author: HUITINK, P.J.

text:
    Mary HAYS, Plaintiff-Appellee, v. Carl HAYS, Defendant-Appellant.
    No. 99-0083.
    Court of Appeals of Iowa.
    April 12, 2000.

      Carl Hays, Adel, pro se.
    Ralph R. Brown and Douglas A. Flanders of McDonald, Brown & Fagen, Dallas Center, for appellee.
    Considered by HUITINK, P. J„ and STREIT and MILLER, JJ.
   HUITINK, P.J.

Carl Hays appeals the district court decision denying his Iowa Rule of Civil Procedure 179(b) motion on an order finding him in contempt of a judicial decree. Carl claims the failure of the clerk of the district court to mail him a copy of the contempt order should extend the time for filing notice of appeal. We find Carl’s appeal was untimely and dismiss the appeal.

Plaintiff Mary Hays and defendant Carl Hays are siblings. They own adjacent parcels of land in Dallas County. On January 27, 1992, the district court entered a decree granting Mary an easement over a portion of Carl’s property and granting Carl an easement over a portion of Mary’s property.

On July 3, 1997, Mary filed an application to have Carl found in contempt for violating the terms of the 1992 decree. Carl filed a counterclaim seeking to have Mary found in contempt and asking for damages. The district court entered an order on August 12, 1998, finding Carl was in contempt for interfering with Mary’s use of her easement and for using more of Mary’s property than permitted by his easement. The court found Mary was not in contempt.

In November 1998 Carl inquired with the clerk’s office regarding the status of the case. A computer entry showed an order in the case had been filed on August 12, 1998, but the order was not in the district court file. Carl, who is pro se, claims he did not receive a copy of the order. The clerk’s office obtained a copy of the order from Mary’s attorney and on November 12, 1998, provided a copy to Carl.

On November 20, 1998, Carl filed a motion to enlarge or amend, pursuant to rule 179(b). In December 1998 the clerk’s office found the contempt order, which had been placed in the wrong file. The order was file stamped August 12, 1998. A certificate of service shows the order was mailed to the attorneys of record. On December 30, 1998, the district court overruled Carl’s posttrial motion. Carl appealed on January 26,1999.

The supreme court has ordered the question of the timeliness of the appeal to be submitted with the appeal in this case. Under Iowa Rule of Appellate Procedure 5(a), appeals must be taken within thirty days from the entry of an order. We have no jurisdiction to consider an appeal filed more than thirty days following a court’s final judgment. Robco Transp., Inc. v. Ritter, 356 N.W.2d 497, 499 (Iowa 1984).

This rule holds true even where, through the negligence of the clerk, the parties are notified of the entry of an order beyond the time for appeal. Hyde v. Anania, 578 N.W.2d 647, 649 (Iowa 1998). A direct appeal, taken at the time notice of the order is received, but outside the thirty-day period, is doomed to failure by Iowa Rule of Civil Procedure 106(f). Uchtorff v. Dahlin, 363 N.W.2d 264, 267 (Iowa 1985). Rule 106(f) provides the clerk must serve notice of the entry of an order by mail to each party, but:

[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the district court to relieve a party for failure to appeal within the time allowed.

Iowa R.Civ.P. 106(f).

A litigant may avoid the harsh consequences of rule 106(f) by filing a motion to vacate or modify under rules 252 and 253. In re Estate of Young, 273 N.W.2d 388, 391 (Iowa 1978). Rule 252(a) allows a court to correct, vacate or modify an order on the grounds of mistake, neglect or omission by the clerk. Hyde, 578 N.W.2d at 650.

Here, Carl did not file a motion to vacate or modify under rules 252 and 253, but instead filed a motion which specifically states it is brought pursuant to rule 179(b). We note that although Carl is proceeding pro se, we do not utilize a deferential standard when persons choose to represent themselves. Kubik v. Burk, 540 N.W.2d 60, 63 (Iowa App.1995); see also Polk County v. Davis, 525 N.W.2d 434, 436 (Iowa App.1994) (court would not consider untimely motion for new trial made pursuant to rule 244, not rule 252(a), brought by pro se defendant who did not receive copy of trial court’s order).

Under rule 247, a motion pursuant to rule 179(b) must be brought within ten days after an order is filed. An untimely motion under rule 179(b) will not toll the running of the thirty-day period within which an appeal must be taken. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 471 (Iowa 1978). Where, as here, the rule 179(b) motion is untimely, the appeal time is computed from the date of the judgment that was the subject of the posttrial motion. See Estate of Morgan v. North Star Steel Co., 484 N.W.2d 199, 200 (Iowa 1992).

The appeal is this case was filed more than thirty days after the entry of the district court’s order on August 12, 1998. We determine Carl’s appeal was untimely. We do not have jurisdiction to consider untimely appeals. Uchtorff, 363 N.W.2d at 267. We dismiss the appeal.

APPEAL DISMISSED.

      . An exception is found in Iowa Rule of Appellate Procedure 20(b), which permits the supreme court to extend the time for filing a notice of appeal if the court determines that failure to file a timely notice of appeal was due to the failure of the clerk of the trial court to notify die prospective appellant of the entry of the appealable final judgment. Any motion for such an extension of time must be filed within sixty days after the expiration of the time prescribed in rule 5(a). Uchtorff v. Dahlin, 363 N.W.2d 264, 267 (Iowa 1985). No motion for an extension of time under rule 20(b) .was filed in the present case.

      . Prior to January 24, 1998, the provisions of Iowa Rule of Civil Procedure 106(f) were found in rule 82(f).


source: Caselaw Access Project

author:
PAUL H. ANDERSON, Justice.
      PAGE, Justice

license: Public Domain

text:
    Judy V. BODE, et al., petitioners, Appellants, v. MINNESOTA DEPARTMENT OF NATURAL RESOURCES, et al., Respondents.
    No. C1-98-2200.
    Supreme Court of Minnesota.
    June 1, 2000.
    Rehearing Denied July 24, 2000.

      Brian Bates, St.Paul, for appellant.
    Mike Hatch, Attorney General, Craig L. Engwall, Assistant Attorney General, St. Paul, for respondent.
   OPINION

PAUL H. ANDERSON, Justice.

In 1998, following 18 years of legal and administrative proceedings, appellants Judy and Linda Bode asserted that a 1986 Nicollet County District Court judgment was void because a 1980 appeal from an administrative hearing was filed one day late. In that subsequent and separate district court action, the Bodes made a motion under Minn. R. Civ. P. 60.02(d), arguing that the district court’s 1986 judgment was void because the 1980 appeal by respondent Minnesota Department of Natural Resources (DNR) had been untimely. The Bodes asked the court to vacate its prior judgments on the grounds that the court lacked subject matter jurisdiction to hear the DNR’s 1980 appeal. The court granted the Bodes’ motion to vacate, but the Minnesota Court of Appeals reversed. We affirm the court of appeals.

In 1976 and again in 1979, the Minnesota Legislature directed the Commissioner of the DNR to inventory the state’s public waters and to designate those that were public waters and wetlands. As a result of this legislation, the DNR inventoried the Bode farm in Nicollet County and classified part of the farm as wetlands. The DNR determined that the designated tract of land met the definition of “wetlands” contained in Minn.Stat. § 105.37, subd. 15 (Supp.1979) which, in relevant part, required that wetlands in unincorporated areas be at least ten acres in size.

In August 1980, William Bode timely appealed the DNR’s classification to the Nicollet County Hearings Unit. The Hearings Unit was created by statute to resolve landowner disputes arising from the DNR’s wetlands inventory. See Minn. Stat. § 105.391, subd. 1 (Supp.1979). By an order dated September 10, 1980, the Hearings Unit concluded that there were two separate “water basins” located on the Bode farm, with each basin being smaller than ten acres. Accordingly, the Hearings Unit found that the DNR had improperly classified part of the Bode farm as wetlands. The Hearings Unit order was mailed to the DNR on October 1, 1980.

The DNR appealed the Hearings Unit order to the district court pursuant to Minn.Stat. § 15.0424, subd. 2(1) (Supp. 1979), which is a provision of the Administrative Procedures Act. The Bodes now contend that this appeal was filed one day late and the DNR does not contest this point. However, when the district court accepted jurisdiction in 1980, it appears that neither party was aware that the filing was late. In any case, at that timé, William Bode did not make any objection on the grounds that the court lacked subject matter jurisdiction. The following year, in 1981, William Bode installed a tile drainage system within the bed of the tract of land designated by the DNR as wetlands. Installation of the tile resulted in the complete drainage of the tract. The tract was then tilled, used to raise crops, and according to Judy Bode, yielded 170 bushels of corn per acre.

Meanwhile, the court considered the DNR’s appeal and in 1986 reversed the Hearings Unit findings by an order for judgment that was dated December 17, 1986. Following the 1986 judgment, years of legal proceedings ensued between the Bodes and the DNR regarding the DNR’s efforts to restore the wetlands located on the Bode farm. It is fair to say that at times the relationship between the Bodes and the DNR was acrimonious. For example, there was an episode1 on May 7, 1992 when the DNR, with the assistance of conservation officers and sheriffs deputies, went onto the Bode farm to destroy part of the Bodes’ tile drainage system. A similar episode appears to have occurred on November 22,1993.

In March 1996, the Bodes brought a subsequent independent action in district court alleging that (1) part of their farm had been improperly classified as wetlands, and (2) they were entitled to damages resulting from the DNR’s destruction of,part of their tile drainage system. In response to this action, the DNR raised the, affirmative defense of collateral estop-pel, asserting that the classification issue had already been decided. The DNR also asserted the defense of official immunity and subsequently moved for summary judgment on both grounds. The court granted the motion by an order dated September 18, 1997 and judgment was entered four days later.

In July 1998, in conjunction'with the 1996 action, the Bodes brought a motion pursuant to Minnesota Rules of Civil Procedure 60.02(d) and 56 to vacate the 1986 judgment and for partial summary judgment in their favor on the first count of the 1996 action. In this motion, the Bodes, for the first time in the many years of legal proceedings, raised the issue of lack of subject matter jurisdiction. More particularly, the Bodes argued that the DNR’s 1980 appeal to the district court had been untimely; thus, the court never had subject matter jurisdiction, which lack of jurisdiction rendered the 1986 judgment void. The court agreed with the Bodes’ argument and (1) vacated the 1986 judgment, (2) vacated its grant of summary judgment to the DNR as to the first count in the 1996 action, and (3) granted partial summary judgment to the Bodes on the first count of the 1996 action. In reaching this result, the court interpreted Minnesota case law as clearly demonstrating that judgments are void when the court granting judgment lacked subject matter jurisdiction. The court also found that there is no time limitation for commencing proceedings to vacate such judgments.

The DNR appealed and the court of appeals reversed. The court of appeals began its analysis by stating that “[s]ub-ject-matter jurisdiction is ‘a court’s power to hear and determine cases of the general class or category to which the proceedings in question belong.’ ” Bode v. Minnesota Dept. of Natural Resources, 594 N.W.2d 257, 259 (Minn.App.1999) (quoting Black’s Law Dictionary 1425 (6th ed.1990)). The court then concluded that some Minnesota case law has applied subject matter jurisdiction analysis to judgments that do not necessarily fall within the aforementioned definition of subject matter jurisdiction, but instead involve “procedural irregularities.” Id. The court reasoned that cases with procedural irregularities may involve an “incurable jurisdictional defect,” but do not- necessarily implicate subject matter jurisdiction. Id. The court then stated that holding a judgment void for lack of subject matter jurisdiction based on an untimely appeal confuses an inappropriate exercise of power with the absence of power. See id. at 260. Applying this reasoning, the court held that “the 1986 judgment was not void for subject matter jurisdiction as that term is applied in its strict sense * * Id. at 263. On appeal to this court, the Bodes challenge the court of appeals’ conclusion and again argue that the 1986 district court judgment should be vacated.

I.

We begin our analysis by noting that a party may either directly or collaterally challenge a judgment’s validity for a lack of subject matter jurisdiction. A party can directly attack a judgment “in the same proceeding as the one in which the judgment was entered.” Black’s Law Dictionary 472 (7th ed.1999). Also, when appropriate, a party may make a collateral attack, which is an “attack on a judgment entered in a different proceeding.” Id. at 255. Here, it is undisputed that the Bodes brought a Minn. R. Civ. P. 60.02(d) motion attacking the validity of the 1986 judgment in the context of their subsequent independent 1996 action. Because the Bodes challenged the 1986 judgment in a different proceeding, their attack was collateral. But Rule 60.02(d) is a procedural mechanism to directly, rather than collaterally, attack a void judgment. See generally Minn. R. Civ. P. 60.02. This characterization is supported by the language in the rule that provides that the rule “does not limit the power of a court to entertain an independent action to relieve a party from a judgment * * Id.

By filing a Rule 60.02(d) motion for a direct attack on subject matter jurisdiction in the context of the 1996 action, the Bodes were, in effect, collaterally challenging the district court’s subject matter jurisdiction over the 1986 action. In this context, the Bodes’ motion must fail because a Rule 60.02(d) motion is not the proper vehicle for such a collateral attack. We therefore conclude that the Bodes’ motion was procedurally improper and that the district court erred when it granted the motion.

Beyond being procedurally deficient, the Bodes’ collateral attack on the 1986 judgment for lack of subject matter jurisdiction also fails on its merits. We review issues involving jurisdiction de novo. See Minnesota Ctr. for Envtl. Advocacy v. Metropolitan Council, 587 N.W.2d 838, 842 (Minn.1999). We have held that the “statutory limitation of time within which an appeal may be taken from an appealable order or * * * judgment is jurisdictional.” Arndt v. Minnesota Educ. Ass’n, 270 Minn. 489, 490, 134 N.W.2d 136, 137 (1965). The traditional rule is that there is no time limit for challenging a final judgment that is void for lack of subject matter jurisdiction. See 12 James W. Moore et al., Moore’s Federal Practice § 60.44 (3d ed.1997). The principle underlying this rule is that a judgment’s validity is of utmost importance. Minnesota courts have adhered to this traditional rule. In Lange v. Johnson and its progeny, we held that judgments are void if a court lacks subject matter jurisdiction and that there is no time limit for bringing a motion to vacate such a judgment. 295 Minn. 320, 323-24, 204 N.W.2d 205, 208 (1973); see also Peterson v. Eishen, 512 N.W.2d 338, 341 (Minn.1994).

Under the traditional rule, a judgment rendered by a court that lacks subject matter jurisdiction is void and can be challenged at any time. See 12 James W. Moore et al., Moore’s Federal Practice § 60.443 (3d ed.1997). While this rule places great emphasis on a judgment’s validity, there is a countervailing consideration — the interest in finality — that can be undermined by application of this rule. Total reliance on a judgment’s validity may produce problematic results when attacks on subject matter jurisdiction are initiated after final judgment is entered. The dilemma posed by the conflicting interests of finality and validity was discussed by the commentators to Section 12 of the Restatement- (Second). of Judgments when they stated:

Questions of subject matter jurisdiction must be justiciable if the legal rules governing competency are to be given effect; some tribunal must determine them, either the court in which the action is commenced or some other court of referral. If the question is decided erroneously, and a judgment is allowed to stand in the face of the fact that the court lacked subject matter jurisdiction, then the principle of validity is compromised. On the other hand, if the judgment remains indefinitely subject to attack for a defect of jurisdiction, then the principle of finality is compromised.

Restatement.(Second) of Judgments § 12, cmt (a) (1982). For example, it may be unjust to allow a party to contest subject matter jurisdiction after the opposing party has prevailed on the merits. See generally id. Additionally, vacating a judgment after years of litigation may waste both public and private resources. See generally id.

In response to problems with application of the traditional rule in the context of collateral attacks on subject matter jurisdiction, a modern rule has developed that moves away from the traditional rule and its exclusive emphasis on validity. This modern rule is reflected in Section 12 of the Restatement (Second) of Judgments, which limits when collateral attacks on subject matter jurisdiction will be permitted. Section 12 attempts to balance validity with finality in contested actions by precluding post-judgment challenges to a court’s subject matter jurisdiction in subsequent litigation except under three circumstances. More specifically, Section 12 provides that when a court has rendered a judgment in a contested action, motions in subsequent litigation to vacate that judgment for lack of subject matter jurisdiction should not be permitted unless:

(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a.matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.

Restatement (Second) of Judgments § 12. In recent years, a number of jurisdictions have favorably cited Section 12.

The Bodes’ collateral attack on'the 1986 judgment implicates 'the conflicting policy concerns that -underlie the traditional and modern rules. The Bodes first contested subject matter jurisdiction’ 18 years after the DNR’s initial appeal from the Hearings Unit order and 12 years after entry of the contested district court judgment. The district court, applying the traditional rule and the principles of our case law, vacated its 1986 judgment despite the fact that, in the interim, the parties took substantial action in reliance on the judgment. Prior to the 1986 judgment, William Bode installed a tile drainage system within the tract designated by the DNR as wetlands. Relying on the judgment, the DNR issued a restoration order in 1989 requiring the Bodes to remove that drainage system. When the Bodes did not comply, the DNR obtained a default judgment to enforce the order. When the Bodes still did not comply, the court held them in contempt and issued an order authorizing the DNR to restore the wetlands. In 1992 and 1998, the DNR forcibly went onto the Bode farm to destroy the tile drainage system.

Applying the traditional rule would invalidate these actions taken in reliance on the 1986 judgment’s presumed validity. Such a result exemplifies the policy concerns that have led courts away from the traditional rule. We share many of these concerns; therefore, we conclude that it is appropriate that we now evaluate which approach- — the traditional rule or the modern rule — strikes a better balance between the need to preserve a judgment’s finality and its validity.

As previously noted, the Bodes actually launched a collateral attack on the 1986 judgment when they moved to vacate that judgment under their 1996 action. Therefore, we will analyze the Bodes’ collateral attack in light of the competing principles of finality and validity. While we acknowledge these principles cannot be perfectly accommodated, we recognize that total reliance on a judgment’s validity produces problematic results when attacks on subject matter jurisdiction are initiated long after a final judgment is entered. Further, “if [a] judgment remains indefinitely subject to attack for a defect of jurisdiction, then the principle of finality is compromised.” Restatement (Second) of Judgments § 12, cmt (a). Therefore, we conclude that Section 12 achieves a better balance between finality and validity in the context of a collateral attack on subject matter jurisdiction than does our traditional rule. Accordingly, we will proceed to examine the Bodes’ collateral attack on subject matter jurisdiction to determine if it fits within one of the three exceptions found in Section 12.

Under the first exception, the Bodes can contest subject matter jurisdiction if the first action’s subject matter was “so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority.” Restatement (Second) of Judgments § 12. This exception is inapplicable here because it is undisputed that if the appeal had not been filed one day late, the district court would have had jurisdiction to consider the DNR’s appeal from the Hearings Unit order. Therefore, we conclude that Section 12’s first exception is inapplicable because the district court’s consideration of the substantive issue in the first action was not a manifest abuse of authority.

We also conclude that the second and third exceptions do not apply. The district court did not “substantially infringe the authority of another tribunal or agency of government * * Restatement (Second) of Judgments § 12. Nor have the Bodes demonstrated that the court lacked the capability “to make an adequately informed determination of a question concerning its own jurisdiction.” Id. The Bodes do not dispute that the district court was the proper forum for the DNR’s appeal. In fact, under the APA, the court was the designated forum for resolving this category of disputes. Further, it appears that the DNR’s 1980 appeal, other than being one day late, conformed exactly to the provisions of the APA. Therefore, we conclude that the district court’s consideration of the substantive issue did not substantially infringe on another government tribunal or agency’s authority nor was the court incapable of evaluating its own jurisdiction.

Because we conclude that the Bodes incorrectly brought their motion under Rule 60.02(d) and that the motion does not fall within any of the Section 12 exceptions, we hold that a collateral attack on the district court’s subject matter jurisdiction must fail. Therefore, the district court erred when it granted the Bodes’ motion.

II.

Even though we have held that the district court improperly granted the Bodes’ Rule 60.02(d) motion, this case presents an additional issue that warrants our consideration. The Bodes made a jurisdictional challenge that was in effect a collateral attack on subject matter jurisdiction, but the district court treated it as a direct attack on the 1986 judgment. Indeed, the parties have litigated this appeal on the grounds that the Bodes’ motion was a direct attack on subject matter jurisdiction. Thus, we have been presented with the issue of a direct attack on subject matter jurisdiction made 18 years after the entry of final judgment. It would be an exercise in judicial inefficiency for us to remand this case to the district court in order to permit the Bodes to refile a Rule 60.02(d) motion in the context of the action in which the 1986 judgment was entered and then, if successful, to file a Rule 60.02(e) motion in the 1996 action. See State v. Lothenbach, 296 N.W.2d 854, 856 (Minn.1980) (holding that we will address issues raised by appellant despite technical errors under circumstances where the interest in judicial economy so demands); see also State v. Faber, 348 N.W.2d 659, 660 (Minn.1984). Accordingly, we will address the propriety of a direct attack on the 1986 judgment.

Minnesota Rule of Civil Procedure 60.02 permits a party, on the basis of thirteen reasons within six specific grounds, to move to set aside a final judgment, including if “[t]he judgment is void.” Minn. R. Civ. P. 60.02(d). The rule further provides that a motion to vacate a void judgment “shall be made within a reasonable time * * Minn. R. Civ. P. 60.02. By including this limitation, the rule demonstrates an intent to limit the length of time within which a party may receive relief from a final judgment. Thus, Rule 60.02 reflects aspects of the modern rule.

Despite the “reasonable time” language of Rule 60.02, we have in the past adhered to the traditional rule for challenging final judgments for lack of subject matter jurisdiction by not applying Rule 60.02’s reasonable time requirement to motions to vacate a judgment for lack of subject matter jurisdiction. We held in Lange and its progeny that the time limits imposed by Rule 60.02 do not apply to motions to vacate a judgment for lack of subject matter jurisdiction. See, e.g., Lange, 295 Minn. at 323-24, 204 N.W.2d at 208; Peterson, 512 N.W.2d at 341. However, it is important to note that in Peterson we did not foreclose the possibility that extraordinary circumstances could be presented that would justify a departure from this general rule. See id.

Some of the problems encountered by courts when attempting to reconcile the interests in validity and finality are illustrated by the court of appeals’ effort to fashion some distinction between subject matter jurisdiction and procedural irregularities. Indeed, the Eighth Circuit Court of Appeals has made similar distinctions. For example, in Kansas City Southern Ry. Co. v. Great Lakes Carbon Corp., the court stated:

Absence of subject matter jurisdiction may, in certain cases, render a judgment void. Howeveh, this occurs only where there is a plain usurpation of power, when a court wrongfully extends its jurisdiction beyond the scope of its authority. Stated another way, such plain usurpation of power occurs when there is a “total want of jurisdiction” as distinguished from “an error in the exercise of jurisdiction.”

624 F.2d 822, 825 (8th Cir.1980) (citation omitted) (quoting Lubben v. Selective Serv. Syst., 453 F.2d 645, 649 (1st Cir.1972)). Later, in Kocher v. Dow Chemical Co., the court stated that “a judgment is not void for lack of subject matter jurisdiction unless ‘no arguable basis’ for jurisdiction existed.” 132 F.3d 1225, 1230 (8th Cir.1997). We do not find these attempts to be a satisfactory solution to the problem of reconciling the principles of finality and validity. Rather, we conclude that applying the reasonable time limit of Rule 60.02 to a Rule 60.02(d) motion to vacate a judgment for lack of subject matter jurisdiction achieves a better balance between finality and validity than either our prior application of the traditional rule or the court of appeals’ distinction between subject matter jurisdiction and procedural irregularities.

Having concluded that direct attacks on a judgment based on lack of subject matter jurisdiction must be brought within a reasonable time, we next proceed to define the phrase “reasonable time” in the context of Rule 60.02. We interpreted this phrase in Sommers v. Thomas, 251 Minn. 461, 466, 88 N.W.2d 191, 195-96 (1958). There we stated that

[w]hat constitutes a reasonable time varies from case to case and must be determined in each instance from the facts before the court because “(t)he very nature of the exercise of discretionary power in cases of this kind is such as to prevent any absolute rule being laid down.”

Id. at 467, 88 N.W.2d at 195-96 (quoting Pilney v. Funk, 212 Minn. 398, 403, 3 N.W.2d 792, 795 (1942)). Expanding on this premise in Newman v. Fjelstad, we stated that what is a reasonable time must be determined by considering all attendant circumstances such as: “intervening rights, loss of proof by or prejudice to the adverse party, the commanding equities of the case, the general desirability that judgments be final and other relevant factors ⅜ * * » 271 Minn. 514, 522, 137 N.W.2d 181, 186 (1965) (quotation omitted). We reaffirm our definition of reasonable time as set forth in Sommers and Newman and will apply that definition to the facts of this case.

The Bodes brought their Rule 60.02(d) motion 18 years after the initial appeal was taken and 12 years after entry of the 1986 judgment. They have not proffered any satisfactory reasons why this motion was not brought earlier. The 1986 judgment was presumed valid and relied on for 12 years. For example, the DNR made significant restoration efforts based on the land being designated as protected wetlands, including issuing a restoration order and seeking enforcement of that order in district court. It would be inequitable and contrary to “the general desirability that judgments be final” to vacate this judgment after such reliance over such a lengthy period of time. Newman, 271 Minn. at 522, 137 N.W.2d at 186 (quotation omitted). Therefore, we conclude that consideration of all attendant circumstances mandates our holding that the Bodes’ 1998 Rule 60.02(d) motion attacking the 1986 judgment or any subsequent motion directly attacking the 1986 judgment does not fall within the reasonable time limits of the Rule.

We conclude that the Bodes’ motion does not fall within any of the Section 12 exceptions and was not brought within a reasonable time. Therefore, we hold that either a collateral or direct attack on the district court’s subject matter jurisdiction fails. We affirm the result of the court of appeals.

Affirmed.

PAGE, Justice

(dissenting).

I respectfully dissent. First, I believe that the court’s elevation of finality over validity is a mistake. I would retain the traditional rule. Further, the court says that the first exception to Section 12 of the Restatement (Second) of Judgments “is inapplicable here because it is undisputed that had the appeal been timely filed, the district court had jurisdiction to consider the DNR’s appeal from the Hearings Unit order.” While that statement is true as far as it goes, it ignores the fact that the appeal was not timely filed and the district court did not have jurisdiction to hear an untimely appeal. An untimely appeal is “so plainly beyond the [district] court’s jurisdiction that its entertaining the action was a manifest abuse of authority.”

      . See Act of Mar. 25, 1976, ch. 83, § 8, 1976 Minn. Laws 212-14 codified at Minn.Stat. § 105.391 amended by Act of May 25, 1979, ch. 199, § 7, 1979 Minn. Laws 336-37 recodi-fied at Minn.Stat. § 103G.201 by Act of Apr. 6, 1990, art. 7, § 13, art. 10, § 4, 1990 Minn. Laws 644, 752.

      . Minnesota Statutes § 105.37, subd. 15 was recodified as Minn.Stat. § 103.G.005, subd. 18. See Act of Apr. 6, 1990, ch. 391, art. 7, § 2, art. 10, § 4, 1990 Minn. Laws 640-41, 752. In 1996, the legislature renumbered subdivision 18 as subdivision 15a. See Act of Apr. 11, 1996, ch. 462 § 43, 1996 Minn. Laws 1554.

      . William Bode was the father and a predecessor in title to appellants Judy and Linda Bode. In 1986, Judy and Linda Bode received title to the Bode farm subject to a life estate in their parents, William and Rose Bode. William Bode died on September 1, 1993.

      . Minnesota Statutes § 15.0424 was renumbered as Minn.Stat. § 14.64. See Act of Mar. 18, 1982, ch. 424, § 130, 1982 Minn. Laws 368.

      . See, e.g., O’Leary v. Liberty Mut. Ins. Co., 923 F.2d 1062, 1066 n. 5 (3d Cir.1991); Simmons v. Diamond Shamrock Corp., 844 F.2d 517, 520-21 n. 5 (8th Cir.1988); McDougald v. Jenson, 786 F.2d 1465, 1486 n. 12 (11th Cir.1986); Crossroads Cogeneration Corp. v. Orange & Rockland Utils., Inc., 969 F.Supp. 907, 918-19 (D.N.J.1997); Wall v. Stinson, 983 P.2d 736, 741-42 (Alaska 1999); Meinket v. Levinson, 193 Conn. 110, 474 A.2d 454, 455-56 (1984); In re Marriage of Mitchell, 181 Ill.2d 169, 229 Ill.Dec. 508, 692 N.E.2d 281, 284 (1998); Ervey v. Northeastern Log Homes, Inc., 638 A.2d 709, 711 (Me.1994); In re B.C., 169 Vt. 1, 726 A.2d 45, 50-51 (1999); In re Marriage of Brown, 98 Wash.2d 46, 653 P.2d 602, 603-04 (1982); In re H.N.T., 125 Wis.2d 242, 371 N.W.2d 395, 398-99 (1985).

      . In Lothenbach we concluded that
      while technically defendant's plea was a conditional guilty plea, which our rules do not permit, and that normally the proper procedure would be to remand for withdrawal of plea, in substance the procedure used by defendant to obtain appellate review of the Fourth Amendment issue is no different from the procedure of pleading not guilty and then stipulating to the state’s evidence, a procedure which the trial court indicated that it would be willing to follow. Under the circumstances and in the interests of judicial economy, we therefore address the Fourth Amendment issue raised by defendant.

        Lothenbach, 296 N.W.2d at 856.

      . Rule 60.02 imposes the additional limitation that a motion based on some of the enumerated grounds not at issue here must be brought within a year.

      . If the majority’s procedural analysis is correct and the Bodes did, in fact, bring an improper motion, there is no reason for this court to reach the substantive issues presented.


author: RUSSELL A. ANDERSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Randy Lee SCHMIDT, petitioner, Appellant.
    No. C5-99-346.
    Supreme Court of Minnesota.
    June 22, 2000.
    Rehearing Denied July 24, 2000.

      John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, Boyd Beccue, Kandiyohi County Attorney, Constance Crowell, Kandiyohi Assistant County Attorney, Willmar, for respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

In this case the trial court set aside guilty verdicts prior to sentencing because a subdivision of the charging statute was declared unconstitutional. We consider whether Minn.Stat. § 609.035 (1996) or the Double Jeopardy Clauses of the Minnesota and United States Constitutions bar retrial by an amended complaint that charges the same conduct under a different subdivision of the charging statute.

The state charged appellant Randy Lee Schmidt with eight counts of stalking three alleged victims in violation of Minn.Stat. § 609.749, subd. 2(7) (1996). The jury returned not guilty verdicts on three counts, all relating to one of the alleged victims, and the trial court entered judgments of dismissal. The jury also returned guilty verdicts on the five counts relating to the other two victims. Prior to sentencing, we held Minn.Stat. § 609.749, subd. 2(7) (1996) unconstitutional. See State v. Machholz, 574 N.W.2d 415, 422 (Minn.1998). The trial court dismissed three counts upon the defendant’s motion and the remaining two after remand by the court of appeals. While appeal was pending, the state filed an amended complaint charging Schmidt under a separate subdivision of the statute but the trial court dismissed this complaint, concluding Minn.Stat. § 609.035 barred retrial. The state appealed and the court of appeals reversed. See State v. Schmidt, No. C5-99-346, 1999 WL 619005 (Minn.App. Aug.17, 1999). We affirm the court of appeals.

Beginning in the summer of 1996, M.N., who operated a daycare in her home, her 14-year-old daughter L.N., and their neighbor, 11-year-old J.S., noticed the same car driving repeatedly down their street. They testified that they saw this car as frequently as 15 times per day, three or four days a week, often in the afternoon when they were playing outside with the daycare children. At times the driver would slow and stare at J.S. in particular. M.N.’s brother testified that he recognized the driver as a man he had previously encountered at work. The driver’s activities stopped in the fall of 1996 but resumed again in June 1997, and J.S.’s father reported the incidents to the police. The police asked M.N.’s brother to look at a photo line-up and he picked Schmidt out of the line-up. The police also set up a surveillance and watched Schmidt circle through the neighborhood, passing the alleged victims’ homes.

The state charged Schmidt with eight counts of stalking or harassing M.N., L.N., and J.S. in violation of Minn.Stat. § 609.749, subd. 2(7) (1996). The first three counts alleged that Schmidt engaged in a pattern of harassing conduct against each alleged victim in violation of subdivisions 2(7) and 5(a) of section 609.749. Subdivision 2(7), a “catch-all” misdemeanor provision, prohibited “any other harassing conduct that interferes with another person or intrudes on the person’s privacy or liberty.” Minn.Stat. § 609.749, subd. 2(7). Subdivision 5(a) enhances a subdivision 2 misdemeanor to a felony when “[a] person * ⅞ * engages in a pattern of harassing conduct * * ⅜ that would cause a reasonable person under the circumstances to feel terrorized or to fear bodily harm and that does cause this reaction on the part of the victim * ⅝ *.” Minn.Stat. § 609.749, subd. 5(a) (1996). The fourth and fifth counts, relating to J.S. and L.N., alleged that Schmidt violated subdivision 2(7) as well as subdivision 3(5), which enhances to a felony “any offense described in subdivision 2 against a victim under the age of 18, if the actor is more than 36 months older than the victim.” Minn.Stat. § 609.749, subd. 3(5) (1998). Finally, counts six, seven and eight, relating to J.S., M.N., and L.N., alleged that Schmidt violated subdivision 2(7) as well as subdivision 4, which enhances to a felony a violation of subdivision 2 when the actor has been convicted of certain offenses within the previous ten years. See Minn.Stat. § 609.749, subd. 4 (1998).

A Kandiyohi County jury returned not guilty verdicts on the three counts relating to L.N. (counts three, five, and eight) and guilty verdicts on the five counts relating to J.S. and M.N. (counts one, two, four, six, and seven). Before the date set for sen-tenting, we issued our decision in State v. Machholz that subdivision 2(7) of section 609.749 is unconstitutionally overbroad on its face and as applied because it impinges on rights protected by the First Amendment. 574 N.W.2d at 421. Schmidt moved for acquittal or a new trial on the ground that he was tried under an unconstitutional statute. The trial court concluded that subdivision 5(a) of section 609.749, which requires proof of conduct that would and did cause the victim to feel terrorized or fear great bodily harm, contains sufficiently narrow language, when applied with subdivision 2(7), to render subdivision 2(7) constitutional. But because the jury instructions contained language from subdivision 2(7), the trial court ordered a new trial on counts one and two of the original complaint, which alleged a pattern of harassment against M.N. and J.S. in violation of subdivisions 2(7) and 5(a). As to the other remaining counts (four, six, and seven), the court set aside the verdicts and dismissed the charges pursuant to Machholz.

Schmidt appealed the order for a new trial and the court of appeals reversed and remanded, concluding that Machholz did not permit retrial of counts one and two of the original complaint. While this initial appeal was pending, the state filed an amended complaint with the trial court, charging Schmidt with two counts of stalking M.N. and J.S. in violation of Minn.Stat. § 609.749, subd. 2(2) (1998) and Minn. Stat. § 609.749, subd. 5(a) (1996). The amended complaint thus contains charges similar to counts one and two of the original complaint, which also charge Schmidt under subdivision 5(a). Following remand from this initial appeal, Schmidt moved for dismissal of the amended complaint, arguing that the Double Jeopardy Clause and Minn.Stat. § 609.035 preclude retrial. The trial court granted the motion, reasoning that the state should have charged Schmidt under subdivision 2(2) in the original complaint and could not retry him for the same conduct. Additionally, the trial court ordered the entry of a judgment of “acquittal” of counts one and two of the original complaint.

The state appealed and the court of appeals reversed and remanded. See Schmidt, 1999 WL 619005, at *4. The court of appeals held that the trial court erred in concluding that retrial was barred because there was no resolution, by conviction or acquittal, of counts one and two of the original complaint and therefore the amended complaint merely continued an incomplete prosecution. See id. at ⅜3. The court also held the Double Jeopardy Clauses of the Minnesota and United States Constitutions do not bar retrial as Schmidt requested posttrial relief from the trial court on a basis other than insufficient evidence. See id. at *4.

Schmidt argues before this court that as the trial court convicted or acquitted him on all counts of the original complaint, retrial for offenses arising from the same conduct would constitute serialized prosecution in violation of Minn.Stat. § 609.035. He further argues that the Double Jeopardy Clauses of the Minnesota and United States Constitutions bar retrial because he did not seek to overturn his convictions merely due to trial error.

I.

In reviewing this pretrial appeal, we will reverse the order of the trial court only if the state demonstrates clearly and unequivocally that the trial court erred and its error will have a critical impact on the outcome of the case. See State v. Kim, 398 N.W.2d 544, 547 (Minn.1987). We review the legal questions presented by this appeal de novo. See State v. Leroy, 604 N.W.2d 75, 77 (Minn.1999).

Schmidt argues that retrial under the amended complaint would violate the Double Jeopardy Clauses of the Minnesota and United States Constitutions. We disagree. We have held that, where a defendant appeals a conviction, retrial is appropriate unless the conviction is overturned on the basis of insufficient evidence. See State v. Harris, 533 N.W.2d 35, 36 (Minn.1995). Further, we find persuasive the reasoning of the Maine Supreme Court that, where a conviction is overturned on appeal due to the unconstitutionality of the charging statute, prosecuting the defendant under a different statute is not the sort of governmental oppression against which double jeopardy was intended to protect criminal defendants. See State v. DeRoehn, 510 A.2d 1076, 1077 (Me.1986). Here, as in the DeRoehn case, Schmidt sought to have the jury’s guilty verdicts set aside due to the unconstitutionality of the charging statute. Id. Double jeopardy does not require that Schmidt be allowed to avoid prosecution simply because the statute under which he was originally charged and tried was declared unconstitutional. We hold that the Double Jeopardy Clauses of the Minnesota and United States Constitutions do not bar retrial of Schmidt under the amended complaint.

II.

Schmidt also argues that Minn. Stat. § 609.035 bars retrial. Minnesota Statutes § 609.035 states that, where multiple offenses arise from a single behavioral incident, a conviction or acquittal for one offense bars prosecution for any additional offense:

[I]f a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.

Minn.Stat. § 609.035, subd. 1 (1996). The single behavioral incident statute protects criminal defendants from both multiple prosecutions and multiple sentences for offenses resulting from the same behavioral incident. See State v. Johnson, 273 Minn. 394, 397, 141 N.W.2d 517, 520 (1966). We explained in Johnson that the “drafters, as well as the legislature, intended * * * to broaden the protection afforded by our constitutional provisions against double jeopardy.” Id. at 400, 141 N.W.2d at 521. We noted the advisory committee comment that allowing serialized prosecution for offenses arising from a single behavioral incident would “in a sense, defeat the policy underlying the constitutional protection against double jeopardy.” Id. at 399, 141 N.W.2d at 521.

In determining whether a course of conduct consists of a single behavioral incident, we have considered the factors of time and place and also whether the conduct was motivated by an effort to obtain a single criminal objective. See id. at 404, 141 N.W.2d at 524. We conclude the trial court did not err in its conclusion that the offenses charged in the original and amended complaints arose from a single behavioral incident because the description of Schmidt’s conduct in the probable cause portion of the two complaints is identical. All of the conduct described in the complaints occurred on the street in front of the alleged victims’ homes; both complaints set forth the same events during the course of a single time period beginning in the summer of 1996 and ending in June of 1997; and the alleged conduct was directed toward a single criminal objective of harassing the victims.

We next turn to the question of whether Schmidt was convicted or acquitted on any count within the meaning of section 609.035. There are four distinct points in the trial record that we examine: (1) the jury’s guilty verdicts on the counts relating to M.N. and J.S. (counts one, two, four, six, and seven) and the trial court’s initial order to enter a judgment of guilty as to these counts, (2) the jury’s not guilty verdicts on the counts relating to L.N. (counts three, five, and eight) and the trial court’s order dismissing these counts, (3) the trial court’s subsequent order dismissing counts four, six, and seven, and (4) on remand, the trial court’s order to enter a judgment of “acquittal” on counts one and two of the original complaint.

We first consider whether the jury’s guilty verdicts on the counts relating to M.N. and J.S. and the trial court’s order to enter a judgment of guilty on these counts resulted in convictions that bar retrial. We have held that where a conviction was set aside due to the defendant’s withdrawal of an agreement with the state, the conviction was never final and thus section 609.035 does not bar prosecution of charges arising from the same conduct. See State v. Spaulding, 296 N.W.2d 870, 875 (Minn.1980). In Spaulding, the state and the defendant had agreed to a trial on stipulated facts as to one charge, and the dismissal of other charges. Id. at 872. The defendant was convicted but later moved for postconviction relief based on improper waiver of the right to a jury trial. See id. at 872-73. After the defendant’s conviction was overturned, the state moved to reinstate the dismissed charges. See id. at 873. We held retrial of the reinstated charges was not serialized prosecution in violation of section 609.035 and did not violate the defendant’s due process rights. See Spaulding, 296 N.W.2d at 875. Here Schmidt sought to set aside the guilty verdicts and, though the state’s amended complaint contains charges that are not identical to those in the original complaint, the state did not charge Schmidt with additional offenses or offenses involving a greater penalty. We therefore hold there was no final conviction that would bar retrial under the amended complaint.

We next evaluate whether any ruling of the trial court acquitted Schmidt on any count of the complaint. Whether an order constitutes an acquittal depends upon its substance and not merely its form. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). We consider whether “the ruling of the judge, whatever its label, actually represents a resolution [in defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.” State v. Large, 607 N.W.2d 774, 779 (Minn.2000) (quoting United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)). We also look behind the label to determine whether the trial court’s order relates to the issue of the defendant’s factual guilt or innocence. See State v. Abraham, 335 N.W.2d 745, 748 (Minn.1983). An acquittal goes to the merits of the case. See State v. Gurske, 395 N.W.2d 353, 356 (Minn.1986); see also Minn.Stat. § 630.32 (1998).

The jury’s not guilty verdicts on the counts relating to L.N. and the trial court’s order dismissing these counts clearly acquitted Schmidt on these counts because the jury made a factual determination as to his guilt or innocence. In contrast, the subsequent orders dismissing counts four, six, and seven and entering an “acquittal” on counts one and two were not acquittals regardless of how the trial court labeled them. These orders were based on the court’s resolution of a legal issue - the constitutionality of the charging statute - and, especially in light of the jury’s guilty verdicts on these counts, did not involve any weighing of the facts. The court therefore did not reach the merits of these charges.

Thus, the trial court did not enter a final conviction on any count of the complaint and acquitted Schmidt only on the counts relating to L.N. The question then is whether these acquittals bar retrial on charges arising from the same behavioral incident but relating to different victims.

We note initially that section 609.035 requires one prosecution for all offenses arising from the same conduct with the offenses charged as separate counts of the complaint and one punishment for such offenses. See Johnson, 273 Minn. at 406, 141 N.W.2d at 525. We have permitted an exception to section 609.035, however, in cases involving multiple victims. Where offenses with multiple victims arise from the same behavioral incident, we uphold the imposition of one sentence per victim if this would not result in “punishment grossly out of proportion to the defendant’s culpability.” Bangert v. State, 282 N.W.2d 540, 547 (Minn.1979); see also State v. Williams, 337 N.W.2d 387, 390 (Minn.1983). We are persuaded that in these circumstances a similar limitation applies to the protection against serialized prosecution set forth by section 609.035. See generally State v. Gilbert, 262 N.W.2d 334, 338 (Minn.1977). Here the state filed an amended complaint charging Schmidt under a separate subdivision of section 609.749 with offenses against M.N. and J.S. that arose from the same conduct as the offenses charged in the original complaint. But the trial court acquitted Schmidt only of offenses relating to the alleged victim L.N.; the jury in fact returned guilty verdicts as to offenses involving alleged victims M.N. and J.S. Further, the state in its amended complaint did not charge Schmidt under a subdivision with greater penalties or charge him with additional offenses and therefore the amended complaint clearly is not retaliatory. See State v. Alexander, 290 N.W.2d 745, 748-49 (Minn.1980). , On these facts we hold that section 609.035 does not preclude retrial under the amended complaint.

We hold that neither section 609.035 nor the Double Jeopardy Clauses of the Minnesota or United States Constitutions preclude retrial under the amended complaint. Thus, we conclude the state has demonstrated clearly and unequivocally that the trial court erred when it dismissed the amended complaint and that this error will have a critical impact on the outcome of the case.

Affirmed.

      . This provision was significantly amended in 1998 to prohibit only "knowingly mak[ing] false allegations against a peace officer * * * •• gee Act Gf Apr 1998, ch. 367, art. 2, § 23, 1998 Minn. Laws 666, 696.

      . Subdivision 5(a) was amended in 1997 to require that the actor know or have reason to know his or her conduct would cause the victim to feel terrorized or to fear bodily harm. Previously the statute required that the actor's conduct would cause a reasonable person to feel terrorized or to fear bodily harm. See Act of May 6, 1997, ch. 96, § 9, 1997 Minn. Laws 694, 701.

      . The court ordered the entry of judgments of conviction on counts relating to J.S. and M.N. and of dismissal on counts relating to L.N.

      . Subdivision 2(2) prohibits harassing another person by stalking, following, or pursuing that person. See Minn.Stat. § 609.749, subd. 2(2) (1998).

      . See U.S. Const, amend. V; Minn. Const, art. I, § 7.

      . The statute contains exceptions for certain offenses not relevant here.

      . The Minnesota Sentencing Guidelines also permit consecutive sentences for multiple current felonies against different victims. See Minnesota Sentencing Guidelines II.F.


author: LANCASTER, Justice.

text:
    JOSTENS, INC., Respondent, v. FEDERATED MUTUAL INSURANCE COMPANY, petitioner, Appellant, Employers Insurance of Wausau, A Mutual Company, Defendant. Employers Insurance of Wausau, Third-Party Plaintiff, v. Jostens, Inc., et al., Third-Party Defendants.
    No. C9-99-1452.
    Supreme Court of Minnesota.
    June 22, 2000.
    Rehearing Denied July 25, 2000.

      Laura J. Hanson, Stacy A. Broman, William M. Hart, Meagher & Geer P.L.L.P., Minneapolis, for appellant.
    Mark M. Nolan, Stapleton, Nolan & Hynes P.A., St. Paul, for respondent.
   OPINION

LANCASTER, Justice.

Respondent Jostens Incorporated commenced an action against appellant Federated Mutual Insurance Company in Ramsey County District Court for defense costs and indemnification stemming from chemical contamination at a Jostens operating plant site. Federated subsequently filed a motion for summary judgment. After the court denied this motion, Federated moved the court to certify two questions as “important and doubtful” pursuant to Minn. R. Civ.App. P. 103.03(h) in order to immediately appeal those questions. The court granted Federated’s motion, but the Minnesota Court of Appeals dismissed Federated’s appeal, holding that the questions had been improperly certified. We affirm the court of appeals, but on different grounds.

Beginning in 1964, Jostens operated a manufacturing facility in Princeton, Illinois. In addition to other chemicals, Jos-tens used tricholoroethane (TCE) to degrease and clean equipment during its manufacturing process. Until 1976, Jos-tens disposed of TCE in a filter bed that it had constructed on its property pursuant to acceptable industry practices at that time. The filter bed was a square pit in the ground that measured approximately 10 feet in length, width, and depth. The pit was lined with rocks, sand, and gravel, which were intended to filter and cleanse industrial wastes that were deposited in the pit. TCE was not placed on the Environmental Protection Agency’s (EPA) list of hazardous substances until 1980, and land disposal of the substance was not banned until 1986.

In 1981, Jostens learned that its own property was contaminated by TCE and, pursuant to its environmental consultant’s advice, Jostens removed the filter bed. In 1988, an environmental consultant retained by the EPA Hazardous Site Division found “shallow” soil contamination on Jostens’ property. However, the EPA did not order Jostens to take any remedial action at that time.

In 1994, Springwood Associated Limited Partnership, which owned property adjacent to Jostens’ Princeton plant, conducted soil and groundwater tests through an environmental consultant, ATEC. Those tests revealed TCE contamination on Springwood’s property that originated from Jostens’ plant. In March 1995, Springwood informed Jostens of ATEC’s findings, asserted that Jostens was responsible for the contamination, and stated that Jostens, as a “responsible party,” should clean it up. Springwood also urged that “all site investigation and remedial feasibility studies [should] be performed under the auspices of [the Illinois] EPA.” Spring-wood subsequently filed suit against Jos-tens in federal court. On May 3, 1995, Jostens received notice from the United States EPA that it intended to take soil and groundwater samples from the Jos-tens property. Because Jostens knew that these samples would reveal contamination, it voluntarily entered the Illinois EPA’s pre-notice environmental cleanup program on May 30,1995.

Federated insured Jostens under general liability policies from 1964 to 1979. Until 1971, those policies covered property damage like the groundwater contamination at the Jostens plant. The pre-1971 policies also provided unlimited coverage for defense costs and at least $100,000 in indemnity coverage. However, beginning in January 1971, Federated’s policies contained a qualified pollution exclusion that limits Jostens from coverage under those policies. Federated’s policies contained a limit on indemnity coverage, but did not contain a limit for defense costs. In December 1995, Jostens notified its insurance broker of the groundwater and property contamination, who then forwarded the notice to Federated. In September 1996, Federated denied both the duty to defend and to indemnify Jostens.

In November 1996, Jostens commenced an action against Federated in Ramsey County District Court for defense costs and indemnification. The parties subsequently engaged in extensive and complex pretrial litigation. This included a motion by Jostens in June 1998 to amend its complaint to add Employers Insurance of Wausau as an additional defendant. Jos-tens argued that Wausau had been its primary general liability insurer between 1979 and 1985, and that Jostens had discovered occurrences that contributed to the TCE contamination during those periods. The district court initially denied the motion, but when Jostens brought the same motion six months later, the district court granted it. Wausau, in turn, filed a third-party complaint against four other insurance companies, claiming that they had all insured Jostens between 1964 and 1985.

Federated’s appeal to this court arises out of its October 1998 summary judgment motion. Jostens also moved for partial summary judgment at that time. By an order filed February 12, 1999, the district court granted Jostens’ motion while denying Federated’s motion. In its order, the district court found that, cumulatively, the EPA’s May 1995 site investigation notice, Springwood’s March 1995 request that Jostens fully investigate the site and study remediation options, and the ATEC report were “tantamount to a suit, triggering Federated’s duty to defend.” The court therefore found that Federated had a duty to defend, and to pay all defense costs that Jostens had incurred after December 20, 1995, when Jostens had tendered defense of the “suit.” The court defined defense costs as those fees that are “reasonable and necessary to reduce or minimize the eventual liability for damages to the State of Illinois and to Springwood, including experts and consultants engaged in investigation, feasibility studies, and working with government officials and the public.”

In July 1999, following joinder of Wau-sau, Federated moved the district court to certify the following two questions as “important and doubtful” pursuant to Minn. R. CivApp. P. 103.03(h):

1. Whether the May 3,1995 letter from a U.S. EPA contractor notifying Jos-tens of a site investigation, in conjunction with the ATEC report revealing off-site contamination, and Springwood’s * * * March 1995 assertions against Jostens of the obligations of a “responsible party” to fully investigate the site and study remediation options in conformance with the IEPA procedures is tantamount to a suit, triggering a duty to defend.
2. Whether the duty to defend includes paying for all costs and fees, which Jostens has incurred since December 20, 1995, which are reasonable and necessary to reduce or minimize the eventual liability for damages to the State of Illinois and to Springwood, including experts and consultants engaged in investigation, feasibility studies, and working with government officials and the public.

For convenience, we will refer to the first issue as the “suit” issue, and the second issue as the “defense costs” issue.

The district court granted Federated’s motion, finding both issues to be doubtful because there is no controlling precedent. The court then cited this court’s decision in Emme v. C.O.M.B., Inc., 418 N.W.2d 176 (Minn.1988), as providing a balancing test for determining whether issues are “important” under Rule 103.03(h). Because the district court found that the questions had “statewide impact,” were important to the resolution of the case, provided a “major impediment to settlement,” and that their resolution would expedite resolution of the action, the court determined that the questions were “important” under Emme.

Federated filed notice of appeal with the court of appeals on the certified questions. By an order filed September 1, 1999, the court of appeals concluded that under Emme an appeal from a denial of summary judgment is premature if reversal of the certified questions will not terminate the action. As a result, the court held Federated’s appeal improper. Following a motion by Federated to reinstate its appeal, the court of appeals, by an order dated September 28, 1999, reiterated its earlier order.

I.

On appeal to this court, Federated argues that the court of appeals misapplied Emme because Emme does not hold that termination of the proceedings is a prerequisite for an issue to be “important” under Rule 103.03. Federated argues that whether reversal will terminate the proceedings is a factor that must be considered as part of a balancing test, but is not itself determinative. This issue raises a legal question that requires construction of a procedural rule, which we review de novo. See State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.1998).

Minnesota Rule of Civil Appellate Procedure 103.03(h) provides that an appeal may be taken to the court of appeals “if the trial court certifies that the question presented is important and doubtful, from an order which * ⅞ * denies a motion for summary judgment.” Rule 103.03(h) provides a mechanism for interlocutory appeals, because without certification the denial of a summary judgment motion would not ordinarily be appealable until the end of the proceedings.

We addressed this certification process in Emme. In Emme we considered whether a question had been properly certified as “important and doubtful” in a products liability action involving a child who sustained an eye injury while playing a dart game. See id. at 178. In addressing the certification, we began by noting that the general policy behind the appellate rules is to avoid piecemeal litigation, conserve judicial resources, and expedite trial proceedings. See id. at 179. We then provided a general overview of Rule 103.03 by stating that “[i]f granting the motion results in an adjudication of fewer than all the claims or the rights and liabilities of fewer than all the parties, appeal must ordinarily await the entry of a judgment which adjudicates all remaining claims and the rights and liabilities of all remaining parties.” Emme, 418 N.W.2d at 179. We further stated that “certification of the question does not convert the order into an order appealable pursuant to Rule 103.03(h) ⅜ * ⅝, but only frustrates the policy of the rule: appeal would delay the trial, but reversal would not obviate it.” Id. (emphasis added).

Jostens argues that with these statements Emme established that a question may not properly be certified under Rule 103.03(h) unless its reversal will terminate the proceedings. Jostens’ reading overstates the meaning of the language. The language on which Jostens relies is contained in a paragraph that reviews the balance between the policy against piecemeal appeals and the recognized exceptions where judicial economy or other interests justify allowing an interlocutory appeal and how those competing interests are reflected in the operation of Rule 103.03(h). In Emme, we pointed out that the benefit of judicial economy is less readily achieved when only some of the issues in the case are decided by the district court and certified for interlocutory appeal because reversal will not terminate the proceedings. Emme, 418 N.W.2d at 179.

This language does not make potential to terminate the proceedings a prerequisite to certification as an important issue. Rather, viewed in the context of the entire opinion, the paragraph is more accurately understood as a caution that without the potential for termination of proceedings the rationale that justifies this exception to the policy against piecemeal appeals is diminished. The consequence of this cautionary note is not that certification of issues is prohibited absent potential for complete termination of the, proceedings, but rather that the potential to terminate or significantly reduce further proceedings should be a primary factor in the balancing test we then enunciated in Emme. For these reasons, we conclude that the court of appeals misinterpreted Emme when it held that certification under Rule 103.03(h) is improper if reversal would not terminate the proceedings entirely.

Following this cautionary discussion, Emme provides factors to consider in determining whether a question is “important.” See id. at 180. A question is increasingly important if: (1) it will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court is substantial. See id. Conversely, the question is decreasingly important if: (1) it is likely to be affirmed, (2) it is likely that trial will moot the issue, (3) reversal of the question will not terminate the action, and (4) reversal of the question will not relieve the parties of any significant burden. See id.

While Emme provides this balancing test to determine whether a question is properly certified as “important,” each of the factors of that test does not necessarily warrant equal consideration. Specifically, a great deal of importance should be placed on whether reversal of the question will terminate the proceedings. This is consistent with the general policy against piecemeal litigation, which we emphasized in Emme. The fact that reversal will not terminate the proceedings is not in and of itself determinative of whether the question is “important.” However, if reversal will not terminate the proceedings, we will require that a district court, in certifying the question, make specific findings as to how the interlocutory appeal will materially advance the ultimate termination of litigation and avoid protracted or expensive litigation.

Such findings are not present in the record before us. Therefore, if the questions are otherwise properly certified, we will remand for such findings. However, such remand is only necessary if the questions also meet the “doubtful” prong of Rule 103.03(h). In the interests of judicial economy, we will next address that aspect of the certification.

II.

A question is properly certified as doubtful if there is no controlling precedent. See Emme, 418 N.W.2d at 179. “That the question is one of first impression is not, however, of itself sufficient to justify certification as doubtful; the question should be one on which there is substantial ground for a difference of opinion.” Id. at 180.

A. The “suit” issue

In this case, the district court certified as doubtful the question of whether, cumulatively, the following items were tantamount to a suit that would trigger the insurer’s duty to defend: (1) the May 3, 1995, letter from the United States EPA contractor notifying Jostens of a site investigation, (2) the ATEC report revealing off-site contamination, and (3) Spring-wood’s March 1995 assertion that Jostens was obligated, as a “responsible party,” to fully investigate the site and study remediation options. Federated argues that there is no controlling precedent on this issue because this court has not addressed whether a combination of events may cumulatively constitute a suit.

We addressed what constitutes a “suit” in SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 315 (Minn.1995). SCSC operated a facility that handled perchloroethy-lene (PCE). See id. at 308. When the Minnesota Pollution Control Agency (MPCA) found PCE contamination near the SCSC facility, it issued a Request for Information (RFI) asking SCSC to detail its PCE use. See id. at 309. Then, because SCSC indicated that PCE drippings had occurred at their facility, the MPCA required SCSC to develop remedial work plans to investigate and ameliorate PCE groundwater contamination. See id.

SCSC requested reimbursement for these cleanup costs from its general liability insurers, but the insurers denied coverage. See id. After the MPCA issued a Request for Response Action (RFRA) requiring SCSC to take specific remedial action, SCSC filed suit against its insurers seeking declaratory and compensatory relief. See id. at 309-10. The district court found in SCSC’s favor.

On appeal, one of the insurers argued that the district court should be reversed because the RFI did not constitute a “suit” under the insurance policy. See id. at 315. In addressing that argument, we examined our decision in Minnesota Mining & Mfg. v. Travelers Indem., 457 N.W.2d 175 (Minn.1990) (hereinafter 3M). There, we held that the term “damages” in a comprehensive general liability policy did not just refer to monetary compensation that insureds were obligated to pay for third party injuries. See id. at 178. Rather, the term “damages” also encompasses costs that the insured incurred while responding to state and federal agencies. See id. In SCSC, by analogy we applied this broad approach to the construction of the term “damages” to the interpretation of the term “suit.” See SCSC, 536 N.W.2d at 315. More specifically, we stated that

[although we did not reach the related issue of what constitutes a “suit” under such a policy, it logically follows from both our analysis and our decision in §M that the term “suit,” as used in a [comprehensive general liability] policy, includes actions taken by the [Minnesota EPA] in the form of an RFI.

Id.

In support of our holding in SCSC, we cited two cases. See id. First, we cited A.Y. McDonald Indus. v. Insurance Co. of N. Am., in which the Iowa Supreme Court cited our decision in 3M and held that an EPA demand to clean up groundwater contamination constituted a “suit” under a comprehensive general liability policy. 475 N.W.2d 607, 626-29 (Iowa 1991). Next, we cited the Ninth Circuit Court of Appeals decision in Aetna Cas. & Sur. Co. v. Pintlar Corp., which held that a “Potential Responsible Party” letter issued by the EPA constitutes a “suit” because an “ordinary person” would perceive such a letter as notice of the “effective commencement of a ‘suit’ necessitating a legal defense.” 948 F.2d 1507, 1516-17 (9th Cir.1991).

In light of the holding and analysis in SCSC, we conclude that SCSC provides sufficient guidance as to what constitutes a “suit” and that the requirement that there be “substantial ground for a difference .of opinion” in order to properly certify a question as doubtful is not met. See Emme, 418 N.W.2d at 180. Accordingly, we hold that the district court improperly certified this issue as doubtful for the purposes of Rule 103.03(h).

1. The “defense costs” issue

The district court also certified as doubtful the question of whether Federated’s duty to defend included paying all costs and fees reasonably necessary to reduce or minimize Jostens’ eventual liability for damages to the State of Illinois and to Springwood. We addressed the extent to which incurred costs are defense costs in Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 738 (Minn.1997).

Domtar operated a., refining plant that was closed in 1948 and sold in 1955. See id. at 728-29. In 1987, the MPCA found that Domtar was responsible for hazardous substances found in the soil and groundwater. See id. at 729. As a result, the MPCA issued a RFRA to Domtar. See id. Domtar estimated - that its liability would be $7 million, but its general liability insurers denied coverage and refused to defend. See id. Domtar filed suit against the insurers and the district court found that the insurers had breached a duty to defend and therefore owed Domtar defense costs. See id. at 730.

On appeal, the insurer argued that the district court erred in concluding that investigation and compliance costs were defense costs and therefore not subject to policy deductibles or liability limits. See id. at 738. Instead, the insurer argued that such costs were required by the RFRA, were a necessary part of the remediation, and were therefore indemnity costs. See id. at 737-38. We affirmed the district court, stating that “the better approach is to allow an insured to receive as defense costs those expenses reasonably necessary either to defeat liability or to minimize the scope or magnitude of such liability.” Id at 738. We further stated that this approach encourages insureds to clean up contaminated property “without fear that .all investigation and compliance costs will thereafter be considered indemnity costs by default.” Id. We concluded that while some defense costs may serve a dual purpose of complying with the RFRA, those costs are not necessarily indemnity costs. See id. Finally, because Domtar’s investigation and compliance costs minimized “the potentially staggering scope and magnitude of its liability,” we held that the district court properly classified them as defense costs. See id. at 739.

We conclude that Domtar provides a definition of “defense costs” sufficient to constitute “controlling precedent.” See Emme, 418 N.W.2d at 179. We therefore hold that the district court improperly certified the “defense costs” issue as doubtful under Rule 103.03(h).

Because we hold that the district court improperly certified both the “suit” and the “defense costs” issues as doubtful pursuant to Rule 103.03(h), we need not remand the case for specific findings in order to determine whether the questions were properly certified as important pursuant to Rule 103.03(h). Therefore, we affirm the result of the court of appeals and remand this matter to the district court for further action consistent with this opinion.'

Affirmed and remanded for further proceedings.

      . We would be remiss if we did not also acknowledge that the discussion in Emme is based in part on a misconception about the validity of motions for partial dismissal or partial summary judgment. We stated in a footnote: "It may be observed that neither the Rules of Civil Procedure nor the Rules of Civil Appellate Procedure recognize a motion for 'partial summary judgment.' ” Id. at n. 1. But in fact Minn. R. Civ. P. 56.01 authorizes a party seeking to recover on a claim to "move * ⅜ £or a summary judgment in the party's favor upon all or any part thereof.” (Emphasis added.)

      . In support of the balancing test in Emme, we cited a federal practice treatise that examines 28 U.S.C. § 1292, which is the corollary federal procedural provision to Rule 103.03. Section 1292(b), which relates to interlocutory decisions, provides that the court may render an otherwise nonappealable interlocutory order appealable if it is “of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation * * 28 U.S.C. § 1292(b) (1998) (emphasis added). Courts interpreting this statute have emphasized that it should be used sparingly, and only where intermediate appeal may "avoid protracted or expensive litigation.'' See, e.g., Kroch v. Texas Co., 167 F.Supp. 947, 949 (D.C.N.Y.1958) (quoting Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir.1958)). Thus, under the federal rule it is clear that while termination of the proceedings is not a threshold requirement for proper certification, it is an important factor.

      . [A] PRP notice carries with it immediate and severe implications. Generally, a party asserting a claim can do nothing between the occurrence of the tort and the filing of the complaint that can adversely affect the insureds’ rights. However, in a [Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) ] case, the PRP’s substantive rights and ultimate liability are affected from the start of the administrative process.

        Aetna, 948 F.2d at 1516-17 (citation omitted).

      . Our decision today should not be construed as deciding either the ''suit” or the "defense costs" issues.


author: AMUNDSON, Judge.

text:
    Bradford Dana LYNCH, as Parent and Natural Guardian of Minor Plaintiff Ian Brian Lynch, and Bradford Dana Lynch, individually, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Respondent.
    No. C9-99-2102.
    Court of Appeals of Minnesota.
    July 3, 2000.
    Sharon L. Van Dyck, Schwebel, Goetz & Sieben, P.A., Minneapolis, MN (for appellant).
    Katherine A. McBride, Meagher & Geer, PLLP, Minneapolis, MN (for respondent).
    Considered and'decided by AMUNDSON, Presiding Judge, G. BARRY ANDERSON, Judge, and FOLEY, Judge.

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

   OPINION

AMUNDSON, Judge.

Appellant, a minor, was seriously injured while riding in a van, driven by his mother, which she had borrowed from a neighbor. Respondent insurance company paid the liability policy limits on the two family vehicles owned by appellant’s father. The insurer of the van also paid its liability policy limits. The injured minor brought suit to recover underinsured motorist (UIM) coverage from respondent because his damages exceeded the amount collected under the liability policies. The district court granted summary judgment for the respondent, holding that to grant the injured minor UIM benefits would convert it into more expensive third-party liability protection, which is disfavored in the law.

FACTS

On February 23, 1993, Kathleen Lynch borrowed a van that had been leased to her neighbor Lori Coleman from Gold Key Lease, Inc., and was insured with Western National Insurance Company. Kathleen Lynch lost control of the van, and the van crossed over the centerline, went into oncoming traffic, and collided with a vehicle driven by Sandra Vogt. Kathleen’s Lynch’s son, Ian, was a passenger in the van, and the injuries he sustained in the accident caused paraplegia.

Ian Lynch brought a negligence action against Kathleen Lynch, Coleman, Gold Key Leasing, and Vogt. The parties proceeded to voluntary binding arbitration on the issue of liability only. The arbitration panel found Kathleen Lynch to be solely liable for the accident.

The van was insured by Western National, which paid the policy liability limit of $100,000 to Ian Lynch. Bradford Lynch, Ian’s father, was the named insured on two automobile insurance policies for a Ford vehicle and a Chevrolet vehicle issued by respondent American Family. American Family paid Ian Lynch’s liability policy limit of $100,000, but denied under-insured motorist coverage. Ian Lynch, through his father, brought a claim for the UIM motorist benefits against American Family. The parties filed cross-motions for summary judgment. The district court granted American Family’s motion for summary judgment finding that Ian Lynch was not entitled to UIM motorist benefits under the terms of the American Family policy. This appeal followed.

ISSUE

Is summary judgment in favor of an insurance company proper where the insurance policy at issue contained no applicable provision specifically excluding coverage?

ANALYSIS

On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The interpretation of an insurance policy and its application to the facts of this case are questions of law, and thus subject to de novo review. Meister v. Western Nat’l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn.1992).

American Family’s insurance policy, by its plain language, provides for UIM coverage for Ian Lynch’s injuries. The policy states:

We will pay compensatory damages for bodily injury to an insured person who is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be sustained by an insured person and must be caused by accident and arise out the use of the underinsured motor vehicle.

The policy provides that an “insured person means [the policyholder] or a relative.” Here, Ian Lynch is the son of the policyholder — clearly a “relative” under the policy. The policy goes on to provide that an underinsured motor vehicle is one

which is insured by a liability * * * policy at the time of the accident which provides bodily injury liability limits less than the limits of liability of this Under-insured Motorist Coverage.
Underinsured motor vehicle, however, does not mean a vehicle * ⅜ * [o]wned by or furnished or available for the regular use of [the policyholder] or any resident of [the policyholder’s] household.

Here, the claim for coverage was based on the underinsured status of the van, making it the underinsured motor vehicle. The question then is whether the van was “owned by or furnished or available for the regular use of’ any member of the Lynch family.

Here, American Family concedes, “Kathleen Lynch borrowed a van from her neighbor Lori Coleman for a one-time use.” Furthermore, the parties stipulated to the following fact for purposes of their cross-motions for summary judgment:

On February 23, 1993, Kathleen Lynch borrowed a Chrysler Plymouth van that her neighbor Lori Coleman leased from Gold Key Lease, Inc. * * * Kathleen Lynch had never driven the van before February 23,1993.

Thus, the van satisfies the American Family policy's definition of an underinsured motor vehicle because it was not available for Kathleen Lynch’s regular use, and therefore, Ian Lynch meets the plain requirements for UIM coverage under the policy.

Many UIM cases cited by both parties involve the validity of exclusionary policies, commonly referred to as “family owned vehicle” exclusions, contained in many UIM coverage provisions of automobile insurance policies. The founding case in this area is Myers v. State Farm Mut. Auto. Ins. Co., 336 N.W.2d 288 (Minn.1983). In Myers, the policy facing the court defined an underinsured motor vehicle as:

[A vehicle] to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is not enough to pay the full amount the covered person is legally entitled to recover as damages.
However, “underinsured motor vehicle ” does not include any vehicle:
2. Owned by or furnished or available for the regular use of [the policyholder] or any family member.

Id. at 290. The above exclusion is almost identical to that in the American Family policy before this court. As previously discussed, this exception does not apply here because the van was not a vehicle owned by or regularly used by any member of the Lynch family.

But American Family argues that appellants seek to improperly use the UIM policy as a liability policy, and notes that, in Minnesota, the public policy is against such “coverage conversion.” The conversion of concern is that which converts the UIM coverage into third-party insurance, making it essentially third-party liability coverage. Myers, 336 N.W.2d at 291. To illuminate this concern, it is important to understand the policies behind liability and UIM coverage. Unlike liability coverage, which is purchased to protect passengers in an insured vehicle from the negligent driving of the owner or another driver of the vehicle, UIM coverage

is intended to protect against a different type of risk, the risk that a negligent driver of another vehicle will have failed to purchase adequate liability insurance.

Meyer v. Illinois Farmers Ins. Group, 371 N.W.2d 535, 537 (Minn.1985). Courts upholding denial of UIM coverage pursuant to conversion questions note that “[a]n insured wishing to provide greater protection from his own negligence for himself and his passengers should purchase additional liability insurance coverage.” Id.

The cases addressing coverage conversion have all addressed and relied on the validity of a family-owned vehicle exclusion. See e.g., Wintz v. Colonial Ins. Co., 542 N.W.2d 625 (Minn.1996); Lahr v. American Family Mut. Ins. Co., 528 N.W.2d 257 (Minn.App.1995); American Family Mut. Ins. Co. v. Luhman, 438 N.W.2d 453 (Minn.App.1989), review denied (Minn. June 21, 1989); Thommen v. Illinois Farmers Ins. Co., 437 N.W.2d 651 (Minn.1989); Petrich v. Hartford Fire Ins. Co., 427 N.W.2d 244 (Minn.1988); Meyer, 371 N.W.2d at 535; Linder v. State Farm Mut. Auto. Ins. Co., 364 N.W.2d 481 (Minn.App.1985), review denied (Minn. May 1, 1985); Eisenschenk v. Millers’ Mut. Ins. Ass’n, 353 N.W.2d 662 (Minn.App.1984), review denied (June 2, 1985); Myers, 336 N.W.2d at 288. But here, the district court’s decision to grant summary judgment was not based on a policy exclusion. Instead, the district court found that Ian Lynch was not entitled to coverage based on the public policy against coverage conversion alone, even though, as noted earlier, there was no exclusionary provision specifically preventing coverage. The district court noted:

Clearly, the UIM portion of the policy could have been better drafted to clarify the rights of the insured. However, in this case, the Court does not see an ambiguity in the terms of the policy, because plaintiffs claim cannot fairly be characterized as a claim for underin-sured motorist benefits.

The court stated that Ian Lynch’s claim was not a UIM claim because it was “really a claim for liability benefits in addition to the liability benefits already paid.” But the provision of the insurance policy at issue is the UIM provision. Thus, the court’s concern clearly was that Ian Lynch was converting UIM coverage into liability coverage.

Respondents, citing West Bend Mut. Ins. Co. v. American Family Mut. Ins. Co., 586 N.W.2d 584, 585 (Minn.App.1998), argue that even in the absence of a specific exclusion, a claimant cannot collect first-party benefits under a policy covering the at-fault driver because that would be equivalent to an improper conversion. West Bend is distinguishable. In West Bend, the appellant owned an Acura that he took to a dealership for repairs, and he rented another car to use until his Acura was ready. Id. at 585. Appellant’s friend was driving the rental car and appellant was riding as a passenger when the rental vehicle struck another vehicle killing the driver of the other vehicle and injuring appellant. Id. The appellant was paid liability benefits from the insurer of his Acu-ra (American Family), then sought UIM benefits from the insurer of the rental vehicle (West Bend). The West Bend policy on the rental vehicle excluded liability coverage and West Bend refused to issue UIM benefits to appellant.

The court in West Bend concluded that the appellant was not entitled to UIM benefits from the insurer of the rental vehicle. Id. at 586. The court reasoned that appellant was only seeking UIM coverage because, through an exclusionary provision, the West Bend insurance policy prevented him from seeking liability coverage. Id. Thus, the court had before it a classic case of coverage conversion.

This case is factually different in several respects. Neither Ian Lynch nor his parents leased the van involved in the accident, and accordingly none of them had control over the amount of insurance coverage issued on the van. Additionally, the injured party here is not seeking UIM benefits from the insurer of the vehicle involved in the accident. Instead, Ian Lynch seeks UIM coverage under an insurance policy issued to his father for one of the family-owned vehicles, and this coverage is needed because of a coverage deficiency entirely outside of appellant’s control.

It is true that West Bend, unlike the previous UIM cases, found that the injured party was not entitled to UIM coverage based on public policy concerns alone. But the instant case does not present the same coverage conversion issue present in West Bend. Here, Ian Lynch is seeking UIM benefits because the liability coverage under the neighbor’s policy was insufficient to cover his damages; it was the neighbor’s van that was underinsured, not one of the Lynch family vehicles. Ian Lynch, through his father — the holder of the policy under which UIM benefits are sought — in no way had control over the amount of liability coverage available under the neighbor’s insurance policy.

This appears to be just the situation for which UIM coverage is intended, namely, that the owner of another vehicle will have failed to purchase adequate liability insurance. See Meyer, 371 N.W.2d at 537 (stating that UIM coverage is included for situations where a “negligent driver of another vehicle” fails to purchase adequate liability insurance). Though the court in Meyer chose the words “negligent driver of another vehicle” rather than “owner of another vehicle,” it does not follow that the Meyer court contemplated that the negligent driver would not also be the owner of the vehicle. This is because it is the owner of the vehicle, not the driver of a vehicle, who has the power to purchase or to “fail to purchase” adequate liability insurance.

Finally, American Family argues that Lahr holds that, even in the absence of an exclusion, “where only one car is involved or at fault, an injured passenger cannot obtain UIM benefits from the driver’s insurer.” Lahr, 528 N.W.2d at 259. But this is dictum. The court in Lahr was not faced with a case of a one vehicle accident, but instead a two car collision. This dictum flows from the court’s observation that in Thommen, the supreme court held that a person cannot convert first-party UIM insurance into third-party liability insurance because such conversion would allow an insured to purchase less expensive UIM coverage in lieu of additional liability coverage. Thommen, 437 N.W.2d at 653. But again, the court in Lahr presumed that in a one-vehicle accident, the driver would be covered by only one policy. Here, there were two policies from which Ian Lynch could recover.

DECISION

Recognizing the unique facts of this case, we conclude that the insurance policy, by its plain language, provides UIM coverage to the appellant. In the absence of an applicable exclusionary provision, appellant is entitled to such coverage when he had no control over the amount of direct coverage. Accordingly, we reverse the district court’s grant of summary judgment to respondent and conclude that appellant is entitled to receive UIM benefit’s under respondent’s insurance policy.

Reversed.