author: KLAPHAKE, Judge.

text:
    In the Matter of the WELFARE OF D.B.X.
    No. C4-01-792.
    Court of Appeals of Minnesota.
    Jan. 8, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for respondent county.
    John M. Stuart, State Public Defender, Peter W. Gorman, Assistant State Public Defender, Minneapolis, MN, for appellant D.B.X.
    Considered and decided by SCHUMACHER, Presiding Judge, KLAPHAKE, Judge, and PETERSON, Judge.
   OPINION

KLAPHAKE, Judge.

D.B.X. was adjudicated delinquent for theft of a motor vehicle after he confessed to the crime during a police interrogation. He argues that he did not voluntarily waive his Miranda rights following the warning police gave him during his interrogation and that his later confession was not voluntary because he was subjected to a variety of coercive and improper police threats and promises. The district court concluded that the Miranda warning and waiver were adequate and that the confession was voluntary. We reverse.

FACTS

In the early morning hours of September 28, 1999, three juveniles stole a 1988 Toyota Camry in Brooklyn Center, intending to drive it to Minneapolis. A witness observed the theft, and police later stopped the vehicle, but one of the juveniles, the driver, evaded police custody by jumping out of the vehicle while it was still moving. After obtaining statements from the two detained juveniles, Sergeant Ken-dal Chambers uncovered evidence that appellant D.B.X. was the juvenile who had escaped.

A month after the incident, on October 29, 1999, Olson Middle School’s liaison officer removed D.B.X. from class. Without the knowledge or consent of his parents and without any explanation to him about his removal from school, D.B.X. was searched, handcuffed, and taken by squad car to the downtown command building in Minneapolis. Once there, he was escorted to an interrogation room and questioned for more than two hours by Sergeant Chambers. D.B.X. had no juvenile record and had never been detained or questioned by police.

A transcript of the interrogation reveals that Chambers began by establishing an atmosphere of authority over D.B.X. He challenged the validity of D.B.X.’s last name and commented on his hairstyle. He also ordered D.B.X. to remove his shirt and checked under his other clothing to look for scars and tattoos and commented on those. When D.B.X. stated that one of his friends “[pjrobably” went to Henry High School, Chambers admonished D.B.X. not to lie to him, indicating that D.B.X. should not use equivocal words. Chambers then asked questions to establish D.B.X.’s family living arrangement and expressed his disbelief about D.B.X.’s statements, which later proved to be accurate. Chambers said that if D.B.X. did not “come clean” on small matters, Chambers would not “be able to help.” Chambers further elaborated, “I can’t help you if you don’t tell me the truth. Because I have to make a recommendation to the prosecuting attorney * * He then compared two kinds of people, non-remorseful criminals and people who “make a mistake,” and indicated that he could only help the latter group.

At least 10 to 15 minutes into the interrogation, Chambers finally gave D.B.X. a paraphrased Miranda warning, as follows:

Q: * * * Have you ever seen anybody on TV have their rights read to them? Have you ever had your rights read to you before? Have you ever been arrested before?
A: Yes. But they never ...
Q: They never read you your rights?
A: Yeah.
Q: This is just like on TV alright? You have the right to remain silent, do you understand that?
A: Yeah.
Q: Whew! Anything you say can and will be used against you in court. Do you undertand that?
A: Yeah.
Q: You have the right to talk to a lawyer and have a lawyer present now or anytime during questioning. Do you understand that?
A: Uh huh.
Q: Uh huh? Let me see your teeth. Oh, you’ve got good teeth. If you cannot afford a lawyer one will be appointed for you without cost. Do you understand that?
A: Yeah.
Q: All right * * * teeth. Do you feel comfortable talking to me?
A: Uh huh.

Thereafter, Chambers’s questioning of D.B.X. intensified. Chambers suggested and repeated numerous times that it was in D.B.X.’s best interests to confess and that he could help D.B.X. He also set up a “rope of truth” which he wanted to throw to D.B.X., juxtaposing this image with the disclosure that he was about to submit the case to the prosecutor, that the truth would set D.B.X. free, and that he knew D.B.X. was not a hardened criminal. He referred to this rope of truth and the “quicksand” of deceit or deception several times during the interrogation. Throughout the interrogation, Chambers offered to act on D.B.X.’s behalf. He offered to talk to the prosecutor on several occasions and offered to go with D.B.X. on his court date to talk to the judge. Chambers also offered to talk to D.BX’s family and explain to them that D.B.X. had merely made a mistake.

At one point Chambers stated, “I just want to get your statement to be able to tell the judge what kind of person you are.” He pointed out that he would have to give the judge his opinion about the case and that the judge would have to decide on punishment, whether it would be “probation or * * * send him away to camp somewhere.” He also stated that the owners of the stolen vehicle did not want him to go to jail.

Finally, in response to D.B.X.’s question, “Do I have to tell you how did we take the car?” Chambers responded affirmatively and stated that the interrogation would be done sooner if he told how they stole the vehicle and suggested that D.B.X. could leave after he confessed, stating: “Just tell me what happened. It’s time. Let’s get on with our lives. It’s a weekend. It’s Friday. You don’t go to Saturday school do you?”

After hearing these statements, D.B.X. confessed to the theft of the car. The state filed a delinquency petition, and the district court held a contested evidentiary hearing. D.B.X. moved to suppress the interrogation tape, claiming that he did not voluntarily waive his Miranda rights and that his confession was coerced. When the district court denied his motion, the case was tried on stipulated facts, and D.B.X. was adjudicated delinquent based on the car theft. Following his disposition hearing, D.B.X. was placed on probation.

ISSUES

1. Did the district court err in concluding that D.B.X. made a voluntary waiver of his Miranda rights?

2. Did the district court err in concluding that D.B.X.’s confession was voluntary?

ANALYSIS

The Fifth and Fourteenth Amendments to the United States Constitution protect against self-incrimination and require that both a waiver of Miranda rights and a confession to a crime be voluntary. State v. Scott, 584 N.W.2d 412, 416-17 (Minn.1998); see State v. Williams, 535 N.W.2d 277, 284 (Minn.1995) (Miranda warning also designed to protect defendant’s Sixth Amendment right to counsel). Constitutional protections may be waived if done so knowingly, intelligently, and voluntarily. Scott, 584 N.W.2d at 417. Whether a defendant has voluntarily waived the right to remain silent and voluntarily confessed to a crime are analyzed separately, but the factors a court must consider in determining these issues are the same. Id. “[T]he determination whether a juvenile’s waiver of his or her rights is knowing, intelligent and voluntary is a fact question dependent upon the totality of the circumstances.” State v. Jones, 566 N.W.2d 317, 324 (Minn.1997) (citation omitted). An appellate court will not reverse a district court’s findings on the validity of a waiver unless the findings are clearly erroneous, but the appellate court

will make an independent determination, on the basis of the facts as found, of whether the state has shown by a fair preponderance of the evidence that the waiver was knowing, intelligent, and voluntary.

Id. (citation omitted). An appellate court “review[s] the voluntariness of a confession de novo as a question of law based on “all factual findings that are not clearly erroneous.” State v. Ritt, 599 N.W.2d 802, 808 (Minn.1999), cert. denied, 528 U.S. 1165, 120 S.Ct. 1184, 145 L.Ed.2d 1090 (2000) (quoting State v. Anderson, 396 N.W.2d 564, 565 (Minn.1986)).

I. Miranda Waiver

Typically, if police give a proper Miranda warning to an accused and the accused acknowledges his or her rights but makes an incriminating statement, the state has met its burden of proof to show that the waiver was knowing and intelligent. Scott, 584 N.W.2d at 417. In juvenile cases, however, the court must consider the totality of circumstances in determining whether the accused has voluntarily waived his or her right to remain silent. Id.

Factors to be considered under the totality-of-the-circumstances test include the juvenile’s age, maturity, intelligence, education and prior criminal experience, as well as any physical deprivations during the interrogation, the presence or absence of parents, the length and legality of the detention, the lack of or adequacy of warnings, and the nature of the interrogation.

Jones, 566 N.W.2d at 322-23 (citation omitted).

Here, while the length and legality of the detention and the lack of physical deprivations weigh in favor of the state, several other factors weigh strongly against a determination that D.B.X.’s Miranda waiver was knowing, intelligent, and voluntary. At age 14, D.B.X. had no juvenile record and had little or no prior contact with police. D.B.X.’s age and naiveté set him apart from the majority of juvenile Miranda cases involving the voluntariness of a Miranda waiver. The record does not firmly establish D.B.X.’s intelligence or maturity — his answers to questions were responsive, but typically minimal. The interrogation transcript reveals that he admitted, when asked by Chambers, that he did not understand certain English words, and his grammar and syntax are consistent with that of a person who speaks English as a second language.

Most troubling, however, is the failure of the police to involve D.B.X.’s parents before interrogating him, the inadequacy of the Miranda warning, and the nature of the interrogation. Sergeant Chambers never attempted to secure the presence of D.B.X.’s parents. During the interrogation, Chambers established that D.B.X. had lived with his maternal aunt and uncle from the time that he was very young. In referring to his birth mother, however, Chambers said, “I’m not gonna call her. Is that okay?” To this, D.B.X. replied, “Uh huh.” While there is no absolute right to have parents present, the presence of parents is a factor that affects the vol-untariness of a juvenile’s Miranda waiver and confession. We believe that it would be a better practice for police to routinely have parents present before interrogating a juvenile. At his Rasmussen hearing, D.B.X. stated that he did not ask to have a parent present during his interrogation because “I think that the parents cannot be there.”

The adequacy of the warning and nature of the interrogation are also problematic. D.B.X. had been interrogated for a significant length of time before Chambers gave him a Miranda warning. During this pre-Miranda period, Chambers (1) ordered D.B.X. to remove his clothing; (2) told D.B.X. that he would have to “make a recommendation” to the prosecutor about the case; (3) admonished D.B.X. to tell the truth; (4) challenged D.B.X.’s propensity for truthfulness; (5) told D.B.X. that if he did not “come clean” on small matters, Chambers would not be able to “help”; and (6) encouraged D.B.X. to join, among two kinds of people, the people who “make a mistake” and confess rather than the people who are non-remorseful criminals. By the time that Chambers gave 14-year-old D.B.X. a paraphrased Miranda warning, D.B.X. readily agreed to nearly every statement Chambers made. This coercive technique undermines the voluntariness of D.B.X.’s Miranda waiver.

Further, the warning itself was confusing and D.B.X. never clearly waived his Miranda rights. There is no requirement that Miranda warnings “take a rigid form so long as they are correct in substance.” State v. Ouk, 516 N.W.2d 180, 185 (Minn.1994) (citation omitted). The Minnesota Supreme Court, however, has warned police that “cryptic or paraphrased Miranda warnings may be deemed inadequate by a reviewing court.” Id. at 185-86 (citation omitted). Although it does not appear on the transcribed copy, the interrogation tape clearly reveals that interspersed in the Miranda warning, Chambers made three references to D.B.X.’s teeth, at one point even saying, “Let me see your teeth.” We conclude that the technique used by Chambers in giving the Miranda warning intimidated and confused, rather than enlightened, D.B.X. as to his constitutional rights. Further, Chambers’s question to D.B.X., “Do you feel comfortable talking to me?” had no link to the warning and the answer therefore did not validly solicit a waiver of his Miranda rights.

Factually, this case falls somewhere between the cases of juvenile waiver that were egregiously non-voluntary and the cases of valid juvenile waivers. In In re S.W.T., 277 N.W.2d 507, 513 (Minn.1979), the supreme court held that a 12-year-old juvenile’s waiver was involuntary where the child was emotionally disturbed and functioned at an 8-year-old level. In other, more typical, juvenile waiver cases, however, the voluntariness of the waiver has been upheld because of the juvenile’s age and familiarity with the criminal justice system. See, e.g., Scott, 584 N.W.2d at 419 (almost 18-year-old juvenile who was “familiar with the criminal justice system” held to have waived Miranda rights); Jones, 566 N.W.2d at 325 (namely 18-year-old juvenile who had been previously adjudicated delinquent on ten prior felony offenses held to have voluntarily waived Miranda rights); Ouk, 516 N.W.2d at 185 (15-year-old juvenile who had been given Miranda advisory on three prior occasions held to have voluntarily waived Miranda rights). While no one factor overwhelmingly demonstrates that D.B.X.’s waiver of his Miranda rights was made knowingly, intelligently, and voluntarily, we conclude that based on the totality of the circumstances, including his youth, absence of parents, lack of criminal experience, nature of the interrogation, and inadequacy of the warning, D.B.X. did not knowingly, intelligently, or voluntarily waive his Miranda rights.

II. Confession

The state must also “show the voluntariness of a confession by a preponderance of the evidence.” Jones, 566 N.W.2d at 326 (citation omitted).

The test of voluntariness is whether the actions of the police, together with other circumstances surrounding the interrogation “were so coercive, so manipulative, so overpowering that [the defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak as he did.”

Id. (quoting State v. Pilcher, 472 N.W.2d 327, 333 (Minn.1991)). In considering the voluntariness of a juvenile confession, the court must also consider the same totality of the circumstances factors that it considers in evaluating the voluntariness of a Miranda waiver. Id.

Again, factors weighing in favor of a conclusion that the confession was not voluntary are D.B.X.’s age, his lack of prior criminal experience, the absence of his parents, and the inadequacy of the warnings. The coercive nature of the interrogation after D.B.X. received the Miranda warning also played a part in inducing his confession.

Police may not use deception or stress-inducing interrogation techniques in obtaining a confession. State v. Garner, 294 N.W.2d 725, 727 (Minn.1980). If police use deception in an interrogation and it “is the kind that would make an innocent person confess,” the confession is involuntary and must be suppressed. Jones, 566 N.W.2d at 326; see In re Welfare of D.S.N., 611 N.W.2d 811, 814 (MinmApp. 2000) (police “invite suppression” by making express or implied promises to juveniles during custodial interrogations); State v. Hough, 571 N.W.2d 578, 581 (Minn.App.1997) (it is “not professional police tactics to imply to juveniles that ‘then-best interests’ lie in confessing, unless the police sincerely mean it and back up the statement with doeumentable proof of leniency”), rev’d on other grounds, 585 N.W.2d 393 (Minn.1998). Whether police promises have been made and the substance of the promises is to be considered among the factors in determining whether the resulting confession was voluntary. State v. Anderson, 396 N.W.2d 564, 565 (Minn.1986).

Here, Chambers used psychological coercion, threats, and express or implied promises to coerce D.B.X. to confess. We specifically deplore Chambers’s suggestion to D.B.X. that he would be able to-go home only after he confessed. At his Rasmussen hearing, D.B.X. stated that Chambers kept “putting pressure on me” and that he believed that his only choice was to let Chambers “help” him, that if he confessed Chambers would let him go, and that if he did not confess, he would go to prison. This and other techniques Chambers used during the interrogation have been sharply criticized in other cases. See, e.g., State v. Slowinski, 450 N.W.2d 107, 112 (Minn.1990) (police improperly suggested to juvenile defendant that they had influence with county attorney and could arrange for counseling or reduced charge if mitigating circumstances existed); Garner, 294 N.W.2d at 727 (interrogating officer, among other things, lied to accused); State v. Biron, 266 Minn. 272, 282, 123 N.W.2d 392, 399 (1963) (police made promises that “could only have had the effect of implanting” hope that accused would be treated with leniency); D.S.N., 611 N.W.2d at 815 (police officer suggested county attorney would proceed based on officer’s assessment of case and that if the defendant told “truth” he could go home, and contrasted telling truth with having “hard ass attitude” that could result in juvenile getting “ship[ped]” away); Hough, 571 N.W.2d at 581 (police implied to juvenile that it was in his best interests to confess); State v. Critt, 554 N.W.2d 93, 96 (Minn.App.1996) (police implied that they had stronger evidence against juvenile than they actually had), review denied (Minn. Nov. 20,1996).

Our review of the record leads us to the conclusion that the improper police tactics used in this case were more egregious than in other cases where voluntariness was found because of the variety and repetition of the tactics used in this case. This factor, considered with the other factors of D.B.X.’s youth and inexperience with the law, absence of parents, and inadequacy of the Miranda warning, supports our conclusion that D.B.X.’s will was improperly overborne during the interrogation and that the confession was coerced. See D.S.N., 611 N.W.2d at 814-15 (confession of 17-year-old suppressed where juvenile had little experience with criminal justice system and police promised that if he told “truth” as police saw it, prosecutors would proceed consistent with police assessment of case and juvenile would not be imprisoned and could go home).

DECISION

We conclude that the district court erred in failing to suppress D.B.X.’s confession because D.B.X. neither knowingly, intelligently, nor voluntarily waived his Miranda rights nor did he voluntarily confess to the crime.

Reversed.

      . Many portions of the interrogation are inaccurately transcribed. The statement of the facts here, including quoted portions of the interrogation, is based on our independent review of the interrogation tape.

      . Although D.B.X.’s answer to this compound question could be interpreted to mean that he had experience with police, at his Rasmussen hearing D.B.X. stated that he had never been arrested before. The record does not establish that D.B.X. was ever arrested prior to this incident.

      . At his Rasmussen hearing, D.B.X. stated that he did not understand the warnings, but he did not ask any questions about them "[’clause I feel like if I ask, I’m going to feel stupid.”

      . Although the district court should have suppressed any statements D.B.X. made during the initial part of the interrogation because they were made prior to his receiving a Miranda warning, any statements D.B.X. made after the Miranda warning would be admissible if he validly waived his Miranda rights. See Scott, 584 N.W.2d at 419.


source: Caselaw Access Project

author: LANSING, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Lenard NMN WELLS, a/k/a Lenare NMN Sims, Respondent.
    No. C4-01-971.
    Court of Appeals of Minnesota.
    Jan. 15, 2002.
    Review Denied March 19, 2002.

      Mike Hatch, Attorney General, John B. Galus, Assistant General Attorney, St. Paul, for appellant.
    Mark D. Nyvold, Attorney at Law, St. Paul, for respondent.
    Considered and decided by LANSING, Presiding Judge, KALITOWSKI, Judge, and HANSON, Judge.
   OPINION

LANSING, Judge.

The district court dismissed charges against Leonard Wells for racketeering and controlled-substance crimes because Wells was not brought to trial within 180 days of his request for final disposition under the Interstate Agreement on De-tainers (IAD). In this pretrial appeal, the state argues that Wells waived the 180-day requirement by acquiescing to pretrial proceedings inconsistent with the IAD time limitations. On the undisputed facts the state has established waiver, and we reverse and remand for trial.

FACTS

The state filed racketeering and controlled-substance charges against Leonard Wells in Stearns County on March 30, 2000. The complaint listed a Minnesota Gang Strike Force Agent as the complainant and a Minnesota Assistant Attorney General as the prosecuting attorney. Both the agent and the attorney signed the complaint and the attorney provided his name and telephone number. At the time the complaint was issued, Wells was incarcerated in a North Dakota state penitentiary on an unrelated conviction. A Stearns County district court judge signed the complaint and a detainer was lodged against Wells in North Dakota.

On May 15, 2000, Wells signed a request for final disposition of the Stearns County complaint to trigger the IAD provision requiring trial within 180 days. Instead of mailing his request to the assistant attorney general who signed the complaint, Wells mailed it to the Stearns County Attorney. The Stearns County Attorney received the request on May 25. The attorney general received the forwarded request on June 15, 2000.

Wells made a consolidated first and second appearance in Stearns County court on October 12, 2000. The court assigned Wells defense counsel. Wells’s counsel demanded an omnibus hearing but agreed to “waive time” and the court set the omnibus hearing for December 4, 2000, almost a month outside the 28-day period required under Minn. R.Crim. P. 8.04(c).

On October 17, 2000, the attorney general’s office wrote a letter to the district court and to defense counsel stating that under the IAD’s 180-day time period, Wells was entitled to a jury trial before the December 4 omnibus hearing. The letter requested that the court calendar the case immediately for omnibus and jury trial unless Wells agreed to waive the time limitation. The letter requested that the waiver be in writing or on the record.

In response to the attorney general’s letter, the court contacted defense counsel on October 25, 2000. Defense counsel said that a “waiver was possible” but that he needed to first discuss it with his client. The court clerk recorded that defense counsel “will talk to client, will likely be a waiver”. The clerk noted on the calendar: “Date [for omnibus hearing] remains set for 12-4”. Defense counsel did not contact the court with any final decision on the waiver.

On November 22, 2000, defense counsel moved to suppress multiple items of evidence and to dismiss for lack of probable cause. Because of the motions, the court clerk rescheduled the omnibus hearing for January 31, 2001 and cancelled the December 4 date. Defense counsel affirmatively participated in selecting the January 31 hearing date for the contested omnibus hearing.

On December 1, 2000, defense counsel moved to dismiss the complaint because the state failed to try Wells within 180 days of his request for final disposition. The hearing on the motion was initially set for December 8, 2000, but was continued after defense counsel filed a notice to remove the assigned judge. The hearing was rescheduled for January 16, 2001, and at the request of defense counsel and the court, rescheduled to several subsequent dates.

The motion was argued on May 2, 2001. The district court dismissed the complaint with prejudice for failure to honor Wells’s request for final disposition under the IAD’s 180-day requirement. The district court concluded that Wells’s request for a final disposition was received by the prosecuting officer on June 15, 2000, and thus the 180-day rule required a trial by December 15, 2000. The state appeals the dismissal.

ISSUE

Did defense counsel’s statements and conduct in setting the omnibus-hearing and trial dates constitute a waiver of defendant’s right under the IAD to be brought to trial within 180 days after delivery of his request for final disposition of the complaint?

ANALYSIS

The Interstate Agreement on Detainers is a compact among 48 states, the United States, and the District of Columbia to establish procedures for resolving one state’s outstanding criminal charges against a prisoner of another state. New York v. Hill, 528 U.S. 110, 111, 120 S.Ct. 659, 662, 145 L„Ed.2d 560 (2000). Minnesota and North Dakota are both parties to the compact; Minnesota has codified the agreement at Minn.Stat. § 629.294 (2000) and North Dakota has codified it at N.D. Cent.Code § 29-34-01 (2000). The purpose of the agreement is to “encourage the expeditious and orderly disposition” of outstanding charges pending in another state so that prisoner rehabilitation programs will not be disrupted or unavailable because of the untried charges. Minn.Stat. § 629.294, Art. I (2000).

The IAD is an interstate compact requiring congressional consent; consequently federal law governs its construction and application. See Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516 (1985) (interpreting New Jersey’s rights and obligations under the compact and stating that the IAD is “a congressionally sanctioned interstate compact within the Compact Clause * * * and thus is a federal law subject to federal construction”); accord Hill, 528 U.S. at 111, 120 S.Ct. at 662 (interpreting New York’s obligations under the IAD). While states interpret and apply the IAD provisions, the states are bound by controlling U.S. Supreme Court cases that directly address identical issues. See, e.g., Pinto v. Comm’r of Corr., 62 Conn.App. 24, 768 A.2d 456 (2001); see also Donald H. Zeigler, Gazing into the Crystal Ball; Reflections on the Standards State Judges Should Use to Ascertain Federal Law, 40 Wm. & Mary L.Rev. 1143, 1152-53 (1999). The application of federal law in interpreting an interstate compact allows the compact to function efficiently and prevents interstate conflicts over its interpretation. See League to Save Lake Tahoe v. B.J.K. Corp., 547 F.2d 1072, 1074 (9th Cir.1976) (addressing choice of law in context of whether interpretation of interstate compact presents a federal question).

Under the IAD, if a prisoner requests final disposition of out-of-state charges for which a detainer has been lodged against him, the prisoner shall be “brought to trial” on the out-of-state charges within 180 days after the prisoner “shall have caused to be delivered to the prosecuting officer and the appropriate court” his request for final disposition. MinmStat. § 629.294, Art. 111(a). The court having jurisdiction of the out-of-state matter may grant any necessary and reasonable continuance for good cause shown in open court. Id. The penalty for failing to comply with the IAD time limitation is severe; if the defendant is not brought to trial within the 180 days, the IAD requires that the out-of-state complaint be dismissed with prejudice. Id. at Art. V(c) (2000).

The district court found that the 180-day period began to run on June 15, 2000, the date the attorney general’s office, as prosecuting attorney, received the request for final disposition. Wells contends that the district court erred in this finding and that the 180-day period began to run on May 25, 2000, the date that the Stearns County Attorney received the request.

Both the U.S. Supreme Court and this court have held that the 180-day period does not begin to run until the request is actually received by the prosecutor and the appropriate court. Fex v. Michigan, 507 U.S. 43, 52, 113 S.Ct. 1085, 1091, 122 L.Ed.2d 406 (1993) (holding time period does not commence until request has “actually been delivered to the court and the prosecuting officer that lodged the detain-er”); State v. Burks, 631 N.W.2d 411, 414 (Minn.App.2001). It is undisputed that an assistant attorney general signed the complaint. See Minn.Stat. § 609.902, subd. 9 (2000) (listing attorney general as a prosecuting authority for purpose of racketeering provisions). To trigger the 180-day requirement, Wells had to deliver his request for final disposition to that prosecuting authority or his office. Although the Stearns County Attorney may have been aware of the racketeering investigation leading up to the filed charges, see Minn. Stat. § 609.912 (2000), Wells has not demonstrated a joint prosecution or a separate basis for designating the Stearns County Attorney as the prosecuting authority. We conclude that the district court did not err in finding that the 180-day period began to run on June 15, 2000, and thus ended — absent any continuance, waiver, or tolling — on December 12, 2000.

The state claims that Wells or his defense counsel waived his right to be brought to trial within the 180-day period. Wells acknowledges, consistent with Supreme Court precedent, that the IAD’s 180-day time period is subject to waiver by defense counsel without the personal assent of the defendant. Hill, 528 U.S. at 115-17, 120 S.Ct. at 664-65. The Supreme Court in Hill reasoned that waiver of the 180-day period would essentially involve “scheduling matters” for which defense counsel is in the better position to assess the benefits or detriments of the delay. Id. at 115, 120 S.Ct. at 664. The court drew a distinction between the fundamental rights that require personal waiver, such as the right to counsel or the right to a jury trial, and nonfundamental rights, which would include the right to demand a hearing within 180 days. “[WJhat suffices for waiver depends on the nature of the right at issue.” Id. at 114, 120 S.Ct. at 664. “Requiring express assent from the defendant himself for such routine and often repetitive scheduling determinations would consume time to no apparent purpose.” Id at 115, 120 S.Ct. at 664.

Wells and the state dispute, however, what statements or conduct is necessary to constitute defense counsel’s waiver. The Hill Court rejected a requirement that waiver be limited to “explicit” or “affirmative” conduct. Id. at 118, 120 S.Ct. at 666. The Court noted that nothing in the IAD distinguishes between “waiver proposed” and “waiver agreed to.” Id. “[S]uch an approach would enable defendants to escape justice by willingly accepting treatment inconsistent with the IAD’s time limits, and then recanting later on.” Id. (holding that defense counsel who agreed to a trial date beyond the 180-day limitation had waived the IAD time limitation). Applying the principles of Hill to the undisputed facts in the record, and examining the record as a whole, we conclude that the state, as a matter of law, has demonstrated waiver.

First, the record shows that at the consolidated first and second appearance on October 12, 2000, defense counsel (not the same attorney representing Wells on appeal) agreed to “waive time” in scheduling the omnibus hearing. Counsel stated on the record that the omnibus hearing could be scheduled beyond the 28-day period required under the Minnesota Rules of Criminal Procedure. See Minn. R.Crim. P. 8.04(c) (requiring omnibus to be scheduled within 28 days of second appearance). The hearing was then set for December 4, more than three weeks after expiration of the 28-day period. Defense counsel did not object to this omnibus — hearing date, even though it was well past November 25, which is the date that Wells now claims the 180-day period expired. We agree with the district court that the decision to “waive time” referred to setting the omnibus hearing — and not to waiving the IAD time limitations — but counsel’s agreement to delay the omnibus hearing and the failure to object to the December 4 date demonstrates waiver.

Second, in response to a letter by the assistant attorney general, the district court, in an October 25 telephone call, directly presented defense counsel with two options: either waive the IAD time limitations or proceed to trial before expiration of the time period. Defense counsel stated that waiver was “possible” — but did not provide any further information on his final decision. Thus, the court retained the original scheduling and did not reschedule the trial before December 12, 2000, the end of the 180-day period. Although defense counsel did not explicitly agree to waive trial within 180 days, the burden was on him to advise the court of the defendant’s decision. His actions in failing to inform the court of the defendant’s waiver decision — when presented squarely with two options — implicitly waived the 180-day deadline.

Finally, the record shows that on November 22, 2000, twenty days before the expiration of the 180-day period, defense counsel filed a 12-part omnibus-hearing motion, including a motion to dismiss for lack of probable cause and several motions to suppress. The complexity of the contested motions prompted the court to reschedule the December 4 omnibus to January 31, 2001. Defense counsel participated in selecting this date without making any objection to the time delay. By agreeing to reschedule the omnibus for a date outside the 180-day period, defense counsel agreed to accept treatment inconsistent with the IAD time limitations.

The assistant attorney general’s request that the district court obtain the waiver in writing or on the record does not impose a record or writing requirement. As the Hill Court noted, dismissal of an outstanding complaint should not hinge on a hyper-technical distinction between express and implied waiver, especially because the severe penalty of dismissal is not contingent on prejudice or other factors. 528 U.S. at 118, 120 S.Ct. at 666. The record demonstrates that defense counsel repeatedly and willingly accepted treatment inconsistent with IAD time limitations, thus the defendant is deemed to have waived such time limitations.

Because we reverse on the waiver issue, we do not address the state’s alternative argument that the defense attorney’s conduct tolled the 180-day limit under the IAD.

DECISION

Defense counsel waived the 180-day time limit by waiving a speedy omnibus hearing, agreeing to schedule an omnibus hearing outside the 180 days, and failing to advise the court of any decision on whether to waive or schedule a trial within the 180-day time limit when squarely presented with the two options.

Reversed and remanded.


author: HANSON, Judge.

text:
    In re the Marriage of Robert Roland MATSON, Petitioner, Respondent, v. Theresa Lynn MATSON, Appellant.
    No. C4-01-1067.
    Court of Appeals of Minnesota.
    Jan. 29, 2002.

      Michael J. Mayer, Grannis & Hauge, P.A., Eagan, MN, (for respondent).
    Theresa Matson, Big Lake, MN, (pro se appellant).
    Considered and decided by HANSON, Presiding Judge, LANSING, Judge, and KALITOWSKI, Judge.
   OPINION

HANSON, Judge.

On appeal from the district court’s modification of legal custody, parenting time, and child support, appellant-mother argues that the district court erred by (a) suspending her parenting time, claiming she should be granted compensatory parenting time as a remedy, (b) granting a motion to modify legal custody, brought less than two years after the previous custody order, without an evidentiary hearing or a finding that the existing custody arrangement endangered the children, (c) modifying the parenting-time schedule without an eviden-tiary hearing, (d) ordering mother to pay child support based on the modified parenting schedule, and (e) denying mother’s recusal motion. We affirm in part, reverse and remand in part, and dismiss in part.

FACTS

Appellant-mother Theresa Lynn Matson and respondent-father Robert Roland Mat-son dissolved their twelve-year marriage in 1998. They have three minor children. In the original stipulated dissolution decree, the parties shared joint legal and physical custody of the children, father was ordered to pay monthly child support of $834.80 and a custody schedule was adopted that essentially equalized each party’s parenting time with the children.

In February 2000, in response to the father’s motion to modify physical custody, the district court amended the decree based on the parties’ stipulation. The amended decree continued joint-legal custody, granted father sole physical custody and adopted a parenting-time schedule that provided mother with a liberal amount of time with the children so long as she continued to live within the seven-county metropolitan area. The amended decree provided that if mother were to move outside the metropolitan area, her parenting time with the children would be changed to supervised parenting time restricted to the metropolitan area. The amended decree also appointed an expediter to mediate all parenting-time disputes. Because the parenting time remained essentially equal between the parties, the amended decree required each party to pay child suppoi-t to the other of only one dollar per month.

After less than six months had passed from the entry of the amended decree, a series of events led to the modification order under review. First, in August 2000, father moved to modify legal custody, parenting time, and child support. Father asserted that mother had denied him access to the children during her three-week summer period, was planning to move her residence without notice to father, and was believed to have moved her residence to Becker, Minnesota, outside the metropolitan area. He asked that the decree be amended to grant him sole legal custody, to reduce mother’s parenting time and to require mother to pay child support based upon the revised parenting-time schedule.

Mother filed a responsive motion. In her supporting affidavit, mother acknowledged that she would be moving on September 1, 2000, to Big Lake, Minnesota, outside the metropolitan area. She asked that parenting time be modified to eliminate the requirement of supervised parenting time, eliminate parenting time during the week, and add parenting time during school holidays and the summer vacation.

Before ruling on those cross motions, the district court, on September 18, 2000, issued an order indefinitely suspending mother’s parenting time due to her refusal to use the parenting-time expediter. Mother then moved to have the judge removed for bias. The judge declined and mother’s motion was denied by the chief judge.

In January 2001, the district court heard arguments on the parties’ cross-motions to modify custody and parenting time, but did not conduct an evidentiary hearing. By an order dated April 24, 2001, the district court modified legal custody to grant father sole legal custody, modified the parenting time schedule to reduce both mother’s weekday and weekend parenting time, and ordered mother to pay father monthly child support of $380, based on her imputed income. This appeal followed.

ISSUES

I.Did the district court abuse its discretion by temporarily suspending mother’s parenting-time rights?
II.Did the district court abuse its discretion by modifying legal custody within two years after disposition of the previous motion to modify custody, and without an ev-identiary hearing?
III. Did the district court abuse its discretion by modifying the parenting time schedule without an evidentiary hearing?
IV. Did the district court abuse its discretion by modifying child support, based upon the amended parenting-time schedule?
V.Did the district court abuse its discretion by denying the motion to remove the assigned judge?

ANALYSIS

The district court has broad discretion in making child custody, parenting time, and child-support determinations and in deciding whether to grant recusal motions. Gully v. Gully, 599 N.W.2d 814, 820 (Minn.1999) (child support); Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995) (parenting time); Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn.1989) (custody); Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn.App.1986) (recusal motion), review denied (Minn. Aug. 20, 1986). In applying an abuse of discretion standard of review in this case, we are mindful of the challenges imposed on the district court by a pro se litigant and an acrimonious dissolution proceeding. While we reverse in part on specific procedural issues, we offer no opinion on the ultimate disposition of the remanded issues.

I

The district court temporarily suspended mother’s parenting time as a sanetion to prompt her to contact the parenting-time expediter. The court continued the modification motion for one month. It did not schedule nor did it hold an eviden-tiary hearing. Mother argues that the district court abused its discretion by suspending her parenting time and that, as a remedy, she should receive compensatory parenting time.

The district court may not restrict parenting time unless it first schedules an evidentiary hearing for the “earliest possible time,” and then finds that

(1) parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development; or (2) the noncustodial parent has chronically and unreasonably faded to comply with court-ordered parenting time.

Minn.Stat. § 518.175, subd. 5 (2000). See Courey v. Courey, 524 N.W.2d 469, 472 (Minn.App.1994) (holding an order restricting parenting time will not be upheld where no evidentiary hearing was conducted). The district court does have authority to provide certain remedies for interference with court-ordered parenting time, but the suspension of parenting time is not specifically listed as one of those remedies. Minn.Stat. § 518.175, subd. 6 (2000).

Absent extreme circumstances, we caution the district court against using suspension of parenting time as a sanction for non-compliance with a parenting-time order. But we need not address whether the district court erred here because mother’s parenting time was later reinstated and the September 2000 order has become moot. Further, even if the district court had erred, compensatory parenting time is available as a remedy only where the custodial party interferes with court ordered parenting time. See Minn.Stat. § 518.175, subd. 6(a), (b) (stating that compensatory parenting time may be a remedy for denial of or interference with court-ordered parenting time). Therefore, we dismiss this issue as moot. See In re Paternity of B.J.H., 573 N.W.2d 99, 105 (Minn.App.1998) (citing In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn.1984)) (for the proposition that an appeal of an issue will be dismissed as moot if the harm has been alleviated or it is impossible to award relief).

II

The district court granted father sole legal custody after it considered the guardian ad litem’s report and found that the parties were unable to cooperate in the children’s rearing, that mother was unwilling to use the expediter to resolve disputes, that it would not be detrimental for father to have sole legal custody, and that it would be in the children’s best interests to modify legal custody. Mother argues that the court erred by not holding an evidentiary hearing and by not making findings of endangerment.

Time Restrictions on Motions to Modify Custody

Generally, motions for custody modifications are not allowed less than two years after the most recent custody-modification motion disposed of on its merits. Minn. Stat. § 518.18(b) (2000). These limitations do not preclude modification if either (1) the parties agree in writing to a motion to modify parenting time or (2) the court finds that the child is endangered or that there is persistent and willful denial or interference with parenting time. Minn. Stat. § 518.18(a), (b), (c) (2000). If the time requirements are satisfied, or one of the exceptions to the time requirements applies, the court may hear the motion to modify custody.

In this case, father’s motion to modify custody was filed six months after the most recent custody-modification order. For purposes of analysis, we assume but do not decide, that the prior modification of physical custody was sufficient to trigger the time limitation on filing a motion to modify legal custody. The district court did not make findings that established either child endangerment or persistent interference with parenting time. Thus, the district court’s jurisdiction to hear the motion depended on the parties’ agreement in writing. While the parties did not explicitly so agree, they each made reciprocal motions to modify custody. Mother’s responsive motion was a counter-motion to modify custody because her affidavit asked the district court to refrain from imposing the supervised parenting time that was to be implemented under the existing decree if she moved outside the seven-county metropolitan area and to reduce weekday parenting time but increase holiday and vacation day parenting time. We conclude that the parties’ cross-motions represent the required agreement in writing, giving the court jurisdiction to modify custody.

Need for an Evidentiary Hearing

The party seeking to modify child custody must assert facts sufficient to establish a prima facie case for modification. Minn.Stat. § 518.18(d) (2000); Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981); Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App.1997). If the moving party asserts sufficient facts, then an evidentiary hearing must be held to determine the truth of the allegations and to provide a basis for the necessary findings. Nice-Petersen, 310 N.W.2d at 472. These requirements apply to the modification of legal custody, as well as physical custody. See In re Welfare of V.H., 412 N.W.2d 389, 391 (Minn.App.1987) (stating that Minn.Stat. § 518.18 is applicable to legal-custody modifications).

Father made the requisite showing. His affidavits asserted facts which, if believed, show changed circumstances since the last modification order, possible endangerment to the children, and that modification of legal custody would be in the children’s best interests, based on the parties’ inability to communicate and cooperate with each other. See Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn.App.1993) (stating that joint-legal custody is inappropriate when the parties are unable to communicate and cooperate).

The affidavits provided the following details: (1) mother failed to tell father where she was taking the children for a three-week vacation; (2) a daughter said that mother planned on taking the children to Costa Rica for a vacation; (3) mother limited father’s contact with the children during a three-week period; (4) father was unable to contact or locate the children for four days within that period; (5) when father could not contact mother or the children, he went to mother’s house and observed that she had moved, despite the fact that she told the court she was not planning to move; (6) father contacted the guardian ad litem for mother’s new address, went to the address, and found that mother was not living at the new address; (7) many times, mother either failed to pick up or was late in picking , up the youngest daughter from daycare; (8) mother’s “significant other” told father that father would have to speak through him to deal with mother; (9) mother moved out of the seven-county metropolitan area; (10) mother showed a lack of judgment when she had the children for parenting time.

Because both parties agreed in writing that the district court could modify custody, and father made a prima facie showing that modification was appropriate, the district court must hold an evidentiary hearing to determine whether grounds for modification of legal custody exist. Accordingly, we reverse and remand this issue to the district court.

Ill

The district court changed the parenting-time schedule in a way that reduced mother’s regular weekday and weekend parenting time to about one-half of that provided in the previous amended decree. Mother argues that the district court improperly modified the weekday and weekend parenting-time schedule because she was not provided with necessary information, father misinformed the court about her impact on the children, and there was no evidentiary hearing.

To reduce a party’s parenting-time rights, the district court must find changed circumstances. See Clark v. Clark, 346 N.W.2d 383, 386 (Minn.App.1984) (stating that the record did not demonstrate why the existing arrangement was not in the child’s best interests), review denied (Minn. June 12, 1984). Whether the district court must hold an evidentiary hearing depends on the degree of modification. Insubstantial parenting-time modifications or adjustments do not require an evidentiary hearing. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn.App.2001). Whether a modification is substantial depends on whether parenting time was restricted, which requires looking at both the reasons for the change and the amount of reduction of the parenting-time rights. Anderson v. Archer, 510 N.W.2d 1, 4 (Minn.App.1993).

Under the circumstances, we cannot say that the change in parenting time was insubstantial. Although the district court’s reason to modify the parenting-time schedule was to account for the physical distance between mother and her children, the order continues minimal weekday parenting time and significantly reduces weekend parenting time. Because the modification was substantial, an evidentiary hearing was required. Accordingly, we reverse the denial of an evi-dentiary hearing and remand the modification issue to the district court.

IV

The district court modified child support and increased mother’s monthly obligation from $1 to $380, based on its application of the child-support guidelines to mother’s imputed income. Mother argues that the district court abused its discretion by failing to find a substantial change in circumstances before modifying child support. We reverse and remand the child-support issue, but on other grounds.

The previous amended decree, based on the parties’ stipulation, set mother’s monthly child-support obligation at $1 in recognition that mother essentially had the children one-half of the time. Father’s motion to increase child support presupposed a change in the parenting-time schedule that would substantially increase father’s parenting time and reduce mother’s parenting time. Because the previous child support was based on the stipulation of the parties, and the change in child support was a product of the change in the parenting-time schedule, which we now reverse, the issue of child support must also be remanded for redetermination after the issues of legal custody and parenting time have been resolved.

V

The district judge rejected mother’s request for recusal and the chief judge denied mother’s motion for recusal. Neither action was an abuse of discretion.

Minn. R. Civ. P. 63.03 provides that a party must file its notice to remove a judge before the judge first presides in an action, unless the party makes an affirmative showing of the judge’s prejudice or implied or actual bias. Minn. R. Civ. P. 63.03; Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn.1990). Here, the assigned judge presided at many proceedings before mother filed her notice to remove. Upon reviewing the motion, the chief judge made detailed findings and denied mother’s motion, concluding that the assigned judge had not acted with prejudice or bias. Because there is no evidence to support mother’s allegations of prejudice or bias, the district court did not abuse its discretion by denying mother’s motion to remove.

DECISION

The appeal of the temporary suspension of parenting time is moot and we dismiss that issue. Because father’s motion and mother’s countermotion to modify custody represent an agreement in writing to consider motions to modify custody, the district court had jurisdiction despite the shortness of time from the previous order resolving custody issues. Because father made a prima facie showing that modification of legal custody was warranted, the district court must hold an evidentiary hearing before modifying legal custody. Because the district court proposed to substantially modify mother’s parenting time, an evidentiary hearing was also required. And because mother’s child-support obligation depends on the legal-custody and parenting-time determinations, mother’s obligation should be decided after the legal-custody and parenting-time issues are resolved. Finally, because the district court found no bias or prejudice by the assigned judge, it did not abuse its discretion in denying mother’s motion to re-cuse. We dismiss the issues concerning temporary suspension of parenting time; we reverse and remand the modifications of legal custody, parenting time, and child support; and we affirm the denial of mother’s motion to remove the district court judge.

Affirmed in part, reversed and remanded in part, and dismissed in part.

      . See also Petroski v. Petroski, No. C9-00-1961, 2001 WL 410418, at *5-6 (Minn.App. Apr. 24, 2001) (determining that, if the mov-ant makes a prima facie showing, then an evidentiary hearing is required for legal-custody modifications).


author: G. BARRY ANDERSON, Judge.

text:
    Stuart BEHR, et al., Respondents, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant.
    No. C0-01-952.
    Court of Appeals of Minnesota.
    Jan. 29, 2002.

      Susan F.K. Bieniek, Wagner, Falconer & Judd, Ltd., Minneapolis, MN, for respondent.
    Katherine A. McBride, Meagher & Geer P.L.L.P., Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, ANDERSON, Judge, and MULALLY, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

Respondent Stuart Behr was injured in a car accident caused by Mark Bates and together with his wife Roxanne made claims against Bates. Bates’s personal automobile liability insurer paid respondents $100,000 because Bates was the at-fault driver in the accident. Respondents also negotiated a second settlement with Bates’s employer’s insurer, United States Fidelity <& Guaranty Company (USF & G), for approximately $400,000. Although USF & G denied that its $1 million business-automobile liability policy insured Bates’s automobile because Bates’s employer did not own the automobile, it decided to settle respondents’ claim, apparently to avoid litigation of the coverage issue.

Respondents subsequently brought an underinsured-motorist (UIM) action against appellant American Family Mutual Insurance Company, their own insurer, alleging that their damages exceeded the $100,000 paid by Bates’s personal liability insurer. Appellant initially moved to dismiss respondents’ claim, and then moved for summary judgment alleging that respondents’ approximately $400,000 settlement with USF & G must be considered in determining whether UIM reimbursement was required under Minnesota law. The district court denied appellant’s motion for summary judgment and awarded respondents $100,000, the full amount of respondents’ UIM coverage with appellant. Appellant argues that the district court erred as a matter of law when it disregarded respondents’ $400,000 settlement with USF & G in determining whether Minnesota law mandates UIM reimbursement from appellant. We affirm.

FACTS

This case comes before this court on stipulated facts. On March 25, 1995, respondent Stuart Behr was seriously injured when his automobile collided with an automobile driven by Mark Bates, an employee of 21st Century Genetics. At the time of the accident, respondents carried $100,000 in UIM coverage with appellant. Bates’s personal automobile insurer, State Farm Insurance Company (State Farm), insured Bates, the at-fault-driver, for $100,000.

The parties stipulate that Bates was acting within the scope and course of his employment with 21st Century Genetics at the time of the accident and that 21st Century Genetics carried a $1 million business-automobile liability policy with USF & G. USF & G, however, disputed that its policy covered Bates’s personally-owned automobile, and, consequently, the Behr/ Bates accident. USF & G maintained that because Bates owned his automobile the business-automobile policy specifically excluded the automobile from the policy’s coverage.

Respondents notified appellant, pursuant to Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), that they had negotiated a settlement with Bates’s insurer, State Farm, for $100,000. Appellant declined to substitute its check to preserve its subro-gation rights against Bates. Respondents also settled with USF & G for approximately $400,000 of the $1 million policy insuring 21st Century Genetics. Pursuant to the settlement agreement, however, USF & G did not admit that its policy covered Bates’s automobile. Nevertheless, in exchange for receipt of the approximately $400,000 from USF & G, respondents agreed to release Bates, 21st Century Genetics, State Farm, and USF & G from all claims arising out of the Bates/Behr accident. For purposes of this appeal, the parties also stipulate that respondents’ damages are at least $200,000.

The district court concluded that respondents were entitled to $100,000 in UIM reimbursement, the full amount of respondents’ UIM policy. The district court agreed with respondents that the approximately $400,000 settlement with USF & G must be ignored in determining whether respondents were entitled to UIM reimbursement because it found that the USF & G policy did not apply to Bates’s automobile at the time of the accident. This appeal followed.

ISSUES

I. Must an at-fault driver’s employer’s business-automobile policy be considered in determining whether an at-fault driver’s vehicle is underin-sured, if the employer’s insurer settles with an UIM insured but denies that its policy covers the at-fault vehicle?
II. Must an UIM insured’s settlement with an at-fault driver’s employer’s insurer be considered in determining an UIM insurer’s maximum UIM liability?

ANALYSIS

When a district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, which we review de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998) (citing Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn.1995)). “The facts here are undisputed, so the only issue is the correct application of the No Fault Act.” Schons v. State Farm Mut. Auto. Ins. Co., 621 N.W.2d 743, 745 (Minn.2001). “Statutory interpretation is a question of law subject to de novo review.” Id. (citing Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985)).

I. Must an at-fault driver’s employer’s business-automobile policy be considered in determining whether an at-fault driver’s vehicle is underin-sured, if the employer’s insurer settles with an UIM insured but denies that its policy covers the at-fault vehicle?

Appellant first argues that the district court erred by refusing to consider USF & G’s $1 million business-automobile policy limit in determining whether Bates’s vehicle was underinsured as a matter of law.

Minn.Stat. § 65B.43, subd. 19 (2000) defines “underinsured motorist coverage” as

coverage for the protection of persons insured under that coverage who are legally entitled to recover damages for bodily injury from owners or operators of underinsured motor vehicles.

The supreme court recently discussed the tumultuous history of the No Fault Act’s UIM provisions. See generally Dohney v. Allstate Ins. Co., 632 N.W.2d 598 (Minn.2001). The supreme court recognized,

There are four general types of UIM coverage systems — difference of limits, damages less limits, limits less paid, and damages less paid — and Minnesota has utilized each of these types at some point in the last 30 years.

Id. at 600 (citing Theodore J. Smetak, Underinsured Motorist Coverage in Minnesota: Old Precedents in a New Era, 24 Wm. Mitchell L.Rev. 857, 865-66 (1998)).

Since 1989, Minnesota has employed a “damages-less-paid” system where UIM “coverage begins where payment from the tortfeasor leaves off.” Id. at 603. Therefore, to calculate whether an UIM insured is entitled to UIM reimbursement, a tortfeasor’s damages payment is subtracted from an UIM insured’s total damages. Moreover, the damages-less-paid system expressly permits below-limit settlements. Id. Therefore, if an UIM insured settles with a tortfeasor for less than the tortfeasor’s policy limit, the UIM insurer must cover the “gap” between the tortfeasor’s policy limit and the amount of the below-limit settlement. Id.

In order for an UIM insured to receive UIM reimbursement, however, an underinsured vehicle must be involved in the accident. See Royal-Milbank Ins. Co. v. Busse, 474 N.W.2d 441, 442 (Minn.App.1991). Minn.Stat. § 65B.43, subd. 17 (2000) defines “underinsured motor vehicle” as a vehicle

to which a bodily injury liability policy applies at the time of the accident but its limit for bodily injury liability is less than the amount needed to compensate the insured for actual damages.

“Whether a vehicle is underinsured is an issue of law, which this court may decide without deferring to the district court.” Riche v. Progressive Specialty Ins. Co., 577 N.W.2d 512, 514 (Minn.App.1998) (citation omitted), review denied (Minn. June 17, 1998). It is undisputed that the State Farm policy applied to Bates’s vehicle at the time of the accident. It is disputed, however, whether the USF & G policy applied to Bates’s vehicle; indeed, USF & G denies coverage notwithstanding its settlement with respondents.

Examining the statute, and affording the statutory language its common and approved usage, we conclude that the district court did not err by not considering the $1 million USF & G policy limit in determining whether Bates’s vehicle was underinsured.

The district court concluded that the USF & G policy did not apply to Bates’s vehicle. The court noted,

The USF & G policy scheduled 221 separate vehicles in the Business Auto Policy (which are the vehicles the employer presumably owned) but not the Bates vehicle. The policy attempted to exclude from its “insureds” the vehicles owned by individual employees. The at-fault vehicle was not owned, operated, or driven by the entity insured by the USF & G policy: 21st Century Genetics. v. State Farm Mut. Auto. Ins. Co., 668 S.W.2d 132, 136 (Mo.App.1984).

Appellant declined to appeal the district court’s conclusion that the USF & G policy did not apply to Bates’s vehicle. Indeed, at oral argument, appellant admitted that the USF & G policy did not cover Bates’s automobile and that it was not appealing the district court’s coverage conclusion.

Because appellant failed to raise the coverage issue on appeal, it is waived. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982). See generally State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.1997) (declining to reach issue in absence of adequate briefing); Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919-20 n. 1 (Minn.App.1994) (appellate courts may decline to address allegations unsupported by legal analysis or citation). Consequently, we must assume that the only policy that applied to Bates’s vehicle at the time of the accident was Bates’s $100,000 State Farm policy.

Appellant, however, though not directly contesting the district court’s coverage determination, advances a more subtle and novel coverage theory on appeal. Appellant argues that both the $100,000 State Farm policy limit and the $1 million USF & G policy limit must be considered in determining whether Bates’s vehicle was underinsured, not because Bates’s vehicle was covered by the USF & G policy, but because the $400,000 settlement converted the USF & G policy into a policy that applied at the time of the accident.

Appellant argues that it is legally significant that the USF & G payment, by way of the release documents effecting the settlement, not only discharged USF & G and 21st Century Genetics from further liability, but also discharged Bates. According to appellant, when USF & G paid respondents approximately $400,000 “the question * * * whether Bates was an insured under the USF & G policy became moot.”

Appellant cites two uninsured-motorist cases to support its position that the $1 million USF & G policy limit must be considered to determine the narrow question whether Bates’s vehicle was underin-sured at the time of the accident. See generally Nat’l Family Ins. v. Bunton, 509 N.W.2d 565 (Minn.App.1998); Jones v. Sentry Ins. Co., 462 N.W.2d 90 (Minn.App.1990).

In Jones, a passenger died in a one-vehicle accident. Jones, 462 N.W.2d at 91. A business owned the vehicle and two insurance companies insured the vehicle under commercial/business-automobile liability policies. Id. Both insurance companies denied liability for the passenger’s death. The parties eventually settled the coverage dispute and Jones, as trustee for the passenger’s next-of-kin, received an $87,500 settlement from the two companies. Id. Jones subsequently brought a declaratory-judgment action against the deceased passenger’s uninsured-motorist insurer, Sentry Insurance Company, to establish the “applicability of the uninsured motorist policy.” Id. This court found that Jones was not entitled to uninsured-motorist reimbursement. Id. at 92.

This court recognized,

Where a liability carrier initially denies coverage of a motor vehicle but prior to trial admits coverage, the vehicle “is not an uninsured motor vehicle within the meaning of the policy provision.” Fryer v. Nat’l Union Fire Ins. Co., 365 N.W.2d 249, 254 (Minn.1985) (emphasis in original). A motor vehicle is also not uninsured if a liability carrier initially denies coverage and settles without ever admitting coverage. Rister

Id. at 91. Consequently, this court concluded that despite the two insurance companies’ “continued denial of coverage, once Jones accepted the settlement offers, Sentry was no longer potentially liable under its uninsured motorist policy.” Id.

In Bunton, the plaintiff was injured in a one-vehicle accident when his vehicle encountered fertilizer spilled on the road. Bunton, 509 N.W.2d at 566. An investigation suggested a truck owned and operated by an unrelated third-party was the source of the fertilizer. Id. Bunton sued the third-party for negligence and the third-party denied that he spilled the fertilizer, and, consequently, denied liability for Bun-ton’s injuries. The third-party eventually settled Bunton’s liability claim but continued to deny liability. Id. at 566-67. Bun-ton sought uninsured-motorist reimbursement and the district court denied his claim. Id. at 567. This court, relying on Jones, affirmed.

The Bunton court dismissed Bunton’s argument “that [his] case differfed] from Jones because [the third-party’s] insurer did not initially deny coverage.” Id. It found that “Jones held that the insurer’s potential liability under its [uninsured-motorist] policy ended because Jones accepted settlement offers * * * not because the liability insurers admitted coverage.” Id. at 567-68 (citation omitted). Therefore, this court concluded that an uninsured-motorist insurer’s potential liability ends when an uninsured-motorist insured accepts a settlement from a third-party’s liability insurer “despite the liability insurer’s continued denial of liability.” Id. at 568.

Respondents argue that Ricke v. Progressive Specialty Ins. Co. should control our analysis in this case. In Ricke, a passenger was injured in a two-vehicle accident. Ricke sued Lokken (the at-fault driver and the driver of the vehicle she was riding in), the owner of the other vehicle, and the two establishments that served Lokken alcohol on the night of the accident. Ricke, 577 N.W.2d at 513. The two dram shops deposited $400,000 with the court and Lokken deposited $60,000, the full amount of his personal liability policy. Id. Because there were other victims, Ricke accepted a $121,000 settlement, which included $15,000 from Lok-ken. Id. at 514. Ricke sent her UIM insurer, Progressive Specialty Insurance Company (Progressive), a Schmidt v. Clothier notice and Progressive declined to substitute its check. Id. After Ricke released all of the defendants, she sued Progressive for UIM benefits. Progressive defended the suit on the ground that Ricke was

not entitled to UIM benefits as a result of Lokken’s liability because she settled with all defendants * * * and the settlement equaled the full amount of her damages.

Id. This court rejected Progressive’s arguments.

This court first found that it was critical that Ricke had decided to settle before there was an apportionment of fault and damages. This court then concluded,

It is undisputed that Lokken’s liability limits were insufficient to compensate Ricke for the stipulated amount of damages attributed to his fault. Because, as a matter of law, Lokken was underin-sured, Progressive is liable, up to its policy limits, for the difference between the settlement amount of $15,000 and the amount of Lokken’s actual liability.

Id. at 515 (footnote omitted).,

Appellant’s reliance on Jones and Bun-ton as directly supporting its claim that the USF & G settlement converted the USF <& G policy into a bodily injury liability policy that applied to the at-fault vehicle at the time of the accident overextends each holding. Respondents’ reliance on Ricke, however, is also not persuasive, because Ricke addressed a set of facts where there were multiple tortfeasors with varying degrees of fault, which is not the case here.

First, appellant’s interpretation of the statute directly contradicts the definition of “underinsured motor vehicle.” See Minn.Stat. § 65B.43, subd. 17. The statute defines “underinsured motor vehicle” as a vehicle “to which a bodily injury liability policy applies at the time of the accident.” Id. The district court concluded that the USF & G policy did not apply at the time of the accident and appellant does not appeal this determination.

It is difficult, therefore, to accept appellant’s argument that because a third-party settlement releases an at-fault driver, that settlement also converts a disputed policy into a policy that applied at the time of the accident. Appellant cites no authority for this proposition, other than referring to the definition of “underinsured motor vehicle.” Moreover, appellant advances no authority supporting its view that it is legally significant that the USF & G settlement released Bates from further liability, in addition to USF & G and 21st Century Genetics.

Therefore, because the district court did not conclude that the USF <& G policy applied at the time of the accident, and because appellant has not appealed the district court’s coverage determination, we conclude that Bates’s vehicle was underin-sured as a matter of law at the time of the accident because Bates’s $100,000 State Farm policy is less than respondents’ damages, which are at least $200,000.

II. Must an UIM insured’s settlement with an at-fault driver’s employer’s insurer be considered in determining an UIM insurer’s maximum UIM liability?

A. UIM Insurer’s Maximum Liability: Minn Stat. § 65B49, subd. la

If an accident involving an underin-sured motor vehicle injures an UIM insured, an UIM insurer’s maximum liability is determined, as noted above, by the damages-less-paid method. See Dohney, 632 N.W.2d at 603. Minn.Stat. § 65B.49, subd. 4a (2000) limits an UIM insurer’s maximum liability:

With respect to underinsured motorist coverage, the maximum liability of an insurer is the amount of damages sustained but not recovered from the insurance policy of the driver or owner of any underinsured at fault vehicle. * * * However, in no event shall the underin-sured motorist carrier have to pay more than the amount of its underinsured motorist limits.

(Emphasis added.)

Therefore, although Bates’s vehicle was underinsured as a matter of law, § 65B.49, subd. 4a may limit appellant’s UIM liability exposure to less than respondents’ $100,000 UIM policy limit.

We conclude, with great reservation, that the plain language of § 65B.49, subd. 4a mandates that the USF & G settlement is not considered^ in determining appellant’s maximum UIM liability. It is undisputed that respondents suffered at least $200,000 in damages. It is also undisputed that Bates was the driver and owner of the at-fault vehicle, and that he carried a $100,000 personal liability policy with State Farm. Therefore, respondents are legally entitled to $100,000 in UIM reimbursement from appellant because the only payment recovered from the driver or owner of the underinsured at-fault vehicle was Bates’s $100,000 State Farm payment.

In addition to the plain language of § 65B.49, subd. 4a, a historical analysis of an earlier version of § 65B.49, subd. 4a buttresses our conclusion that the USF & G payment must not be considered in determining appellant’s maximum UIM liability. In 1989, the legislature amended § 65B.49, subd. 4a. See 1989 Minn. Laws 648, c. 213, § 2. The 1989 amendment, however, did not change the pre 1989 definition of “underinsured motor vehicle.” See Minn.Stat. § 65B.43, subd. 17 (1988). Before the 1989 amendment, Minn.Stat. § 65B.49, subd. 4a (1988) provided:

With respect to underinsured motor vehicles, the maximum liability of an insurer is the lesser of the difference between the limit of underinsured motorist coverage and the amount paid to the insured by or for any person or organization who may be held legally liable for the bodily injury; or the, amount of damages sustained but not recovered.

(Emphasis added.) The pre 1989 statutory scheme, therefore, employed a limits-less-paid system that compared an UIM insured’s policy limit with the total amount paid to the UIM insured, including payments “by or for any person or organization who may be held legally liable for the bodily injury.” Id. (emphasis added).

Under the pre-1989 statutory scheme, the USF & G settlement would likely have to be considered in determining appellant’s maximum UIM liability. USF & G, an organization that “may be held legally liable for the bodily injury” paid approximately $400,000 “by or for” USF & G, 21st Century Genetics, and the at-fault driver Bates. See generally Broton v. W. Nat’l Mut. Ins. Co., 428 N.W.2d 85, 90 (Minn.1988).

The current statutory provision, however, does not contain this all-encompassing-payment language. As noted above, the current provision states that an UIM insurer’s maximum liability is calculated by subtracting the amount of damages “recovered from the insurance policy of the driver or owner of any underinsured at fault vehicle” from the “amount of damages sustained.” Minn.Stat. § 65B.49, subd. 4a (2000). Moreover, the current procedure for calculating maximum UIM liability, which disregards payments from other potentially liable sources, is consistent with the current definition of “underinsured motorist coverage”: coverage for persons “legally entitled to recover damages for bodily injury from owners or operators of underinsured motor vehicles.” MinmStat. § 65B.43, subd. 19 (2000) (emphasis added).

We must assume that the legislature, by omitting the all-encompassing-payment language found in the pre 1989 statute, intended to substantively alter how maximum UIM liability should be calculated. See Geldert v. Am. Nat’l Bank, 506 N.W.2d 22, 26 (Minn.App.1993) (stating than an amendment to a statute is presumed to effect a change in the law), review denied (Minn. Nov. 16, 1993); see also Ullom v. Indep. Sch. Dist. No. 112, 515 N.W.2d 615, 617 (Minn.App.1994) (suggesting that courts cannot add to a statute “what the legislature purposely omits or inadvertently overlooks” (quotation omitted)).

Furthermore, the supreme court has made it clear that the legislature is free to ignore logic and perpetrate injustice so long as it does not violate the constitution; if the statute is clear it must be remedied by amendment rather than by construction. State ex rel. Coduti v. Hauser, 219 Minn. 297, 303, 17 N.W.2d 504, 507-08 (1945); see also Dohney, 632 N.W.2d at 606 (noting that the supreme court is “hesitant to judicially alter the UIM procedures established by the legislature and in the process possibly adversely affect the delicate balance between the rights of UIM insureds and UIM insurers”).

We therefore conclude that Minn.Stat. § 65B.49, subd. 4a mandates that the approximately $400,000 USF & G settlement is not considered in determining appellant’s maximum UIM liability.

B. Purposes of UIM Coverage

Appellant argues in the alternative that despite the statutory language, the USF & G settlement should be considered by the district court in determining its maximum UIM liability. Appellant claims that to refuse to do so would be inconsistent with the purpose of UIM insurance: to compensate, but not overcompensate, an UIM insured for her injuries. Appellant’s argument can be summed up by its essential theme on appeal: “[A] claimant cannot accept a substantial insurance settlement — here $400,000 — and then contend that those benefits never existed.”

Appellant correctly recognizes that a primary objective of the No Fault Act “is to compensate injured persons without allowing for double recoveries.” Dean v. Am. Family Mut Ins. Co., 535 N.W.2d 342, 344 (Minn.1995) (citations and footnote omitted); see also Richards v. Milwaukee Ins. Co., 518 N.W.2d 26, 28 (Minn.1994) (stating that prevention of double recovery is “a primary objective of the no-fault act”). Indeed, the No Fault Act itself recognizes that one of its purposes is “to prevent the overcompensation of * * * automobile accident victims.” MinmStat. § 65B.42(2) (2000).

The legislature, however, has made it clear that legislative intent and the spirit of the law, if any such intent or spirit can be ascertained, cannot override the plain language of a statute.

Olson v. Am. Family Mut. Ins. Co., 636 N.W.2d 598, 604 (Minn.App.2001) (citation omitted). Although the No-Fault Act’s purposes may in some sense be served by disregarding the plain language of the statute in this case, the construction afforded the statute above does not rise to the level of an absurdity, which may, in some cases, permit this court to disregard plain language and embrace a purposive construction. See Minn.Stat. § 645.17(1) (2000) (courts should presume that the legislature does not intend results that are “absurd, impossible of execution, or unreasonable”). Here, the legislature had the opportunity to retain the all-encompassing-payment language when it amended Minn. Stat. § 65B.49, subd. 4a in 1989. It did not do so. See Thompson v. Allstate Ins. Co., 412 N.W.2d 386, 388-89 (Minn.App.1987) (“ ‘Public policy, where the legislature has spoken, is what it has declared that policy to be. So far as the question of policy is concerned, our statute settles the matter.’ ” (quotation omitted)), review denied (Minn. Nov. 13,1987).

We therefore decline to disregard the No Fault Act’s plain language to achieve what appellant argues is the more just and logical result.

Finally, because we conclude that the $400,000 USF & G settlement is not considered in determining appellant’s maximum UIM liability, we decline to consider appellant’s alternative argument that the $400,000 USF & G settlement was not a “best settlement.” We recognize, however, that Dohney forecloses appellant’s argument because the supreme court held that a best settlement is simply “an insured’s best settlement.” Dohney, 632 N.W.2d at 607.

DECISION

Because the USF & G policy did not apply to Bates’s vehicle at the time of the accident, it is not considered in determining whether Bates’s vehicle was underin-sured. Moreover, because Minn.Stat. § 65B.49, subd. 4a mandates that an UIM insurer’s maximum liability is the difference between the amount of damages sustained but not recovered from the driver or owner of an underinsured at-fault vehicle, the USF & G settlement payment is not included in the amount of damages recovered.

Affirmed.

      . Although the Bates/Behr accident occurred in 1995, most of the relevant statutory provisions have not substantively changed; therefore, all citations will be to the 2000 Minnesota Statutes unless otherwise noted. See McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn.App.1986) (citing Bradley v. Sch. Bd. of City of Richmond, 416 U.S. 696, 717, 720, 94 S.Ct. 2006, 2020-21, 40 L.Ed.2d 476 (1974)), review denied (Minn. Nov. 17, 1986).

      . Before the 1975 No-Fault Act, Minnesota employed
      “difference of limits” coverage, which meant that UIM benefits would become available only to the extent that the damages and the UIM policy limit were greater than the limit on the tortfeasor's policy.

        Dohney, 632 N.W.2d at 601 (citation omitted). An insured would be entitled to UIM reimbursement equal to the difference between his UIM policy limit and the tortfeasor's policy limit, if the tortfeqsor's policy limit was less than the UIM policy limit.
      Under the 1975 No-Fault Act, UIM coverage became " 'damages less limits' or 'add-on' coverage.” Id. (citation omitted). Under this system,
      the amount of UIM benefits available is calculated by subtracting the tortfeasor's policy limit from the injured UIM policyholder’s damages, [but] UIM payments could not exceed the UIM limit.

        Id. "[Bjelow policy limit settlements with the tortfeasor were allowed, but the injured UIM policyholder would have to absorb [any] gap” or absorb the difference between the tortfea-sor’s policy limit and the amount of the below-limit settlement. Id.

      Due to legislative repeal, from April 1980 through October 1985, there were no UIM provisions in Minnesota. Id. at 602. "In 1985, the legislature made major revisions in the No-Fault Act” and "changed the UIM coverage * * * to 'limits less paid' coverage” where an UIM insured "could recover the difference between his UIM [policy] limit and the amount of damages recovered from the tortfeasor.” Id. (citation omitted). The limits-less-paid system differed from the pre-No-Fault Act difference-of-limits system in that it "d[id] not require the insured to absorb the gap resulting from any below-limit settlement with the tortfeasor.” Id. (citation omitted).

      . The existence of a coverage dispute precludes reliance on Royal-Milbank v. Busse, where this court included a business-automobile policy to determine whether the at-fault vehicle was underinsured. In Busse, the business-automobile policy's coverage was apparently uncontested. See Busse, 474 N.W.2d at 442-43.

      . At least commentator, however, would apparently disagree with our view. Theodore Smetak notes,
      All liability policies which insure the negligent operation of the tortfeasor’s vehicle are considered in determining underinsura-bility. Thus, in addition to the owner's coverage, the liability coverage available to the operator of the vehicle, to the tortfea-sor’s employer or to any other vicariously liable party will be considered. This approach is consistent with the conceptual basis of underinsured motorist coverage. Coverage is accessed only if there is not enough liability insurance available to pay for damages caused by a negligent motorist.
      Smetak, supra, at 881-82. Smetak, however, only cites Busse (and no statutory authority) for this proposition and his argument apparently assumes, as was the case in Busse, that there is normally no dispute whether an employer's policy applies to an at-fault vehicle at the time of the accident. Of course, such a dispute is present here.

      . This is not to say that appellant’s reliance on Jones and Bunton is completely without merit. The Jones court concluded, "A motor vehicle is also not uninsured if a liability carrier initially denies coverage and settles without ever admitting coverage." Jones, 462 N.W.2d at 91 (citation omitted). We could easily substitute "underinsured" for "uninsured" and reach the arguably defensible result that the USF & G policy applied at the time of the accident. This conclusion, however, could not be grounded in the statutory definition of "underinsured motor vehicle” and the statutory language must control, especially here, where UIM benefits are at issue as opposed to UM benefits.