author: PAUL H. ANDERSON, Justice. STRINGER, Justice LANCASTER, Justice

text:
    Emmett DOHNEY, Respondent, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Petitioner, Appellant.
    No. C5-01-252.
    Supreme Court of Minnesota.
    Aug. 16, 2001.

      Eric J. Magnuson, Mark A. Fredrickson, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, for appellant.
    Jeffrey M. Ellis, PLLC, Minneapolis, for respondent.
    William L. Davidson, Timothy J. O’Con-nor, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, for amicus curiae MDLA.
   OPINION

PAUL H. ANDERSON, Justice.

The following reformulated questions of law were certified to us by the United States District Court for the District of Minnesota:

I. Where a plaintiff settles with a tortfeasor for 40% of the tortfea-sor’s liability limits after giving the plaintiffs insurer notice under Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), may the plaintiffs insurer deny an underin-sured motorist claim based on the plaintiffs failure to reach the “best settlement” with the tortfea-sor?
II. If so, does the court apply an objective or subjective test in determining whether the best settlement was reached?
III. If the plaintiff fails to satisfy the best settlement test, what is the effect on any underinsured motorist claim he may have filed?

We answer the first question in the negative and therefore it is unnecessary for us to address the other two certified questions.

Emmett Dohney was involved in a car accident with Laurel Larsen on January 25, 1995. Larsen was solely responsible for the accident. As a result of the accident, Dohney incurred medical bills of over $23,000. Dohney asserts that the accident caused ongoing headaches, wage loss, pain and suffering, and loss of future earning capacity, which he claims resulted in damages greater than $50,000. At the time of the accident, Larsen was insured for $50,000 per injury and $100,000 per occurrence through American Express Property & Casualty Insurance Company (Amex). Through his attorney, Dohney negotiated a settlement with Larsen and Amex for $20,000.

Dohney was insured for underinsured motorist (UIM) benefits through Allstate Insurance Company. Dohney’s UIM policy was for $100,000. On September 28, 1998, Dohney’s attorney sent a letter to Allstate informing Allstate about the proposed settlement with Amex. In the letter, the attorney requested that Allstate substitute its draft for Amex’s per the settlement procedure outlined in Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983). In the letter, the attorney incorrectly stated that the limit on Larsen’s Amex policy was $30,000. Approximately two weeks later, Allstate received a letter from Amex stating that the proposed settlement was for $20,000 on a $50,000 policy. Allstate refused to substitute its draft. Dohney then settled with Amex for $20,000.

In December 1999, Dohney sued Allstate in Minnesota state court, seeking UIM benefits. Allstate removed the matter to federal district court on diversity grounds. In a deposition, Dohney stated that he did not recall why he settled with Larsen for $20,000 when his claimed damages exceeded $50,000, except that he thought it was all Amex would pay. Citing attorney-client privilege, Dohney refused to answer questions about his attorney’s advice on settlement. Allstate’s subpoena to depose Dohney’s attorney on the matter was quashed by the federal district court.

Allstate moved for summary judgment or in the alternative requested that the federal court certify a question to the Minnesota Supreme Court under Minn. Stat. § 480.065 (2000). The federal court granted the request to certify and issued an order and the certification. The parties stipulated to the facts in the order. As part of the facts, the court included the following statement: “Based upon the parties’ stipulation of facts, the Court considers it probable that in the absence of [Allstate’s] underinsured motorist insurance policy, [Dohney] could have settled his case with Ms. Larsen for more than $20,000.”

We accepted the certification and reformulated the federal court’s questions. We also granted a motion of the Minnesota Defense Lawyers Association (MDLA) to file a brief as an amicus curiae.

I.

The certified questions presented are matters of law, which we review de novo. Foley v. Honeywell, 488 N.W.2d 268, 270 (Minn.1992). The underlying issues involve statutory interpretation and interpretation of insurance contracts, which are both legal issues that we review de novo. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985); State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn.1992).

Before we specifically address the best settlement certified question, it is first necessary to establish some overall understanding of Minnesota’s no-fault insurance scheme and in particular the provisions relating to UIM coverage. Minnesota Statutes §§ 65B.41-65B.71 (2000) are the no-fault automobile insurance provisions. Sections 65B.43, subd. 17 & subd. 19, and 65B.49, subd. 3a & subd. 4a (2000), govern UIM coverage. 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. Theodore J. Smetak, Underinsured Motorist Coverage in Minnesota: Old Precedents in a New Erct, 24 Wm. Mitchell L.Rev. 857, 865-66 (1998).

While the Minnesota legislature has made significant changes to the UIM provisions, the definition of what is an under-insured motorist has remained essentially the same since the implementation of the No-Fault Act in 1975. A motorist is un-derinsured, and UIM benefits are therefore applicable, if “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.” Minn.Stat. § 65B.43, subd. 17. Therefore, UIM benefits only become available if the tortfeasor’s policy limits are less than the actual damages sustained by the injured UIM policyholder. In the present case, for purposes of the certified questions only, Larsen’s vehicle was underinsured.

Before the No-Fault Act became effective in 1975, insurers were required to make UIM coverage available to an insured, but insureds were required to affirmatively opt for UIM coverage or they would not receive the benefits. Minn.Stat. § 65B.25 (1971); Jacobson v. Ill. Farmers Ins. Co., 264 N.W.2d 804, 807 (Minn.1978). At that time, the UIM coverage was a “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. Lick v. Dairyland Ins. Co., 258 N.W.2d 791, 793-94 (Minn.1977). Another way of explaining this type of coverage is- that the amount of UIM benefits payable were calculated by subtracting the tortfeasor’s policy limit from the injured UIM policyholder’s UIM limit. Id. .Thus, each insured controls his maximum recovery by choosing the amount of UIM coverage to carry. Id.

On January 1, 1975, the No-Fault Act became effective and as part of the act, insurers were required to offer UIM coverage, and UIM coverage shifted from “difference of limits” to “damages less limits” or “add-on” coverage. Act of April 11, 1974, ch. 408, § 9, 1974 Minn. Laws 773, codified at Minn.Stat. § 65B.49, subd. 6 (1976). As “damages less limits” coverage, the amount of UIM benefits available is calculated by subtracting the tortfeasor’s policy limit from the injured UIM policyholder’s damages, with the caveat that UIM payments could not exceed the UIM limit. Under this “damages less limits” coverage, below policy limit settlements with the tortfeasor were allowed, but the injured UIM policyholder would have to absorb the gap — UIM coverage would not be applied to cover the difference between the limit of the tortfeasor’s policy and the below-limit settlement amount. Schmidt, 338 N.W.2d at 261. In essence, UIM coverage would begin at the limit of the tort-feasor’s policy, but the UIM insurer could not require the insured to exhaust the tortfeasor’s policy limits in order to be eligible for UIM benefits as long as the insured could prove that the tortfeasor’s vehicle was actually'underinsured. Id. at 260-61.

In Schmidt, we weighed the interests of the insured in controlling the timing and terms of settlement against the interests of the UIM insurer in protecting subrogation rights against the tortfeasor. Id. at 260-63. We decided that the proper procedure would be for an insured party to notify his UIM insurer of any potential below-limit settlement. Id. at 263. The UIM insurer would then have the opportunity to substitute its payment to the insured for an amount equal to the settlement and thus preserve its subrogation rights against the tortfeasor. Id. If the UIM insurer did not substitute its draft payment, the insured could settle with the tortfeasor, the UIM insurer and the insured would then proceed to arbitrate the UIM claim, and the UIM insurer would waive any subrogation rights against the tortfeasor and her insurer. Id. If the UIM insurer did substitute its draft, it could then take action against the tortfeasor and her insurer to attempt to obtain a better settlement or proceed to trial. Id. In either scenario, UIM payments would be available, but the insured would be forced to absorb the gap between the below-limit settlement amount and the tortfeasor’s policy limit. Id.

The dissent in Schmidt agreed with the notice and substitution requirements, but disagreed that the insured should have to absorb the gap created by a below-limit settlement with the tortfeasor. Id. at 264 (Todd and Amdahl, JJ., concurring and dissenting; Scott, J., dissenting). The dissent stated that this gap rule would have “a very bad practical effect” in that it would not allow the insured to negotiate a reasonable settlement unless the insured was willing to bear the financial loss of a below-limit settlement. Id. The dissent explained that the notice and substitution requirements would correct problems resulting from any incentive the insured might have to settle for less than the tortfeasor’s policy limit created by having the UIM insurer cover the gap. Id. The position advocated by the dissent was that UIM coverage should start at the point where the settlement with the tortfeasor left off, with the notice and substitution procedures protecting the interests of the UIM insurer. Id. The dissent stated:

The injured party should negotiate the best possible settlement. The offer is communicated to the underinsured carrier. If it is not satisfied, the offer should be rejected, the underinsured carrier should immediately pay the amount of the offer to the injured party, and they should immediately proceed to arbitration. This method places in the under-insured carrier the ability to manage its role in the pending claim to its best advantage without imposing any financial burden on the injured party.

Id.

In 1980, the legislature repealed the UIM provisions; therefore, from April 1980 until October 1985, there were no UIM statutes in effect in Minnesota. Smetak, 24 Wm. Mitchell L.Rev. at 870. In 1985, the legislature made major revisions in the No-Fault Act and for the first time made minimum amounts of UIM coverage mandatory. Act of June 27, 1985, ch. 10, § 68, 1985 First Special Session Minn. Laws 1840, codified at Minn.Stat. § 65B.49, subd. 3a (1986). Additionally, the legislature changed the UIM coverage from “damages less limits” coverage to “limits less paid” coverage, in which the insured could recover the difference between his UIM insurance limit and the amount of damages recovered from the tortfeasor. Act of May 21, 1985, ch. 168, § 12, 1985 Minn. Laws 460, codified at Minn.Stat. § 65B.49, subd. 4a (1986.). Thus, UIM payments were calculated by subtracting the damages actually paid by the tortfeasor from the limit of the insured’s UIM policy. Under this system, the insured could once again control his maximum recovery by choosing the amount of UIM coverage to carry. The major difference between the “limits less paid” system and the “difference of limits” system is that the “limits less paid” system does not require the insured to absorb the gap resulting from any below-limit settlement with the tortfeasor. In Broton v. W. Nat’l Mut. Ins. Co., we characterized the 1985 legislative revisions to the No-Fault Act as codifying the dissenter’s gap position in Schmidt. Broton, 428 N.W.2d 85, 89-90 (Minn.1988).

In 1989, the legislature again modified the No-Fault Act and these changes are what govern UIM policies today. UIM coverage is once again “add on” coverage, as it was when we decided Schmidt. Act of May 19, 1989, ch. 213, § 2, 1989 Minn. Laws 648, codified at Minn.Stat. § 65B.49, subd. 4a (2000). However, under the current UIM provisions, coverage is “damages less paid” coverage, meaning that UIM coverage is excess coverage, but unlike the “damages less limits” type of coverage, the “damages less paid” coverage begins where payment from the tort-feasor leaves off. As it was under the 1985 changes, the UIM insurer must cover the gap created by below-limit settlements. Id. Minnesota’s UIM law now is as it would have been in 1983 had the dissenters prevailed in Schmidt in that UIM insurers must cover the gap and UIM coverage is excess coverage.

With this understanding of Minnesota’s No-Fault law, we proceed to address the certified questions. Allstate and MDLA urge us to answer yes to the first question and allow UIM insurers to challenge a UIM claim on the basis that the insured faded to reach the best settlement with the tortfeasor. Allstate and MDLA argue that such a defense is the only way to prevent less expensive UIM coverage from being converted to third-party liability coverage and to balance the competing interests of the UIM insurers and their insureds.

In essence, Allstate and MDLA argue that the Schmidt notice and substitution procedure provide inadequate protection of a UIM insurer’s subrogation rights. They argue that substitution requires the insurer to bear the risk that the below-limit settlement was the best settlement, or in other words, that the actual liability of the tortfeasor was below the settlement amount. In support of its position that we require more from a settlement than just an insured’s best settlement, Allstate cites to a number of cases in which we disallowed uninsured motorist (UM) or UIM benefits after a settlement due to concerns about overcompensation to the insured. Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855, 857 n. 3 (Minn.1993) (characterizing the court of appeals’ decision in Royal-Milbank Ins. Co. v. Busse, 474 N.W.2d 441 (Minn.App.1991)); Dairyland Ins. Co. v. Starkey, 535 N.W.2d 363 (Minn.1995); Gusk v. Farm Bureau Mut. Ins. Co., 559 N.W.2d 421 (Minn.1997). However, contrary to Allstate’s assertion, none of these cases stand for the proposition that a UIM insurer may challenge an insured’s below-limit settlement with the tortfeasor as not the best settlement. Here, Dohney will not be overeompensated if Allstate has to pay his UIM benefits. Nor is it the case generally that injured UIM policyholders are overcompensated if UIM insurers cover the gap between below-limit settlements and the tortfeasor’s policy limits. The issue is who pays what, not whether the insured recovers more than his damages. Finally, the dissent asserts that at present we require more from a best settlement than the insured’s best settlement, but it makes this assertion without citing any authority and overlooks what we said in Schmidt.

We used the best settlement language in Schmidt when we explained why an insured party does not need to exhaust the liability limits of the tortfeasor’s policy in order to be eligible for UIM benefits. Id. We stated that “[t]he insured has the right to accept what he or she considers the best settlement available and to proceed to arbitrate the underinsurance claim * ⅜ Id. at 261 (emphasis added). Here, the dissent fails to appreciate the fact that the best settlement language as included in Schmidt was the insured’s best settlement, not a UIM insurer’s best settlement or even a court-determined best settlement. Id. However, in Schmidt we did echo some of the concerns of Allstate and the MDLA that if the UIM insurer was forced to cover the gap created by a below-limit settlement, the insured “would have no incentive to obtain the best settlement.” Id. at 261.

Allstate and MDLA expand on these concerns, and Allstate asserts that without an incentive to make a best settlement, an insured “would be able to convert inexpensive underinsured motorist vehicle coverage into additional, not-bargained-for, third-party liability coverage, * * *.” They further argue that this process results in a shift of the cost of defense from insureds and liability insurers to UIM insurers. In order to stop this shift, Allstate and the MDLA suggest that the words best settlement as we used them in Schmidt should mean more than just the insured’s best settlement and that failure to meet an objective best settlement standard should provide the UIM insurer with a defense to the entire UIM claim or at least to covering the gap.

In asking us to allow a best settlement defense, Allstate and the MDLA outline a number of potential tests we could adopt for determining whether an insured reached the best settlement. The first is a subjective best settlement test that would require a court to inquire into the reasons why an insured settled below the tortfea-sor’s liability limit. Based on our language in Nordstrom, this inquiry would focus on whether the insured settled “in good faith.” 495 N.W.2d at 858. Both Allstate and Dohney argue that a subjective test is unworkable and would create more litigation and delay.

A second alternative test would be an objective/bright line test to determine whether an insured has made the best settlement. Allstate proposes a set percentage rule of 90%, which would establish that in order for a settlement to be a best settlement, the insured must settle at or above 90% of the tortfeasor’s policy limit. Allstate stated that the 90% figure was not critical, but that the important feature of their proposal is the establishment of a set percentage, not what the precise percentage is. Allstate argues that this proposal provides insureds with an incentive to negotiate a better settlement, but still would allow below-limit settlements.

Dohney counters this argument by pointing out that a 90% set percentage rule is an arbitrary rule, which frustrates the purposes of the No-Fault Act by requiring insureds to litigate to final judgment just as the exhaustion requirement did. Dohney also argues that the policy reasons we endorsed in Schmidt when declaring exhaustion clauses void apply with equal force to a set percentage. Finally, Dohney argues that a set percentage rule of 90% will eliminate any incentive insurers have for offering settlements over 90% of the policy limits.

Dohney correctly points out some of the problems with a set percentage rule. Further, a 90% rule, or any rule establishing a set percentage, is troublesome because it fails to accommodate those situations in which an insured may be justified in accepting a settlement significantly below the policy limits. Broton, 428 N.W.2d at 89 (recognizing reasons why an insured may accept a below-limit settlement).

In the alternative, Allstate proposes a test based on a concurring opinion of Minnesota Court of Appeals Judge Jack Davies that would address some of the deficiencies of the 90% proposal. See United States Automobile Ass’n v. Morgan, C1-96-1333, 1997 WL 360595 at *3 (Minn.App. July 1, 1997) (Davies, J., concurring specially), rev. denied (Minn. Oct. 1, 1997). Judge Davies concluded that an insurer should be able to challenge an “improvident” below-limit settlement. Id. Judge Davies explained the gap issue in terms of “coverage gaps” and “liability-based gaps.” Id.

Gaps created because of exhausted coverage or insurer insolvency are legitimate “coverage gaps” resulting from a best settlement. But gaps created by settlements founded on uncertain liability or comparative fault are “liability-based gaps” and represent settlements that do not meet the best-settlement standard.

Id. Judge Davies concluded that UIM insurers should be required to pay coverage gaps, but should not be required to pay liability-based gaps. Id. Under this proposal, only below-limit settlements resulting from coverage gaps would be best settlements.

Allstate acknowledges that Judge Davies’ approach would result in additional litigation because there would be a need to determine the reasons for each below-limit settlement. In addition to the increased litigation that may result, this approach ignores other justifications why — aside from coverage-based reasons — an injured insured should be able to accept a below-limit settlement. For example, in Broton, we specifically referenced uncertain liability as one reason why an insured would settle for less than the limit of the tortfea-sor’s policy. 428 N.W.2d at 89. In Schmidt we recognized time and litigation costs as other reasons why an insured may choose to accept a below-limit settlement. 338 N.W.2d at 260.

The MDLA offers yet a fourth test to determine whether a best settlement was reached — a multi-factor test. MDLA suggests that “[ajbsent other factors justifying * * * a substantial discount, ⅜ * * if a claimant agrees to take less than 50% of a tortfeasor’s available liability limits, it strongly suggests that the tortfeasor is not underinsured as a matter of law.” In essence, the MDLA suggests a rebuttable presumption that the settlement was not a best settlement if it was less than 50% of the tortfeasor’s policy limit unless there were multiple claimants. Other factors that the court could then consider would be whether there were concerns of possible exhaustion of coverage or whether there was insurer insolvency.

The MDLA test has the appeal of incorporating many of the positive aspects of the other tests. It utilizes a bright line rule, but is not as arbitrary as the 90% rule. It also recognizes the coverage gap issues that Judge Davies raised and, as a multi-factor test, would allow for consideration of any other factors the court would consider important in a specific case such as time delay and uncertainty. However, the MDLA test would require a court to make the best settlement determination in every case. Additionally, even though MDLA has labeled its test as an objective test, under the test each court would need to not only look at objective factors, but determine subjectively how to weigh competing findings. Finally, while this test is comprehensive, it is quite uncertain and could spawn significant litigation.

Each of the best settlement tests proposed provides some benefit over our current procedures. However, each test presents its own consequences that will operate to undermine the purposes of the No-Fault Act, such as easing the burden of litigation and encouraging prompt payment of claims. Schmidt, 338 N.W.2d at 260. While Allstate is correct that we have stepped in and altered UIM procedures in the past, we are 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 have been balancing the interests of UIM insurers and insureds in light of the purposes of Minnesota’s No-Fault law ever since the Act’s enactment in 1975. In Schmidt, when holding that exhaustion clauses violated the policies of the No-Fault Act and were therefore void, we adopted the procedure for notice and substitution to preserve the UIM insurer’s subrogation rights and the insured’s right to settle. 338 N.W.2d at 261. In Nord-strom, we held that an insured must first recover from a tortfeasor before proceeding to arbitrate a UIM claim, because this was “the fairest solution” to both UIM insurers and insureds. 495 N.W.2d at 858. In Oanes v. Allstate Ins. Co., we reaffirmed our support of the Schmidt rule as an accommodation of the interests of both the UIM insurer and the insured and stated that the notice and substitution process “protects both the UIM claimant’s ability to settle with the tortfeasor and also the UIM insurer’s subrogation interest.” 617 N.W.2d 401, 407 n. 3 (Minn.2000).

Following these modifications, the legislature weighed the interests of insureds and insurers against the purposes of the No-Fault Act and made significant revisions to the Act. Despite the concerns we expressed in Schmidt, the legislature amended the UIM provisions to require UIM insurers to cover the gap created by below-limit settlements. In 1989, after we noted that insurers were now required to cover the gap, the legislature again amended the act, but chose to retain the gap rule. Minn.Stat. § 65B.49, subd. 4a (1990). Thus, while Allstate and the MDLA have voiced valid concerns about a possible imbalance in favor of the insureds in the current UIM settlement procedures, we decline their invitation to create a new UIM settlement rule. Instead, we maintain the status quo — a best settlement with a tortfeasor for purposes of a UIM claim is an insured’s best settlement. We conclude that an insurer may not deny a UIM claim based on the insured’s failure to reach the best settlement with the tortfeasor. Therefore, we answer the first certified question in the negative.

Because we answered the first certified question in the negative, it is unnecessary to address the other certified questions.

First Certified Question answered in the negative.

STRINGER, Justice

(dissenting).

I respectfully dissent. While I agree with many of the concerns expressed by the majority regarding developments in the law of underinsured motorist (UIM) coverage that seem to have led to what appears to be an imbalance in the rights of injured parties with respect to their UIM coverage, I do not agree with the conclusion to write out of our carefully crafted UIM jurisprudence the established principle that a UIM insured must negotiate a “best settlement” under the circumstances with the tortfeasor. As the majority notes, this court has been instrumental in shaping the law on UIM coverage. E.g., Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855 (Minn.1993), Broton v. W. Nat’l Mut. Ins. Co., 428 N.W.2d 85 (Minn.1988), Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983). We should not now condone a practice that creates an imbalance between the rights of the respective parties. Therefore, I respectfully dissent.

I begin with black letter statutory and ease law that a UIM claim is premised on a showing that the vehicle causing the injury is. in fact underinsured, Broton, 428 N.W.2d at 90 — that is, the tortfeasor’s liability policy limit is less than the amount needed to compensate the insured for actual damages. Minn.Stat. § 65B.43, subd. 17 (2000). From this fundamental principle, it is difficult to explain how or why the claimant here should be permitted to assert a UIM claim against his carrier, American Express Property & Casualty Insurance Co. (AMEX), when he settled his claims for injuries for $20,000 against the tortfeasor insured by a liability policy limit of $50,000. By definition the tortfea-sor here is not underinsured because there was an additional $30,000 in liability coverage available to compensate the claimant for his damage. The claimant offered no explanation for his settlement at 40 percent of policy limits in his deposition, other than that he thought that was all the tort-feasor’s insurer would pay-which makes the point so succinctly that concerned Judge Davies in his concurrence cited by the majority: the purpose of UIM coverage is not to supplement a less-than-policy-limits settlement that on its face does not, in all probability, represent all that the claimant could have recovered from the tortfeasor’s insurer. United States Automobile Ass’n v. Morgan, C1-96-1333, 1997 WL 360595 at *3 (Minn.App. July 1, 1997) (Davies, J., concurring specially), rev. denied (Minn. Oct. 1, 1997). As the United States District Court certifying the coverage questions put it, in the absence of the UIM coverage, it would appear doubtful that the plaintiff would have settled for $20,000. The ruling of the majority places in the sole and exclusive control of the UIM insured to declare the tortfeasor un-derinsured, even though he may not be, and turn to his own UIM coverage.

As the majority notes, in Schmidt v. Clothier we held that a claimant may settle for less than the tortfeasor’s policy limits and still maintain a UIM claim. 338 N.W.2d at 261. Ironically however, the ruling of the majority here puts in place the very concern we had in Schmidt — that a below-the-limits settlement would provide a lack of incentive for the claimant to obtain the best settlement and lessen the incentive of the liability carrier to make the best offer, and further, underinsurance benefits would be converted to third party coverage. Id. This is precisely what the majority is condoning here.

Inherent in Schmidt, 338 N.W.2d at 260-61, and restated again in Nordstrom, 496 N.W.2d at 857, is that an injured party has two options with respect to UIM coverage — pursue a tort action to conclusion in the trial court and if the judgment exceeds the liability limits, pursue the un-derinsured carrier; or second, settle the tort claim “for the best settlement” and give the Schmidh-Clothier notice to the underinsurer with the opportunity to subr stitute its payment for that of liability carrier for the tortfeasor. In Nordstrom, we stated:

* * * the injured claimant can either (1) pursue a tort claim to a conclusion in a district court action, and then, if the judgment exceeds the liability limits, pursue underinsured benefits; or (2) settle the tort claim for “the best settlement,” give a Schmidt-Clothier notice to the underinsurer, and then maintain a claim for underinsured benefits.

495 N.W.2d at 857. In answering the first certified question in the negative, this court has abandoned the best settlement principle and the imbalance we feared in Schmidt is now firmly established in our UIM jurisprudence.

In a curious contradiction, the majority proclaims that with the 1985 legislative amendment, the state of the law is “exactly as it would have been in 1983 had the dissenters prevailed in Schmidt * * While that may have been true before the court’s ruling here, it is not true after the ruling because the dissenters in Schmidt emphasized the need for the “best possible settlement” to achieve the balance of affording the UIM carrier the right to manage the claim process without placing a financial burden on the claimant. Schmidt, 338 N.W.2d at 264 (Todd and Amdahl, JJ., concurring and dissenting, Scott, J., dissenting). In now dispensing with the need for the best possible settlement, the majority unravels the logical fabric woven by the dissenters in Schmidt that achieved the balance they sought and the legislature later adopted in 1985.

Claimant argues that the substitution of draft procedure set forth in Schmidt provides adequate protection to the UIM carrier. It does not, because if the UIM carrier declines to substitute its own payment for that of the tortfeasor’s liability carrier, it risks exposure to a claim for the gap between the settlement amount and the tortfeasor’s policy limits that may simply have come about due to a weak case of liability — an exposure for which the UIM carrier was not paid a premium and has no obligation to provide. On the other hand, if the UIM carrier substitutes its draft it runs the risk of not being able to recover its payment in a subrogation claim. Thus substitution of the draft by the UIM carrier is not protection to the UIM carrier against the UIM insured agreeing to less than a best settlement.

Thus, I would conclude that the UIM carrier must be permitted to challenge its insured’s settlement with the third party tortfeasor as to whether it was a best settlement under the circumstances. Respondent’s argument that it would be unworkable to establish such a process because it would inject the court into a quagmire of issues relating to whether the settlement was the best is an overstatement. The majority notes the variety of proposals for such an analysis. Whatever the process, it could simply be made a part of the UIM arbitration and take into account a variety of facts that would bear on whether the settlement with the tort-feasor was in fact the best, or whether it was reached for some collateral purpose— such as relating to UIM coverage. Inquiry could be directed toward the percentage of the settlement relating to the tort-feasor liability limit, the benefit to the claimant of an early resolution of his or her claim in avoiding protracted litigation, the time value of an immediate payment, or any combination of these or other considerations relevant to whether the settlement was in fact the best. It need not delve into questions of liability or damages. Faced with circumstances as obvious as those now before the court, the task would not be difficult.

Therefore, I respectfully dissent and would bring an immediate halt to what appears to be misuse of the nature and purpose of UIM coverage.

LANCASTER, Justice

(dissenting).

I join in the dissent of Justice STRINGER.

      . Based on this fact, there is some question as to whether Dohney properly notified Allstate. However, the sufficiency of the Schmidt notice is not before us.

      . Under Minn.Stat. § 480.065, subd. 4 (2000), we may reformulate a question of law certified to us. The federal district court certified the questions to us as follows:
      When a plaintiff settles with a tortfeasor for 40% of the tortfeasor's liability limits, does the plaintiff satisfy the requirement of Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), and Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855 (Minn.1993), that he reach the best settlement with the tortfeasor before submitting his claim for underin-sured motorist benefits?
      A. Does the Court apply an objective or subjective test in analyzing the best settlement test?
      B. If the plaintiff fails to satisfy the best settlement test, what is the effect on any underinsured motorist case he may have filed?

      . Minnesota Statutes § 65B.49, subd. 4a, provides:
      Liability on underinsured motor vehicles. 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 underinsured motorist carrier have to pay more than the amount of its underinsured motorist limits.
      (Emphasis removed.)

      . Our characterization of the settlement in Busse as not the best settlement was based on the fact that Busse’s damages were well below the liability limit of the tortfeasor's policy. Nordstrom, 495 N.W.2d at 857 n. 3; Busse, 474 N.W.2d at 442-43. Thus, he did not meet the threshold requirement of being underin-sured and was not eligible for UIM benefits. Busse, 474 N.W.2d at 443.
      In Starkey, the claimant’s case establishing damages and fault went to trial and fault was apportioned between the two other drivers, one of whom was insured and one of whom was uninsured. The total damages as found by the jury did not exceed the insured driver’s policy limits. 535 N.W.2d at 363-64. Before judgment was entered, the claimant settled with the insured driver for slightly under the jury verdict and attempted to collect UM benefits for the full amount of the uninsured driver’s liability as apportioned by the jury. Id. We did not allow the claimant to collect more than the jury’s verdict and in denying any UM claim, distinguished this case from settlement cases because in Starkey the damages and fault had already been established by a jury. Id. at 364-65.

        Finally, while Allstate is correct that we did reaffirm “our clear policy against overcompensation” in Gusk, we did so while also reaffirming the very procedures that Allstate is arguing against here. Gusk, 559 N.W.2d at 425.

      . In fact, because UIM coverage is excess coverage, below-limit settlements may sometimes result in insureds receiving less compensation because the payments made by the UIM insurer to cover the gap count toward the UIM limit.

      . The dissent does not specify explicitly how a court should determine a best settlement and discounts the problems such an approach may spawn — despite the fact that both Allstate and the MDLA acknowledge that increased litigation may result.

      . Our conclusion does not, as the dissent asserts, place "in the sole and exclusive control of the UIM insured [the ability] to declare the tortfeasor underinsured, * * * ” because the insured still must prove damages greater than the tortfeasor’s policy limit in order to be eligible for UIM benefits. Minn.Stat. § 65B.43, subd. 17 (2000).

      . Minnesota Statutes § 65B.43, subd. 17 provides that a motorist is uninsured if "a bodily injuiy 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.”

      . Judge Davies recognized this in his special concurrence in Morgan, C1-96-1333, 1997 WL 360595 at *3.


source: Caselaw Access Project

author: LANCASTER, Justice. PAGE, Justice BLATZ, Chief Judge

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Rusttee A. TORRES, Appellant.
    No. C5-00-1603.
    Supreme Court of Minnesota.
    Aug. 16, 2001.

      Ann McCaughan, Asst. State Public Defender, for appellant.
    Michael Hatch, Attorney General, Peter R. Marker, Asst. Attorney General, G. Paul Beaumaster, Rice County Attorney, for respondent.
   OPINION

LANCASTER, Justice.

On June 15, 2000, a Rice County jury found appellant Rusttee Torres guilty of both murder in the first degree in the course of a burglary, in violation of Minn. Stat. § 609.185(3) (2000), and murder in the second degree, in violation of Minn. Stat. § 609.19, subd. 1(1) (2000), for his role in the death of Jesse Springer in Faribault, Minnesota, in the early morning hours of May 9, 1999. The jury found him not guilty of premeditated murder in the first degree, Minn.Stat. § 609.185(1) (2000). Shortly before closing arguments, the trial court refused Torres’ request that the jury be instructed on the defense of voluntary intoxication. In this direct appeal, Torres alleges reversible error in the trial court’s refusal to give the jury instruction. Torres also alleges here, for the first time, prosecutorial misconduct.. We affirm.

The facts giving rise to Torres’ conviction are as follows. In the early afternoon of May 8,1999, Dylan Frohn and his friend Chris St. Martin drove from their home in Faribault to the Medford residence of Torres and his housemate Tracy Sailor. There Frohn related how, earlier in the day, he had been swindled out of $160 in a drug transaction with Trent Springer. The four men stayed at the house for a time, using illegal drugs, then drove back to Faribault in two vehicles. They dropped off Frohn’s car at his house and spent the afternoon drinking alcohol and using drugs as they cruised the town in Torres’ vehicle.

The men made a few attempts to locate Trent Springer and eventually learned which room he was renting at a local motel. By chance, they then encountered Springer in front of a Faribault liquor store, where Frohn and Springer had a brief altercation before Springer left. Jesse Springer, Trent’s younger brother, also happened to be at the liquor store but did not participate in the altercation.

The four men purchased beer from the liquor store and continued to cruise Fari-bault, drinking and using drugs, until returning to Torres’ residence in Medford at approximately 8:00 p.m. From there, they drove to a bowling alley in Waseca and then returned to Torres’ residence where they remained for an hour or more. Sometime after midnight, they returned to Faribault and went to Frohn’s, home. During their travels and their time at Torres’ residence, they continued to consume beer and drugs.

While at Frohn’s home, the four men drank and put on gloves in preparation for a fight with Springer. They then left to find Springer, now traveling in Frohn’s mother’s van. Torres left behind, in the trunk of his vehicle, the nine-millimeter handgun he had been carrying. Frohn took along a .38 handgun he had gotten from Torres earlier in the day. The four men drove to the motel where they believed Springer was staying and knocked on the door to his room. There was no answer and the men left. Frohn drove the men to Jesse Springer’s apartment, where they hoped either to find Trent Springer or to “rattle [Jesse’s] cage” to make Jesse tell them where to find his brother. Frohn drove past Jesse’s apartment and parked a block up the street so that the van would not be seen by anyone in the apartment. St. Martin was very intoxicated. He stayed in the van while the other three went to Jesse’s apartment door.

Frohn knocked on the door to Jesse Springer’s apartment and identified himself. As Jesse opened the door, he told Frohn that Trent was not there. Sailor rushed in, pushing Frohn into the apartment. Torres followed Frohn and Sailor into the apartment. Jesse told them to get out of his apartment and that his brother did not live there. As Jesse finished speaking, Sailor grabbed Jesse by the throat and pinned him against a wall. Torres then held the .38 handgun on Jesse in the living room next to a couch while Frohn and Sailor searched the apartment for Trent. They did not find him. At some point Frohn took one of Jesse’s music CDs.

The three men gave different accounts of Jesse Springer’s death. At trial, Sailor testified that he heard a gurgling sound as he re-entered the living room from his search of the rest of the apartment. Sail- or did not know where Frohn was at that time, but upon re-entering the living room, he saw Torres stab Jesse in the back with a knife as Jesse lay face down on the couch. Torres told him to cover Jesse’s body with a blanket, and the three men then left the apartment, Frohn locking the door. Frohn testified that after the apartment search, Torres told him to go into the kitchen while Torres asked Jesse some questions. Shortly thereafter he heard a choking or gurgling sound, then Sailor and Torres came through the kitchen and told Frohn to lock the door behind him as they all exited. The police officers who interviewed Torres in the early morning hours of May 11, 1999, testified that Torres told them that Frohn killed Jesse, slashing his throat with a knife as Jesse sat on his couch facing all three of the intruders.

The four men then drove back to Med-ford in Frohn’s mother’s van. As they traveled, Torres handed Sailor, who was sitting in the front passenger seat, a knife and sheath and told him to throw them out the window into the farm fields they were passing. The four men agreed on an alibi story: they had remained in Medford together that night and never made their final trip into Faribault. After the four men returned to Torres’ residence, Sailor and Torres washed their clothes and Frohn and St. Martin scrubbed Sailor’s and Torres’ shoes and laces. Over the next 24 hours, Sailor and Frohn attempted, with varying degrees of success, to dispose of the shoes and gloves the three had worn the previous night; Sailor also disposed of a hat he had worn.

Jesse Springer’s body was discovered in the mid-afternoon of May 9. His body was face down on the couch, under a blanket. His throat had been slashed with a knife, almost from ear to ear, severing his right carotid artery and jugular vein, and he had been stabbed several times in the back. The wounds had been inflicted with a knife. The next day, May 10, St. Martin told the police what he knew about the events of the night of May 8-9. Frohn, Sailor, and Torres were questioned by the police on the night of May 10-11. The police found the knife sheath Sailor had tossed from Frohn’s mother’s van and two pairs of shoes Sailor had attempted to discard.

Torres was indicted for first-degree premeditated murder, first-degree felony murder during commission of a burglary, and intentional second-degree murder. Frohn and Sailor agreed to testify truthfully at Torres’ trial in exchange for being allowed to plead guilty to second-degree felony murder.

At trial, the state presented testimony from St. Martin, Frohn, and Sailor; evidence that blood had been found on the clothes allegedly worn by Torres and Sail- or at the time of the murder; and evidence that one of the shoes recovered contained DNA most compatible with Jesse Springer among the principals of the case. Both a blood-spatter expert and the medical examiner testified that Torres’ description of how Frohn had slashed Jesse’s throat was unlikely and that instead Springer was probably lying face down on the couch when his throat was cut and when he was stabbed in the back.

Pursuant to Minn. R.Crim. P. 9.02, subd. l(8)(a), defense counsel had notified both the prosecution and the court well before trial that Torres intended to rely on an intoxication defense at trial. During a series of motion hearings a few weeks before trial, defense counsel reiterated that Torres intended to use the defenses of intoxication and not guilty. Two days later, during jury voir dire, the prosecution asked jurors a question that defense counsel paraphrased, in argument to the trial court, as follows: “[D]o you think people that are drunk and do something bad should be held responsible for what happens!?]” In anticipation of a possible jury instruction regarding intoxication, defense counsel argued that the prosecution’s question was “misleading about what the law says and what can be used as a defense in this particular case.”

Defense counsel’s opening statement referred to the four men’s drug and alcohol consumption in the time preceding their visit to Jesse Springer’s apartment:

[A]fter they get done at the Bottle Shop they begin consuming alcohol. You will hear from all of them that they drank beer, they smoked pot and they did a large amount of [cjocaine. You’ll hear details from each one of them about how much they did and how intoxicated they were.

Each of St. Martin, Frohn, and Sailor testified at trial regarding the quantity and type of drugs and alcohol the group consumed on the afternoon and night of May 8-9. Their testimony was in essential agreement that the four men all used cocaine before they left Medford on the afternoon of May 8 and that they all drank, smoked marijuana, and used cocaine throughout that afternoon, evening, and night.

St. Martin stated that he had seven or eight beers throughout the day, that his level of intoxication was the equivalent of “two times the legal limit,” and that the admixture of marijuana heightened the effect of the alcohol. St. Martin stated that he also snorted five or six lines of cocaine, and described the effect of adding this amount of cocaine to the alcohol/marijuana mix as creating “[a] wired drunk.” He testified that when the group was at Frohn’s house in the early hours of May 9, he was “getting pretty messed up” and that by the time they parked near Jesse’s apartment, he was “totally screwed out of [his] gourd.” When the others went to the apartment, St. Martin remained in the van “watching the world spin.”

St. Martin testified that Torres and Sail- or “usually did like two lines [for every one that St. Martin did] because they were, like, more, like, immune to it because they had it all the time.” St. Martin stopped taking cocaine upon the group’s return to Medford from Waseca, but the other three used more cocaine at that point. St. Martin testified that he had no idea how much beer Torres drank.

Frohn estimated that he drank 10 to 20 beers throughout the day, smoked some marijuana, and used two to six lines of cocaine. When asked to describe how intoxicated he was at the time the three men were in Jesse Springer’s apartment, Frohn said he was “a little drunk” or “sober enough to know what was going on but * * * still drunk.” When asked if Sailor and Torres did more cocaine than he did, Frohn answered: ‘Well, as far as I know, yeah, but, I don’t know for sure.”

Sailor testified that as a group the four used two or three grams of cocaine and that he and Torres might have done more cocaine than the other two, but that he did not know. Sailor also stated that the group drank about a case and a half of beer and that the four drank equal shares of the beer. The prosecutor asked him about the condition of the four men during their stop at Frohn’s in the early hours of May 9, before the murder: “You guys were pretty loaded at this point?” Sailor agreed: “Oh, yeah.”

Sailor described his own attitude at the time the four of them knocked on Trent Springer’s door at the motel as “pumped up” and Torres’ attitude as “the attitude he always has,” that is, “under control, just cool, calm.” He described himself, while in Jesse Springer’s apartment shortly thereafter, as “all drunk and doped up.” He stated that he didn’t know if he was intoxicated later, back in Medford, and added, “I think I was probably coming down.”

Torres did not testify at trial, but the prosecution played into evidence a tape of his initial interrogation by the police on May 11,1999. During the taped portion of his interrogation by the police, Torres described his own use of alcohol and drugs on the night of May 8-9. His statements regarding his and the others’ consumption of drugs and alcohol prior to 8:00 p.m. agree generally with the testimony of the other three men. However, at the same time, Torres claimed that he did not leave Medford after returning from Waseca and denied ever being at Jesse Springer’s apartment, saying that he remained in the car when the others visited Jesse on the afternoon or early evening of May 8. When pressed on the timing for his version of events, Torres stated: “I don’t remember * * *. I was all * * ⅜ coked up.” Torres agreed when asked if the reason he couldn’t remember the night of May 8-9 was because he was “coked up” and drinking.

Immediately after Torres made this statement, the police officers questioning Torres told him that they knew he was at Jesse Springer’s apartment on the night in question. Torres then acknowledged that he was at the apartment. When the officers told him that they knew that at least one of Frohn, Sailor, or Torres had cut Jesse Springer’s throat, Torres told the officers that he would talk to them if they turned off the tape recorders. The officers testified at trial that, off tape, Torres explained and demonstrated how Frohn had slashed Springer’s throat. During this portion of his interview, Torres did not make any further reference to his consumption of intoxicants or any impairment he might have suffered because of such consumption.

After both sides had rested, but before closing arguments, the trial court deniéd Torres’ request that the jury be instructed on voluntary intoxication. Torres objected to that decision. The trial court, in denying the requested instruction, stated that the “hole” in the argument for an instruction was that there was no testimony that Torres seemed to anyone else to be “drunk, intoxicated, or unable.” Defense counsel replied that testimony from Frohn, Sailor, and St. Martin as to Torres’ extensive use of intoxicants confirmed, to an extent sufficient to warrant a jury instruction, Torres’ own statement that he was “all coked up” and unable to remember. The prosecutor argued that Torres made this statement in the context of his statement that he had remained in Med-ford after returning from Waseca, and that Torres then moved on to a different story (that Frohn had killed Springer), which he was able to relate to the police with great clarity. Defense counsel replied that the prosecutor could make that argument to the jury, but as Torres had asserted his incapacity, it was for the jury to decide the truth of Torres’ statements and whether he was incapacitated. The court then stated:

It seems to me [that a defendant] is entitled to [an intoxication instruction] * * * when the defendant asserts his intoxication as a[n] explanation for what happened. The, the other way to look at that, I think, is * * * the defendant has the burden of both going forward, to raise the intoxication defense, * * * and then has the burden of persuasion to the jury by a preponderance of the evidence.
I don’t believe in this case the Defendant has gone forward with evidence to support the intoxication defense. ⅜ * * [I]f we look at that statement it was, “I was all coked up, I was drunk, I was passed out in Medford.” Right after that he then says, “Turn off the tape,” and there is a different statement that says, yeah, I really was at the scene and Mr. Frohn committed the act.
* * * I don’t think in these circumstances that statement is sufficient to meet his burden of going forward with the intoxication defense.

The court stated that St. Martin was the only one of the four men to say that he himself was drunk and that there was no testimony that Torres was intoxicated: “[I]n fact, the only thing I could find was Tracy Sailor’s testimony, exactly to the contrary, that he was cool, calm and had the same attitude he always had. So, based on that I’m going to deny the request.” The court went on to state that the instruction “really doesn’t say very much” and invited defense counsel to argue that the state had not proved its case as to intent because Torres was too intoxicated to have formed the requisite intent. The trial court’s instruction to the jury regarding intent was:

In order to find the Defendant had an intent to kill, you must find the Defendant acted with the purpose of causing the death, or believed that the act would have that result. Intent, being a process of the mind, is not always susceptible to proof by direct evidence, but may[ ]be inferred from all of the circumstances surrounding the event. For this count it is not necessary that Defendant’s act be premeditated.

The jury acquitted Torres of premeditated murder but found him guilty of both first-degree felony murder and second-degree murder.

I.

We review a trial court’s refusal to issue a requested instruction for abuse of discretion, focusing on whether the refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn.2001). “It is beyond dispute that a party is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Ruud, 259 N.W.2d 567, 578 (Minn.1977). “If the crime charged has a specific intent as an element and if intoxication is offered by the defendant as an explanation for his actions, then the court must give an instruction on intoxication.” State v. Lindahl, 309 N.W.2d 763, 766 (Minn.1981). Therefore, to receive a requested voluntary intoxication jury instruction: (1) the defendant must be charged with a specific-intent crime; (2) there must be evidence sufficient to support a jury finding, by a preponderance of the evidence, that the defendant was intoxicated; and (3) the defendant must offer intoxication as an explanation for his actions.

The first of these requirements is met; the crimes with which Torres was charged are specific-intent crimes. As to the second requirement, there can be reasonable disagreement as to whether the evidence is sufficient to support a jury finding by a preponderance of the evidence that Torres was intoxicated. Because we find the third requirement determinative of this case, we need not decide whether the second requirement is met. Indeed, we assume for purposes of argument that the evidence was sufficient to support a jury finding that Torres was intoxicated. We turn our attention to whether Torres offered intoxication as an explanation for his actions.

Torres’ evident defense at trial was that Frohn killed Jesse Springer. That defense did not preclude Torres from offering the alternative defense of intoxication. He argues on appeal that he did offer evidence on this alternate theory. Specifically, Torres argues that his statement to the police that he was “all * * * coked up” and couldn’t remember the late night events of May 8-9 constitutes an offer of intoxication as an explanation for his actions. We agree with the trial court, however, that it is significant that this statement by Torres was made at the time he was maintaining that he was not at Jesse Springer’s apartment at all on the night of May 8-9. When, during that same interview, Torres abandoned the attempt to convince officers that he was somewhere else entirely during the murder and admitted that he had been present when Springer was killed, he described the actions of all participants lucidly and precisely, without any reference to his own intoxication. We therefore conclude that the trial court was within its discretion when it found that Torres had not offered intoxication as an explanation for his actions.

Torres argues that the jury instruction is mandated even in the absence of an explicit offer, through either evidence or argument, of intoxication as an explanation for his actions. A defendant’s consumption of intoxicants does not create a presumption of intoxication and the possibility of intoxication does not create the presumption that a defendant is thereby rendered incapable of intending to do a certain act. State v. Lopez, 587 N.W.2d 26, 28-29 (Minn.1998). Nevertheless, it may be that there is some point at which evidence of a defendant’s intoxication, whether by consumption of intoxicants alone or in combination with other evidence, is so overwhelming as to constitute the effective offer of intoxication as an explanation for the defendant’s actions. See State v. Peterson, 262 N.W.2d 706, 707 (Minn.1978) (affirming a trial court’s refusal to instruct the jury on the defense of voluntary intoxication “because defendant did not offer drinking as an explanation for his actions and the other evidence was not such as to mandate the submission of the defense”). We must consider whether, in this case, the evidence of consumption so strongly makes the case for the voluntary intoxication defense as to constitute an offer of intoxication as an explanation for Torres’ actions. We conclude that it does not.

In addition to the copious evidence of consumption, we must also consider Sail- or’s testimony that Torres was “under control” and “calm” shortly before the murder, which tends to show Torres was not intoxicated. See Lopez, 587 N.W.2d at 29 (upholding trial court’s refusal to instruct on the intoxication defense where the only direct evidence regarding whether the defendant appeared intoxicated was testimony from a physician’s assistant who treated the defendant several hours before the crime that he did not note or recall any evidence of alcohol or drug use by the defendant). We note that even in cases where the defendants presented strong evidence of consumption of large amounts of intoxicants, we have upheld convictions against defendants’ claims that their intoxication required a finding of reasonable doubt. E.g., State v. Olson, 298 Minn. 551, 552-53, 214 N.W.2d 777, 778 (1974) (per curiam) (concluding that a blood alcohol content of .29 approximately one hour after events of crime did not compel finding that defendant in an assault case could not possibly have intended his actions). We conclude that Torres did not offer intoxication as an explanation for his actions. Thus the trial court did not abuse its discretion by declining to instruct the jury on the voluntary intoxication defense.

II.

Torres also alleges for the first time, on appeal before this court, that the prosecutor in his trial committed misconduct and that this misconduct was of a degree sufficient .to warrant a new trial. Where a defendant fails to object to a prosecutor’s statements or request curative instructions, the defendant is deemed to have waived the right to appeal on the basis of those statements. State v. Parker, 353 N.W.2d 122, 127 (Minn.1984). If the prosecutor’s comments are unduly prejudicial, however, this court may choose to reverse a conviction despite the defendant’s failure to object. Id. at 127-28. To grant a new trial for serious misconduct, this court must determine that the misconduct was not harmless beyond a reasonable doubt. State v. Boitnott, 443 N.W.2d 527, 534 (Minn.1989). A fair review of the record convinces us that there was no misconduct in this case that comes close to meeting this standard. Cf. State v. Porter, 526 N.W.2d 359, 364-66 (Minn.1995) (granting new trial on the basis that the cumulative effect of prosecutor’s intentional and serious misconduct was an attack on juror independence).

Torres alleges, first, that the prosecutor committed misconduct by improperly attempting to inflame the jury in both the opening statement and the closing argument. In the opening statement, the prosecutor told the jury that they were “going to hear about a cold blooded killing with the death gasp of Jesse Springer” and that “Jesse Springer was * * * slaughtered, quite literally, butchered alive.” In the closing argument, the prosecutor once again referred to Jesse Springer as having been “slaughtered alive.” We note that the prosecutor’s language hews to the settled definitions of “butcher” and “slaughter” and we consider these phrases forceful yet apt descriptions of the manner in which Jesse Springer was killed. The use of these phrases was not prosecutorial misconduct.

Torres also alleges that the prosecutor’s closing argument misstated the evidence that had been presented to the jury during the trial. In particular, Torres points to the prosecutor’s statements that Torres: (1) told Frohn, “[W]e’ll get your money back”; (2) took an active role in covering up and destroying evidence of the crime after his return to Medford; and (3) left his nine-millimeter handgun in the trunk of his car because it was a nice gun that he would not want to discard after committing a crime. St. Martin did indeed testify at trial that Torres told Frohn, “We’ll get the money back.” There was also testimony that Torres participated in the destruction of evidence. Any misstatement on the prosecutor’s part with respect to Torres’ decision to leave his nine-millimeter handgun in his car when he left Frohn’s house could only go to prove premeditated murder, of which Torres was acquitted and is, therefore, harmless beyond a reasonable doubt.

Finally, we address an incident that occurred between counsel before trial. The assistant county attorney who second-chaired this case, during a recess in a pretrial hearing, displayed a marked lack of maturity and civility when he “yell[ed] at” defense counsel (defense counsel’s words) in a public corridor of the courthouse, “Read the case, moron.” This incident disturbs us greatly; there is no place for such conduct in the legal profession. The Professionalism Aspirations recently adopted by this court state that all lawyers are to treat their colleagues “in a civil and courteous manner, not only in court, but also in all other written and oral communications,” Minn. ProfI Aspirations III.A.1, and are to “abstain from disparaging personal remarks or acrimony toward other counsel,” id. at III.A.2. As the assistant county attorney’s on-the-record explanation and apology reveals, his remark was made in the heat of battle and was borne of frustration with defense counsel. We join in the trial court’s disapproval of the assistant county attorney’s behavior and commend the trial court for refusing “to tolerate that kind of conduct or those kind of statements.”

For the reasons discussed above, we hold that the trial court did not abuse its discretion by declining to instruct the jury on the voluntary intoxication defense and that there was no prosecutorial misconduct warranting a new trial for the defendant.

Affirmed.

PAGE, Justice

(concurring specially).

I concur in the result reached by the court. I disagree, however, with the court’s interpretation of what it means for a criminal defendant to “offer intoxication as an explanation for his actions.” Implicit in the court’s interpretation is the requirement that, before the trial court is required to instruct the jury on the intoxication defense, a defendant not only must raise, but must establish, his intoxication. This requirement reads Minn.Stat. § 609.075 (2000) out of the law.

In State v. Lopez, we stated:

Before the intoxication defense comes into play, a defendant must offer intoxication as an explanation for his actions. “The mere fact of a person’s drinking does not create a presumption of intoxication, and the possibility of intoxication does not create the presumption that a person is rendered incapable of intending to do a certain act.” Put another way, a defendant cannot offer intoxication as an explanation for his action solely by introducing evidence that he may have been drinking.

587 N.W.2d 26, 28-29 (Minn.1998) (quoting State v. Lund, 277 Minn. 90, 92, 151 N.W.2d 769, 771 (1967)) (footnotes omitted). While Lopez requires something more than “introducing evidence that he may have been drinking,” surely something less than establishing intoxication is sufficient. Although we have never indicated the quantum or type of evidence sufficient to offer intoxication as an explanation for a defendant’s conduct, the court acknowledges that at some point evidence of consumption is so overwhelming that it may, by itself, require that a requested intoxication instruction be given. The court concludes that such a point is not ..reached in this case. On the record before us, I believe the court is wrong.

The evidence presented at trial supports the following facts regarding Torres’ consumption of drugs and alcohol in the 12 hours preceding Jesse Springer’s murder: he drank approximately nine beers, smoked an undetermined quantity of marijuana, and snorted 10 to 12 lines of cocaine. Regardless of the specific amounts, St. Martin, Sailor, and Frohn all testified that Torres consumed roughly as many drugs and as much alcohol as they did. Each of these witnesses also testified about his resulting level of intoxication and the impact it had on him. St. Martin testified that, shortly before the crime, he was “getting pretty messed up.” Sailor described himself at that same time as “pretty loaded.” When they arrived at Jesse Springer’s apartment, St. Martin was, by his own admission, “totally screwed out of [his] gourd,” so much so that he remained behind in the van “watching the world spin” when the others entered the apartment. Sailor testified that, when he was in Jesse Springer’s apartment, he was “all drunk and doped up.” Frohn stated that, while he was in the apartment he was “a little drunk” or “sober enough to know what was going on but * ⅞ * still drunk.” Had they been on trial, testifying about their consumption, would they not have been entitled to the intoxication instruction? Had Torres taken the stand and testified that he had consumed the amounts and types of intoxicants that St. Martin, Frohn, and Sailor testified that they had consumed, would he not have been entitled to the intoxication instruction? One is left to ask: If the evidence in this case is not sufficient to warrant a jury instruction on intoxication, what quantum and type of evidence would suffice?

The court relies on Tracy Sailor’s testimony that shortly before the murder Torres was “under control” and “calm” as support for its conclusion that Torres did not offer intoxication as an explanation for his conduct. In doing so, the court ignores the testimony of St. Martin, Frohn, and even Sailor, regarding Torres’ consumption of drugs and alcohol preceding the murder. The court’s reliance on Sailor’s statements that Torres was “under control” and “calm” preceding Jesse Springer’s murder also fails to take into account that Sailor was “pretty loaded” and “all drunk and doped up” at the time he was observing Torres’ demeanor. Sailor’s consumption of drugs and alcohol makes his observations regarding Torres’ demeanor suspect. The court cites Lopez, 587 N.W.2d at 29, to support the weight it accords Sailor’s testimony regarding Torres’ demeanor. Lopez is distinguishable. In Lopez, the observer relied on was a physician’s assistant who treated Lopez a few hours before Lopez’s offense. Clearly, the observations of a treating health-care professional as to the subject’s intoxication are more credible than observations of an accomplice who is himself admittedly “pretty loaded.” Further, and importantly, the facts regarding consumption of intoxicating substances in Lopez are vastly different from the instant case. In Lopez, while there was testimony that the group of people that the defendant was with before the shooting had been drinking beer and smoking marijuana and that the defendant “may” have done some of the drinking, there was no testimony or other evidence presented as to the quantity of beer he may have consumed, nor was there testimony or other evidence suggesting that he used any marijuana.

The result of the court’s reasoning is that, short of establishing their actual intoxication, defendants will not be able to make a showing that will require the trial court to issue the requested jury instruction. Without such an instruction, Minn. Stat. § 609.075 is an empty space in the statute books. The legislature could not have intended this result. See Minn.Stat. § 645.16 (2000) (“The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.”); Firstar Corp. v. Comm’r of Revenue, 575 N.W.2d 835, 840 (Minn.1998) (declining to construe statute in such a way as to render it meaningless).

A request for an instruction on voluntary intoxication is to be granted whenever there is sufficient evidence to support a finding of intoxication, not only when the defendant has proved intoxication to the satisfaction of the court. “It is beyond dispute that a party is entitled to an instruction on his theory of the case if there is evidence to support it.” State v. Ruud, 259 N.W.2d 567, 578 (Minn.1977). On the evidence presented at this trial, Torres was entitled to have the jury instructed that it “should consider whether the defendant was intoxicated, and if so, whether the defendant was capable of forming the required intent.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 7.03 (4th ed.1999). Torres should have been allowed to present his defense to the jury and it was an abuse of discretion for the trial court to refuse the requested instruction. Having stated this, I concur in the judgment of the court because I also believe that, on the record presented, the court’s error was harmless beyond a reasonable doubt. See State v. Kuhnau, 622 N.W.2d 552, 558 (Minn.2001) (noting that error in jury instructions may not require a new trial if error is harmless); State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997) (clarifying the standard for harmless error in Minnesota).

BLATZ, Chief Judge

(concurring specially).

I join in the special concurrence of Justice Page.

      . The record before us does not contain a transcript of voir dire.

      . Minnesota Statutes § 609.075 (2000) establishes voluntary intoxication as a consideration in determining whether the specific intent element of a crime is met:
      An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken' into consideration in determining such intent or state of mind.

        Id. The standard jury instruction regarding voluntary intoxication states:
      It is not a defense to a crime that the. defendant was intoxicated at the time of the act if the defendant voluntarily became intoxicated. However, if it is an element of a crime that the defendant had a particular intent, you should consider whether the defendant was intoxicated, and if so, whether the defendant was capable of forming the required intent. The burden of establishing intoxication is on the defendant. The defendant must prove the claim of intoxication by the greater weight of the evidence. * * *
      However, the State must prove beyond a reasonable doubt that the defendant had the required intent.
      10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 7.03 (4th ed.1999); see also State v. Pilcher, 472 N.W.2d 327, 337 (Minn.1991) (encouraging the use of this instruction over other instruction language).

      . Defense counsel did argue in closing to the jury that they should consider whether Torres' use of drugs and alcohol showed that he had formed no premeditation or intent.

      . The American Heritage Dictionary of the English Language (3d ed.1992) defines the verb "butcher” to mean: "To kill brutally or indiscriminately.” Id. at 261. This same dictio-tory offers among the definitions of the verb "slaughter”: "To kill in a violent or brutal manner.” Id. at 1694.