 N.W.2d 815, 816-17 (Minn.2002). Roman Nose was convicted of first-degree murder during the commission of criminal sexual conduct. Id. at 816.

Appellants James and Jeanne Stuede-mann brought a negligence-based wrongful-death action against Roman Nose, R-Home, and the Ritters. They later amended their complaint, adding Flynn as a defendant. The Stuedemanns sought partial summary judgment “determining that as a matter of law [Roman Nose] murdered Jolene Stuedemann on July 11, 2000.” R-Home, the Ritters, and Flynn (collectively referred to as “respondents”) each sought summary judgment on the grounds that they did not owe Jolene Stue-demann a duty to control Roman Nose and that their allegedly negligent conduct was not the cause of Jolene Stuedemann’s death. Flynn also argued that the Stuede-manns’s affidavit disclosing the identity of their expert witness was untimely.

The district court concluded that, as a matter law, Roman Nose murdered Jolene Stuedemann; respondents did not have a duty to control Roman Nose; respondents’ allegedly negligent conduct was not the proximate cause of Jolene Stuedemann’s murder; and the Stuedemanns failed to disclose the identity of their expert witness by the deadline in the scheduling order. The district court granted respondents’ motions for summary judgment and dismissed the wrongful-death claims against respondents. The Stuedemanns’ appeal follows.

ISSUES

1. Did the district court err by granting respondents’ motions for summary judgment?

ANALYSIS

The Stuedemanns argue that the district court erred by granting respondents’ motions for summary judgment and dismissing their wrongful-death claims against respondents. Summary judgment is appropriate when, viewing the evidence in a light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.08; Stringer v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746, 753 (Minn.2005). We review de novo whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Meintsma v. Loram Maint. of Way, Inc., 684 N.W.2d 434, 438 (Minn.2004). We will not reweigh the facts or determine the credibility of affidavits and other evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn.1997).

A plaintiff who alleges negligence in a wrongful-death action must prove that (1) the defendant had a duty, (2) the defendant breached that duty, (3) there was a death, and (4) the breach of duty caused the death. Laska v. Anoka County, 696 N.W.2d 133, 137 (Minn.App.2005), review denied (Minn. Aug. 16, 2005). If the record lacks proof of any of the elements of the negligence claim, the defendant is entitled to summary judgment. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn.2001).

The Stuedemanns argue that R-Home, the Ritters, and Flynn had a duty to control Roman Nose to prevent him from causing bodily harm to others and that their failures to control Roman Nose caused Jolene Stuedemann’s death. Whether a party has a duty is an issue for the courts to decide as a matter of law. ServiceMaster of St. Cloud v. GAB Bus. Servs., 544 N.W.2d 302, 307 (Minn.1996).

There is no general duty to control the conduct of a third person to prevent him from causing physical harm to others. Johnson v. State, 553 N.W.2d 40, 49 (Minn.1996) (citing Restatement (Second) of Torts § 315 (1965)). But certain special relationships exist that impose a duty to control the third person’s conduct for the protection of others. Id. A person who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled has a duty to exercise reasonable care to control the third person to prevent him from doing such harm. Id. (citing Restatement (Second) of Torts § 319 (1965)). “Implicit in the duty to control is the ability to control.” Lundgren v. Fultz, 354 N.W.2d 25, 27 (Minn.1984).

A duty arises under section 319 of the Restatement of Torts when a person knows of a third person’s dangerous propensities and has the authority to control that person’s conduct. Rum River Lumber Co. v. State, 282 N.W.2d 882, 887 (Minn.1979). It is undisputed that respondents were aware of Roman Nose’s violent behavior, including the baseball-bat assault in June 1999 and the fork-throwing incident in May 2000. R-Home, the Ritters, and Flynn each had limited authority to set goals for Roman Nose and impose consequences for his inappropriate behavior. To the extent that they had the authority to control Roman Nose’s behavior, the respondents had a duty to exercise that authority to prevent Roman Nose from engaging in violent conduct.

The Stuedemanns allege several duties that respondents had to control Roman Nose, including the duty to remove Roman Nose from the streets on July 10, 2000. But respondents did not have the authority to physically restrain Roman Nose from leaving Sherwood Home, nor could they force him to return after he had left. The rules governing group-home licensing when Roman Nose lived at Sherwood Home specifically prohibited such control of group-home residents. See Minn. R. 9545.0995 (1999); see also Minn. Stat. § 144.651, subd. 31 (1998) (allowing physical restraint or isolation only in emergency situations and not for disciplinary purposes, to enforce program rules, or for the convenience of staff). At most, respondents had a duty to call the police and report Roman Nose as a runaway. Undisputed record evidence shows that the staff at Sherwood Home did call the police when Roman Nose did not return after a few hours. There was no breach of this duty, and we conclude that the respondents’ conduct was not negligent.

The scope of the duty to control another’s conduct is also limited by the forseeability of the harm. Lundgren, 354 N.W.2d at 28. The test of foreseeability is whether a defendant was aware of facts suggesting that a plaintiff was being exposed to an unreasonable risk of harm. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 158 (Minn.App.1993), review denied (Minn. July 15, 1993). “In determining whether a danger is foreseeable, courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.” Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918 (Minn.1998).

The other duties that the Stuedemanns argue respondents had are the duties to (1) refuse to accept Roman Nose into Sherwood Home after the baseball-bat assault; (2) discharge Roman Nose to a higher-security facility; (3) enlist the assistance of the juvenile court; and (4) report that Roman Nose was not receiving counseling from Flynn when Flynn was ill in April 2000. None of these duties alleged by the Stuedemanns passes the foreseeability test. To hold that respondents had a duty to control Roman Nose by the methods proposed by the Stuedemanns, we must conclude that it was objectively reasonable to expect that Roman Nose would murder Jolene Stuedemann on July 10, 2000, if he was not discharged to a higher-security facility, if the juvenile court was not more involved, or if it was not reported that Roman Nose was not receiving counseling from Flynn when Flynn was ill in April 2000. We are not prepared to do so. Jolene Stuedemann’s murder is too remote in time from any possible breach of these alleged duties to be foreseeable.

The Stuedemanns also challenge the district court’s conclusion that any alleged negligence of respondents was not the proximate cause of Jolene Stuede-mann’s death. The district court noted that despite the voluminous record developed by the Stuedemanns, questioning the propriety of Roman Nose’s placement at Sherwood Home and the effectiveness of his treatment there, “[t]he proximate cause of [Jolene Stuedemann’s] death was Tony Roman Nose.” Generally, proximate cause is a question of fact for the jury. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 115 (Minn.1992). But when reasonable minds can arrive at only one conclusion, proximate cause should be decided by the court as a matter of law. Id.

A person’s negligent conduct is the proximate cause of another’s injury if the negligent conduct is such that the person, in the exercise of ordinary care, ought to have anticipated that the conduct was likely to result in injury to others. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). The plaintiff must show that the defendant’s “conduct was a substantial factor in bringing about the injury.” Flom v. Flom, 291 N.W.2d 914, 917 (Minn.1980). When determining whether negligent conduct was the proximate cause of an injury, an unforeseeable criminal act by a third party serves as an intervening cause sufficient to break the chain of causation. Hilligoss v. Cross Cos., 304 Minn. 546, 547, 228 N.W.2d 585, 586 (1975).

It is undisputed that Roman Nose obtained and consumed drugs and alcohol several hours after he left Sherwood Home. Although respondents were aware of Roman Nose’s violent behavior in Montana and at Sherwood Home, there is nothing in the record indicating that Roman Nose had ever engaged in violent behavior the previous times that he left Sherwood Home without permission. In light of Roman Nose’s conduct after he left Sherwood Home, the allegedly negligent conduct by respondents was not a substantial factor in bringing about Jolene Stuedemann’s death. Roman Nose’s unforeseeable criminal behavior — -the consumption of drugs and alcohol, the sexual assault, and the murder- — was an independent intervening cause resulting in Jolene Stuedemann’s death. We conclude that respondents’ conduct was not the proximate cause of Jolene Stuedemann’s death.

We understand that Roman Nose caused the Stuedemanns tremendous grief and that the void left by their daughter’s tragic murder will never be filled. But there are limits on how far courts can stretch one person’s injuries to another person’s liability. We conclude that that the scope of respondents’ duty to control Roman Nose extends only as far as their authority and is limited by the unforseeability of Jolene Stuedemann’s murder. Respondents could not have foreseen the horrendous events that unfolded on July 10, 2000. We cannot hold them liable for Roman Nose’s criminal conduct.

The Stuedemanns also challenge the district court’s dismissal of their complaint against Flynn because their affidavit disclosing the identity of their expert witness was untimely. Because we conclude that the district court did not err by granting Flynn’s motion for summary judgment on the merits of the case, we need not address this issue.

DECISION

Respondents’ duty to control Roman Nose is limited to conduct within their authority. Respondents’ conduct was not negligent. Because Roman Nose’s criminal conduct was an unforeseeable intervening cause, as a matter of law respondents’ allegedly negligent actions were not the proximate cause of Jolene Stuedemann’s death.

Affirmed.