author: CARTER, Justice.

text:
    Isaac Benjamin KRUSE, Plaintiff, v. IOWA DISTRICT COURT FOR HOWARD COUNTY, Defendant.
    No. 04-0078.
    Supreme Court of Iowa.
    April 21, 2006.

      Kevin E. Schoeberl of Story & Schoe-berl Law Firm, Cresco, for plaintiff.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Joseph M. Haskovec, County Attorney, for defendant.
   CARTER, Justice.

Having received a suspended sentence following conviction, by plea of guilty, of the aggravated misdemeanor of assault with intent to commit serious injury in violation of Iowa Code section 708.2(1) (2003), Isaac Benjamin Kruse was cited for a violation of his probation. The violation report alleged that he had failed to register as a sex offender as specified in his probation agreement and had failed to participate in a prescribed sex offender education program. The district court found these violations to have occurred. Kruse sought to appeal that ruling, and this court, concluding that it was not a proper subject for appeal, has agreed to review the ruling by certiorari. After reviewing the record and considering the arguments presented, we annul the writ of certiorari.

Kruse was originally charged with third-degree sexual abuse in violation of Iowa Code section 709.4, a class “C” felony. The trial information alleged that Kruse, who was seventeen, performed a sex act with a thirteen-year-old girl. His effort to transfer the case to juvenile court was unsuccessful. Eventually, pursuant to a plea agreement, the offense charge was amended downward to the aggravated misdemeanor of assault with intent to inflict serious injury. Kruse entered a written plea of guilty to the amended charge.

In his written plea of guilty, Kruse recited:

My lawyer has informed me of the elements of the crime I have been charged with. Such elements are listed below as follows:
Assault with Intent to Inflict Serious Injury.
(a) That on or about March 22, 2001;
(b) While in Howard County, Iowa;
(c) I did assault a person (Child K);
(d) With the intent to inflict serious injury.
If I plead not guilty, the State must prove each element beyond a reasonable doubt to convict me. By pleading guilty, I admit they can prove each and all elements.

He further recited in the written plea:

I know that the Court must be satisfied that there is a factual basis for a plea of guilty before my plea can be accepted. I represent to counsel and to the Court that the Minutes of Testimony accurately describe what happened in all significant aspects. In the event that I disagree with the Minutes of Testimony, the facts are as follows:

[Nothing stated].

The district court accepted Kruse’s guilty plea. An indeterminate prison sentence of two years was imposed, but that sentence was suspended, and Kruse was placed on- probation for two years. The sentencing order expressly provided a no-contact order for protection of the victim and directed that Kruse “participate in sexual abuse counseling.” The sentencing order did not mention registration as a sex offender.

Kruse’s probation officer prepared a probation agreement that Kruse signed on September 25, 2003. That agreement was also signed by Kruse’s mother. In that document, Kruse agreed that he would participate in the department of correction’s sex offender treatment program and would “complete Sex Offender Registry by 9-30-03.” When Kruse had not registered as a sex offender by November 1, 2003, and had failed to keep two appointments for the sex offender treatment program, his probation officer filed a violation report with the court. At the hearing on the alleged probation violation, Kruse asserted for the first time that he could not be compelled to register as a sex offender because the offense for which he had been convicted was not a “criminal offense against a minor” as that term is used in Iowa Code section 692A.2(1).

The district court concluded that the facts of Kruse’s crime, as gleaned from his written guilty plea, fell within the definition of a criminal offense against a minor contained in paragraphs (c) and (g) of subsection (5) of Iowa Code section 692A.1. We set forth the language of those statutory provisions in subsequent paragraphs of this opinion. Based on its interpretation of these statutes, the district court found that Kruse was in violation of his probation for failing to register as a sex offender as required by law. Other facts bearing on our decision will be discussed in our consideration of the legal issues presented.

I. Whether Kruse’s Sentence Was Improperly Altered by the District Court.

Iowa Code section 692A.2(1) provides “[a] person who has been convicted of a criminal offense against a minor ... shall register as provided in this chapter.” Persons convicted and placed on probation are required to register with the sheriff of the county of their residence within five days pursuant to Iowa Code section 692A.3. A “[c]riminal offense against a minor” is a statutorily defined term. The applicable statute defines such an offense as follows:

5. “Criminal offense against a minor” means any of the following criminal offenses or conduct:
a. Kidnapping of a minor, except for the kidnapping of a minor in the third degree committed by a parent.
b. False imprisonment of a minor, except if committed by a parent.
c. Any indictable offense involving sexual conduct directed toward a minor.
d. Solicitation of a minor to engage in an illegal sex act.
e. Use of a minor in a sexual performance.
f. Solicitation of a minor to practice prostitution.
g. Any indictable offense against a minor involving sexual contact with the minor.
h. An attempt to commit an offense enumerated in this subsection.
i. Incest committed against a minor.
j. Dissemination and exhibition of obscene material to minors in violation of section 728.2.
k. Admitting minors to premises where obscene material is exhibited in violation of section 728.3.
l. Stalking in violation of section 708.11, subsection 3, paragraph “b”, sub-paragraph (3), if the fact-finder determines by clear and convincing evidence that the offense was sexually motivated.
m. Sexual exploitation of a minor in violation of section 728.12.
n. Enticing away a minor in violation of section 710.10, subsection 1.
o. An indictable offense committed in another jurisdiction which would constitute an indictable offense under paragraphs “a” through “n”.

Iowa Code § 692A.1(5) (emphasis added).

Kruse insists that the charge to which he ultimately pled guilty was not a criminal offense against a minor because the elements of the crime as set forth in his written guilty plea did not refer to any sexual involvement with the victim. This contention ignores the fact that his written plea recited that “the Minutes of Testimony accurately describe what happened in all significant aspects.” The minutes. of testimony that accompanied the trial information set forth the testimony of the victim attesting to the fact that Kruse had forcibly removed her underwear and had sexual intercourse with her.

The action the district court took in sustaining the report of Kruse’s alleged probation violation did not require an amendment to the sentence that had been imposed following his plea of guilty. This is because determination of whether a particular conviction is a criminal offense against a minor need not be determined by the judgment of conviction. A judgment of conviction for certain offenses, because of the required elements of the crimes, will leave no doubt that the offense falls within one of the definitions of “criminal offense against a minor” contained in section 692A.1(5). In contrast, other convictions, such as the assault for which Kruse was convicted, will require a resort to information dehors the fact of conviction in order to determine if the offenses fall within a section 692A.1(5) definition. In either case, it is the operative command of the statutes, i.e., Iowa Code sections 692A.2 and 692A.3, that impose the registration requirement on the convicted party rather than the judgment of the court.

When a person has been convicted of a criminal offense against a minor and is not incarcerated, Iowa Code section 692A.5 contemplates that “prior to release or sentencing of the convicted person” the court will obtain fingerprints and a criminal history and inform the person concerning the sex-offender registration requirements. The State concedes that this was not done in the present case prior to sentencing, but urges that such omission does not relieve Kruse of the requirement to register as a sex offender as required by law. We agree with that contention.

Within ten days of his sentencing, Kruse was advised by his probation officer of his duty to register as a sex offender and signed an agreement to do so. We are satisfied that, notwithstanding the absence of a specific instruction from the court concerning Kruse’s registration requirement, it was not improper for his probation officer to conclude from available credible information concerning the facts of the crime that Kruse was required by law to register as a sex offender.

At the hearing on the application to revoke probation, Kruse was allowed to challenge the conclusion of his probation officer that his offense constituted a criminal offense against a minor as defined in section 692A.1(5). Our goal in interpreting statutes is to determine the legislature’s intent. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004). “We do not speculate as to the probable legislative intent apart from the words used in the statute.” State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996). We apply a plain and rational meaning consistent with the subject matter of the statute if the statutory language is clear. City of Fairfield v. Harper Drilling Co., 692 N.W.2d 681, 684 (Iowa 2005); State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003).

We agree with the district court’s conclusion that, because paragraphs (c) and (g) of subsection (5) of section 692A.1 contain the words “[a]ny indictable offense,” these definitions include offenses in which sexual conduct was involved, but which do not require sexual conduct as an element for conviction. We also agree with the district court that, given the concessions contained in Kruse’s plea of guilty, resort to the minutes of the victim’s testimony was proper in determining whether the assaultive conduct fell within the definition of a “[cjriminal offense against a minor.”

II. Due Process Challenges.

Kruse has lodged due process challenges to the 'statutes on which the State relies in order to impose a requirement that he register as a sex offender. Basically, these alleged due process violations are that the statutes defining a “[cjriminal offense against a minor” are impermissibly vague and that the right to challenge an alleged requirement to register as a sex offender only exists at a postdeprivation stage.

With respect to the vagueness challenge, we apply the rule that a statute challenged on vagueness grounds must describe the prohibited conduct with sufficient definiteness that ordinary people can understand that which is prohibited and which will assure that the statute will not foster arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983); State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996). We are convinced that the statutory provisions that Kruse challenges on vagueness grounds, i.e., paragraphs (c) and (g) of subsection (5) of section 692A.1, clearly satisfy this test as applied to acts upon which his conviction was based.

A far more difficult challenge is presented by Kruse’s due process claim that the postdeprivation hearing provided by Iowa Code section 692A.8 is insufficient to satisfy due-process considerations under the Fourteenth Amendment. We recognized in State v. Seering, 701 N.W.2d 655 (Iowa 2005), that limitations on conduct that flow from legislative classifications that include no exemptions are ordinarily immune from procedural due-process challenges. Seering, 701 N.W.2d at 666 (relying on Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8, 123 S.Ct. 1160, 1162, 155 L.Ed.2d 98, 105 (2003)). However, as we have previously observed, not all convictions for the offense of assault with intent to inflict serious injury trigger the requirement to register as a sex offender. It is necessary to engage in a factual inquiry dehors the fact of conviction of that crime in order to ascertain whether registration is required. It would appear that resort to some tribunal must be available to resolve disputes over these issues.

We need not determine whether the postdeprivation review available to sex-offender registrants under Iowa Code section 692A.8 is sufficient to satisfy due process concerns. This is because in the present case the district court, acting under the residual authority the court retains over probationers under Iowa Code section 907.8 (“Jurisdiction over these persons shall remain with the sentencing court.”), afforded Kruse a predeprivation hearing at which he was allowed to challenge the registration requirement sought to be impressed upon him both as to the law and the facts. No sanctions were imposed against Kruse for conduct on his part that antedated that hearing. Consequently, Kruse has not been denied due process of law. We have considered all issues presented and conclude that the writ must be annulled.

WRIT ANNULLED.

      . The court withheld revocation of probation on the condition that Kruse comply with the requirement to register as a sex offender and attend the sex-offender treatment program.

      . The State also asserts that Kruse has no due-process challenge because a requirement to register as a sex offender does not subject him to the loss of a liberty or property interest. In making this contention, the State relies on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), in which the Court held that a state-mandated program for identifying convicted shoplifters in a certain geographical area did not deprive the person so identified of a liberty interest. Paul, 424 U.S. at 711-13, 96 S.Ct. at 1165, 47 L.Ed.2d at 420-21. In determining whether that principle applies in the present case, we cannot ignore the fact that, under the statutory scheme with which Kruse is involved, a requirement to register under Iowa Code section 692A.2 automatically triggers the limitations on residency contained in section 692A.2A. In the Seering case, this court, by clear implication, recognized that those residency requirements were a limitation of a liberty interest. Seering, 701 N.W.2d at 663.

      . A regulation of the department of public safety provides that a registrant may initiate a request for a determination of whether registration with the Iowa Sex Offender Registry is required. Iowa Admin. Code r. 661 — 83.3(4). That regulation provides that, if there are issues of fact that cannot be evaluated based upon the record of conviction, sentencing, and other records provided, this may be made the subject of a contested-case hearing before an administrative law judge. Id.


source: Caselaw Access Project

author: /s/Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Steven Wayne VAN LIEW, a Minnesota Attorney, Registration No. 280793.
    No. A05-1772.
    Supreme Court of Minnesota.
    March 31, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Steven Wayne Van Liew committed professional misconduct warranting public discipline, namely, making false statements to a tribunal and failure to file opposition to a motion on behalf of a client, in violation of Minn. R. Prof. Conduct 3.3(a)(1), 4.1, and 8.4(c), and (d).

Respondent has agreed not to contest the referee’s findings and conclusions, waives his right to a hearing before this court under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which the Director recommends, and respondent agrees not to oppose, that the appropriate discipline is a 90-day suspension, subject to the following conditions:

(a) Respondent must successfully complete the professional responsibility examination within one year from the date of this order.
(b) Respondent shall be current in continuing legal education requirements.
(c) Respondent shall pay $900 in costs and $90 in disbursements under Rule 24, RLPR.
(d) Respondent shall comply with Rule 26, RLPR, requiring notice of his suspension from active practice to clients, opposing counsel, and tribunals.
(e) Respondent may apply for reinstatement by affidavit under Rule 18(f), RLPR.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Steven Wayne Van Liew is suspended from the practice of law for 90 days, effective immediately, subject to the conditions set forth above.

BY THE COURT:

/s/Helen M. Meyer

Associate Justice


author: /s/Helen M. Meyer, Associate Justice.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Albert Shawe WATKINS, a Minnesota Attorney, Registration No. 181882.
    No. A06-576.
    Supreme Court of Minnesota.
    April 25, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action seeking reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR), based on an order of the Missouri Supreme Court publicly reprimanding respondent. The public reprimand was issued based on misconduct involving respondent’s disclosure of information about his client’s criminal record to the client’s employer. Respondent made the disclosure believing that the client had already disclosed the matter to the employer as respondent had advised him he was required to do.

The Director and respondent have entered into a stipulation in which respondent waives his rights under Rule 14, RLPR, and the parties jointly recommend that the appropriate reciprocal discipline is a public reprimand. The parties also recommend that costs and disbursements under Rule 24, RLPR, be waived.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Albert Shawe Watkins is publicly reprimanded. Costs and disbursements under Rule 24, RLPR, are waived.

BY THE COURT:

/s/Helen M. Meyer,

Associate Justice.


author: /s/Russell A. Anderson Chief Justice

text:
    Minh-Phuong T. PHAN, Respondent, v. RADISSON HOTEL, and American Compensation Insurance/RTW, Relators.
    No. A06-22.
    Supreme Court of Minnesota.
    April 26, 2006.
    Brian James Holly, Asfedt, Forde,' Gray, Monson & Hager, P.A., Minneapolis, MN, for Appellant.
    Minh-Phuong T. Phan, St. Paul MN, Pro Se Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 6, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/Russell A. Anderson

Chief Justice


author: ANDERSON, PAUL H„ Justice. GILDEA, J.,

text:
    Kevin KELLY, as Trustee for the heirs and next-of-kin of Kelly Ann Kelly, et al., Appellants, v. Jason ELLEFSON, Respondent, Steven Eidemiller, Defendant, Supreme Transport Services, L.L.C., et al., Respondents, and Lido’s Italian Market Café & Bar, Defendant.
    No. A04-615.
    Supreme Court of Minnesota.
    April 27, 2006.

      Patrick J. Sauter, Stephen P. Watters, Paula D. Vraa, Brian H. Sanda, Rider Bennett, LLP, Minneapolis, MN, for Appellant.
    Emilio R. Giuliani, Nicholas L. Klehr, Labore, Giuliani, Cosgriff & Viltoft, Ltd., Hopkins, MN, for Respondent Ellefson.
    Katherine L. MacKinnon, St. Louis Park, MN, James F. Roegge, Katherine A. McBride, Meagher & Geer, PLLP, Minneapolis, MN, for Respondents Supreme Trans., et al.
   OPINION

ANDERSON, PAUL H„ Justice.

Appellant Kevin Kelly appeals a decision by the Minnesota Court of Appeals that his amended complaint, answers to interrogatories, and expert’s affidavit were admissible as admissions of a party-opponent in his suit for the wrongful death of his wife. Kevin Kelly’s wife, Kelly Ann Kelly, died in a collision between a semi-tractor trailer operated by a driver for Supreme Transport Services, L.L.C. and a pickup truck driven by Jason Ellefson in which Kelly Ann Kelly was a passenger. As a result of this accident, Kevin Kelly commenced a cause of action against three drivers and a bar. Before the jury was sworn, Kevin Kelly entered into Pierringer settlements with Steve Eidemiller, one of the drivers, and Lido’s Café, the bar. Kevin Kelly then went to trial with respect to the remaining drivers. A Ramsey County jury found respondents Supreme Transport Services, L.L.C., David and Diana White, and D.L. Enterprises (collectively Supreme Transport) 60% at fault and the other driver, respondent Ellefson, 40% at fault for the death of Kelly Ann Kelly. Supreme Transport moved for a new trial on the issue of liability, claiming numerous evidentiary and procedural errors. The district court denied Supreme Transport’s motion for a new trial.

Supreme Transport appealed, asserting numerous alleged errors, including the district court’s exclusion of all evidence of Lido’s fault. In particular, Supreme Transport argued that Kevin Kelly’s amended complaint, answers to interrogatories, and expert’s affidavit should have been admitted as party admissions. The Minnesota Court of Appeals concluded that several errors had been committed, and reversed and remanded for a new trial on the basis of the errors, including the district court’s exclusion of Kevin Kelly’s amended complaint, answers to interrogatories, and expert’s affidavit. The court of appeals held that the amended complaint, answers to interrogatories, and expert’s affidavit should have been admitted as party admissions to show the fault of Kelly Ann Kelly. Kevin Kelly filed a petition for review, which we granted solely on the issue of the admissibility of the amended complaint, answers to interrogatories, and expert’s affidavit. We reverse.

On the night she died in an automobile accident, Kelly Ann Kelly joined her childhood friend, Katherine Martinson, and other friends and coworkers at Lido’s Café, a restaurant and bar located in the city of Roseville. There were 15-20 people in the group. Most of the people arrived after work around 5:00 p.m. and left by 7:00 or 7:30 p.m. Six people remained until approximately 8:00 p.m. These six people were Kelly Ann Kelly, Martinson, Jason Ellefson, Steve Eidemiller, Corbin Ellef-son, and Erica Eastep.

Just after 8:00 p.m., this group of six left Lido’s in three vehicles, intending to meet at another Roseville bar. Kelly Ann Kelly, Martinson, and Corbin rode with Ellefson in his pickup truck. Ellefson drove, Kelly Ann Kelly rode in the front passenger seat, and Martinson and Corbin rode in the back seat. Eidemiller and Eastep each drove separately. The three vehicles proceeded westbound on Ramsey County Road C, which is a four-lane road with a speed limit of 45 miles per hour. As the three vehicles approached Fairview Avenue, they were lined up in the left westbound lane with Eidemiller leading, followed by Eastep and then Ellefson.

By the time the vehicles stopped at a traffic light at Fairview Avenue, Ellefson had moved his pickup truck into the right westbound lane and was adjacent to Ei-demiller’s vehicle. There was conflicting testimony about whether Ellefson and Ei-demiller exchanged gestures while waiting for the traffic light to turn green, and whether they began to race as they proceeded through the intersection. Ellefson and Eidemiller denied that they were racing. Eidemiller testified that he was driving at approximately 50 miles per hour. Ellefson testified that he was driving between 50 and 55 miles per hour. Eastep testified that Ellefson and Eidemiller “took off from the stoplight more quickly than [she] did,” but that they did not appear to be racing. But Martinson testified that Ellefson and Eidemiller communicated through hand gestures while stopped at the traffic light, and when the traffic light turned green, both vehicles accelerated to about 60 miles per hour. Whether racing or not, when the traffic light turned green, the three vehicles continued westbound with Eidemiller and Eastep in the left westbound lane and Ellefson in the right westbound lane.

All three drivers intended to make a left turn at Cleveland Avenue, which is approximately one-half mile west of Fairview Avenue. In anticipation of this turn, Ellefson looked over his left shoulder in preparation for moving into the left westbound lane ahead of Eidemiller. As Ellefson turned his head, a semi-tractor trailer driven by David White for Supreme Transport Services, L.L.C. exited a parking lot on the north side of County Road C. White was taking a right turn out of the lot onto County Road C and intended to drive westbound toward Interstate 35. Eidemil-ler saw that the semi-tractor trailer was blocking both westbound lanes of traffic on County Road C, applied his brakes, and coasted to a stop. Apparently because Ellefson was looking in the other direction, he did not immediately notice the semi-tractor trailer blocking the road. Ellef-soris passengers did see the semi-tractor trailer in their path and they yelled. At that point, Ellefson applied his brakes and began to skid. After skidding for 84.5 feet, Ellefsoris pickup truck struck the left side of the semi-tractor trailer and slid partially underneath it.

White testified that when he was halfway into his turn onto County Road C he felt a bump that he believed could have been a blown tire. White then pulled over to the right side of County Road C to investigate, and as he did so, he dragged Ellefsoris crushed pickup truck with him. When the vehicles came to a rest, White’s semi-tractor trailer faced westbound and Ellefsoris pickup truck faced northbound. The front passenger side of Ellefsoris pickup truck was badly crushed.

Emergency personnel arrived at the scene shortly after the accident and pronounced Kelly Ann Kelly dead at the scene. Her death certificate listed the cause of death as “multiple traumatic injuries,” At the time of her death, Kelly Ann Kelly was married to appellant Kevin Kelly and the mother of two young children— ages three years and approximately fifteen months. Kelly Ann Kelly was employed as a certified public accountant and earned a salary of approximately $75,000 per year.

Ellefson, Martinson, and Corbin were injured in the accident. The three occupants were pinned in their seats by the collision, and the emergency personnel had to cut off the top of the pickup truck to extricate them. After they were extricated, Ellefson, Martinson, and Corbin were transported by ambulance to a hospital where they were treated. While he was at the hospital, Ellefson submitted to a blood alcohol test. Ellefson stipulated at trial that based on this test, his blood alcohol content was .12 approximately two hours after the accident.

As trustee for the heirs and next-of-kin of Kelly Ann Kelly, Kevin Kelly commenced an action against Ellefson, Eidem-iller, and Supreme Transport, alleging that all of the drivers were at fault in causing Kelly Ann Kelly’s death. Ellefson answered Kevin Kelly’s complaint and cross-claimed against Eidemiller and Supreme Transport. Eidemiller answered Kevin Kelly’s complaint and crossclaimed against Ellefson and Supreme Transport. Supreme Transport answered Kevin Kelly’s complaint, alleging that the accident was caused by the negligence of Ellefson, Ei-demiller, and Lido’s, and crossclaimed against Ellefson and Eidemiller.

Kevin Kelly then amended his complaint to include a Minn.Stat. § 340A.801 (2004) dram shop claim against Lido’s, asserting that Lido’s served Ellefson alcohol when he was obviously intoxicated. Supreme Transport answered Kevin Kelly’s amended complaint and added a crossclaim against Lido’s. Lido’s answered Kevin Kelly’s amended complaint and also cross-claimed against Ellefson, Eidemiller, and Supreme Transport.

Lido’s served interrogatories on Kevin Kelly. Kevin Kelly’s answers to the interrogatories included the allegation that “Lido served Ellefson alcoholic drinks for approximately three hours resulting in a blood alcohol content in excess of the legal limit to operate a car. * * * Ellefson’s level of intoxication should have been obvious to employees of Lido.” Kevin Kelly’s answers also identified Dr. Richard Jensen as a likely expert witness. Kevin Kelly signed the interrogatory answers four times — in his individual capacity, on behalf of each of his two minor children, and as trustee for Kelly Ann Kelly’s heirs and next-of-kin. Kevin Kelly supplemented his answers to Lido’s interrogatories. In this supplemental answer, Kevin Kelly stated that Jensen would testify at trial that when Ellefson was last served by Lido’s at 7:45 p.m., Ellefson would have had a blood alcohol content of .12 to .13 and as an occasional user of alcoholic beverages would have been displaying obvious signs of intoxication recognizable by a person employing usual powers of observation.

Lido’s brought a motion for summary judgment. In response to Lido’s motion, Kevin Kelly submitted to the district court an affidavit by Jensen repeating Jensen’s assessment that with a blood alcohol content of .12 to .13, when last served by Lido’s, Ellefson would have displayed signs of intoxication recognizable to a person “employing usual and reasonable powers of observation.” In his memorandum in opposition to Lido’s motion for summary judgment, Kevin Kelly argued that the eyewitnesses who claimed that Ellefson was not obviously intoxicated lacked credibility. These eyewitnesses included Lido’s staff members and the coworkers present at Lido’s. Kevin Kelly also argued that Jensen was qualified to testify regarding the obviousness of Ellefson’s intoxication. The district court denied Lido’s motion for summary judgment.

Preliminary trial proceedings began on September 29, 2003. Before the jury was impaneled on October 3, counsel informed the district court that Kevin Kelly had settled with Lido’s and Eidemiller under Pierringer releases. Kevin Kelly then moved to strike Lido’s from the caption of the case and the special verdict form. Supreme Transport responded by arguing that Lido’s should remain on the caption and special verdict form so that Lido’s fault could be considered by the jury, and the court should give a jury instruction explaining Lido’s absence at trial. Kevin Kelly responded that the instruction regarding a party’s absence is to be given only when the parties settle during trial, and that such an instruction was inappropriate here because the jury had not been sworn and therefore the trial had not yet officially begun. Kevin Kelly also argued that Supreme Transport’s pretrial disclosures provided no evidence of Lido’s fault, and therefore keeping Lido’s on the verdict form would confuse the jury.

Supreme Transport replied by asserting that Kevin Kelly’s amended complaint and answers to interrogatories provided evidence of Lido’s fault, and that these documents were admissible as party admissions. Kevin Kelly argued that pleadings are not admissions because Minnesota is a notice pleading state. The district court granted Kevin Kelly’s motion to remove Lido’s from the caption and special verdict form. Kevin Kelly then moved to have Eidemiller removed from the caption of the case, but made no argument in support of this motion. The court removed Eidem-iller from the caption, but kept his name on the verdict form, stating that CIYJIG 15.35 would be given to the jury to explain his absence as a party at trial. The court also ruled that Kelly Ann Kelly would remain on the special verdict form. The court reserved its ruling on the admissibility of Kevin Kelly’s amended complaint, answers to interrogatories, and expert’s affidavit.

After the trial began, Kevin Kelly expressly argued that Ellefson was not obviously intoxicated on the night of the accident. Kevin Kelly made this argument in his opening argument, and also elicited testimony from Eastep and Martinson that Ellefson did not appear to be intoxicated. Additionally, during closing argument, Kevin Kelly suggested that intoxication was not a cause of the collision, and argued that Kelly Ann Kelly was not at fault for getting into Ellefson’s pickup truck. At this point, Supreme Transport attempted to introduce Kevin Kelly’s amended complaint, answers to interrogatories, and expert’s affidavit, asserting that these documents were admissible as evidence of Kelly Ann Kelly’s fault in choosing to ride with Ellefson. The district court then made the ruling that it had reserved earlier, and excluded the documents. Supreme Transport also sought to elicit testimony about Ellefson’s obvious intoxication from Supreme Transport’s own toxicology expert. The court excluded evidence of obvious intoxication, stating that “obvious intoxication is no longer something that’s part of this law.” In his closing argument, Kevin Kelly argued that alcohol may not have been a cause of the accident.

The jury found that Ellefson and Ei-demiller were not racing before the accident, Supreme Transport was negligent in its operation of its semi-tractor trailer and this negligence was a direct cause of the accident, and Kelly Ann Kelly was not negligent. The jury then allocated 60% of the fault to Supreme Transport, 40% to Ellefson, and 0% each to Eidemiller and Kelly Ann Kelly. The jury awarded damages of $2.7 million.

Supreme Transport moved for a new trial on the issue of liability in part on the grounds that the district court erred in excluding Kevin Kelly’s amended complaint, his answers to Lido’s interrogatories, and his expert’s affidavit. The court denied the motion. Supreme Transport then appealed to the court of appeals. The court of appeals held that Kevin Kelly’s amended complaint, answers to interrogatories, and expert’s affidavit were adoptive admissions under Minn. R. Evid. 801(d)(2) or under common law, but only to show the fault of Kelly Ann Kelly. The court of appeals also held that the district court committed multiple other errors. Specifically, the court of appeals held that the district court erred in admitting a misleading reconstruction animation, admitting a misleading videotaped re-enactment, failing to instruct the jury that when a driver’s speed is unlawful, he forfeits the right-of-way, failing to instruct the jury on DWI and racing, excluding testimony by Supreme Transport’s expert regarding obvious intoxication (which meant that striking Lido’s from the special verdict form was also error because this testimony was evidence of Lido’s fault), and excluding the testimony and diagram of a state trooper accident-reconstructionist. The court of appeals then reversed and remanded for a new trial. Kevin Kelly filed a petition for review of all issues. We granted review solely on the issue of the admissibility of Kevin Kelly’s pleadings, interrogatory answers, and expert’s affidavit.

I.

We first address Kevin Kelly’s assertion that his amended complaint is not admissible as an admission of a party-opponent. Absent an erroneous interpretation of the law, we review a district court’s exclusion of evidence for an abuse of discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn.1997). Kevin Kelly argues that pleadings are not admissible because (1) a pleading does not meet the definition of a nonhearsay admission of a party-opponent under Minn. R. Evid. 801(d)(2); and (2) admitting pleadings into evidence would frustrate liberal notice pleading and discourage partial settlements.

We agree with the Eighth Circuit, which has said that “[t]he use of trial pleadings as admissions has been a thorny issue in the law of evidence.” Garman v. Griffin, 666 F.2d 1156, 1157 (8th Cir.1981). Several jurisdictions hold that pleadings that are amended, withdrawn, or superseded are admissible as admissions by a party-opponent. See, e.g., United States v. GAF Corp., 928 F.2d 1253, 1259 (2d. Cir.1991); Cont’l Ins. Co. of N.Y. v. Sherman, 439 F.2d 1294, 1298 (5th Cir.1971); Danko v. Redway Enters., Inc., 254 Conn. 369, 757 A.2d 1064, 1067-68 (2000); Pankow v. Mitchell, 737 S.W.2d 293, 296 (Tenn.Ct. App.1987); see also McCormick on Evidence § 265 (Edward W. Cleary, ed., 3rd ed.1984); 4 John Wigmore, Evidence in Trials at Common Law § 1067 (Chadbourn rev.1972). But see Lytle v. Stearns, 250 Kan. 783, 830 P.2d 1197, 1208-09 (1992); Larion v. City of Detroit, 149 Mich.App. 402, 386 N.W.2d 199, 201-02 (1986); John H. Mansfield, Evidential Use of Litigation Activity of the Parties, 43 Syracuse L.Rev. 695, 707 (1992). But some jurisdictions that admit pleadings as admissions have carved out important exceptions to this general rule. McCormick on Evidence § 265. An exception for inconsistent and hypothetical pleadings is common because alternative pleading is expressly authorized under notice pleading, and the purpose of giving notice would be frustrated if alternative pleadings could later be used against the pleader as admissions. See id.

Under Minn. R. Evid. 801(d)(2), a statement is a nonhearsay admission of a party-opponent if the “statement is offered against a party and is * * * the party’s own statement, in either an individual or a representative capacity,” or the statement is otherwise attributable to the party. Kevin Kelly argues that a complaint is not a “statement” essentially because under Minnesota’s notice pleading system, parties are permitted to make broad concluso-ry statements, and the amendment of pleadings is freely allowed.

Notice pleading took effect in Minnesota in 1952 following the adoption of Minn. R. Civ. P 8.01, which provides: “A pleading which sets forth a claim for relief * * ⅝ shall contain a short and plain statement of the claim showing that the pleader is entitled to relief * * *. Relief in the alternative or of several different types may be demanded.” We have held that “[t]he functions of a pleading today are simply to give fair notice to the adverse party of the incident giving rise to the suit with sufficient clarity to disclose the pleader’s theory upon which his claim for relief is based, to permit the application of the doctrine of res judicata, and to determine whether the case must be tried by the jury or the court.” N. States Power Co. v. Franklin, 265 Minn. 391, 394, 122 N.W.2d 26, 29 (1963) (citing Roberge v. Cambridge Coop. Creamery Co., 243 Minn. 230, 67 N.W.2d 400 (1954)). Notice pleading replaced code pleading, which required a complaint to include a specific statement of ultimate facts sufficient to constitute a cause of action. Id.

Under the old code pleading system, we held that amended or superceded pleadings were admissible as party admissions when the party proceeded inconsistently thereafter. Carlson v. Fredsall, 228 Minn. 461, 472-73, 37 N.W.2d 744, 750-51 (1949). The original complaint in Carlson alleged that an accident was caused solely by the negligence of two defendants. Id. at 468, 37 N.W.2d at 749. The complaint was later amended to allege the negligence of two additional defendants. Id. at 463, 37 N.W.2d at 746. The two additional defendants subsequently sought to introduce the original complaint into evidence, and we held that the original complaint was admissible as a party admission. Id. at 468, 473, 37 N.W.2d at 749, 751.

Shortly after the adoption of notice pleading, we were again presented with the question of the admissibility of pleadings. In Wilson Storage, we reiterated the rule of Carlson that allegations of fact in pleadings may be introduced against the pleading party as admissions when the party proceeded inconsistently thereafter, but we excluded the proffered complaint on the ground that the party had not proceeded inconsistently. Wilson Storage, 242 Minn. at 65-66, 64 N.W.2d at 14. In 1978, we reiterated the rule of Carlson, but excluded the proffered evidence, which was a statement of the case. Lines v. Ryan, 272 N.W.2d 896, 901 n. 4 (Minn. 1978).

Although we reiterated the rule in Carlson in both Wilson and Lines, there has been only one occasion since the adoption of notice pleading in 1952 that we have concluded that a pleading was actually admissible as a party admission. In re Perry, 494 N.W.2d 290, 294 (Minn.1992). In Perry, an attorney who was the subject of a disciplinary action objected to the referee’s reliance on pleadings that the attorney had filed in an earlier lawsuit. Id. at 293. In these pleadings, Perry alleged that he had pledged trust funds as collateral without the consent of Perry's mother, the settlor, in violation of the trust agreement. Id. at 292-93. In the course of the disciplinary proceeding, Perry gave a sworn statement that the trust agreement allowed him to exercise "absolute discretion" in making distributions of trust principal, meaning that he did not violate the trust agreement when he pledged the trust funds as collateral. Id. at 293. We held that the pleadings in which the attorney alleged that he had violated the trust agreement were admissible as admissions in the disciplinary action. Id. at 294.

The pleadings that we admitted in Perry contained allegations about the pleader's own behavior and the content of a trust agreement that the pleader had drafted. Id. at 292-93. Kevin Kelly's amended complaint is substantively different from the pleadings admitted in Perry because Kevin Kelly had no personal knowledge of the contested facts. Kevin Kelly's amended complaint alleged that Lido's had served alcoholic beverages to Ellefson when Ellefson was obviously intoxicated. But, because Kevin Kelly was not at Lido's with Ellefson, Kevin Kelly was not alleging facts within his personal knowledge. Thus, the precise question we must answer here is much different than the one addressed in Peri~y. Here, we must determine whether a pleading that alleges facts of which the pleader has no personal knowledge is admissible as a party admission when the pleading party has proceeded at trial in a manner inconsistent with the pleadings.

According to the committee cornment to Minn. R. Evid. 801(d)(2), the rationale for admitting party admissions is "based more on the nature of the adversary system than in principles of trustworthiness or necessity * * *•" This comment also states that "[t]he requirements of trustworthiness, firsthand knowledge, or rules against opinion which may be applicable in determining whether or not a hearsay statement should be admissible do not apply when dealing with party admissions." Minn. R. Elvid. 801(d)(2) comm. cmt.-1989. Without concluding whether the committee comment is an accurate statement of the law in general, we conclude that the comment is inapplicable to the admissibility of pleadings as party admissions. Under notice pleading, one function of a complaint is "to give fair notice to the adverse party of the incident giving rise to the suit." N. States Power Co., 265 Minn. at 394, 122 N.W.2d at 29. For us to conclude, in the context of party admissions, that a party "admits" facts not within his personal knowledge by alleging those facts in a complaint would in effect thwart the underlying "fair notice of claim" purpose of notice pleading by unduly restricting the pleading party. Here, Supreme Transport sought to introduce Kevin Kelly's amended complaint, which alleged that Lido's had served alcoholic beverages to Ehlefson when Ellefson was obviously intoxicated. Because these factual allegations were not within Kevin Kelly's personal knowledge, we hold that the district court did not abuse its discretion in excluding Kevin Kelly's amended complaint.

II.

Having concluded that Kevin Kelly's amended complaint is not admissible as a party admission, we turn next to his argument that his interrogatory answers are similarly inadmissible. Supreme Transport sought to introduce Kevin Kelly’s initial answers to Lido’s interrogatories as party admissions. Under Minn. R. Civ. P. 33.01, interrogatories served on parties must be answered fully in writing and signed under oath, or objected to. Minnesota Rule of Civil Procedure 33.02 provides that answers to interrogatories “may be used [at trial] to the extent permitted by the Minnesota Rules of Evidence.” We have not previously analyzed the admissibility of interrogatory answers or interpreted the foregoing language in the rule.

The general rule in other jurisdictions appears to be that interrogatory answers are admissible as party admissions provided that the substance of the answers satisfies the rules of evidence. Kevin Kelly’s initial answers to Lido’s interrogatories contained the following statement:

Lido served Ellefson alcoholic drinks for approximately three hours resulting in a blood alcohol content in excess of the legal limit to operate a car. Ellefson admits he was an inexperienced drinker and the quantity of beverages in combination with Ellefson’s level of intoxication should have been obvious to employees of Lido.

This statement is Kevin Kelly’s factual allegation about the conduct and statements of two other parties. But, since Kevin Kelly was not present at Lido’s, he has no personal knowledge of the facts asserted. Because of this lack of personal knowledge, the substance of Kevin Kelly’s initial interrogatory answers would not be admissible if he testified to the same information as a witness at trial. Minn. R. Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Because the substance of Kevin Kelly’s initial interrogatory answers would not otherwise be admissible under Minn. R. Evid. 602, we conclude that the admission into evidence of his initial interrogatory answers would violate Minn. R. Civ. P. 33.02, which permits the use of interrogatory answers to the extent permitted by the Minnesota Rules of Evidence. Therefore, we hold that the district court did not err when it excluded Kevin Kelly’s initial interrogatory answers.

III.

Supreme Transport also sought to introduce Kevin Kelly’s supplemental interrogatory answer that outlined the proposed testimony of his expert toxicologist, who did not ultimately testify at trial. Kevin Kelly supplemented his initial interrogatory answers in response to Lido’s interrogatory that asked in relevant part: “As to each expert whom you expect to call as a witness at trial, please state: * * * (g) the subject matter on which he or she is expected to testify; (h) the substance of the facts to which he or she is expected to testify and where the facts were obtained; (i) the substance of the opinions to which he or she is expected to testify; and (j) a summary of the grounds for each opinion.” Kevin Kelly’s supplemental answer to this interrogatory outlined his expert toxicologist’s qualifications, proposed testimony, and opinions relevant to the case. Because Kevin Kelly’s supplemental answer is expressly presented as the opinion and proposed testimony of another person, the substance of the supplemental answer is essentially an out-of-court statement made by a nonparty who did not testify at trial. Generally, an out-of-court statement made by a nonparty is inadmissible hearsay. Minn. R. Evid. 801(c).

It appears that Supreme Transport asserts that the supplemental interrogatory answer was nonetheless admissible as an adoptive admission under Minn. R. Evid. 801(d)(2)(B), which provides that a statement is not hearsay if it is offered against a party and is “a statement of which the party has manifested an adoption or belief in its truth.” In essence, Supreme Transport argues that by submitting the interrogatory answer, Kevin Kelly manifested an adoption of the truth of the expert’s statements. In the context of criminal proceedings, we have held that for a hearsay statement to be admissible as a defendant’s adoptive admission of the defendant’s guilt, there must be a manifestation “by conduct or statements which are unequivocal, positive,, and definite in nature, clearly showing that in fact defendant intended to adopt the hearsay statements as his own.” Village of New Hope v. Duplessie, 304 Minn. 417, 425, 231 N.W.2d 548, 553 (1975) (emphasis in original). Although this holding in Duplessie was limited to the context of criminal proceedings, the application of that holding to this case serves to balance the investigative purpose of the discovery process and the rationale behind the party admissions doctrine.

We conclude that by outlining the proposed testimony of his expert toxicologist in direct response to Lido’s request for this information, Kevin Kelly did not expressly adopt the expert’s opinion as his own. For the same reason, the substance of the supplemental interrogatory answer was not a statement of an authorized 'party or agent under Minn. R. Evid. 801(d)(2)(C) & (D). While it may be possible for a party to adopt an expert’s opinions and proposed testimony as his own position, we conclude, based on the phrasing of Lido’s interrogatory and Kevin Kelly’s supplemental answer, that Kevin Kelly did not do so here. Because Kevin Kelly did not unequivocally adopt his expert’s opinions as his own, we conclude that Kevin Kelly’s supplemental answer that outlined the expert’s opinions and proposed testimony was hearsay and therefore not admissible. See Minn. R. Evid. 801(c), 802. For the foregoing reasons, we hold that the district court did not abuse its discretion when it excluded Kevin Kelly’s supplemental interrogatory answer outlining the proposed testimony of his expert toxicologist.

IV.

Finally, we address Kevin Kelly’s argument that the court of appeals erred when it reversed the district court’s decision to exclude the affidavit of Kevin Kelly’s expert toxicologist. Initially, Kevin Kelly submitted the expert’s affidavit with his legal memorandum opposing Lidols motion for summary judgment. The affidavit contained the toxicologist’s opinion regarding the amount of alcohol Ellefson consumed, the effect this consumption had on Ellefson’s behavior, and the toxicologist’s conclusion that Ellefson would have displayed signs of obvious intoxication. At trial, Supreme Transport sought to introduce the affidavit as an admission by Kevin Kelly. The district court excluded the affidavit, but the court of appeals reversed, holding that the affidavit was admissible as a party admission.

As previously noted, an out-of-court statement made by a nonparty is generally inadmissible hearsay. Minn. R. Evid. 801(c), 802. The Minnesota Rules of Evidence contain a number of hearsay exceptions, but there is no hearsay exception for expert evidence. Minn. R. Evid. 803, 804. Minnesota Rule of Evidence 702 provides that if specialized knowledge will assist the trier of fact to understand the evidence, a witness qualified as an expert may testify thereto. Minn. R. Evid. 702 (emphasis added). Rule 702 does not provide that a witness qualified as an expert may submit an affidavit in lieu of personal testimony. Further, we have stated in a previous opinion that “the state should not be permitted to launder inadmissible hearsay evidence, turning it into admissible evidence by the simple expedient of passing it through the conduit of purportedly ‘expert opinion.’ ” State v. DeShay, 669 N.W.2d 878, 886 (Minn.2003). We conclude that, here, the admission of the toxicologist’s affidavit as a party admission would circumvent the general rule that, unless otherwise agreed by the parties, expert opinions are to be presented through expert testimony. Moreover, to admit the affidavit here would impermissibly allow the toxicologist’s opinion to be presented to the jury without being subject to the safeguard of cross-examination. See Minn. R. Evid. 702; Murray v. Walter, 269 N.W.2d 47, 49 (Minn.1978) (discussing the importance of a wide range of inquiry on cross examination); see also Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Thomas, J., concurring) (stating that testimony must be subject to “testing in the crucible of cross-examination”). We therefore hold that the district court did not abuse its discretion when it excluded the toxicologist’s affidavit.

Reversed and remanded.

GILDEA, J.,

not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . David White and Diana Lynn White are a married couple who drive as independent contractors for Supreme Transport Services, L.L.C. under the name D.L. Enterprises, Inc. At the time of the accident, David White was driving the semi-tractor trailer and Diana was riding in the front passenger seat. David White, Diana White, D.L. Enterprises, and Supreme Transport Services are all parties to this lawsuit. By the time this trial began, David and Diana White had been discharged in bankruptcy and Supreme Transport Services was no longer doing business.

      . Before he arrived at Lido's at approximately 5:00 p.m., Ellefson had been at another bar since about 3:30 p.m. Ellefson admitted that he drank two beers at this first bar. Ellefson was charged with criminal vehicular homicide and criminal vehicular injury. Ellefson pleaded guilty and was sentenced to four years in prison.

      . "The basic elements of a Piemnger release are: (1) The release of the settling defendants from the action and the discharge of a part of the cause of action equal to that part attributable to the settling defendants’ causal negligence; (2) the reservation of the remainder of plaintiffs causes of action against the nonset-tling defendants; and (3) plaintiff's agreement to indemnify the settling defendants from any claims of contribution made by the nonset-tling parties and to satisfy any judgment obtained from the nonsettling defendants to the extent the settling defendants have been released.” Frey v. Snelgrove, 269 N.W.2d 918, 920 n. 1 (Minn. 1978) (citing John E. Simo-nett, Release of Joint Tortfeasors: Use of the Pierringer Release in Minnesota, 3 Wm. Mitchell L.Rev. 1, 3, 8, n. 32, 33 (1977)).

      . Many cases addressing the admissibility of pleadings as party admissions also discuss the use of pleadings for impeachment purposes. See, e.g., Wilson Storage & Transfer Co. v. Geurkink, 242 Minn. 60, 65-66, 64 N.W.2d 9, 14 (1954). Additionally, the concepts of substantive admissibility and the use for impeachment are sometimes confused. The district court's ruling did not exclude the use of Kevin Kelly’s amended complaint for impeachment purposes, and the use of pleadings for impeachment purposes is not addressed by the parties in their briefs. Accordingly, we address only the admissibility of pleadings as substantive evidence.

      . We note that Kevin Kelly's original claims against Supreme Transport, Ellefson, Eidem-iller, and Lido’s were neither inconsistent nor hypothetical. Kevin Kelly argued that (1) a bar served a patron who was obviously intoxicated, (2) the patron then negligently participated in a motor vehicle race (3) with a second negligent driver, and in the process (4) the patron collided with a semi-tractor trailer driven by a third negligent driver. We find nothing inconsistent in alleging that multiple parties contributed to causing damages. Furthermore, we conclude that there is nothing hypothetical about any of Kevin Kelly's claims.

      . Minnesota Rule of Evidence 801(a) provides that “[a] 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” There is no definition of "assertion” in the Minnesota Rules of Evidence.

      . Perry was an attorney discipline matter and therefore the proceedings were not subject to the same procedural and evidentiary rules that govern a civil trial. See In re Gillard, 271 N.W.2d 785, 808 (Minn.1978) (holding that, while disciplinary proceedings are not encumbered by technical rules and formal requirements, this court observes due process in exercising disciplinary jurisdiction.).

      . Shortly after the Minnesota Rules of Evidence were adopted, we held that a defendant's answers to the Attorney General’s interrogatories were properly admitted into evidence because the defendant waived his Fifth Amendment claim by answering the interrogatories, but we did not address the procedural basis for the admission of the answers. State v. Hanson, 285 N.W.2d 487, 488-90 (Minn. 1979).

      . See, e.g., Bailey v. New England Mut. Life Ins. Co. of Boston, Mass., 1 F.R.D. 494, 495 (S.D.Cal.1940) (holding that interrogatoiy answers may be used as a “confession * * * but not by the answering party as a self-serving statement free from the hazards of cross-examination.”); Barrett v. Melton, 112 Ariz. 605, 545 P.2d 421, 423 (1976) (holding that under Ariz. R. Civ. P. 33(b), which is nearly identical to Minn. R. Civ. P. 33.02, answers to interrogatories are admissible as party admissions if offered by the opposing party); Theesen v. Cont’l Life & Accident Co., 90 Idaho 58, 408 P.2d 177, 179 (1965) (concluding that "[a]n-swers to interrogatories are admissible insofar as the rules of evidence permit and answers which are hearsay, opinion, or contrary to the best evidence rule are not usually admissible.”); Baylor v. Norfolk and Western Ry. Co., 177 W.Va. 674, 355 S.E.2d 924, 927 (1987) (excluding answers to interrogatories on Rule 403 basis because there was other admissible evidence that was less prejudicial). But see Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337, 341-42 (1993) (holding that opposing party’s answers to interrogatories are hearsay and are generally inadmissible).


author: Helen M. Meyer Associate Justice

text:
    Carrie L. BUSCH, Respondent, v. WAL MART, and Claims Mgmt., Inc., Relators, and Mayo Foundation, Mankato Clinic Ltd., Mankato Chiropractic Center, Mankato Anesthesia Associates, Ltd., Wal Mart Claims Administration, and Orthopaedic & Fracture Clinic, P.A., Interveners.
    No. A06-161.
    Supreme Court of Minnesota.
    April 28, 2006.

      Andrew A. Willaert, Gislason & Hunter, LLP, Mankato, MN, for relators.
    Philip R. Reitan, Reitan Law Office, Mankato, MN, for respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 22, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

Helen M. Meyer

Associate Justice


author: DIETZEN, Judge.

text:
    COMMERCIAL ASSOCIATES, INC., Respondent (A05-862), Appellant (A05-871), v. The WORK CONNECTION, INC., Appellant (A05-862), Respondent (A05-871).
    Nos. A05-862, A05-871.
    Court of Appeals of Minnesota.
    April 18, 2006.

      Jeffrey F. Shaw, David H. Grounds, Briggs & Morgan, P.A., Minneapolis, MN, for Commercial Associates, Inc.
    M. Gregory Simpson, Siegel, Brill, Gre-upner, Duffy & Foster, P.A., and Robert J. Gilbertson, A.L. Brown, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for The Work Connection, Inc.
    Considered and decided by DIETZEN, Presiding Judge; WRIGHT, Judge; and WORKE, Judge.
   OPINION

DIETZEN, Judge.

In this fee dispute, appellant, an independent insurance agency, challenges the district court’s grant of partial judgment notwithstanding the verdict (JNOV), ordering appellant, following a jury finding that it breached its fiduciary duty to respondent-client, to forfeit $483,000 in risk-management fees. Appellant argues that (1) the jury finding of no damages precludes the fee-forfeiture award, and (2) the fee-forfeiture award is not supported by the record. Respondent challenges the district court’s judgment, arguing that (1) the fee forfeiture should have included the undisclosed commissions that the insurance company paid to appellant, and (2) the district court erred by refusing to instruct the jury on respondent’s breach-of-contract theory. Because in determining the amount of the fee-forfeiture award the district court failed to consider whether the breach involved actual fraud or bad faith and whether it resulted in actual harm, we vacate that portion of the judgment and remand for further proceedings. Because we find no error or abuse of discretion with respect to all other issues, we affirm the remaining portion of the judgment.

FACTS

Appellant Commercial Associates, Inc. is an independent insurance agency that procures business, property, general-liability, automobile, and workers’-compensation insurance for individuals and businesses. Respondent The Work Connection, Inc. is a staffing company that provides temporary and long-term employees to businesses. Respondent’s largest insurance expense is workers’ compensation, which costs approximately $1,000,000 annually.

Appellant procured insurance for respondent from 1996 to 2002. The first workers’-compensation policy appellant procured for respondent was issued in 1996. As part of that transaction, appellant had respondent sign a Risk Management. Disclosure Statement (RMDS), which stated in pertinent part:

In Accordance with Minnesota Statute 60A, Subdivision 6B, this disclosure, is being furnished to provide you [with] the following notice. Only the items whose number or letter is checked apply:
X 1. The commission paid by the insurance company is not adequate to compensate us for the work required in servicing your account to our normal standards.
Therefore, Commercial Associates is charging $⅛8,000 as a risk management fee.
- 2. This risk management fee is in addition to commissions which will be included in the premiums which you will be paying to [appellant] on behalf of the Insurance Company providing your Insurance protection.

(Emphasis added).

Between 1996 and 2002, respondent paid appellant a total of $483,000 in annual agency fees for the workers’-compensation insurance policies procured by appellant. During that same period, appellant received $485,070 in commissions from various insurance companies that issued those same policies that appellant procured for respondent. Respondent did not discover that the insurance companies were paying appellant commissions until 2002, when its lawyer received that information in discovery in an unrelated lawsuit.

In December 2000, appellant presented its written proposal to respondent for renewal of its workers’-compensation insurance. The written proposal indicated that the premium for the ACE workers’-compensation policy would accrue a 19% quote “scheduled debit,” which increased the estimated premium by $266,214. Respondent contends that when it objected to the scheduled debit, one of appellant’s principals, Jerry Crandall, stated, “You’re right. That’s supposed to be a scheduled credit,” and promised to “take care of it.” The final audited amount was $304,647.

In October 2002, Crandall committed suicide. Crandall left a note for the other principal stating that he had “screwed up big time” and had “kept it buried for a few months.” The suicide note referenced the ACE credit/debit issue.

Shortly thereafter, appellant commenced a lawsuit against respondent, seeking to recover unpaid insurance premiums in the amount of $184,000. Respondent did not dispute that it owed appellant that amount, but it counterclaimed, alleging breach of fiduciary duty, negligence, negligent misrepresentation and fraud, breach of contract, and breach of statutory duties that resulted in damages in excess of $1,000,000. Essentially, respondent claimed that appellant: (1) breached its fiduciary duty to respondent when it secretly collected commissions from the insurance company, and (2) breached its contract with respondent when it failed to reduce the premium for the ACE policy by the scheduled debit of 19% or $304,647.

Following completion of the testimony at trial, the district court granted appellant’s motion for a directed verdict on its claim for unpaid invoices. The district court also refused to instruct the jury on respondent’s breach-of-contract claim related to the ACE policy scheduled debit. Appellant argued, and the district court agreed, that because the insurance proposal specifically stated that there was a scheduled debit of 19%, appellant did not breach the insurance contract. But the district court allowed respondent’s negligent misrepresentation and fraud claim to go forward on the theories that appellant collected secret commissions, and misrepresented that the scheduled debit should be a 19% credit and that it would “take care of it.”

The jury answered a special-verdict form that contained 26 questions. On the issue of whether appellant improperly received undisclosed commissions from the insurance company, the jury found that Crandall (1) did not falsely represent that appellant was not taking commissions on the insurance policies it obtained for respondent, (2) negligently failed to disclose that appellant was taking commissions on the insurance policies in addition to charging a risk-management fee, and (3) had a fiduciary relationship with respondent. The jury also found that respondent sustained no damages as a result of Crandall’s failure to disclose the taking of commissions. On the question of whether appellant misrepresented the premiums it would be required to pay for the workers’-compensation policy, the jury found that Cran-dall (1) falsely represented to respondent that the 2000-01 ACE insurance policy was to contain a scheduled credit and (2) supplied false information to respondent regarding the scheduled debit on the 2000-01 ACE policy. The jury also found that respondent justifiably relied on Crandall’s misrepresentations but was not financially harmed.

Both parties filed motions for JNOV or a new trial. Respondent argued that appellant should be required to forfeit not only the risk-management fees but also the commissions the insurance company paid appellant. Respondent also argued that the district court erred by refusing to submit the breach-of-contract claim to the jury. Appellant, in turn, argued that because the jury found that respondent incurred no actual damages, appellant should not be required to forfeit any fees or commissions to respondent.

The district court denied appellant’s motion for JNOV or a new trial, and partially granted respondent’s motion for JNOV by requiring appellant to forfeit fees to respondent. The district court confirmed the jury’s finding that appellant breached its fiduciary duty by failing to disclose that it was receiving commissions from the insurance company. Based on that finding, the district court determined that appellant forfeited its right to the fees paid by respondent, regardless of any actual harm. But the district court declined to extend the fee forfeiture to the commissions the insurance company paid to appellant, and it denied respondent’s motion for a new trial based on the failure to submit the breach-of-contract claim to the jury. Both parties appealed.

ISSUES

I. What is the applicable standard of review on appeal from a partial grant of JNOV ordering fee forfeiture for breach of a fiduciary duty, and is the equitable remedy of fee forfeiture precluded by the jury’s finding of no actual harm?

II. Did the district court abuse its discretion by ordering appellant to forfeit all risk-management fees received from respondent, and declining to extend forfeiture to commissions received by appellant from a third-party insurance company?

III. Did the district court err by refusing to submit respondent’s breach-of contract theory to the jury?

ANALYSIS

I.

As a preliminary matter, the parties raise two threshold issues regarding the applicable standard of review and the effect of the jury’s finding of no harm.

A. Standard of Review

First, the parties dispute the standard of review applicable to the district court’s determination that appellant breached its fiduciary duty. Appellant argues that the district court order partially granting respondent’s motion for JNOV raises a question of law and, therefore, is subject to de novo review. Respondent argues that because the district court awarded respondent an equitable remedy for appellant’s breach of fiduciary duty, the proper standard of review is abuse of discretion.

We review de novo a district court’s decision to grant a motion for JNOV. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). But we review for abuse of discretion the district court’s determination of the appropriate equitable remedy for breach of a fiduciary duty. Bolander v. Bolander, 703 N.W.2d 529, 548 (Minn.App.2005). Here, the district court, in granting partial JNOV, determined the equitable remedy for appellant’s breach of fiduciary duty. See Raymond Farmers Elevator Co. v. Am. Sur. Co. of New York, 207 Minn. 117, 119, 290 N.W. 231, 233 (1940) (equitable remedies are to be decided by a judge). Both parties challenge the amount of the fee-forfeiture award. Although the fee-forfeiture award was made in the context of a motion for JNOV, it is the district court’s determination of the appropriate equitable remedy that we are asked to review. Consequently, the proper standard of review is abuse of discretion. We review de novo, however, the district court’s determination of purely legal issues. Almor Corp. v. County of Hennepin, 566 N.W.2d 696, 700 (Minn. 1997).

B. Finding of No Harm

Appellant also argues that the jury’s finding of no actual damages for breach of fiduciary duty precludes an award of equitable relief and that respondent waived its claim for equitable relief by submitting its damage claim to the jury. We disagree.

“Equitable claims are not triable by jury as a matter of right.” Noble v. C.E.D.O., Inc., 374 N.W.2d 734, 739 (Minn. App.1985), review denied (Minn. Nov. 18, 1985). Because “actions for breach of a fiduciary duty generally sound in equity,” there is no right to a jury trial on such claims. R.E.R. v. J.G., 552 N.W.2d 27, 30 (Minn.App.1996). Thus, the district court is the trier of fact in determining the equitable remedy for a breach of fiduciary duty, including the amount of fee forfeiture. See Raymond Farmers, 207 Minn, at 119, 290 N.W. at 233 (equitable claims are to be decided by a judge). But the district court may empanel an advisory jury to assist it in determination of factual issues. Pedro v. Pedro, 463 N.W.2d 285, 288 (Minn.App.1990), review denied (Minn. Jan. 24, 1991); see also Minn. R. Civ. P. 52.01 (stating that, in action heard by advisory jury, court is required to “find the facts specially”). The jury’s findings, however, are “used only to reinforce the court’s own decision on the disputed facts — not to supplant it[,]” and the court is still obligated to make its own findings. In re Estate of Murphy, 269 Minn. 393, 404, 131 N.W.2d 220, 227 (1964).

Further, the purpose of the equitable remedy of fee forfeiture is distinct from that of an actual-damages award. Money damages are awarded as compensation for actual loss or injury, while a fee forfeiture is awarded to vindicate a client’s “absolute right” to loyalty, regardless of actual damages sustained. Perl v. St. Paul Fire and Marine Ins. Co., 345 N.W.2d 209, 212 (Minn.1984) {Perl II). A fee forfeiture is thus analogous to punitive or nominal damages. Gilchrist v. Perl, 387 N.W.2d 412, 416 (Minn.1986) (Perl III).

II.

Both parties challenge the amount of the fee forfeiture the district court awarded to respondent for appellant’s breach of fiduciary duty. Appellant does not challenge the jury’s findings, confirmed by the district court, that appellant is a fiduciary and that it breached its fiduciary duty to respondent when it failed to disclose that it was being compensated by the insurance company as well as charging respondent a fee. Consequently, the issue is whether the district court abused its discretion in determining the appropriate equitable remedy.

Minnesota law imposes on a fiduciary the highest obligation of good faith, loyalty, fidelity, fair dealing, and full disclosure of material matters affecting the client’s interests. See PJ Acquisition Corp. v. Skoglund, 453 N.W.2d 1, 17 (Minn.1990) (good faith, loyalty, fidelity, and fair dealing); Perl II, 345 N.W.2d at 215 (disclosure). Traditionally, those owing fiduciary duties include general partners with limited partners, attorneys with clients, and trustees with beneficiaries. The fiduciary obligation is premised on trust. Rice v. Perl, 320 N.W.2d 407, 410 (Minn.1982) (Perl I). The duty of an insurance broker is to represent the client with undivided loyalty and to disclose any material matters bearing upon its representation of the client. See id.

In three related cases involving an attorney’s breach of his fiduciary duty to a client, our supreme court reviewed the remedy of fee forfeiture for that breach. Perl III, 387 N.W.2d at 417; Perl II, 345 N.W.2d at 212; Perl I, 320 N.W.2d at 411. In Perl I, the supreme court confirmed the principle that “an attorney (or any fiduciary) who breaches his duty to his client forfeits his right to compensation!,]” recognizing that “insuring absolute fidelity to the principal’s (or beneficiary’s) interests is fundamental to establishing the trust necessary to the proper functioning of these relationships.” 320 N.W.2d at 411.

In Perl II, the supreme court analyzed the nature of the fee-forfeiture remedy, noting that it is similar to nominal damages for breach of an “absolute” right, and, thus, “the client is deemed injured even if no actual loss results.” 345 N.W.2d at 212. The supreme court noted, however, that unlike nominal damages, which are awarded to acknowledge the violation of a right, fee forfeiture requires a fiduciary to surrender all compensation paid by a client for services rendered and to return that compensation to the client. Id.

In Perl III, the supreme court held that the amount of the fee forfeiture is to be determined by the trier of fact in accordance with certain rules. 387 N.W.2d at 417. The court articulated two different rules: total fee forfeiture and scaled fee forfeiture. Id. at 416-17. The court concluded that the total-fee-forfeiture rule addressed in Perl I, requiring forfeiture of all compensation received by a fiduciary, is appropriate when a fiduciary’s breach of duties involves actual fraud, bad faith, and actual harm to the client. The supreme court acknowledged that total fee forfeiture serves a punitive function that “emphasizes the importance of strict fidelity to one’s client[.]” Id. at 416.

But the supreme court further held that a scaled-fee-forfeiture rule, allowing the amount of fee forfeiture to be scaled to the degree of fiduciary misconduct, is more appropriate when the breach involves no actual fraud or bad faith and when the client sustains no actual harm, particularly when there are multiple potential plaintiffs. Id. at 416-17. In so holding, the supreme court noted that a scaled fee forfeiture is more closely aligned with a punitive-damages award, which “should not exceed the level necessary to properly punish and deter.” Id. at 417 (quotation omitted).

A. Fee Forfeiture

Respondent argues that Perl III requires total fee forfeiture in this case as a matter of law, reasoning that because there are no “multiple potential plaintiffs,” the scaled-fee-forfeiture rule does not apply. Appellant argues that because the jury found no actual fraud or actual damage, a scaled fee forfeiture is the appropriate remedy in this case.

The Perl III court concluded that “cases of actual fraud or bad faith result in total fee forfeiture.” 387 N.W.2d at 417. Thus, if the trier of fact determines that there is actual fraud or bad faith, the result is total fee forfeiture. Id. Respondent argues that the following sentence in the court’s opinion limits the application of the scaled-fee-forfeiture rule to cases involving multiple potential plaintiffs: “But when no actual fraud or bad faith is involved, when no actual harm to the client is sustained, and particularly when there are multiple potential plaintiffs, we think the better approach is to determine the amount of fee forfeiture by a consideration of the relevant factors set out in Minn. Stat. § 549.20, subd. 3[ ].” Id.

We do not read this second sentence as narrowly as respondent. A reasonable interpretation of the sentence, when considered together with the rest of the paragraph, is that the scaled-fee-forfeiture rale applies to circumstances in which the breach of fiduciary duty involves no actual fraud or bad faith and no actual harm. We agree that the sentence in question adds a requirement of no actual harm. And we agree that the supreme court concluded that the presence of multiple potential plaintiffs makes the scaled-fee-forfeiture rule particularly appropriate. But we do not agree that the supreme court intended to limit the application of the scaled-fee-forfeiture rule to cases involving multiple potential plaintiffs. If the supreme court had intended to do so, it would not have modified the phrase “when there are potential plaintiffs” with the word “particularly.” By modifying the phrase, it becomes a parenthetical reason for applying the scaled-fee-forfeiture rule rather than an additional requirement. The thrust of Perl III is that the trier of fact has discretion to consider the degree of misconduct in determining the amount of the fee forfeiture. Requiring the presence of multiple potential plaintiffs is inconsistent with providing that discretion. Moreover, such a requirement would limit the application of the scaled-fee-forfeiture rule to class-action lawsuits. We discern no such intention by the Perl III court.

Appellant further argues that because the jury found that respondent suffered no actual harm, appellant should not be required to forfeit any fees or commission. We disagree. Because it is undisputed that appellant breached its fiduciary duty to respondent, appellant forfeited its right to compensation. Under Perl III, the district court must initially determine whether the total or scaled-fee-forfeiture rule applies by considering whether there was actual fraud or bad faith, and actual harm. 387 N.W.2d at 417. Here, the district court failed to determine whether appellant’s breach of fiduciary duty involved actual fraud or bad faith. Consequently, we are unable to determine whether the district court applied the total- or scaled-fee-forfeiture rule in awarding respondent $483,000. Without the requisite findings, we have no basis on which to review the district court’s decision for an abuse of discretion. Therefore, we remand for a determination of whether the breach involves actual fraud or bad faith. Should the district court conclude that the scaled-fee-forfeiture rule is applicable, it must consider the punitive-award factors set forth in Perl III 387 N.W.2d at 416. At its discretion, the district court may reopen the record and receive additional evidence.

B. Forfeiture of Insurance Commissions

Respondent argues that the district court erred by not awarding it, in addition to the risk-management fee, the commissions appellant received from the insurance company. Appellant argues, and the district court agreed, that the remedy in Minnesota for breach of fiduciary duty is limited to forfeiture of compensation paid by the client and does not extend to commissions paid by a third-party.

Respondent admits that no Minnesota case, including the Perl trilogy, has ordered the forfeiture of commissions paid by a third party as part of standard industry practice. But respondent contends that appellant artificially inflated the amount of the premiums payable to the insurance company and pocketed the difference, causing respondent, and not a third party, to pay the additional commissions. Here, the district court found that there was no evidence that respondent paid an increased premium or bore the “economic burden” of the insurance commissions received by appellant. The district court also found that the amount of commissions was set by the insurance company as part of its standard industry practice and was independent of the parties’ relationship. On factual matters, we defer to the district court and will not set aside findings unless clearly erroneous. Minn. R. Civ. P. 52.01; see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999). We have reviewed the record and see no such error.

Respondent further argues that the failure to order total forfeiture violates Minnesota law and allows the wrongdoer to benefit from its own wrongdoing. Respondent relies specifically on Handy v. Garmaker, 324 N.W.2d 168, 171-72 (Minn. 1982), and Tarnowski v. Resop, 236 Minn. 33, 51 N.W.2d 801 (1952). But neither of the cases respondent cites conclude, as a matter of law, that fee forfeiture must extend to commissions paid by a third party. In Handy, a real-estate agent secretly represented both the buyer and the seller in the purchase of an apartment building, with the purpose of arranging a subsequent sale from the buyer to a company the real-estate agent owned. 324 N.W.2d at 170. But the supreme court in Handy did not order forfeiture of third-party commissions; rather, it ordered the return of commissions paid directly from the client-seller to the fiduciary real-estate agent and the client’s lost profits on the subsequent sale of the property. Id. at 173. And Tamoioski involved a surreptitious and undisclosed relationship between a potential buyer’s fiduciary and a seller, whereby the seller paid the fiduciary a secret commission, i.e., “a bribe,” to falsely represent to the potential buyer that the seller’s business was functioning and profitable. 236 Minn, at 35, 51 N.W.2d at 802. In contrast, respondent had knowledge of appellant’s relationship with the third-party insurance company but did not know that it was paying commissions to appellant.

Both Handy and Tamowski, as well as the other real-estate-commission cases cited by respondent, support the remedy of total fee forfeiture for breach of fiduciary duty. But it is Perl III, which is the most recent pronouncement of our supreme court, that analyzes when total and scaled fee forfeiture apply. And it is Perl III that is most directly on point.

Here, the district court, as the trier of fact, concluded that the purposes of fee forfeiture, as determined by the supreme court in the Perl trilogy, do not require “vindication by extending fee forfeiture to third party commissions.” The district court found that the insurance commissions were paid to appellant as a result of procuring necessary insurance at respondent’s request, and there is no evidence that the resulting insurance coverage was inadequate, inconsistent, or otherwise disadvantaged respondent. The district court also found that there was no evidence that appellant could have procured a similar policy from another company without receiving the same standard industry commissions. On this record, we conclude that the district court’s findings are not erroneous.

Consequently, we hold that Perl III does not require that the fee-forfeiture rule apply to standard insurance commissions paid by a third-party insurance company. The district court’s findings that appellant’s forfeiture of the third-party commissions was not required to “vindicate” appellant’s breach of fiduciary duty are supported by the record. And these findings support the conclusion that fee forfeiture does not extend to third-party insurance commissions in these circumstances. Therefore, the district court did not abuse its discretion in denying respondent’s motion for JNOV on this issue.

III.

Respondent argues that the district court erred by refusing to submit its breach-of-contract theory to the jury, claiming that it provided sufficient evidence that appellant promised to procure an insurance policy with a 19% scheduled credit rather than a 19% scheduled debit. But appellant correctly contends that respondent’s argument is inconsistent with the written insurance proposal, which provides that the policy included a 19% scheduled debit.

This court reviews de novo whether the evidence is sufficient to submit a party’s theory to a jury. Spanier v. TCF Bank Sav., 495 N.W.2d 18, 20 (Minn. App.1993), review denied, (Minn. Mar. 22, 1993). Before a litigant is entitled to a jury instruction on the theory of a claim or defense, there must be evidence to support that theory. Stelter v. Chiquita Processed Foods, 658 N.W.2d 242, 247 (Minn.App. 2003). It is well-established that a district court’s failure to give a requested instruction setting forth a litigant’s theory of the case, when there is evidence to support the theory, constitutes error. Oldendorf v. Eide, 260 Minn. 458, 464, 110 N.W.2d 310, 314 (1961).

To establish a breach-of-contract claim, a plaintiff must show that (1) a contract was formed; (2) the plaintiff performed any conditions precedent; and (3) the defendant breached the contract. Indus. Rubber Applicators, Inc. v. Eaton Metal Prods. Co., 285 Minn. 511, 513, 171 N.W.2d 728, 731 (1969), overruled on other grounds by Standslast v. Reid, 304 Minn. 358, 231 N.W.2d 98 (1975). The formation of a contract requires communication of a specific and definite offer, acceptance, and consideration. Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-27 (Minn. 1983). Whether a contract is formed is judged by the objective conduct of the parties and not their subjective intent. Cederstrand v. Lutheran Bhd., 263 Minn. 520, 532, 117 N.W.2d 213, 221 (1962). Minnesota follows the “mirror image rule,” which requires that an acceptance be coextensive with the offer and not introduce additional terms or conditions. Gresser v. Hotzler, 604 N.W.2d 379, 382 (Minn.App. 2000). Once an offer is positively accepted, however, a requested or suggested modification will not prevent contract formation. Id.

The district court declined to submit respondent’s breach-of-contract claim because there was no evidence that the insurance policy issued to respondent was different than the written proposal previously submitted. We agree. Here, the only contract in the record is the insurance policy, the parties to which are ACE, the insurance provider, and respondent, the policyholder. This contract was formed when ACE offered its workers’-compensation policy through a written proposal, and respondent accepted the offer by purchasing the proposed policy. Appellant, through Crandall, merely communicated the proposal, and was not a party to the contract. And both the proposal and issued policy contained identical terms, including the 19% scheduled debit, thus satisfying the “mirror image rule.” Because appellant was not a party to the insurance contract and respondent received the exact policy for which it bargained, no breach of contract occurred.

Respondent’s reliance on appellant’s representations that it would correct a “scheduled debit” does not, as a matter of law, modify an insurance policy issued by ACE. See Dahmes v. Indus. Cred. Co., 261 Minn. 26, 110 N.W.2d 484, 490 (1961) (reliance on assertions that explicitly contradict the terms of the written contract is unjustified as a matter of law). Respondent received the policy for which it bargained, and any evidence that appellant misrepresented the terms of the policy was insufficient to establish a contract between appellant and respondent. And respondent was allowed to present its claim to the jury that appellant would correct a “scheduled debit” under the theory of negligent misrepresentation. Therefore, the district court did not err in declining to submit respondent’s breach-of-contract claim to the jury.

DECISION

We conclude that the district court failed to address whether the breach of fiduciary duty involved actual fraud or bad faith in determining the amount of the fee forfeiture it awarded respondent, and therefore, we vacate that portion of the judgment awarding respondent $483,000 and remand for findings consistent with Perl III. Because the district court properly exercised its discretion by declining to order forfeiture of commissions paid by a third-party insurance provider and did not err by declining to submit respondent’s breach-of-contract theory to the jury, we affirm the remaining portion of the judgment.

Affirmed in part, reversed in part, and remanded.

      . Both Commercial Associates, Inc. and The Work Connection, Inc. filed appeals in this matter. For purposes of this opinion, Corn-mercial Associates, Inc. has been designated appellant and The Work Connection, Inc. as respondent.

        . When workers'-compensation insurance policies are issued, the premium is only estimated because the final premium is dependent on actual payroll and other factors that develop during the one-year policy period. After all of the factors that determine the premium are ascertained by audit, a final “earned” premium is calculated.