author: MINGE, Judge.

text:
    STATE of Minnesota, Respondent, v. Vincent Paul COLEMAN, Appellant.
    No. A03-1827.
    Court of Appeals of Minnesota.
    Sept. 14, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and David K. Ross, Carson, Clelland & Schreder, Minneapolis, MN, for respondent.
    Samuel A. McCloud, Carson J. Heefner, Shakopee, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge; MINGE, Judge; and FORSBERG, Judge.

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

   OPINION

MINGE, Judge.

Appellant argues that the district court erred in denying his motion to suppress the results of his blood test. He argues that once a police officer begins to administer a breath test, the officer does not have the discretion to terminate the test if the individual burps during the exam unless the machine reveals the presence of mouth alcohol. We affirm.

FACTS

After initiating a traffic stop, Officer John Keding arrested appellant Vince Coleman based on his belief that appellant was driving under the influence of alcohol. Officer Keding transported appellant to the police station, where he read appellant the Minnesota Implied Consent Advisory. Appellant stated that he understood his rights and agreed to submit to a breath test.

After the initial 15-minute observation period recommended by the Bureau of Criminal Apprehension (BCA), Officer Keding administered the breath test using the Intoxilyzer 5000. Appellant’s first breath sample showed a score of .151. Before giving the required second sample, appellant burped. Officer Keding stopped the test due to concerns that appellant’s burp created mouth alcohol, which could affect the reliability of the test. He then began a second 15-minute observation period, intending to run the test from the beginning. During this second observation period, appellant burped again. Officer Keding terminated the observation period, reread appellant the Minnesota Implied Consent Advisory, and asked appellant to submit to a blood or urine test. Appellant agreed to a blood test, which indicated an alcohol level of .14.

Based on the results of the blood test, appellant was charged with fourth-degree driving while impaired. The district court denied appellant’s motion to suppress the blood test, found him guilty as charged and sentenced him. Appellant challenges the district court’s denial of his motion to suppress the results of his blood test, arguing that the officer improperly discontinued the breath test.

ISSUE

If a person burps during the administration of a breath test to determine blood-alcohol concentration, does the administering police officer have discretion to terminate the test and provide an alternative test?

ANALYSIS

A district court’s determination of whether to suppress evidence is reviewed de novo. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). When the facts are not in dispute,' we consider whether suppression of the evidence is warranted as a matter of law. Id. Any person who drives a motor vehicle in the state of Minnesota consents to a chemical test of his or her blood, breath, or urine for the purposes of determining the presence of alcohol. Minn.Stat. § 169A.51, subd. 1(a) (2002). It is the state’s burden to establish that the administration of the test conforms to the procedure necessary to ensure reliability; the opponent must then suggest reasons why the test was untrustworthy. See Tate v. Comm’r of Pub. Safety, 356 N.W.2d 766, 767-68 (Minn.App.1984).

When a breath test is administered using an infrared breath-testing instrument, such as the Intoxilyzer 5000, the test must include two adequate breath samples. Minn.Stat. § 169A.51, subd. 5(a) (Supp.2003). Such a sample is “adequate if the instrument analyzes the sample and does not indicate the sample is deficient.” Id., subd. 5(b). “[I]t is the machine that determines whether a breath sample is adequate or deficient and not the officer.” Young v. Comm’r of Pub. Safety, 420 N.W.2d 585, 586 (Minn.1988). “Officer discretion is not part of the testing process.” Id. at 587.

Appellant argues that because it is the machine itself, and not the officer, that determines the adequacy of the breath sample and because the machine here did not indicate an inadequate sample, Officer Keding improperly discontinued the Intox-ilyzer 5000 test before taking the required second sample. Respondent argues that police officers have limited discretion in these situations to discontinue the test.

The BCA recommends that police officers follow certain procedures when conducting these types of tests. It recommends that an officer conduct a 15- to 20-minute observation period prior to administering an Intoxilyzer test to ensure that drivers have not placed anything in their mouth, burped or vomited. Such events can produce mouth alcohol, which can affect the reliability of the test. The BCA encourages the officer to restart the test if a subject burps after providing the first sample but prior to providing the second sample. Appellant correctly notes that this BCA recommendation does not have the force of law. Id. at 586. Appellant argues that because the Intoxilyzer machine has a built-in mouth-alcohol detector and because two breath samples are taken, police officers should not be allowed to terminate the test based on their concerns regarding the presence of mouth alcohol unless the machine actually indicates its presence. Basically, appellant argues for a “bright-line rule” that would preclude any officer discretion in the testing process.

We do not agree. While BCA recommendations do not have the force of law, officers are urged to follow them. Johnson v. Comm’r of Pub. Safety, 392 N.W.2d 359, 362 (Minn.App.1986). At appellant’s hearing, a trained scientist for the BCA testified that burping could cause mouth alcohol, which can affect a suspect’s test. She further informed the district court that even when mouth alcohol is present, the Intoxilyzer 5000 does not always detect it and that the observation period is an additional safeguard in minimizing any effect of mouth alcohol. The BCA’s recommendation recognizes these risks and flaws inherent in detecting the presence of mouth alcohol and is designed to heighten the reliability of the tests.

Appellant urges that we consider two court decisions that emphasize the limits on officer discretion. The police officers in Genia v. Comm’r of Pub. Safety, 382 N.W.2d 284 (Minn.App.1986), and Overby v. Comm’r of Pub. Safety, 386 N.W.2d 1 (Minn.App.1986), attempted to use discretion in determining that the subjects failed to consent to a test when they did not provide an adequate sample within the allotted time. In both cases, the courts found that because the machine allows a subject four minutes to provide a certain breath volume, an officer should allow the full time to meet the machine’s requirements. In the present case, Officer Ked-ing did not conclude that appellant failed to consent. Genia, 382 N.W.2d at 286; Overby, 386 N.W.2d at 1. He merely changed the test being performed. Therefore, these cases do not control our decision.

Appellant was not entitled to a particular type of test from the outset. Minn. Stat. § 169A.51, subd. 3 (2002), specifically states that the officer can direct which test is used. The only statutory requirement is that “[ajction may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.” Id. The Minnesota Supreme Court has determined that a driver who initially consents to a breath test is obligated to take an alternative test if the Intoxilyzer is inoperative. Gunderson v. Comm’r of Pub. Safety, 351 N.W.2d 6, 7 (Minn.1984). Therefore, we determine that appellant could be given a second type of test when concerns existed with the first type.

Appellant agrees that he was not entitled to a particular test, but argues that once an officer chooses a particular type of test, he does not have the authority to change in the middle of the test, unless the machine indicates that the test was invalid. Appellant does not cite to any persuasive legal authority to support this proposition. We note that in the revocation setting, the Minnesota Supreme Court has stated that DWI laws are remedial statutes, and that they “are liberally interpreted in favor of the public interest and against the private interests of the drivers involved.” Young, 420 N.W.2d at 586. A parallel rule of reasonableness should apply in the situation presented by this case.

There is no evidence that the police officer here abused his discretion. In fact, appellant’s initial breath test indicated an amount of alcohol in excess of the legal limit. In terminating the breath test and administering a blood test, appellant may have had a more favorable testing outcome. This is not a case where an officer, dissatisfied with an individual who passes one test, changes the type of test in an attempt to fail the individual.

We conclude that in accordance with the BCA recommendations, police officers have discretion to terminate a breath test due to concerns with mouth alcohol if they provide the individual with an alternative test.

DECISION

Because the police officer followed BCA recommendations when appellant burped, the police officer had the discretion to terminate the breath test and provide appellant with a different type of test, even though the machine did not reveal the presence of mouth alcohol.

Affirmed.


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    Clara S. BROWN, Relator, v. NATIONAL AMERICAN UNIVERSITY, Respondent, Commissioner of Employment and Economic Development, Respondent.
    No. A04-62.
    Court of Appeals of Minnesota.
    Sept. 14, 2004.

      Thomas H. Boyd, Michael E. Obermuel-ler, Winthrop & Weinstine, P.A., Minneapolis, MN, for relator.
    Kathryn M. Nash, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN, for respondent-employer.
    Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic Development, St. Paul, MN, for respondent-commissioner.
    Considered and decided by ANDERSON, Presiding Judge; PETERSON, Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Relator challenges the decision by the commissioner’s representative that she is disqualified from receiving unemployment benefits because she was discharged for employment misconduct. Relator, who was discharged for borrowing money from respondent university’s adult students, argues that under the 2002 statutory definition she did not commit employment misconduct. Because we look to the date an employee was discharged rather than the day or days on which the employment misconduct occurred to determine which statutory definition applies, we apply the 2003 statutory definition of misconduct. Under that definition, relator committed employment misconduct, and we therefore affirm the decision by the commissioner’s representative.

FACTS

Relator Clara Brown worked as a receptionist and administrative assistant for respondent National American University (NAU) from May 15, 2000, until August 4, 2003. Her immediate supervisor was Mary Ellen Schmidt, the campus director of NAU.

In the fall of 2001, Schmidt learned that Brown had borrowed money from a student. Schmidt told Brown that this was inappropriate. Brown both acknowledged the inappropriateness of borrowing money from students and said she would not do so again. Schmidt made no formal reprimand nor did she tell Brown that further similar conduct could jeopardize her employment.

In October 2002, Schmidt discovered that Brown had again borrowed money from a student. Schmidt reiterated to Brown that such conduct was inappropriate and said that it could result in the loss of her job. Schmidt learned in early July 2003 that Brown had borrowed money from another student. On July 2, 2003, Schmidt told Brown that this conduct could not continue and that “it was grounds for termination.” On July 28, 2003, a student complained to NAU’s director of admissions that she had loaned money to Brown but that the loan had not been repaid. The record is not clear as to when this loan was made.

NAU discharged Brown on August 4, 2003, for “borrowing money from students.” After being denied unemployment-compensation benefits by a representative of the commissioner of the department of employment and economic development, Brown brought the matter before this court through certio-rari.

ISSUES

1. Does this court look to the date of discharge or the dates on which the employment misconduct occurred to determine which statutory definition of employment misconduct applies?

2. Under the applicable statutory definition, did relator commit employment misconduct when she continued to engage in conduct that her employer had warned her was inappropriate and would result in discharge?

ANALYSIS

Applicable Law

Although Brown argues that the record does not support a finding of employment misconduct, we first address the issue of which statutory definition of employment misconduct applies. When Brown borrowed money from NAU students, the statutory definition for employment misconduct provided:

(a) Employment misconduct means:
(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employees duties and obligations to the employer; or
(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
(b) Inefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

Minn.Stat. 268.095, subd. 6(a)(b) (2002).

Effective August 1, 2003, the statutory definition was amended to provide:

Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.
Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.

Minn.Stat. 268.095, subd. 6(a) (Supp.2003).

The latter was the definition in effect when NAU discharged Brown and was the definition on which the commissioner’s representative relied in upholding Brown’s disqualification from benefits.

In Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182 (Minn.App.2004), this court held that the law in effect at the time of discharge is to be applied in determining an employee’s eligibility for unemployment compensation benefits: “An employee’s conduct should be judged against the law in effect at the time of the termination; that is the date that the employer terminated the employee for committing conduct that the employer felt both deprived the employee of the job and the right to unemployment benefits.” Id. at 186. But this court also referred to the date of the misconduct as determinative of the law to be applied. Id. Despite this reference, the Bray court several times indicated that the controlling date is the date of discharge. Id.

We hold that the intent of Bray and the most meaningful application of the law is to treat the statutory definition of misconduct in effect at the date of discharge as controlling. This holding reflects two important facts. First, the operative event that determines qualification for unemployment compensation benefits in these circumstances is discharge from employment. Minn.Stat. § 268.095, subd. 4 (2002). We are not concerned with whether or not the employee should have been discharged but only with the employee’s eligibility for benefits after termination of employment. Auger v. Gillette Co., 303 N.W.2d 255, 257 (Minn.1981).

Second, although misconduct that leads to discharge might occur on a single date, it is more likely, as here and in Bray, that the discharge will result from a series of acts or omissions extending over days, weeks, months, or perhaps years. In such cases, if the definition of misconduct changes, the commissioner and the courts would be perplexed as to which conduct to apply the legal focus. The discharge date provides a clear and definitive time for the application of the law.

Misconduct

On review of an unemployment-benefits case, this court must determine whether the record reasonably supports the decision of the commissioner’s representative. Tuff v. Knitcraft, 526 N.W.2d 50, 51 (Minn.1995). We view the findings of the commissioner’s representative in the light most favorable to the decision and “will not disturb them as long as there is evidence that reasonably tends to sustain those findings.” Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.2002).

Whether a former employee is disqualified from receiving unemployment benefits is a mixed question of law and fact. Id. The determination of whether an employee committed a particular act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App.1997). Whether an act constitutes employment misconduct is a legal question, which this court reviews de novo. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn.1996).

When an employee is discharged because of employment misconduct, he or she is disqualified from receiving unemployment-compensation benefits. Minn. Stat. § 268.095, subd. 4 (Supp.2003). Under the statute, employment misconduct includes not only intentional but also negligent and indifferent acts if they evince “a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.... ” MinmStat. § 268.095, subd. 6(a)(1) (Supp. 2003).

Brown argues that NAU had no policy regarding employees borrowing money from students. Without a policy, she contends, there could not be misconduct based on a violation of company policy. We are aware of no law that requires that an employer have an express “policy” regarding prohibited behavior for employees. The focus of the definition of misconduct is on “standards of behavior the employer has the right to reasonably expect of the employee.Id. When a supervisor tells an employee that certain employment conduct is inappropriate, the supervisor thereby reveals a standard of employment behavior. Schmidt stated this standard to Brown in the fall of 2001. Brown accepted the standard by agreeing that borrowing money from students was inappropriate. And she agreed to abide by the standard in the future. But she did not abide by the standard.

It is reasonable to infer that if an employee acknowledges the inappropriateness of certain behavior on the job, she might expect some employment consequences if she repeats the behavior. Schmidt expressed those consequences in October 2002, when she told Brown, who had repeated her borrowing, that any further similar conduct could result in the loss of Brown’s job. Nevertheless, Brown again borrowed money from a student.

Having been told at least twice that borrowing money from students was inappropriate conduct, Brown was aware that her employer expected her not to continue with such behavior. Either intentionally or with indifference, both supported in the record, Brown ignored the standard to which NAU expected her to conform and thereby committed employment misconduct.

DECISION

The record reasonably supports the decision of the commissioner’s representative that under the amended definition of employment misconduct Brown committed misconduct where she continued to borrow money from students after specifically being warned that this type of conduct was inappropriate and would result in discharge.

Affirmed.

      . The revisor’s office inadvertently substituted the term "ineligible for" for the term "disqualified from” in Minn.Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp.2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn.Stat. § 268.095, subd. 1, but retaining term "disqualified from"); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from” to "ineligible for” only in Minn.Stat. § 268.095, subd. 12, and then to renumber to Minn.Stat. § 268.085, subd. 13b).


author: FORSBERG, Judge.

text:
    Angela COLE, Relator, v. METROPOLITAN COUNCIL HRA, Respondent.
    No. A04-261.
    Court of Appeals of Minnesota.
    Sept. 14, 2004.

      Shelley D. Jensen, Judicare of Anoka County, Inc., Blaine, MN, for relator.
    Mary G. Dobbins, Mary G. Dobbins & Associates, Edina, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge, MINGE, Judge, and FORSBERG, Judge.
   OPINION

FORSBERG, Judge.

In this certiorari appeal, relator tenant argues that respondent improperly terminated her Section 8 housing assistance because (1) respondent lacked authority to terminate Section 8 benefits when the underlying eviction judgment was by default, there was no violation of the lease, and any violation of the lease was not ruled to be the “serious” violation required to terminate Section 8 benefits; (2) the hearing officer failed to recognize that the eviction judgment was by default, make credibility determinations, and make adequate findings; and (3) the hearing officer failed to consider mitigating circumstánces. We affirm.

FACTS

Relator Angela Cole obtained a Section 8 rental voucher from respondent Metropolitan Council Housing and Redevelopment Authority in 2000. On October 1, 2003, relator gave notice to her landlord that she would be vacating her apartment at the end of November. Shortly thereafter, relator faxed a copy of her notice to vacate to respondent. Upon receipt of relator’s notice to vacate, respondent mailed recertification paperwork to relator. Completion of the paperwork was necessary for relator to obtain Section 8 rental assistance at her new residence. As part of the recertification process, relator was required to sign a Statement of Responsibilities, which provided in part:

I understand that I must give [respondent] a copy of any eviction notice I receive within ten (10) days of receipt of that notice. I understand that if I violate a provision of my lease and am evicted by a court ordered judgment on behalf of the owner [respondent] will terminate my Section 8 Rental Assistance.

Relator signed the statement on October 23, 2003, and respondent subsequently approved a -Section 8 voucher for relator’s new residence.

On November 3, 2003, relator’s landlord commenced an eviction action against her. Relator’s landlord provided respondent with a copy of the eviction complaint on November 6, and an eviction hearing was held a week later. Relator failed to attend the hearing, and, consequently, the district court granted a default judgment in favor of the landlord and issued a writ of recovery. Relator’s landlord faxed a copy of the writ of recovery to respondent on November 13, 2003. Relator was evicted as of November 17, 2003.

Upon receipt of the writ of recovery, respondent sent relator a letter informing her that her participation in the Section 8 program would be terminated effective January 1, 2004. Relator requested a hearing to contest respondent’s decision to terminate her Section 8 rental assistance. An informal hearing was conducted on December 17, 2003.

At the informal hearing, relator testified that she failed to attend the eviction hearing because she thought the hearing was to be held on November 17, rather than November 13. In addition, relator pointed out that the eviction complaint sent to respondent had been altered. The complaint filed in district court stated: “causing damages totaling $1,259.00; using crack cocaine in unit regularly,” but the complaint sent to respondent added “police calls for disturbances between 2:00 and 3:00 a.m.” Relator also produced the only two police reports made from her residence during the preceding six months. The two complaints were made by relator or a friend to report burglaries, neither of which occurred between 2:00 and 3:00 a.m. Finally, relator testified that she believed the eviction action was filed for retaliatory reasons.

The hearing officer upheld the termination of benefits on the basis that respondent followed proper procedures and policies in terminating relator’s benefits. The hearing officer explained that relator had signed the Statement of Responsibilities and that there were no extenuating circumstances to be considered. This certio-rari appeal followed.

ISSUES

1.' Did respondent have legal authority to terminate relator’s Section 8 housing benefits?

2. Did the informal hearing officer comply with the applicable law and procedure when affirming the termination of relator’s Section 8 housing benefits?

3. Did the informal hearing officer err by failing to consider the hardship that would result from the termination of relator’s Section 8 benefits?

ANALYSIS

By taking evidence and hearing testimony, respondent acted in a quasi-judicial capacity. See American Fed’n of State, County Mun. Employees, Council 14 v. County of Ramsey, 513 N.W.2d 257, 259 (Minn.App.1994). “An agency’s quasi-judicial determinations will be upheld unless they are unconstitutional, outside the agency’s jurisdiction, procedurally defective, based on an erroneous legal theory, unsupported by substantial evidence, or arbitrary and capricious.” Carter v. Olmsted County Hous. and Redevelopment Auth., 574 N.W.2d 725, 729 (Minn.App.1998).

I.

Relator contends that respondent’s sole basis for terminating the Section 8 voucher was the Statement of Responsibilities, which requires both a violation of the lease and a court-ordered eviction in order for Section 8 rental assistance to be terminated. Relator argues that because the eviction was obtained through a default judgment, respondent failed to prove a lease violation. Relator argues, therefore, because respondent did not apply both prongs of the Statement of Responsibilities, respondent did not have authority to terminate her housing voucher.

A default judgment is defined as “[a] judgment entered against a defendant who has failed to plead or otherwise defend against the plaintiffs claim, often by failing to appear at trial.” Black’s Law Dictionary 428 (7th ed.1999). A judgment by default is just as conclusive an adjudication between parties as any other. Geo. Benz Sons v. Hassie, 208 Minn. 118, 124, 293 N.W. 133,136 (1940).

Here, the landlord filed an eviction complaint, alleging that relator was using crack cocaine in her apartment unit on a regular basis and that she had caused damages to the unit totaling $1,259. A hearing was held on November 13, 2003, but relator failed to appear. Consequently, the district court entered judgment by default, and relator was evicted from the apartment. Because a default judgment was entered against relator due to her failure to answer the complaint or appear at the hearing, the facts of the complaint were deemed to be true. See id. Accordingly, there was a violation of the lease, and both prongs of the Statement of Responsibilities were met.

Relator also contends that even if there was a violation of the lease, respondent did not have authority to terminate her Section 8 housing voucher because respondent failed to apply the standard set forth in 24 C.F.R. 982.552(b)(2) (2003), which requires a “serious” violation of the lease.

24 C.F.R. 982.552(b)(2) provides that “[the Public Housing Authority] must terminate program assistance for a family evicted from housing assisted under the program for serious violation of the lease.” Although section 982.552 does not define what conduct constitutes a serious violation, 24 C.F.R. § 982.310 (2003) provides some insight as to what constitutes a serious violation. 24 C.F.R. § 982.310(a)(1), (3) permits an owner to terminate tenancy when the tenant commits a serious violation or repeated violation of the terms and conditions of the lease, or for other good cause. The regulation goes on to define “good cause” as a family history of destruction of property or of living or housekeeping habits resulting in damage to the unit or premises. 24 C.F.R. § 982.310(d)(1)(h). The regulation further provides that drug use on the property may provide a basis for termination of tenancy. 24 C.F.R. § 982.310(c)(1).

Here, the default judgment is proof that relator violated the terms of the lease. As stated above, the complaint alleged that relator caused $1,259 worth of damage to the apartment unit and that she was using drugs regularly in the apartment. These are “serious” violations of a lease. Under 24 C.F.R. 982.310(d)(1)(h), $1,259 is a substantial amount of money, and the destruction of property can be considered “good cause” to terminate a tenancy. Also, the use of drugs in an apartment is not only a violation of Minn.Stat. 504B.171, subd. l(l)(i) (2002), but it can also provide a basis for the termination of a tenancy under 24 C.F.R. 982.310(c)(1). We conclude that respondent complied with 24 C.F.R. 982.552(b)(2) and properly terminated relator’s Section 8 housing voucher.

II.

A recipient of Section 8 benefits is entitled to an informal hearing to consider whether the termination of recipient’s benefits under 24 C.F.R. § 982.552 is in accordance with the law, federal regulations, and departmental policies. 24 C.F.R. § 982.555(a)(l)(v) (2003). The hearing officer must issue a written decision, stating briefly the reasons for the determination. 24 C.F.R. § 982.555(e)(6). Agency action must be based on objective criteria applied to the facts and circumstances of the record. Carter, 574 N.W.2d at 729. The agency must explain on what evidence it is relying and how that evidence connects rationally with its choice of action. Hiawatha Aviation v. Minnesota Dep’t of Health, 375 N.W.2d 496, 501 (Minn.App.1985), affd 389 N.W.2d 507 (Minn.1986).

Relator argues that the informal hearing officer’s findings were insufficient because there were no findings concerning the landlord’s credibility. Specifically, relator asserts that the landlord was not credible because he altered the complaint and filed the eviction for retaliatory reasons.

In support of the decision to uphold the termination of relator’s Section 8 benefits, the hearing officer noted the following.

At the hearing, [relator] pointed out that the unlawful detainer action had been altered. She said that additional information had been added to the unlawful detainer after it had been served. She said that she believes the eviction was filed for retaliatory reasons and because of these two things the landlord has no credibility. I asked whether they had gone to court for the hearing. They said they had not.... I said that it was a big mistake not to go to court.

Although the findings and credibility determinations are somewhat vague, the overarching concern of the appellate court is that the record be sufficient to facilitate meaningful review. See Carter, 574 N.W.2d at 729. The statements in the hearing officer’s order permit but one inference: that the hearing officer rejected relator’s credibility allegations and that relator should have gone to court to challenge the eviction action. Because meaningful review can be conducted in this case, we conclude that the hearing officer complied with the applicable law in terminating relator’s Section 8 benefits.

III.

Finally, relator argues that the hearing officer failed to consider the hardship that would result from the termination of her benefits, such as the fact that relator and her four children would be homeless. We disagree. Relator’s Section 8 benefits were terminated under 24 C.F.R. § 982.552(b). Section 982.552(b)(2) states that “[t]he [Public Housing Authority] must terminate program assistance for a family evicted from housing assisted under the program for serious violation of the lease.” Under the canons of statutory interpretation, “must” is mandatory. See Minn.Stat. § 645.44, subd. 15a (2002) (alteration in original). Therefore, the hearing officer was not allowed to consider the hardship that would result from the termination of relator’s Section 8 benefits.

DECISION

Relator was evicted from her apartment for a serious violation of the lease. Under 24 C.F.R. 982.552(b)(2), respondent was required to terminate relator’s Section 8 benefits. We therefore conclude that relator’s Section 8 benefits were properly terminated.

Affirmed.

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


author: WRIGHT, Judge.

text:
    David VAN GUILDER, an incompetent person, by Lee Van Guilder, his conservator, Appellant (A03-911), Respondent (A03-1408), v. NATIONAL FREIGHT, INC., et al., Respondents (A03-911), Appellants (A03-1408), New Prime, Inc., et al., Respondents, Success Leasing, Inc., Defendant.
    Nos. A03-911, A03-1408.
    Court of Appeals of Minnesota.
    Sept. 14, 2004.

      Charles A. Bird, Jeremy R. Stevens, Bird & Jacobsen, Rochester, MN, for appellant/respondent David Van Guilder.
    Eric J. Magnuson, Diane B. Bratvold, Richard C. Scattergood, Rider Bennett, LLP, Minneapolis, MN and Jennifer K. Huelskoetter, Bowman and Brooke, LLP, Minneapolis, MN, for respondents/appellants National Freight, Inc., et al.
    Mark A. Gwin, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Minneapolis, MN, for respondents New Prime, Inc., et al.
    Considered and decided by WRIGHT, Presiding Judge; RANDALL, Judge; and KALITOWSKI, Judge.
   OPINION

WRIGHT, Judge.

In these consolidated appeals, David Van Guilder’s conservator asserts that he is entitled to judgment notwithstanding the verdict (JNOV) because the jury’s award of past medical' expenses is inadequate and the jury’s determination that he was causally negligent is not supported by the record. National Freight challenges the district court’s denial of its motion to reallocate the uncollectible portion of New Prime’s equitable share of the judgment under MinmStat. § 604.02, subd. 2 (2002). As to Van Guilder’s appeal, we reverse the denial of JNOV as to damages and affirm the denial as to fault. As to National Freight’s appeal, we affirm the district court’s reallocation decision.

FACTS

On December 3, 1999, at approximately 5:30 a.m., in foggy conditions, a multiple-vehicle collision occurred on northbound Interstate 35, south of Owatonna. Shortly before the accident, Steven Whitehead, who was driving a tractor-trailer truck owned by National Freight (collectively National Freight), pulled onto the right shoulder of the northbound interstate to check his on-board computer for directions and to relieve himself. After doing so, he drove along the shoulder to get up to speed and then merged onto the right lane of the highway.

Charles Williams was driving New Prime’s tractor-trailer truck (collectively New Prime) northbound on Interstate 35. The New Prime truck struck the National Freight truck from behind. Although the National Freight truck was able to pull ahead and stop on the right shoulder, the New Prime truck jackknifed and completely blocked the northbound lanes of the freeway. A thick, slippery fluid accumulated on the road from the accident, and debris was scattered across the road.

John Kluver was driving a third tractor-trailer truck, also traveling northbound. As he approached the area, traveling at about 55 to 60 miles per hour, Kluver saw Van Guilder’s car pass Kluver on the left and then “impact” the jackknifed truck. Kluver braked, and although his truck was sliding, he was able to pull over onto the right shoulder. Kluver next saw a second passenger vehicle (the Hamburg vehicle) and then a third passenger vehicle slide by. The Hamburg vehicle struck Van Guilder’s driver’s-side door. Van Guilder was seriously injured.

Van Guilder’s conservator sued National Freight and its driver, Whitehead, and New Prime and its driver, Williams. At trial, Van Guilder presented evidence that he suffered catastrophic injuries and incurred $293,908.21 in medical bills, plus additional expenses for home-care services. The jury determined that Whitehead, Williams, and Van Guilder were negligent in the operation of their respective vehicles, and that their negligence was a direct cause of the accident. The jury assessed the drivers’ negligence as follows: National Freight truck driver Whitehead, 37.75 percent; New Prime truck driver Williams, 40 percent; and Van Guilder, 22.25 percent. Among other damages, the jury awarded $100,000 for past medical expenses. The district court denied post-trial motions and denied National Freight’s motion for reallocation based on the insolvency of New Prime’s insurer. These consolidated appeals followed.

ISSUES

I. Was Van Guilder entitled to JNOV regarding past medical expenses on the ground that the parties stipulated to them and past medical expenses were uncontroverted at trial?

II. Was Van Guilder entitled to JNOV on the jury’s findings that he was partially negligent and that his negligence was a direct cause of the accident?

III. Under the Minnesota Insurance Guaranty Association Act, must National Freight, as a joint tortfeasor with a solvent insurer, exhaust its insurance coverage under Minn.Stat. § 60C.13, subd. 1 (2002), before the uncollectible portion is reallocated under Minn.Stat. § 604.02, subd. 2 (2002)?

ANALYSIS

I.

We “will sustain a jury verdict if it is possible to do so on any reasonable theory of the evidence.” Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 198 (Minn. 1986). Viewing the evidence in the light most favorable to the verdict, Lesmeister v. Dilly, 330 N.W.2d 95, 100 (Minn.1983), we “will set aside a jury verdict only if [it is] manifestly contrary to the evidence.” Hughes, 389 N.W.2d at 198.

Evidence was presented as to two types of “medical expenses.” First, there were past “medical bills” in the amount of $293,908.21 for services such as an ambulance, hospital bills, and other medical expenses. Second, there were expenses for past “home health-care services.” The jury awarded $100,000 for past medical expenses, and Van Guilder moved for JNOV. In this motion, Van Guilder sought $293,908.21 for his past medical bills, which he asserts is the amount to which the parties stipulated, in addition to the $100,000 awarded by the jury, which he contends only represents past expenses for home health-care services.

The district court ruled that the parties had stipulated only to the foundation for the past medical bills, not that these medical bills were reasonable and necessary. In determining that there was sufficient evidence to support the jury’s verdict of $100,000 for past medical expenses, the district court observed that the billing statements for the stipulated medical bills contained some notations as to insurance coverage and payments and that the evidence for the value of past home healthcare services was not conclusive. Based on these findings, the district court denied the motion for JNOV.

Van Guilder first argues that the district court erred as a matter of law in ruling that “there was no specific stipulation by [respondents] that the medical expenses were reasonable and necessary.” “In the interest of expediting the trial of lawsuits and reducing their costs, litigants are encouraged to stipulate to facts which are not in serious dispute.” Southdale Ctr., Inc. v. Lewis, 260 Minn. 430, 434, 110 N.W.2d 857, 860 (1961). When parties stipulate to the facts, the parties and the courts are bound by the stipulation until it is abandoned. Gethsemane Lutheran Church v. Zacho, 253 Minn. 469, 479-80, 92 N.W.2d 905, 913 (1958). Whether the parties arrived at a stipulation is a question of fact, which we review for clear error. See Anderson v. Anderson, 303 Minn. 26, 31, 225 N.W.2d 837, 840 (1975). A dispute may arise as to whether a party stipulated only to foundation or whether the stipulation encompassed the causal connection, reasonableness, and necessity of the facts at issue. See Flanagan v. Lindberg, 404 N.W.2d 799, 800 (Minn.1987). When the parties stipulate only to foundation, a jury’s award of damages that are less than the stipulated amount is not inadequate as a matter of law. Id.

Although the parties may have initially stipulated at a pretrial hearing to the necessity, reasonableness, and causal connection of the medical bills in the amount of $293,908.21, they did not refer to this stipulation in later discussions with the district court. The bills for this amount were introduced into evidence with reference to a stipulation but without reference to its terms, and a witness briefly testified as to the necessity and reasonableness of the medical expenses. The district court was neither asked to instruct the jury as to this stipulation nor to insert this sum in the verdict form that was given to the jury. New Prime’s counsel referred to the stipulation in closing arguments, but National Freight’s counsel did not. After referring to the past medical expenses in the amount of $293,908.21, Van Guilder’s counsel stated, “We’ve done the arithmetic for you.” Van Guilder’s counsel then asked the jury to add an unspecified amount for home health-care services. Van Guilder’s counsel, however, did not expressly refer to a stipulation. On this record, we cannot conclude that the district court clearly erred in finding that there was no stipulation that extended to the necessity and reasonableness of the claimed medical expenses.

Van Guilder argues in the alternative that, even without a stipulation to the amount of past medical expenses, he was entitled to JNOV because the amount was uncontroverted at trial. In denying the motion, the district court concluded that the medical opinions were not “so positive as to exclude doubt,” and that it was the jury’s duty to consider and weigh the evidence. The district court observed that the billing statements contained notations to insurance coverage and payments, which Van Guilder could have, but did not, delete. Accordingly, the district court held that Van Guilder failed to establish that the verdict was not justified by the evidence.

The amount of damages is a question of fact for the jury, which is entitled to wide deference as long as the amount found is “within the range of reasonable awards.” Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn.App.1988), review denied (Minn. May 4, 1988). A jury is not bound to accept medical testimony. Krueger v. Knutson, 261 Minn. 144, 159, 111 N.W.2d 526, 536 (1961). Nonetheless, on this record, we cannot find that there was any disputed evidence as to the amount, reasonableness, or necessity of Van Guilder’s past medical expenses. The handful of notations regarding insurance does not provide support for a rational decision to award only $100,000 and to ignore $193,908.21 in medical bills. In the absence of evidence controverting either the amount, reasonableness, or necessity, there was no dispute as to the damages for past medical expenses. Viewing the evidence in the light most favorable to the verdict, we hold that the verdict was manifestly contrary to the undisputed evidence. Accordingly, we reverse the district court’s denial of JNOV for Van Guilder in the amount of $293,908.21 for past medical expenses.

II.

Van Guilder next challenges the jury’s determination that his negligence was a direct cause of the accident. The jury found the driver of the National Freight vehicle 37.75 percent negligent; the driver of the New Prime truck 40 percent negligent; and Van Guilder 22.25 percent negligent. The jury also found each driver’s negligence to be a direct cause of the accident. The district court denied Van Guilder’s motion for JNOV, ruling that, when the facts were viewed in the light most favorable to the verdict, there was sufficient evidence to support the jury’s findings.

Negligence generally presents a fact question for the jury. Block v. Target Stores, Inc., 458 N.W.2d 705, 712 (Minn.App.1990), review denied (Minn. Sept. 28, 1990). We review the record to determine whether the jury verdict can be sustained on any reasonable theory of the evidence. Hughes, 389 N.W.2d at 198. In doing so, we view the evidence in the light most favorable to the prevailing party. Lesmeister, 330 N.W.2d at 100. “The testimony of a single witness may suffice as the basis for a verdict.” Canada by Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn.1997).

Van Guilder challenges respondents’ reliance on the testimony of a single eyewitness, truck driver Kluver, to establish Van Guilder’s negligence. He contends that Kluver’s testimony is not reliable because Kluver merely speculated that Van Guilder was in the car that passed him, Kluver incorrectly described the color of the vehicle that passed him, and Kluver incorrectly identified the Hamburg vehicle as the one that first struck the New Prime truck.

Kluver testified that Van Guilder passed him while Kluver was traveling 55 to 60 miles per hour. In addition, Kluver testified that he saw Van Guilder’s car hit the New Prime truck. From this evidence, the jury reasonably could have believed that Van Guilder’s speed was both too fast for the foggy conditions and unreasonable. Further, the jury could have drawn the reasonable inference that, if Kluver was able to avoid the collision and bring his 55,000-pound tractor double trailer to a complete stop, despite sliding, then Van Guilder would have been able to do the same had he not been negligent. Challenges to the appropriate weight and credibility afforded Kluver’s testimony were the jury’s to resolve. When viewed in the light most favorable to the verdict, the record supports the jury’s finding that Van Guilder drove negligently.

Next, Van Guilder contends that National Freight and New Prime failed to prove that his negligence was a direct cause of the accident. He suggests that his injuries were caused not by his collision with the jackknifed New Prime truck, but by the collision of the Hamburg vehicle with his car. Rather than arguing to the jury that the driver of the Hamburg vehicle was negligent, Van Guilder raised this claim for the first time at the JNOV hearing. Van Guilder also argues that it was the burden of National Freight and New Prime to prove which of these impacts was the source of his injuries.

“[I]n a multiple-impact situation, the burden of proving that the harm can be separated falls on [the party] who contend[s] that it can be apportioned.” Mathews v. Mills, 288 Minn. 16, 22, 178 N.W.2d 841, 845 (1970). Whether a party’s negligence was a proximate cause of plaintiffs injuries “is a question of fact for the jury.” McCarthy, 567 N.W.2d at 506.

The jury was properly instructed that there can be more than one direct cause of an accident or harm and that this occurs if the effects of the negligence or fault of two or more persons occurred at about the same time and caused the accident or injury. 4 Minnesota Practice, CIVJIG 27.15 (1999). The question of proximate cause is a question for the jury, and our review of the record establishes that the jury’s determination that Van Guilder’s negligence was one of the causes of the accident is supported by the evidence.

III.

The final issue is one of first impression concerning the construction and application of Minn.Stat. § 60C.13, subd. 1 (2002), the exhaustion-of-other-coverage provision of the Minnesota Insurance Guaranty Association (MIGA) Act, and its interplay with the joint-tortfeasor reallocation statute, Minn.Stat. § 604.02, subd. 2 (2002).

The jury awarded total damages of $2,350,000 and assessed fault as follows: Steve Whitehead (National Freight), 37.75 percent; Charles Williams (New Prime), 40 percent; and David Van Guilder, 22.25 percent. After reducing the verdict by Van Guilder’s percentage of fault, the district court ordered judgment against defendants jointly and severally in the amount of $1,827,125. Based on the jury’s allocation of fault, National Freight’s equitable share of the judgment was $887,125, while New Prime’s equitable share was $940,000.

At the time of the accident, New Prime was fully insured by Reliance Insurance Company. Reliance has since become insolvent, and MIGA has assumed Reliance’s obligations in accordance with the MIGA Act, MinmStat. §§ 60C.01-.22. National Freight was fully insured by a solvent insurance company, and its insurance limits far exceed the total amount of the judgment. There is no assertion that Van Guilder had any applicable insurance.

National Freight moved for an order declaring MIGA responsible for $300,000 of the judgment, the maximum amount allowable under Minn.Stat. § 60C.09, subd. 3 (2002), based on the insolvency of New Prime’s insurer. National Freight’s motion also sought reallocation between National Freight and Van Guilder of the remaining uncollectible portion of New Prime’s equitable share ($940,000-$300,-000=$640,000), pursuant to Minn.Stat. § 604.02, subd. 2. The district court ruled that, pursuant to section 60C.13, subdivision 2, National Freight must exhaust its insurance before MIGA is required to provide coverage. Because National Freight’s insurance coverage far exceeded its liability, the district court ruled that MIGA is not responsible for any payment and that National Freight must pay any amount that New Prime is unable to pay due to the insolvency of New Prime’s insurer.

Statutory construction presents a question of law, which we review de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Words and phrases are construed “according to their common and approved usage.” Minn.Stat. § 645.08(1) (2002). When ambiguous, the intent of the legislature may be ascertained by considering factors such as the occasion, necessity, and objectives of the law. Minn.Stat. § 645.16 (2002). If two provisions conflict and are irreconcilable, the special provision shall be construed as an exception and shall prevail over the general provision. Minn. Stat. § 645.26, subd. 1 (2002).

We first consider the MIGA Act, Minn. Stat. §§ 60C.01-.22. Many states in the early 1970s addressed the increasing problems caused by insolvent insurance companies by enacting insurance guaranty association acts. Paul G. Roberts, Insurance Company Insolvencies and Insurance Guaranty Funds: A Look at the Nondu-plication of Recovery Clause, 74 Iowa L.Rev. 927, 933-34 (1989). These acts often were based on a model act prepared by the National Association of Insurance Commissioners. See Postr-Assessment Prop. & Liab. Ins. Guar. Assoc. Model Act, reprinted in 3 NAIC Model Laws, Regulations & Guidelines 540-41 (1997); Roberts, supra, at 933-34 & n. 73. In 1971, Minnesota enacted the MIGA Act, creating MIGA, an organization of all insurers authorized to transact insurance business within the state. 1971 Minn. Laws ch. 145, §§ 1-20.

A stated purpose of the MIGA Act is to protect Minnesota insureds and claimants against financial loss because of the liquidation of an insurer:

The purposes of this chapter are to provide a mechanism for the payment of covered claims under certain insurance policies and surety bonds, to the extent provided in this chapter, minimize excessive delay in payment and to avoid financial loss to claimants or policy holders because of the liquidation of an insurer, and to provide an association to assess the cost of the protection among the insurers.

Minn.Stat. § 60C.02, subd. 2 (2002) (emphasis added). “Thus, MIGA was created to ensure that third-party claimants ... are compensated for covered claims and that policyholders ... do not suffer financial loss due to the insolvency of their insurer.” Unique Sys. Dev., Inc. v. Star Agency, 500 N.W.2d 144, 147 (Minn.App.1993), review denied (Minn. July 15, 1993). The chapter is to be “liberally construed” to effect these purposes. MinmStat. § 60C.02, subd. 3 (2002).

MIGA is funded by assessments levied on the member insurers in proportion to each insurer’s net direct written premiums, the cost of which is passed on directly to policyholders. Minn.Stat. §§ 60C.06, subd. 1, .18, subd. 1 (2002). From this fund, “covered claims” are paid by MIGA. Minn.Stat. § 60C.05, subd. 1(a) (2002). A covered claim is “any unpaid claim ... which arises out of and is within the coverage of an insurance policy issued by a member insurer if the insurer becomes insolvent.” Minn.Stat. § 60C.09, subd. 1(a)(1) (2000). MIGA pays a maximum of $300,000 per covered claim. Id., subd. 3 (2000).

Because New Prime’s insurer would have provided coverage for New Prime’s $940,000 judgment, and because the insurer is now insolvent, it is a “covered claim.” Id., subd. 1(a)(1). The party insured by the insolvent insurer is not liable for any portion of a claim that constitutes the difference between the $300,000 MIGA liability cap and the liability limit of the insolvent insurer’s policy. Minn. Mining & Mfg. Co. v. H &W Motor Express Co., 507 N.W.2d 622, 624 (Minn.App.1993), review denied (Minn. Dec. 22, 1993). Here, because New Prime was fully insured for the extent of its liability ($940,000), -New Prime is not responsible for paying that judgment, even though New Prime’s insurer became insolvent.

At issue is the MIGA Act’s exhaustion-of-other-coverage provision, which provides:

Any person having a claim under another policy whether or not the policy is a policy of a member insurer, which claim arises out of the same facts which give rise to the covered claim, shall first be required to exhaust the person’s right under the other policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of any recovery under such insurance policy. For purposes of this subdivision, another insurance policy does not include a workers’ compensation policy.

Minn.Stat. § 60C.13, subd. 1 (emphasis added). National Freight first argues that the exhaustion provision does not apply to it as a matter of law. It contends that the statutory language providing that “[a]ny person having a claim under another policy ... shall first be required to exhaust the person’s right under the other policy,” MinmStat. § 60C.13, subd. 1 (emphasis added), contemplates only first-person coverage because a “person” has no direct “right” to proceed against another person’s insurer in Minnesota. See Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 274 (Minn. App.2001) (stating “Minnesota does not have a direct-action statute that allows an injured plaintiff to proceed directly against an insurer”). Instead, the injured party must first obtain a judgment from the insured. Morris v. Am. Family Mut. Ins. Co., 386 N.W.2d 233, 237 (Minn.1986). Consequently, National Freight argues that, because it is not a first-party insurer, the exhaustion requirement does not apply to it.

National Freight cites a Maryland case, which it asserts has discussed this interpretation favorably under a similar statutory framework. Ins. Comm’r of Md. v. Prop. & Cas. Ins. Guar. Corp., 313 Md. 518, 546 A.2d 458, 460, 465 (1988). The provision at issue stated: “Any person having a covered claim against an insurer ... shall be required to exhaust first his right under such policy.” Md.Code Ann., Ins. § 512(a) (1986). The Maryland Supreme Court commented favorably on the insurance commissioner’s argument that this right was “that of a first party claimant against a solvent insurer and not a third party claim against a tort-feasor insured under a policy of liability insurance.” Ins. Comm’r, 546 A.2d at 463; see also Sands v. Pa. Ins. Guar. Assoc., 283 Pa.Super. 217, 423 A.2d 1224, 1226-27 (1980), cited favorably in Ins. Comm’r, 546 A.2d at 463-64.

Minnesota’s exhaustion provision once had language similar to that of the Maryland statute. The earlier exhaustion provision stated:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insurer in liquidation which is also a covered claim, is required to exhaust first any right under the other policy. Any amount payable on a coverad claim ... shall be reduced by the amount of any recovery under such insurance policy.

Minn.Stat. § 60C.13, subd. 1 (1990) (emphasis added). We addressed this earlier provision when we analyzed the policy of the insured of an insolvent insurer and held that the insured could choose whether to pursue underinsured or uninsured coverage. Wondra v. Am. Family Ins. Group, 432 N.W.2d 455, 459 (Minn.App. 1988), review denied (Minn. Jan. 25, 1989), overruled on other grounds, Garrick v. Northland Ins. Co., 469 N.W.2d 709 (Minn. 1991). We further determined that, if the insured pursued the underinsured coverage, it was not deductible from the MIGA obligation “because it is in excess of the tortfeasor’s coverage and is not, therefore, a ‘covered claim’ under section 60C.13.” Id. In 1991, the legislature amended section 60C.13, subdivision 1, eliminating the “also a covered claim” language. 1991 Minn. Laws ch. 325, art. 6, § 8. The statute now provides instead:

Any person having a claim under another policy whether or not the policy is a policy of a member insurer, which claim arises out of the same facts which give rise to the covered claim, shall be first required to exhaust the person’s right under the other policy.

Minn.Stat. § 60C.13, subd. 1 (2002).

New Prime argues that, before 1991, the analysis of section 60C.13, subdivision 1, focused on whether the claim against the insurer was also a “covered claim.” But the focus after the 1991 amendment is on whether the “claim arises out of the same set of facts which give rise to the covered claim.” Id. We agree. Consequently, as National Freight acknowledges in its reply brief, the opinions from other jurisdictions are factually distinguishable and not particularly helpful.

.The plain language of the MIGA Act does not limit the exhaustion requirement to only first-person coverage. Rather, it broadly applies to “[a]riy person having a claim under another policy ... which claim arises out of the same facts which give rise to the covered claim.” Id. An interpretation of the exhaustion provision that adopts the limitation urged by National Freight would thwart the MIGA Act’s express purpose of protecting both “claimants” and “policy holders” against financial loss because of the insolvency of an insurer. The legislature was capable of explicitly limiting the exhaustion requirement to first-party insurers had it chosen to do so. In the context of the definition of covered claims, the legislature has specified various types of claims that are not covered. Minn.Stat. § 60C.09, subd. 2. In the absence of express legislative intent, we decline to impose limits under the MIGA Act that are contrary to its stated purpose. MIGA “was created to ensure that third-party claimants ... are compensated for covered claims,” as well as that policyholders are “protected from financial loss due to the insolvency of their insurer.” Unique Sys., 500 N.W.2d at 147 (emphasis added).

National Freight also maintains that its interpretation meets the MIGA Act’s cost-spreading purpose pursuant to Minn.Stat. § 60C.05, subd. 1, which would be compromised if we interpret the exhaustion provision so as to require one insurer to bear the entire judgment. We find this argument unpersuasive. The. legislature has expressed a preference that the burden of an insolvent insurer will not be borne by the victim or the insured. ■ As noted by the district court, because of the nature of the association, the legislature has taken affirmative steps to limit MIGA’s exposure for any one claim by specifying the types of claims covered by the MIGA Act and by limiting the amount that can be paid on any one claim. MinmStat. § 60C.09, subd. 2(2); Unique Sys., 500 N.W.2d at 147; Anderson Trucking Serv., Inc. v. Minn. Ins. Guar. Ass’n, 492 N.W.2d 281, 283 (Minn.App.1992), review granted (Minn. Jan. 22, 1993) and appeal dismissed (Minn. Mar. 30, 1993). The stated purposes of the MIGA Act, however, do not include protection of solvent insurers. And the statutes governing MIGA cannot be interpreted to do so.

Similarly unpersuasive is National Freight’s argument that, if the exhaustion requirement is construed to apply to the insurance coverage of other tortfeasors, MIGA loses its incentive to mount a vigorous defense whenever another insured tortfeasor is involved. Indeed, MIGA’s incentive is not compromised because the insured remains liable for all damages in excess of the liability limits. Here, in its representation of New Prime, MIGA successfully limited New Prime’s share of the verdict to just 40 percent.

Finally, we consider whether the exhaustion provision under Minn.Stat. § 60C.13 or the reallocation provision under Minn.Stat. § 604.02, subd. 2, is applied first. Under the joint-liability statute, when parties are jointly liable, they are generally jointly and severally liable for the entire award. Minn.Stat. § 604.02, subd. 1 (2002). Nonetheless, if one party’s equitable obligation is uncollectible, another party may move for reallocation within one year of the judgment. Id., subd. 2. In that circumstance, the district court “shall determine whether all or part of a party’s equitable share of the obligation is uncol-lectible from that party and shall reallocate any uncollectible amount among the other parties, including a claimant at fault, according to their respective percentages of fault.” Id.; Hosley v. Armstrong Cork Co., 383 N.W.2d 289, 292-93 (Minn.1986); see also Gregor v. Clark, 560 N.W.2d 744, 745 (Minn.App.1997) (holding that “a court must reallocate all uncollectible obligations among tortfeasors who can pay”).

The canons of statutory construction answer this question. If a general provision and a special provision conflict and are “irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision.” Minn.Stat. § 645.26, subd. 1 (2002). An exception to this rule occurs if the general provision was enacted at a later session and the legislature manifestly intended that the general provision should prevail. Id.

First, we conclude that the provision for reallocation is general, applying whenever a party’s share of the judgment is uncol-lectible. See Minn.Stat. § 604.02, subd. 2. In contrast, the MIGA Act is specific, applying only to the particular case of insurer insolvency. See Minn.Stat. § 60C.02, subd. 2. Although the MIGA Act was enacted in 1971 and the reallocation statute was enacted in 1978, there is no manifest indication that the legislature intended the reallocation statute to prevail. 1971 Minn. Laws ch. 145; 1978 Minn. Laws ch. 738. Indeed, section 60C.13 was most recently amended in 1997, making it the provision last addressed by the legislature. 1997 Minn. Laws ch. 52, § 9. As the more specific statute, the MIGA Act, Minn.Stat. § 60C.13, prevails. See Minn.Stat. § 645.26, subd. 1. Accordingly, we conclude, as the district court did, that, because New Prime’s equitable share is exhausted under National Freight’s policy, nothing remains to be reallocated.

DECISION

We affirm the district court’s denial of JNOV on the jury’s findings as to Van Guilder’s negligence. As to the district court’s denial of JNOV for medical expenses, we reverse and hold that Van Guilder is entitled to judgment including past medical expenses of $293,908.21. The exhaustion provision of the MIGA Act, Minn.Stat. § 60C.13 (2002), shall be applied before the reallocation statute, Minn. Stat. § 604.02, subd. 2 (2002), is applied. Thus, National Freight must exhaust its insurance coverage before funds may be recovered from MIGA. Accordingly, we also affirm this aspect of the district court’s ruling.

Affirmed in part and reversed in part.

      . After the accident, New Prime’s insurer became insolvent, and the Minnesota Insurance Guaranty Association defended New Prime.

      . That an injured party has no direct right of coverage from the tortfeasor's insurer is based on an analysis of the contractual relationship between the insured and the insurer that is inapposite to our interpretation of the MIGA Act. State Farm Mut. Auto. Ins. Co. v. Tenn. Farmers Mut. Ins. Co., 645 N.W.2d 169, 173-74 (Minn.App.2002), review denied (Minn.Aug. 20, 2002). The exhaustion requirement, as applied here, does not contemplate a direct action by an injured plaintiff against an insurer. As a result of the jury’s verdict, Van Guilder has a judgment against two insureds — New Prime, whose insurer is insolvent, and National Freight, whose insurer is solvent. The MIGA Act merely provides a mechanism for covering the insolvent insurer's obligation with safeguards, such as the exhaustion requirement and the $300,000 cap, to preserve the financial viability of the association. Moreover, limiting the exhaustion requirement to first-party coverage would protect policyholders but not claim'ants, thereby rendering one aspect of the Act’s purposes unfulfilled.

      . These include, for example, claims due to a reinsurer or an insurer and claims for subro-gation recovery, reinsurance recovery, contribution, or indemnification. Minn.Stat. § 60C.09, subd. 2(2); see In re Liquidation of Natl Family Ins. Corp., 603 N.W.2d 668, 670 (Minn.App.1999) (noting that insurers’ subro-gation claims not covered claims under MIGA, Minn.Stat. § 60C.09, subd. 2). In addition, any first-party claim by an insured whose net worth exceeds $25,000,000 at the end of the year prior to the year in which the insurer becomes solvent is not covered. Minn.Stat. § 60C.09, subd. 2(3).


author: WILLIS, Judge.

text:
    STATE of Minnesota, Appellant, v. Tiffany Ann TICE, Respondent, Raymond Lloyd Tice, Respondent.
    Nos. A04-255, A04-256.
    Court of Appeals of Minnesota.
    Sept. 14, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Administration Center, St. Cloud, MN, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for respondents.
    Considered and decided by WILLIS, Presiding Judge; LANSING, Judge; and HUDSON, Judge.
   OPINION

WILLIS, Judge.

The state appeals from a pretrial order granting a motion to dismiss charges of child neglect and endangerment for lack of probable cause. The district court concluded that the child-neglect and child-endangerment statutes require that the situation in which the children were left was more likely than not to cause substantial harm to the children. We affirm.

FACTS

On March 2, 2008, Waite Park police responded to a call reporting that three children, two of whom were later determined to be six years old and the third eight months old, were alone in a vehicle in a retail-store parking lot. When the police arrived at the parking lot, they found the children sitting alone in a locked vehicle. The car’s heater was on and the engine was running. The outside temperature was approximately seven degrees. The police noted that the three children were appropriately dressed for the weather and that they did not appear upset.

The children’s parents, respondents Raymond Lloyd Tice and Tiffany Ann Tice, returned to the vehicle approximately 40 minutes after leaving the children to enter a nearby pet store. Respondents told the police that they had left the children alone in the vehicle because the youngest child was sleeping, and they anticipated being in the store for only a brief time. Before leaving their children alone, respondents had admonished the children to stay in the car and not to let anyone into the car.

The state charged respondents with child neglect and child endangerment, in violation of Minn.Stat. § 609.378, subd. 1(a)(1), (b)(1) (2000). The district court granted respondents’ motion to dismiss the charges for lack of probable cause. The court focused on the requirement in both statutes that the defendant’s act or omission be “likely to substantially harm the child’s physical, mental, or emotional health.... ” Minn.Stat. § 609.378, subd. 1(a)(1) (defining child neglect); see also Minn.Stat. § 609.378, subd. 1(b)(1) (defining child endangerment with identical language). The district court, citing Black’s Law Dictionary as well as Merriam-Webster’s Collegiate Dictionary, construed the term “likely” to mean that harm would more likely than not result from the conduct. This appeal follows.

ISSUE

Do Minnesota’s child-neglect and child-endangerment statutes, Minn.Stat. § 609.378, subd. 1(a)(1), (b)(1) (2000), require the state to prove that the situation in which a child is placed is more likely than not to cause substantial harm to the child?

ANALYSIS

The state argues that the district court erred by granting respondents’ motion to dismiss child-neglect and ehild-en-dangerment charges for lack of probable cause because the district court improperly construed the term “likely” in each of the statutes. The state may appeal a dismissal order based on a lack of probable cause if dismissal was based on a question of law. State v. Kiminski, 474 N.W.2d 385, 389 (Minn.App.1991), review denied (Minn. Oct. 11, 1991). The state may not appeal an order dismissing for lack of probable cause if the district court’s dismissal was based solely on a factual determination. Minn. R.Crim. P. 28.04, subd. l(l)(a) (2002). This court must determine, as a threshold matter, whether the dismissal was based on a factual or legal determination. State v. Duffy, 559 N.W.2d 109, 110 (Minn.App.1997).

The district court’s order, which cites case law, dictionary definitions, and rules of statutory construction in construing the statutory language, is based on a legal determination. See State v. Linville, 598 N.W.2d 1, 2 (Minn.App.1999) (holding that probable-cause dismissal based on statutory interpretation was a legal determination and therefore appealable). Whether a statute has been properly construed is a question of law, which this court reviews de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996).

Under Minn.Stat. § 609.378, subd. 1(a)(1) (2000), the crime of child neglect is committed when

[a] parent ... willfully deprives a child of necessary ... supervision appropriate to the child’s age, when the parent, guardian, or caretaker is reasonably able to make the necessary provisions and the deprivation harms or is likely to substantially harm the child’s physical, mental, or emotional health.

Under Minn.Stat. § 609.378, subd. 1(b)(1) (2000), the crime of child endangerment is committed when

[a] parent '... endangers the child’s person or health by:
(1) intentionally or recMessly causing or permitting a child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death.

The district court, relying on Black’s Law Dictionary and Merriamr-Webster’s Collegiate Dictionary and distinguishing opinions from this court, concluded that the term “likely,” as it is used in the definitions of both statutes, requires that respondents’ actions must be more likely than not to cause substantial harm to respondents’ children. The court concluded that under this construction of the statute the state lacked probable cause to support the charge.

Black’s Law ,Dictionary formerly defined “likely” as meaning:

Probable. In all probability. Likely is a word of general usage and common understanding, broadly defined as of such nature or so' circumstantial as to make something probable and having better chance of existing or occurring than not.

Black’s Law Dictionary 925 (6th ed.1990) (citations omitted). Another dictionary defines “likely” as “having a high probability of occurring or being true.” Merriamr-Webster’s Collegiate Dictionary 721 (11th ed.2003).

As the district court noted, this court has addressed the language • of the child-neglect and child-endangerment statutes in two opinions, although neither focuses on the term “likely.”

In State v. Cyrette, 636 N.W.2d 343, 348 (Minn.App.2001), review denied (Minn. Feb. 19, 2002), this court construed the term “willfully” in the child-neglect statute to mean “intentionally.” In discussing various definitions of “willfully,” this court did refer to a common meaning of the term in tort law requiring disregard of a risk “that was so great as to make it highly probable that harm would follow.” Id. (quoting Prosser & Keeton on Torts 213 (5th ed.1984)). But in quoting that definition of “willfully” with approval, this court was not implying that the term'“likely” requires a high degree of probability.

In State v. Hatfield, 627 N.W.2d 715, 720 (Minn.App.2001), ajfd, 639 N.W.2d 372 (Minn.2002) (addressing only conspiracy conviction), this court affirmed a conviction of child endangerment. In doing so, we rejected the argument that under the statute “there must be some showing that the children suffered actual and grievous harm.” Id. at 719. The opinion notes that the statute requires that substantial harm be “likely.” Id. at 720. The opinion does not attempt to define the term “likely.” But as the district court noted, the opinion states that “the mere potential for substantial harm to children is sufficient to constitute child endangerment.” Id.

The phrase “mere potential” in Hatfield must be construed in context, as a response to the appellant’s argument that actual harm is required. In using the adjective “mere,” this court was not attempting to define the degree of potential for harm that would satisfy the statute. It was only contrasting the potentiality of harm with the actuality of harm the appellant in Hatfield argued was an element of the offense.

The state argues that this court should look to the definition of “dangerous weapon” in MinmStat. § 609.02, subd. 6 (2000), and CRIMJIG 13.10 to construe the term “likely.”

In State v. Graham, 366 N.W.2d 335, 338 (Minn.App.1985), this court noted that the use of the term “likely” in the definition of “dangerous weapon” in Minn.Stat. § 609.02, subd. 6, could have the effect of improperly diluting the state’s burden of proof. This court quoted with approval a Model Penal Code definition of “deadly weapon” that included devices “known to be capable of’ producing death or great bodily injury. Id. at 338 n. 1 (citation omitted). The standard jury instruction was later amended accordingly. 10 Minnesota Practice, CRIMJIG 13.10 (4th ed.1999). But Graham did not suggest that “known to be capable of’ was synonymous with “likely,” only that the Model Penal Code definition was more consistent with the state’s burden of proof. 366 N.W.2d at 338 n. 1.

But even if Graham had defined “likely” as “known to be capable of,” we are faced here with the use of the term in a different context. See generally State v. Taylor, 594 N.W.2d 533, 535 (Minn.App.1999) (holding that court must construe statutory language in context). Here, we must construe “likely” in the context of the potential consequences of the defendant’s acts or omissions. As used in the definition of “dangerous weapon,” the term “likely” is used in the more abstract context of the potentialities of a particular weapon or device. In that context, the phrase “known to be capable of’ has a relevance that it lacks, for example, in assessing what might occur when children are left unsupervised.

This court must strictly construe the language of criminal statutes. See State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002). All reasonable doubt concerning legislative intent must be resolved in favor of the defendant. Id. We must also consider that the child-neglect statute “criminalizes negligence.” Cyrette, 636 N.W.2d at 348. And ordinary negligence is presumed to be insufficient to constitute a crime, absent a clear indication of a legislative intent to do so. State v. Grover, 437 N.W.2d 60, 63 (Minn.1989). Thus, we must presume that the child-neglect statute, as well as the child-endangerment statute, requires more than a simple deviation from the standard of care. See id.; Minn.Stat. § 609.378, subd. 1(a)(1) (requiring willful conduct for child neglect), (b)(1) (requiring intentional or reckless conduct for child endangerment).

Civil negligence requires- that the harm that results be reasonably foreseeable. Flom, v. Flom, 291 N.W.2d 914, 916 (Minn.1980). The risk of harm must be greater than being merely “within the realm of any conceivable possibility.” Kuhl v. Heinen, 672 N.W.2d 590, 593 (Minn.App.2003). The risk of harm re quired by the criminal statutes at issue here must be even higher, at least absent a clear indication of a contrary legislative intent. And, as this court noted in Cyrette, the legislature has required willful conduct in the child-neglect statute, “an aggravated form of negligence.” 636 N.W.2d at 348 citing Prosser & Keeton on Torts 212 (5th ed. (1984)). Thus, while respondents’ conduct may have been ill-advised, a clear legislative intent appears to criminalize only conduct that is more than ordinary civil negligence.

The presumption against criminalizing ordinary negligence and the rule of strict construction of criminal statutes, therefore, support the district court’s construction of the term “likely” as meaning “more likely than not.” Thus, the court properly dismissed the complaint based on this reading of the child-neglect and child-endangerment statutes.

DECISION

The district court properly dismissed the complaint because the child-neglect and child-endangerment statutes require that respondents’ conduct was more likely than not to result in substantial harm to the children.

Affirmed.

      . A subsequent edition of Black's Law Dictionary does not define the term "likely.” See Black’s Law Dictionary 938 (7th ed.1999).


author: PER CURIAM.

text:
    2004 ND 172
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Bryan L. GIESE, Judge of the Mandan, North Dakota, Municipal Court. Judicial Conduct Commission, Petitioner v. Bryan L. Giese, Respondent.
    No. 20040177.
    Supreme Court of North Dakota.
    Sept. 2, 2004.
   CENSURE ORDERED.

PER CURIAM.

[¶ 1] On November 21, 2003, Bryan L. Giese admitted service of Formal Charges under Rule 11, Rules of the Judicial Conduct Commission. The Formal Charges assert that Giese was a Judge of the Man-dan Municipal Court, and while a Municipal Judge, Giese was suspended from the practice of law for ninety days for violation of N.D. R. Prof. Conduct 1.8 (Conflict of Interest: Prohibited Transactions), N.D.R. Prof. Conduct 3.1 (Meritorious Claims and Contentions), N.D.R. Prof. Conduct 3.2 (Expediting Litigation), N.D.R. Prof. Conduct 8.4(e) (Misconduct), and N.D.R. Lawyer Discipl. 1.2A(3) which provides that it is misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Disciplinary Board v. Giese, 2003 ND 82, 662 N.W.2d 250. The Formal Charges request discipline under Canon 2, N.D.Code Jud. Conduct, which provides that a judge shall avoid impropriety and the appearance of impropriety in all the judge’s activities.

[¶ 2] Giese filed an Answer on December 4, 2003, admitting the allegations in the Formal Charges but arguing that he had already been punished because during the 90-day suspension, he could not perform his duties as Mandan’s Municipal Judge.

[¶ 3] The matter was heard on June 23, 2004, before a Hearing Panel of the Judicial Conduct Commission. The Hearing Panel filed its Findings of Fact, Conclusions of Law, and Recommendation on July 1, 2004, finding that the allegations were admitted by Giese in his Answer and that the conduct set out in Disciplinary Board v. Giese, 2003 ND 82, 662 N.W.2d 250, was clearly and convincingly proven by the Supreme Court, by Giese’s admission in response to the Formal Charges and in his testimony at hearing.

[¶ 4] The Hearing Panel concluded that Giese’s conduct violated Canon 2, North Dakota Code of Judicial Conduct, which provides that a judge shall avoid impropriety and the appearance of impropriety in the judges’ activities. The Hearing Panel further concluded that public trust and confidence in the judicial office held by Giese was tested by his conduct and his defeat in the election was a direct result of that breach of trust.

[¶ 5] The Hearing Panel recommended that Giese be censured by the Supreme Court and pay costs in the amount of $250. No objections to the Findings of Fact, Conclusions of Law, and Recommendation were filed. Under N.D. Jud. Conduct Comm. 16G, “the failure to file notice of exceptions constitutes acceptance of the findings of fact, conclusions of law, and recommendation for sanction.” The matter was referred to the Supreme Court under N.D. R. Jud. Conduct Comm. 23. The Court considered the matter, and

[¶ 6] ORDERED, the Findings of Fact, Conclusions of Law, and Recommendation of the Hearing Panel of the Judicial Conduct Commission is accepted.

[¶ 7] FURTHER ORDERED, Bryan L. Giese is hereby censured.

[¶ 8] FURTHER ORDERED, Bryan L. Giese pay costs in the amount of $250, payable to the Judicial Conduct Commission.

[¶ 9] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.