author: ANDERSON, G. BARRY, Justice. PAGE, Justice

text:
    Gerald LIETZ, et al., Plaintiffs, Jaenty, Inc., d/b/a Taco John’s Restaurant, Appellant, v. NORTHERN STATES POWER COMPANY, Respondent, Seren Innovations, Inc., Respondent, Cable Constructors, Inc., Respondent, Sirti, Ltd., Respondent.
    No. A04-901.
    Supreme Court of Minnesota.
    July 27, 2006.

      Steven L. Theesfeld, Yost, & Baill, LLP, Minneapolis, MN, for Appellant.
    Timothy R. Thornton, Matthew D. Fors-gren, James R. Asmus, Briggs & Morgan, P.A., Minneapolis, MN, for Respondent NSP.
    Michael T. Feichtinger, Kenneth H. Bayliss, Quinlivan & Hughes, St. Cloud, MN, for Respondent Cable Constructor.

      Cooper S. Ashley, Julian C. Zebot, David Herr, Maslon Edelman Borman & Brand, LLP, Minneapolis, MN, for Respondent Seren Innovations.
    Stephen A. Melcher, Fabyanske, Wes-tra, Hart & Thomson, P.A., Minneapolis, MN, for Respondent Sirti, Ltd.
   OPINION

ANDERSON, G. BARRY, Justice.

In late 2001 and early 2002, appellant Jaenty, Inc. (Jaenty) brought an action against respondents Northern States Power Co. (NSP), Seren Innovations, Inc. (Seren), Cable Constructors, Inc. (CCI) and Sirti, Ltd. (Sirti) to recover for damages sustained in a gas explosion in December of 1998. The district court granted respondents’ motions for summary judgment based on the two-year statute of limitations found in Minn.Stat. § 541.051, subd. 1(a) (2004). The court of appeals, in a split decision, affirmed the district court. Lietz v. N. States Power Co., No. A04-901, 2005 WL 44905, at *4 (MinmApp. Jan.11, 2005). We agree that Jaenty’s suit is barred by section 541.051 and therefore affirm.

On December 11, 1998, while installing a utility pole support anchor (the anchor) in St. Cloud, Minnesota, employees of CCI pierced a gas line owned by NSP, causing a natural gas leak. The installation of the anchor was part of a project by Seren to construct a fiber-optic communication system in the area. Seren had hired Sirti to plan the project, and CCI was hired to do the actual installation. The anchor was a steel rod, five feet six inches in length, with a helix at the bottom that acted as a bit during installation. The anchor was intended to support the utility pole via a guy line. The anchor and guy line were intended to balance the weight of the fiber-optic cable and keep the pole upright. On the date of the explosion, CCI was installing anchors in St. Cloud in preparation for the installation of fiber-optic cable.

After breaking a hole in the sidewalk with a jackhammer, the CCI workers placed an auger, or “anchor cranker,” on top of the anchor and began to auger the anchor into the ground. After the anchor had bored to a depth of approximately one and one-half to two feet, it hit a hard object, later determined to be a large slab of granite. In an attempt to break through the obstruction, the workers removed the auger and struck the top of the anchor with a sledgehammer. They then placed the auger on top of the anchor and resumed boring. Everything appeared normal until the top of the anchor was roughly 12 to 18 inches above the surface of the ground. At that time, the workers smelled gas and noticed dirt blowing from the anchor hole. Realizing they had pierced a gas line, the workers stopped the auger, and the crew foreman telephoned his supervisor.

Less than an hour after the anchor struck the gas line, an explosion occurred. Four people were killed in the explosion, a number of others suffered injuries, and the surrounding buildings sustained damage. In late 2001 and early 2002, Jaenty commenced this action against CCI, Seren, Sirti, and NSP for damages to its restaurant. The district court granted the defendants’ motions for summary judgment, finding that, because Jaenty’s injuries were caused by an improvement to real property (the anchor), Jaenty’s claim was barred by the two-year statute of limitations in Minn.Stat. § 541.051, subd. 1(a). The relevant part of the statute provides:

[N]o action by any person in contract, tort, or otherwise to recover damages for any injury to property * * * arising out of the defective and unsafe condition of an improvement to real property, * * * shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury.

MinmStat. § 541.051, subd. 1(a). The court of appeals, in an unpublished split decision, affirmed the district court’s grant of summary judgment. Lietz, 2005 WL 44905, at *4.

Jaenty argues that the lower courts’ determination that section 541.051 barred its action is erroneous in two respects: (1) the anchor was not an “improvement to real property” because it was not completely installed at the time of the accident, and (2) Jaenty’s damages arose out of negligent construction activities, not the defective and unsafe condition of an improvement to real property. We address each of these arguments in turn.

I.

On appeal from summary judgment, this court determines “whether there are any genuine issues of material fact, and whether the lower court erred in its application of the law.” Olmanson v. LeSueur County, 693 N.W.2d 876, 879 (Minn.2005). Evidence is viewed in a light most favorable to the nonmoving party. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn.1995). The construction of a statute is reviewed de novo. Olmanson, 693 N.W.2d at 879.

When defining an “improvement to real property” for the purposes of section 541.051, this court has said that a “common-sense interpretation” should be used. Pac. Indem. Co. v. Thompsortr-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977). This court has defined such an improvement as

“[A] permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.”

Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 451 (Minn.1988) (quoting Pac. Indem. Co., 260 N.W.2d at 554). Jaenty claims that the anchor does not meet this definition in one respect, namely, the anchor was not a permanent addition to the real property at the time of the explosion because the explosion occurred during the installation of the anchor.

Whether the installation of an object (that otherwise meets the definition of an “improvement to real property”) must be complete at the time the injury occurs for the object to be an “improvement to real property” for purposes of section 541.051 is a question that has not been previously decided by this court. While, under Pacific Indemnity Co., an improvement to real property must be a “permanent addition to or betterment of real property,” this court has never interpreted “permanence” to require complete installation. When interpreting the meaning of a statute, this court’s primary goal is to “interpret and construct laws so as to ascertain and effectuate the intention of the legislature.” Olmanson, 693 N.W.2d at 879; see Minn.Stat. § 645.16 (2004). This court will not look beyond the plain language of the statute if the words of the statute are “clear and free from all ambiguity.” Olmanson, 693 N.W.2d at 879; see Minn.Stat. § 645.16. A statute is considered ambiguous “if it is reasonably susceptible to more than one interpretation.” Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn.1995). Having examined the statute at issue, we conclude that the plain language of section 541.051 can reasonably be read either to apply to or not to apply to damages caused by an object (otherwise meeting the definition of an improvement) during its installation.

If a statute is ambiguous, this court may look to other factors, such as the occasion and necessity for the law, to determine legislative intent. Minn.Stat. § 645.16. In a decision interpreting a prior version of section 541.051, this court presumed, based on the timing of the enactment of section 541.051 and similar statutes enacted in other states, that section 541.051 was enacted because of the recent erosion of the privity of contract doctrine and the “resulting exposure of architects and builders to potential liability of indefinite duration from third-party tort claims.” Kittson County v. Wells, Denbrook & Assocs., Inc., 308 Minn. 237, 241-2, 241 N.W.2d 799, 802 (1976). Before the erosion of this doctrine, the general rule was that building and construction contractors ceased to be liable to third parties when the contractors’ work was completed and accepted by the owner. See Pac. Indem. Co., 260 N.W.2d at 554. If limiting the liability exposure which resulted from the erosion of the privity of contract doctrine is the purpose of section 541.051, damages caused before the work was completed and accepted by the owner — damages during the installation process — appear to be outside the scope of the statute.

The legislature has already indicated, however, that section 541.051 is intended to bar a broader range of claims than those prohibited before the erosion of the privity of contract doctrine. The original version of section 541.051 did not specify the types of actions barred. See Minn. Stat. § 541.051, subd. 1 (1965) (“[N]o action to recover damages for any injury to property * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought * * * more than two years after discovery thereof * * *.”). This court limited the statute’s coverage to tort actions in which the defendant asserting section 541.051 as a defense was not in privity with the plaintiff. Kittson County, 308 Minn, at 242, 241 N.W.2d at 802. The legislature specifically broadened the statute’s scope in 1980 by amending it to state that it covered “action[s] by any person in contract, tort, or otherwise to recover damages.” Act of April 7, 1980, ch. 518, § 2, 1980 Minn. Laws 595, 596 (codified as amended at MinmStat. § 541.051, subd. 1 (20Q4)). This amendment indicates that the legislature had a broader purpose for section 541.051 than simply limiting the liability exposure which occurred after the erosion of the privity of contract doctrine.

When the plain language of a statute is ambiguous, another factor considered in the search for legislative intent is the consequence of a particular interpretation. Minn.Stat. § 645.16(6). If this court adopts Jaenty’s argument that installation must be “complete” for something to qualify as an “improvement to real property,” difficult distinctions will need to be drawn between “partially-installed” items that are not covered by section 541.051 and “completely-installed” improvements that are covered by section 541.051. Based on the legislature’s decision to broaden the scope of section 541.051 and based on the negative consequences of Jaenty’s proposed interpretation, we hold that an object need not be completely installed in order to qualify as an “improvement to real property” within the meaning of Minn.Stat. § 641.051.

II.

Having concluded that the anchor qualifies as an improvement to real property, the next issue before the court is whether Jaenty’s damages “arose out of the defective and unsafe condition” of the anchor. If the damages “arose out of the defective and unsafe condition” of the anchor, Jaenty’s claims are barred by the two-year statute of limitations. Jaenty argues that its injuries arose out of “negligent construction activities” rather than the defective and unsafe condition of the anchor and thus Jaenty’s claims should not be subject to the two-year statute of limitations. We address this issue in two ways: (1) whether the condition of the anchor was “defective and unsafe,” and (2) whether Jaenty’s alleged injuries “arose out of the condition” of the anchor.

We have previously said that whether an injury arises out of a defective and unsafe condition “turns on the individual facts alleged in the complaint.” Gribel v. Andersen Corp., 489 N.W.2d 521, 523 (Minn.1992) (holding that to be “defective and unsafe” an improvement need not be a risk to human health). Here, the complaint alleged that the anchor was drilled in a negligent manner, that respondents’ negligence after the gas line strike prevented those in danger from being warned, and that respondents’ negligence prevented the gas from being turned off in time to avert an explosion. At the time of the explosion, the anchor was bent out of alignment and had pierced a gas line. Jaenty appears to argue that this condition of the anchor does not qualify as a “defective and unsafe condition” because any damage to the anchor or caused by the anchor occurred because of errors during the installation process.

This court has already held that negligence during the installation process can lead to a “defective and unsafe condition of an improvement to real property.” See Pac. Indem. Co., 260 N.W.2d at 552-55 (holding that a previous version of section 541.051 applied to damages resulting, in part, from installing a furnace too close to a nearby wall). Because the anchor was not installed correctly and presented a safety hazard at the time of Jaenty’s alleged injuries, and because this court has previously held that errors during installation can create a “defective and unsafe condition of an improvement to real property,” we conclude that the anchor was in a defective and unsafe condition at the time the alleged injury occurred.

Having determined that the anchor was in a “defective and unsafe condition” at the time of Jaenty’s alleged injuries, the remaining inquiry is whether Jaenty’s claimed injuries “arose out of’ this condition. Jaenty argues that “there is no causal connection between the injuries sustained by Jaenty and the condition of the anchor” and that the accident was caused by respondents’ negligence. Because we reaffirm that negligence during installation can create a “defective and unsafe condition of an improvement to real property,” this claim is without merit. This court has not yet been required to define the exact parameters of the definition of “arising out of’ in section 541.051; this case does not require us to do so. The anchor was in a defective and unsafe condition because during installation it was bent out of alignment and punctured a gas line. There is proximate cause between a negligent act and an injury when the act is “ ‘one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others.’ ” Canada v. McCarthy, 567 N.W.2d 496, 506 (Minn.1997) (quoting Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn.1995)). A plaintiff must also show that the negligent conduct was a substantial factor in bringing about the injury. Id. While the existence of proximate cause is usually a question of fact for the jury, “when reasonable minds could reach only one conclusion,” it is a question of law. Id. Viewing the evidence in a light most favorable to Jaenty, the installation of the anchor in a manner which severed a gas line was an act that a person exercising reasonable care would anticipate was likely to result in injury to others, and the puncture of the gas line was a substantial factor in bringing about the resulting explosion and Jaenty’s alleged injuries. Given this causal connection, we hold that Jaenty’s alleged injuries arose out of the defective and unsafe condition of the anchor.

Affirmed.

HANSON, J., took no part in the consideration or decision of this case.

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

PAGE, Justice

(dissenting).

I respectfully dissent. While the court correctly points out that we are to use a “common-sense interpretation” when defining what constitutes an improvement to real property, the court fails to apply any common sense in defining the anchor here, which was in the process of being put in place when it struck the gas pipeline, to be an improvement to real property. As a result, Jaenty’s negligence claims based on respondents’ act of drilling the anchor into the gas pipeline causing its rupture are defeated by the statute of limitations. This result is one that the statute does not contemplate.

Minnesota Statutes § 541.051, subd. 1(a) (2004), in relevant part provides:

Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought * * * more than two years after discovery of the injury * ⅜ *.

The phrase “improvement to real property” as used in the statute and as interpreted in our case law means “ ‘a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.’ ” Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977) (quoting Kloster-Madsen, Inc. v. Tafi’s, Inc., 303 Minn. 59, 63, 226 N.W.2d 603, 607 (1975)). In construing section 541.051, we are to give “effect to the plain meaning of the words of the statute without resort to technical legal constructions of its terms.” Pac. Indem., 260 N.W.2d at 554.

The anchor at issue in this case, at the time it was drilled into the gas pipeline, was not a “permanent addition to or betterment of real property.” Webster’s Third New International Dictionary, Unabridged, defines “permanent” as “continuing or enduring (as in the same state, status, place) without fundamental or marked change: not subject to fluctuation or alteration: fixed or intended to be fixed: lasting, stable.” Webster’s Third New International Dictionary 1683 (1993); see also Merriam-Webster’s Collegiate Dictionary 863 (10th ed.2001) (defining “permanent” as “continuing or enduring without fundamental or marked change: Stable”). The word “addition” is defined as “a part added to or joined with a building.” Webster’s Third New International Dictionary 24; see also Merriam-Webster’s Collegiate Dictionary 13 (defining “addition” as “a part added (as to a building or residential section)”). The word “betterment” is defined as “a making or becoming better: * * * an improvement of an estate (as by the addition of new buildings) that makes it better and more valuable than mere repairing would do.” Webster’s Third New International Dictionary 209; see also Merriam-Webster’s Collegiate Dictionary 109 (defining “betterment” as “an improvement that adds to the value of a property or facility”). Giving the words in the phrase “permanent addition or betterment of real property” their common and approved usage and applying their plain meaning, it is clear that the phrase contemplates a completed addition or betterment. Indeed, if “permanent” does not mean completed, it is unclear to me what “permanent” is intended to mean.

Common sense dictates that an anchor that is drilled into a gas pipeline while in the process of being installed cannot constitute a permanent improvement to real property for purposes of section 541.051, subdivision 1(a). Because the anchor here was still in the process of being installed and was not yet “stable,” that is, not continuing or enduring without fundamental or marked change and not fixed or intended to be fixed at the time, it was not, in fact could not have been, a permanent addition or betterment of real property at the time the pipeline was ruptured. Although the anchor might at some point have become a permanent addition to real property, at the time it was being drilled into the pipeline causing the rupture, it was not. Therefore, the anchor does not qualify as an improvement to real property.

This is not to say that negligence during installation will always preclude an object from being treated as an improvement to real property. For instance, in Pacific Indemnity, the negligent installation of a furnace led to a fire that occurred 20 years later and destroyed portions of a strip mall. Pac. Indem., 260 N.W.2d at 551-52. In that case, we held that the negligent installation of the furnace led to a harm that arose out of an improvement to real property. Id. at 554. The difference between the furnace in Pacific Indemnity and the anchor in the instant case is that the installation of the furnace in Pacific Indemnity was complete and the resulting harm arose from the manner in which the furnace had been installed and not, as here, the act of installation itself. Like Pacific Indemnity, all of the other cases in which we have addressed whether there was an improvement to real property for purposes of Minn.Stat. § 541.051, subd. 1(a), have involved improvements that were completed long before the injury arose. See, e.g., Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 452 (Minn.1988) (crane considered permanent improvement because it was in place for nearly 20 years); Frederickson v. Alton M. Johnson Co., 402 N.W.2d 794, 795-96 (Minn.1987) (electrical switchboard, which had been previously installed in a shopping mall, considered improvement to real property); Bulau v. Hector Plumbing & Heating Co., 402 N.W.2d 528, 529-30 (Minn.1987) (fireplace installed at least one year before injury was improvement to real property). My research has turned up no cases in which we have held that there was an improvement to real property when it was the act of installing rather than the manner of installing the improvement that resulted in the harm.

In order for the limitations provisions of section 541.051, subdivision 1(a), to apply, the injury at issue must also arise out of a defective and unsafe condition. That did not happen here. As the opinion correctly points out, whether an injury arises out of a defective and unsafe condition “turns on the individual facts alleged in the complaint.” See Griebel v. Andersen Corp., 489 N.W.2d 521, 523 (Minn.1992). The complaint in the underlying action alleges that the injury arose because the anchor was drilled in a negligent manner, respondents failed to warn those in danger, and respondents’ negligence prevented the gas from being turned off in time to avert an explosion. As such, the complaint contained no fact that would indicate that the gas explosion arose out of the anchor’s defective and unsafe condition. The record as developed bears this out. In fact, the National Transportation Safety Board cited the lack of procedures to prevent damage to nearby utilities when the anchor crew encountered unusual conditions as the “probable cause of this accident.”

Further, because of the legislature’s use of the conjunctive “and” in the phrase “defective and unsafe condition,” the anchor must have been both defective and unsafe for the limitations period in section 541.051, subdivision 1(a), to apply. While it can be argued that, as a result of being bent as it was being installed, the anchor was in a defective condition when it struck the pipeline, it cannot be seriously argued that the anchor was in an unsafe condition. What made the anchor unsafe was not its condition but the act of drilling it into the gas pipeline. Had the anchor not been drilled into the pipeline, the harm inflicted here would not have occurred no matter what the condition of the anchor. Therefore, the injury did not arise out of a defective and unsafe condition. Because the damage Jaenty sustained did not arise out of a defective and unsafe condition of an improvement to real property, the statute of limitations found in section 541.051, subdivision 1(a), does not bar Jaenty’s claims.

That Minn.Stat. § 541.051, subd. 1(a), does not act to bar Jaenty’s claims is supported by our statement in Sartori that “[t]he statutory limitation period [found in section 541.051, subdivision 1] is designed to eliminate suits against architects, designers and contractors who have completed the work, turned the improvement to real property over to the owners, and no longer have any interest or control in it.” 432 N.W.2d at 454 (emphasis added). Obviously, at the time the anchor was drilled into the pipeline the work had not been completed, the anchor had not been turned over to its owners, and respondents continued to have an interest in and control of the anchor. Equally obvious is the fact that the purpose of the limitations period cannot be met by applying section 541.051, subdivision 1(a), in this case.

Finally, I note that the statute of limitations found in section 541.051, subdivision 1(a), is short — two years as opposed to the six-year limitations period applicable to ordinary negligence actions. Minn.Stat. § 541.05, subd. 1 (2004). This shortened limitations period can, as in this case, work a harsh result. Yet the court broadens the application of the statute based in part on “the legislature’s decision to broaden and clarify the scope of section 541.051.” The court’s broadening of the application of section 541.051 is, at best, misguided. In clarifying and broadening the scope of the statute, the legislature did nothing more than make clear that the statute covers more types of actions than simply tort actions. The legislature did nothing to change, modify, broaden, or clarify the statute’s “arising out of the defective and unsafe condition of an improvement to real property” language. Moreover, the legislature’s changes did nothing to address the concerns raised by this court in Kittson County v. Wells, Denbrook & Associates, Inc., that “the statute has the potential of working a harsh result * * * because of the shortness of the 2-year” statute of limitations. 308 Minn. 237, 240, 241 N.W.2d 799, 801 (1976). Thus, the legislative amendments provide no basis for overruling Kittson County.

      . In their joint brief, Sirti, Seren and CCI claim that, before the district court, Jaenty failed to argue that the anchor was not an improvement to real property based on the lack of complete installation. Because of this failure, Sirti, Seren and CCI argue that this court should not consider this issue on appeal. In general, an issue will not be considered on appeal if it was not first raised below. Putz v. Putz, 645 N.W.2d 343, 350 (Minn.2002). In its response memorandum to the district court concerning respondents’ motion for summary judgment, Jaenty stated that " ‘[t]he ordinary insertion of an anchor' is not an improvement to real property.” Jaenty's memorandum did not specifically ground this argument on the anchor's lack of ''permanence,” but in reaching its decision, the district court found that the installation of the fiber-optic cable — and specifically the installation of the anchor — was an improvement to real property. In making this finding the district court used the definition of improvement to real property found in Pacific Indemnity Co., which includes the requirement that the alleged improvement be a "permanent addition to or betterment of real property.” We conclude that Jaenty has sufficiently preserved this issue for appeal.

      . As noted in Pacific Indemnity Co., 260 N.W.2d at 554, prior to the enactment of section 541.051, this court had adopted a rule of liability to third parties on the part of building contractors after the work had been completed and accepted by the owner. See Murphy v. Barlow Realty Co., 206 Minn. 527, 531-36, 289 N.W. 563, 565-67 (1939).

      . In Kittson County, this court interpreted section 541.051 using a rule of strict construction. 308 Minn, at 240-41, 241 N.W.2d at 801. The court justified this rule of construction based on the uncertain scope of the statute, the harsh result of the statute, and potential constitutional issues raised by the absolute nature of the statute of repose in section 541.051. Id. at 240-41, 241 N.W.2d at 801. In light of the legislature’s decision to broaden and clarify the scope of section 541.051 and because this court has subsequently held the statute of repose constitutional, see Sartori, 432 N.W.2d at 452-54, we overrule Kittson County to the extent that it requires a rule of strict construction to be used when interpreting section 541.051.

      . We recognize that in Sartori this court stated that section 541.051 was designed to "eliminate suits against architects, designers and contractors who have completed the work, turned the improvement to real property over to the owners, and no longer have any interest or control in it.” Sartori, 432 N.W.2d at 454. Sartori, however, dealt with the application of the statute of repose found in section 541.051 — not the statute of limitations. See 432 N.W.2d at 451. Under section 541.051, the statute of repose does not begin to run until "after substantial completion of the construction.” Minn.Stat. § 541.051, subd. 1(a). For this reason, while Sartori may give guidance on the purpose of the statute of repose in section 541.051, it does not provide guidance on the issue facing this court.

      .We note that the Minnesota Court of Appeals has come to the same conclusion when interpreting section 541.051. See O’Connor v. M.A. Mortenson Co., 424 N.W.2d 92, 94 (Minn.App.1988).

      . The only support Jaenty cites for its argument is Wiita v. Potlatch Corp., 492 N.W.2d 270 (Minn.App.1992). In Wiita, the court of appeals held that the cement blocks which fell from a crane onto the plaintiff did not constitute an improvement to real property. Wiita, 492 N.W.2d at 272. Wiita is of little help here as the court of appeals did not address the question of whether the blocks were in a "defective and unsafe condition.”

      . Because we conclude that all of Jaenty's claims against respondents arose out of the defective and unsafe condition of the anchor, we need not reach NSP’s claim that Jaenty’s claims against NSP are barred on the separate basis that the gas line struck by the anchor qualifies as an improvement to real property under section 541.051.


source: Caselaw Access Project

author: /s/Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael W. COOPET, a Minnesota Attorney, Registration No. 139567.
    No. A05-1659.
    Supreme Court of Minnesota.
    July 28, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael W. Coopet committed professional misconduct warranting public discipline, namely, making false statements, alteration of documents, failure to properly handle client matters, failure to appropriately handle client funds and misuse of trust account, failure to cooperate with the Director’s investigation, unauthorized practice of law, and misconduct resulting in suspension of respondent’s license to practice law in the State of California, in violation of Minn. R. Prof. Conduct 8.1(a)(1), 8.1(a)(3), 8.4(c), 1.1, 1.3, 1.4, 1.15, 8.4(c) and (d), 5.5, and 1.16(d).

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is suspension from the practice of law for a period of 36 months, subject to the following conditions:

a. Respondent shall comply with Rule 26, RLPR, requiring notice of suspension to clients, other lawyers, and tribunals.
b. Respondent shall pay $900 in costs plus the additional sum of $1,224.22 in disbursements pursuant to Rule 24, RLPR.
c. The requirements of Rule 18(a) — (d), RLPR, requiring a petition and hearing for reinstatement to active practice, shall apply.
d. Respondent shall successfully complete the professional responsibility examination pursuant to Rule 18(e), RLPR, prior to petitioning for reinstatement.
e. Respondent shall satisfy the continuing legal education requirements of Rule 18(e), RLPR, prior to petitioning for reinstatement.

This court has independently reviewed the file and approves the jointly recommended disposition with the exception that respondent be suspended indefinitely and shall not be eligible to apply for reinstatement for a minimum of 36 months.

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

IT IS HEREBY ORDERED that respondent Michael W. Coopet is suspended from the practice of law indefinitely, effective 14 days from the date of this order, subject to the conditions set forth above.

BY THE COURT:

/s/Helen M. Meyer

Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST John R. JESPERSON, a Minnesota Attorney, Registration No. 176096.
    No. A06-1091.
    Supreme Court of Minnesota.
    July 28, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent John R. Jesperson committed professional misconduct warranting public discipline, namely, neglect of two client matters and failure to communicate with either client, in violation of Minn. R. Prof. Conduct 1.3, 1.4,1.16(d) and 8.4(d).

Respondent has entered into a stipulation with the Director in which respondent admits the allegations of the petition and the parties jointly recommend that the appropriate discipline is a public reprimand and two years’ supervised probation, subject to the following conditions:

(a)Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of probation. Within two weeks of the date of the stipulation, respondent shall provide to the Director the names of two attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (b) below. Respondent shall make active client files available to the Director upon request.
(b) Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(c) In the event respondent is retained to handle any probate matters, or any other matters concerning or related to the estates of decedents or incompetents, respondent shall within ten days provide the supervisor with a copy of the written retainer agreement. Respondent shall provide the supervisor with a separate file inventory for these probate matters and shall keep the supervisor advised of respondent’s progress in completing them.
(d) Respondent shall initiate and maintain office procedures that ensure there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in matters that respondent is handling, and that will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
(e) Within 30 days from the execution of this stipulation, respondent shall provide to the Director and to his probation supervisor (if any) a written plan outlining office procedures designed to ensure that respondent is in compliance of probation requirements. Respondent shall provide progress reports as requested.
(f) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(g) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(h) Respondent agrees to the imposition and payment of $900 in costs under Rule 24, Rules on Lawyers Professional Responsibility.

The court has independently reviewed the file and approves the jointly recommended disposition, with the added condition that respondent provide the Montgomery probate file to successor counsel within five days of the filing of this order, if respondent has not already done so.

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

IT IS HEREBY ORDERED that respondent John R. Jesperson is publicly reprimanded and placed on supervised probation for a period of two years from the filing of this order, subject to the conditions set forth above.

BY THE COURT:

/s/Helen M. Meyer

Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST, Henry J. MARTINEZ, a Minnesota Attorney, Registration No. 265482.
    No. A06-529.
    Supreme Court of Minnesota.
    July 31, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Henry J. Martinez committed professional misconduct warranting public discipline after his conviction of criminal sexual conduct in the fifth degree, in violation of Minn. R. Prof. Conduct 8.4(b).

The parties have entered into a stipulation under which the Director has withdrawn certain allegations in the petition and respondent has unconditionally admitted the remainder of the allegations in the petition and waived his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR). The parties jointly recommend that the appropriate discipline to be imposed is a six-month suspension, to be effective 30 days from the date of the suspension order, with reinstatement subject to the following conditions:

(a) The reinstatement hearing provided for in Rule 18, RLPR, is not waived.
(b) Respondent shall comply with Rule 26, RLPR, requiring notice of suspension to clients, opposing counsel, and tribunals.
(c) Respondent shall successfully complete the professional responsibility examination portion of the bar examination, pursuant to Rule 18(e), RLPR.
(d) Respondent shall satisfy the continuing legal education requirements of Rule 18(e), RLPR.

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

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

IT IS HEREBY ORDERED that respondent Henry J. Martinez is suspended from the practice of law for six months, effective 30 days from the date of filing of this order, subject to the conditions set forth above. Respondent shall pay costs in the amount of $900 under Rule 24(d), RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: ANDERSON, G. BARRY, Justice.

text:
    STATE FARM FIRE AND CASUALTY, et al., Respondents, v. AQUILA INC. d/b/a People’s Natural Gas, f/k/a UtiliCorp United Inc., d/b/a People’s Natural Gas/Energy One, Appellant, Northern Pipeline Construction Company, Defendant, Robert Sauer, et al., Defendants, George Rucker, et al., Nominal Defendants.
    No. A04-1816.
    Supreme Court of Minnesota.
    Aug. 3, 2006.

      Charles E. Lundberg, Dale M. Wagner, Bassford Remele, Minneapolis, MN, Martin M. Loring, Jason R. Scheiderer, Kansas City, MO, for Appellant.
    Bradley J. Ayers, Robert W. Vaccaro, Daniel B. Strunk, Flynn, Gaskins & Bennett, LLP, Minneapolis, MN, for Respondent State Farm and Auto Owners.
    Jeremy R. Stevens, Bird Jacobsen & Stevens, Rochester, MN, for Respondent Joan Hernlem.
   OPINION

ANDERSON, G. BARRY, Justice.

Respondents, State Farm Fire and Casualty (State Farm), Auto Owners Insurance Company (Auto Owners), and Joan Hernlem brought suit against appellant, Aquila, Inc. (Aquila), defendant Northern Pipeline Construction Company (Northern Pipeline), and other defendants for damages that were caused by a natural gas leak from a pipeline system that is owned and operated by Aquila and was installed by Northern Pipeline. The district court granted summary judgment in favor of Aquila and Northern Pipeline, concluding that MinmStat. § 541.051 (2004) barred respondents’ claims. Respondents appealed, and the court of appeals, in a split decision, affirmed summary judgment for Northern Pipeline, reversed summary judgment for Aquila, and remanded the matter to the district court. State Farm, Fire & Casualty v. Aquila Inc., 697 N.W.2d 636 (Minn.App.2005). We reverse and reinstate summary judgment for Aquila.

Aquila owns and operates natural gas pipelines in the United States. Hallmark Terrace Trailer Park (Hallmark Terrace) is a mobile home park located in Rochester, Minnesota. Prior to 1990, Aquila owned and operated a steel pipeline-gas system that serviced the residences at Hallmark Terrace.

In 1990, Aquila decided to replace the gas system. Aquila hired Northern Pipeline to build and install the new natural gas system using polyethylene pipelines. The work order for the project stated that the new system was to be installed because of the hazardous location of the existing steel pipelines. The cost of installing the new system exceeded $21,000 and was completed in December 1990. Unknown to the parties, during the installation a section of the new polyethylene pipeline was mistakenly pushed through a section of an existing clay tile sewer line. Aquila abandoned the steel pipeline system upon the completion of the new system. No maintenance or repairs were performed on the natural gas system prior to the incident that prompted this lawsuit.

In early 2002 Hallmark Terrace hired Robert Sauer to repair sewer drains that were blocked by tree roots. On February 13, 2002, Sauer used a trap-and-drain auger to unclog the sewer pipes. During the process, the auger struck and ruptured the intersecting natural gas line, causing natural gas to escape through the sewer pipes and into several homes. The gas accumulated and ignited, resulting in an explosion and ensuing fire that damaged the real and personal property of several Hallmark Terrace residents.

Respondents brought an action, claiming that Aquila and Northern Pipeline “failed to exercise reasonable care and [were] negligent in the inspection, maintenance, repair and/or installation of the natural gas system at Hallmark Terrace.” Respondents also claimed that Aquila and Northern Pipeline were negligent per se for violating “applicable codes and standards regarding the inspection, maintenance, repair and/or installation of the natural[-]gas system.”

Following discovery, Aquila and Northern Pipeline filed motions for summary judgment, arguing that respondents’ claims were barred by Minn.Stat. § 541.051, which imposes a 10-year repose period on all causes of actions “arising out of the defective and unsafe condition of an improvement to real property.” Minn. Stat § 541.051, subd. 1(a) (2004). Respondents filed a cross-motion for summary judgment, arguing Minn.Stat. § 541.051 did not apply to their claims because the natural gas pipeline system was merely an addition to the existing natural gas distribution system, and not an improvement to real property. Respondents further argued that, even if the natural gas pipeline system was an improvement to real property, Aquila and Northern Pipeline were not entitled to the protections afforded by the statute because Minn.Stat. § 541.051, subd. 1(c), provides an exception for claims arising out of the “actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owners or other persons in possession.”

The district court granted Aquila and Northern Pipeline’s motions for summary judgment and dismissed respondents’ claims against Aquila and Northern Pipeline. In concluding that MinmStat. § 541.051 applied to bar respondents’ claims, the court held that the natural gas pipeline system constituted an improvement to real property and respondents’ injuries arose out of the defective and unsafe condition of the pipeline. Further, the court concluded that respondents failed to present evidence that Aquila was negligent in the maintenance, operation, or inspection of the pipelines, and therefore, the Minn.Stat. § 541.051, subd. 1(c), exception did not apply. As to Northern Pipeline, the court ruled that the exception also did not apply because Northern Pipeline relinquished all control over the natural gas pipeline system after the installation and never owned or possessed the system.

Respondents appealed, and the court of appeals affirmed in part, reversed in part, and remanded the matter to the district court. State Farm, 697 N.W.2d at 645. The court unanimously affirmed the district court’s decision to grant summary judgment in favor of Northern Pipeline. Id. The majority opinion, however, held that the district court erred in granting summary judgment to Aquila because (1) the natural gas pipeline system is not “an improvement to real property under Minn. Stat. § 541.05, but an addition to the utility’s distribution system,” and (2) a prima facie case of negligence exists where an explosion is caused by a natural gas leak from a line owned by the utility, notwithstanding an absence of notice of the leak. Id. at 642-45. We subsequently granted Aquila’s petition for further review.

On appeal, Aquila argues the court of appeals erred in concluding that (1) the natural gas pipeline system is not “an improvement to real property” for the purpose of applying the 10-year statute of repose in Minn.Stat. § 541.051 and (2) the Minn.Stat. § 541.051, subd. 1(c), exception applied to respondents’ claims because a prima facie case of negligence against Aquila had been established.

I.

Summary judgment is proper where there are no genuine issues of material fact, and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. In so determining, this court views the evidence in the light most favorable to the party against whom summary judgment was granted. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). In addition, the construction and applicability of a statute of limitation or repose is a question of law subject to de novo review. See Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

Minnesota Statutes § 541.051, subd. 1, provides, in pertinent part:

(a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury * * * nor, in any event shall such cause of action accrue more than ten years after the substantial completion of the construction.
(c) Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

We turn first to the issue of whether the pipeline system constitutes an “improvement to real property” for purposes of applying repose periods in MinmStat. § 541.051, subd. 1(a). This court has adopted a common-sense interpretation of the phrase “improvement to real property.” See Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 451 (Minn.1988); Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977). In Pacific Indemnity Co., our court considered a dictionary definition of the phrase and defined an improvement as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” 260 N.W.2d at 554.

After carefully reviewing the record, we conclude that the natural gas pipeline system in question qualifies as “improvement to real property” as described by Pacific Indemnity Co. and Sartori.

First, the installation of the system involved more than 4,075 feet of new pipeline, valves, and fixtures, at a cost of more than $21,000, easily qualifying as a project involving “the expenditure of labor or money.” Second, the complete abandonment of the existing propane steel pipeline system and the installation of a new natural gas polyethylene pipeline system that provided more than 10 years of maintenance-free service prior to the incident is not “ordinary repair,” but rather represents, “a permanent addition to or betterment of real property,” by any definition. See Sar-tori, 432 N.W.2d at 452 (holding that a crane that was fabricated on a mining facility and operating for 19 years qualifies as “a permanent addition to or betterment of real property”). Third, as the project’s working order specifically stated, the installation of the natural gas pipeline system was due to the hazardous location of the existing steel pipeline system. While there is no specific evidence quantifying an increase in the capital value of Hallmark Terrace as a result of the gas system improvements, common sense indicates that replacing a hazardous propane system with a new, safer (if installed correctly), maintenance-free natural gas system increases the value of the real property the system serves. Respondents offered no contrary evidence, asserting only that the installation was an ordinary repair. As a result, the evidence in the record, while hardly overwhelming, supports the argument that the new natural gas system enhanced the capital value of Hallmark Terrace.

We note that, in reversing summary judgment to Aquila, the court of appeals majority concluded that the natural gas pipeline system was not “an improvement to real property” with respect to Aquila, but was “an improvement to real property” with respect to Northern Pipeline because the system was (1) owned and controlled by Aquila and (2) was part of Aquila’s distribution system. State Farm, 697 N.W.2d at 637. But neither the relevant statutory language nor this court’s interpretation of the phrase “improvement to real property” indicates a subjective analysis leading to different results for different owners. In other words, under the statute, an object is either an “improvement to real property” or it is not. The natural gas system at issue here is an improvement to real property.

We further note that for the statute of repose in Minn.Stat. § 541.051, subd. 1(a), to apply, the injuries that the respondents suffered must also arise out of “the defective and unsafe condition of an improvement to real property.” Minn. Stat. § 541.051, subd. 1(c). Here, the evidence indicates that portions of the natural gas pipeline system were erroneously installed through a sewer line. Subsequently, while unclogging the sewer pipes, an auger struck and ruptured the intersecting gas pipeline, which resulted in a natural gas leak that led to the explosion and ensuing fire that destroyed several homes in Hallmark Terrace. Clearly, if all the pipelines were installed correctly, the cleaning of the sewage line would not have led to the gas leak. Therefore, as the district court correctly found, “the defective and unsafe placement of the pipeline system is causally related to the claimed damages.” Accordingly, we conclude the incident in question and respondents’ damages arose out of the dangerous and unsafe condition of an improvement to real property.

II.

Having determined that respondents’ claims for negligent installation of a natural-gas line pipe system are barred by the 10-year statute of repose in Minn.Stat. § 541.051, subd. 1(a), the next question we address is whether summary judgment is appropriate on respondents’ claims for negligent inspection, maintenance and repair of the natural gas pipeline system. The statute of repose does not apply to claims for negligence in the maintenance, operation or inspection of an improvement to real property. See Minn.Stat. § 541.051, subd. 1(c) (providing that the limitation and repose periods in section 541.051 do not apply “to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession”).

Aquila argues that summary judgment is appropriate on these claims because respondents failed to come forward with any competent evidence supporting their allegations of negligent inspection, operation or maintenance. Respondents contend that the record contains sufficient evidence as to Aquila’s negligence to raise a question of material fact with respect to the applicability of Minn.Stat. § 541.051, subd. 1(c).

We first address which party bears the evidentiary burden of establishing an exception to the application of the statute of repose. Generally, a party asserting a statute of limitation or repose as an affirmative defense bears the burden of proving all elements of the affirmative defense. See Thiele v. Stick, 425 N.W.2d 580, 583 (Minn.1988). Respondents argue that because they allege that Aquila’s negligence resulted in the gas explosion, Aquila had the evidentiary burden of establishing not only the applicability of the statute of repose in Minn.Stat. § 541.051, subd. 1(a), but also the inapplicability of the exception to the statute of repose found in Minn.Stat. § 541.051, subd. 1(c), for negligent maintenance, operation, and inspection claims. This court has not specifically addressed the issue of which party bears the evidentiary burden of establishing an exception to the application of a statute of limitations or a statute of repose. Other courts, however, have held that “because statutes of limitation protect important interests of certainty, accuracy and repose,” any exception to the statutes of limitation should be used “only in exceptional circumstances” and the burden of proving the exception lies with the parties who seek to claim the benefit of the exception. Motley v. United States, 295 F.3d 820, 824 (8th Cir.2002); see also Baker v. F & F Inv., 420 F.2d 1191, 1198-99 (7th Cir.1970). This is a sensible approach and we adopt it. As a result, contrary to respondents’ position at oral argument, Aquila did not have the burden of proof with respect to the applicability of the Minn.Stat. § 541.051, subd. 1(c), exception. In other words, to successfully pursue summary judgment under Minn.Stat. § 541.051, Aquila was required to demonstrate that the statute of repose found at Minn.Stat. § subd. 1(a) applied to Aquila by presenting evidence that the natural gas pipeline system qualified as “an improvement to real property” and that the incident in question rose out of the “defective and unsafe” condition of the system. Once Aquila had done so, however, the eviden-tiary burden shifted to respondents to prove that at least a question of material fact existed with respect to Aquila’s negligence.

Respondents assert that “the law imposes a higher standard of care for gas pipes owned and controlled by the utility provider.” We have stated that a gas company must “exercise a degree of care to prevent the escape of gas proportionate to the danger which it is its duty to avoid.” Bellefuil v. Willmar Gas Co., 243 Minn. 123, 126, 66 N.W.2d 779, 782 (1954) (footnote omitted). A utility’s duty to inspect does not require a system of inspection at all times, but only a duty to “make reasonable inspections.” Wilson v. Home Gas Co., 267 Minn. 162, 172, 125 N.W.2d 725, 732 (1964). “Notice that will trigger a gas supplier’s duty exists where the supplier is in possession of facts that would suggest to a person of ordinary care and prudence that some part of the gas system is leaking or is otherwise unsafe for the transportation or use of gas.” Ruberg v. Skelly Oil Co., 297 N.W.2d 746, 751 (Minn.1980).

In the present controversy, respondents do not argue and the record does not indicate that Aquila was in possession of any facts suggesting that Northern Pipeline incorrectly or negligently installed the system. Respondents, however, contend that the record does contain sufficient evidence as to Aquila’s negligence and a question of material fact exists with respect to the applicability of Minn.Stat. § 541.051, subd. 1(c).

We have held that, upon a motion for summary judgment, an adverse party cannot preserve a right to trial on the merits merely by referring to “unverified or conclusory allegations” in the pleadings or by speculating about evidence that may be developed at trial. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995) (quoting Rosvall v. Provost, 279 Minn. 119, 124, 155 N.W.2d 900, 904 (1968)). To raise a genuine issue of material fact that would necessitate a trial, a plaintiff must provide more than evidence merely creating a metaphysical doubt as to a factual issue and that is not sufficiently probative with respect to an essential element of his case to permit reasonable people to draw different conclusions. Gunderson v. Harrington, 632 N.W.2d 695, 703 (Minn.2001).

The record shows that respondents’ original complaint and amended complaint set forth the allegations that Aquila “owed a duty to exercise reasonable care in the inspection, maintenance, and/or repair of the natural-gas system at Hallmark Terrace,” but that it “failed to exercise reasonable care and was negligent.” Respondents additionally allege that Aquila was “negligent per se” in violating “applicable codes and standards regarding the inspection, maintenance, repair and/or installation of the natural-gas system.” To support these claims, the complaints contained the following factual allegations:

At all times material herein, [Aquila] maintained control over the natural-gas line at the Hallmark Terrace Trailer Park.
In November of 1990, [Aquila] contracted with Northern Pipeline to repair a portion of the existing natural-gas line at the Hallmark Terrace Trailer Park.
While Northern Pipeline was repairing a portion of the natural-gas system at Hallmark Terrace, Northern Pipeline either bored or pushed the replacement gas line through the existing sewer line.
While [Robert Sauer] was attempting to unclog the sewer pipes, [Sauer] struck and ruptured the natural-gas line at Hallmark Terrace with [his] trap-and-drain auger or “snake,” causing natural-gas to migrate through the sewer piping and enter into the manufactured homes at Hallmark Terrace where the gas began to build up in large quantities.

Beyond these sparse factual allegations, the record contains very little additional factual support for respondents’ negligence claims. Respondents stated during oral argument that the facts that would raise a question of material fact regarding the applicability of the Minn.Stat. § 541.051, subd. 1(c), exception were: (1) a gas explosion occurred from a natural gas pipeline system owned and controlled by Aquila, (2) one of the gas pipelines was installed incorrectly, and (3) Aquila failed to inspect, service, or maintain the pipeline prior to the incident. But viewed in the light most favorable to respondents, these facts are not “sufficiently probative” to establish a prima facie case of liability.

We stated in Lubbers, “ ‘The essential elements of a negligence claim are: (1) the existence of a duty of care; (2) a breach of that duty; (3) an injury was sustained; and (4) breach of the duty was the proximate cause of the injury.’ ” 539 N.W.2d at 401 (quoting Schmanski v. Church of St. Casimir, 243 Minn. 289, 292, 67 N.W.2d 644, 646 (1954)). Here, despite the allegation that Aquila owed a duty of reasonable care and had failed to exercise such a duty, the record contains no evidence that a duty of reasonable care existed and how Aquila breached such a duty.

Respondents do not allege that Aquila had a duty to conduct an independent inspection of Northern Pipeline’s work that would have allowed Aquila to discover the incorrect installation. Similarly, respondents failed to establish that Aquila had a duty to perform maintenance at some point prior to the incident and that any such maintenance would have found the defect at issue.

A similar deficiency also exists with respect to respondents’ negligence per se claim. Despite the allegation that Aquila had “violated NFPA and other applicable codes and standards regarding the inspection, maintenance, repair and/or installation of the natural[-]gas system,” respondents failed to provide any statutory provision, code, or industry standard against which Aquila might have been held negligent. As such, respondents’ allegations are mere averments and are not sufficient to survive summary judgment. Put another way, plaintiffs failed in their evi-dentiary burden to successfully raise a jury question as to the applicability of the Minn.Stat. § 541.051, subd. 1(c), exception.

Last, we note that the court of appeals held that a prima facie case of negligence against Aquila existed because “gas does not escape from pipelines if those responsible exercise proper care.” State Farm, 697 N.W.2d at 643. The court further concluded that because “Aquila owned and controlled the pipeline, * * * the fact that Aquila never received notice of a defect or dangerous condition in its line does not defeat [respondent’s] negligence claim.” In so concluding, the court cited our comment in Wilson, where we stated that in previous cases such as Manning v. St. Paul Gaslight Co., 129 Minn. 55, 151 N.W. 423 (1915), our court has “applied a strict rule of liability when gas escapes from a pipe over which the [gas] company has control and for which it is responsible.” Wilson, 267 Minn, at 173, 125 N.W.2d at 732. The court’s reliance on Wilson is misplaced. Wilson dealt with a gas leak of unknown origin, and those are not the circumstances at issue here. Instead, the escape of the gas was caused by the puncture of the pipeline by a third party, Sauer, and it is undisputed that there were no problems with the pipeline until Sauer punctured it in 2002. We decline to extend Wilson to circumstances, such as here, where others are responsible for the leak. See Wilson, 267 Minn, at 172, 125 N.W.2d at 732 (noting that a gas supplier is not an insurer for those suffering loss from a gas leak). Wilson, 267 Minn. at 172, 125 N.W.2d at 732. Wilson, in the content of this case, is inapplicable.

Reversed.

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

      . Both the court of appeals majority opinion and respondents rely heavily on Johnson v. Steele-Waseca Coop. Elec., in which the court of appeals concluded that electrical equipment owned by a regional utility, which was installed on a dairy farm, did not constitute an improvement. 469 N.W.2d 517, 520 (Minn.App.1991), rev. denied (Minn. July 24, 1991). We leave for another day the wisdom of applying Johnson to the statute at issue and note only that here Johnson is inapplicable. As correctly recognized by the court of appeals dissent, the improvements at issue in Johnson allegedly causing injury were part of a larger distribution system installed for the benefit of the power cooperative. Id. at 519. In the present controversy, the improvements were designed entirely to serve the Hallmark Terrace properties, and whatever applicability Johnson may have to other circumstances, it is not helpful here.


author: PAGE, Justice.

text:
    The TRAVELERS INDEMNITY COMPANY, et al., Respondents, v. BLOOMINGTON STEEL & SUPPLY COMPANY, et al., Defendants, Jose Padilla, Appellant.
    No. A04-1713.
    Supreme Court of Minnesota.
    Aug. 3, 2006.

      Charles D. Slane, Terry & Slane, P.L.L.C., Bloomington, MN, for Appellant.
    Duana J. Grage, Holly J. Tchida, Hin-shaw & Culbertson, L.L.P., Minneapolis, MN, for Respondents.
    Charles A. Bird, Bird, Jacobsen & Stevens, P.C., Rochester, MN, for Amicus Curiae Minnesota Trial Lawyers Association.
   OPINION

PAGE, Justice.

This case presents the issue of whether, and under what circumstances, the intent or knowledge of an agent of a corporation may be imputed to the corporation for purposes of determining whether bodily injury inflicted by the agent upon a third party was expected or intended from the standpoint of the corporate insured.

On October 18, 2000, Cecil Reiners struck Jose Padilla on the head, causing Padilla serious injury. Padilla sued Rein-ers for assault and battery and sued Bloomington Steel and Supply Company (Bloomington Steel), a corporation of which Reiners was the sole shareholder, officer, and director, for respondeat superior, negligent hiring, negligent retention, and negligent supervision. Bloomington Steel’s insurers, the Travelers Indemnity Company and the Charter Oak Fire Insurance Company (collectively, Travelers), denied any obligation to defend or indemnify Reiners in the underlying action. Travelers did defend Bloomington Steel in the underlying action, but reserved the “right to withdraw from the defense if there is a determination that there is no coverage for any claims under the policy.”

After the district court denied Bloom-ington Steel’s motion for summary judgment in the underlying action, Travelers brought this action seeking a declaratory judgment that it had no duty under its policies with Bloomington Steel to indemnify Bloomington Steel in the underlying action. Travelers, Bloomington Steel, and Padilla then all brought motions for summary judgment in this coverage dispute. The district court denied Bloomington Steel’s and Padilla’s motions and granted Travelers’ motion for summary judgment. The district court found that coverage for Padilla’s injuries was barred by the expected or intended injury exclusion of the insurance policies. Padilla appealed, and the court of appeals affirmed. Travelers Indem. Co. v. Bloomington Steel & Supply Co., 695 N.W.2d 408, 409, 411 (Minn.App.2005). The court of appeals held that, given Reiners’ history of violent behavior, Bloomington Steel must be held to have “expected” the damages resulting from the injury to Padilla. Id.

This court granted Padilla’s petition for further review and instructed the parties to address whether the intent or knowledge of an agent of a corporation may be imputed to the corporation for purposes of determining whether bodily injury was expected or intended from the standpoint of the corporation. Because we conclude that nothing in the policies issued by Travelers to Bloomington Steel requires that Reiners’ knowledge of his own history of violence be imputed to Bloomington Steel, we reverse the court of appeals and remand for further proceedings.

I.

Reiners began working for Bloomington Steel, a corporation, in 1968. In 1991, he became the sole shareholder, director, and officer of Bloomington Steel. From May 31, 2000, through May 31, 2001, a period spanning Reiners’ assault of Padilla, Travelers provided both commercial general liability insurance coverage and umbrella liability insurance coverage to Bloomington Steel. The terms of the two policies relevant to our disposition in this case are essentially the same. Under the policies, Travelers is obligated to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The policies “appl[y] to ‘bodily injury’ and ‘property damage’ only if: * * * [t]he ‘bodily injury’ or ‘property damage’ is caused by an ‘occurrence.’ ” “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policies exclude “ ‘[bjodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured” from coverage. In addition, the policies contain a “separation of insureds” clause which, in relevant part, reads: “[TJhis insurance applies: [ (1) ] As if each Named Insured were the only Named Insured; and [ (2) ] Separately to each insured against whom claim is made or ‘suit’ is brought.”

On October 18, 2000, Padilla was working as an employee of Key Star, a company that at the time shared a common work area with Bloomington Steel. In the underlying lawsuit, Padilla alleged that Rein-ers approached Padilla and told Padilla to speak in English, not in Spanish. Later that day, when Reiners discovered Padilla speaking Spanish, Reiners hit Padilla in the head with a piece of wood, fracturing Padilla’s skull. Padilla alleges that he suffered a severe brain injury and that he has permanent injuries as a result. Reiners eventually pleaded guilty to first-degree assault for his actions.

Padilla brought suit against both Rein-ers and Bloomington Steel. Against Rein-ers, Padilla asserted a claim of assault and battery. Against Bloomington Steel, Padilla alleged that Reiners was acting within the course and scope of his duties as an employee of Bloomington Steel when Rein-ers assaulted him, and that Bloomington Steel was therefore responsible for the damages caused by Reiners under the doctrine of respondeat superior. Finally, Padilla alleged that Bloomington Steel was negligent in its retention and supervision of Reiners.

Bloomington Steel moved for summary judgment on the claims against it. In denying Bloomington Steel’s motion, the district court noted that an employer is vicariously liable for the torts of its employees if those torts are committed within the course and scope of employment. The court concluded that, “viewing the facts in a light most favorable to Padilla, as the non-moving party, the assault was arguably related to Reiners’ supervisory duties at Bloomington Steel because Reiners was angry at Padilla for interfering with the work of Bloomington Steel employees.” The court further concluded that “a corporation may be liable for negligently retaining or supervising an employee even if the employee is the corporation’s sole shareholder and director.” The court reasoned that “it would be inconsistent to recognize a corporation as a distinct entity shielding its sole shareholder from personal liability for corporate obligations yet disregard the corporate entity as a fiction or an alter ego when the corporation is potentially liable.”

Travelers then commenced this action against Bloomington Steel, Reiners, and Padilla, seeking declaratory judgment that it has no obligation to indemnify Blooming-ton Steel in the underlying action. Travelers asserted that the actions, expectation, and intent of Reiners, as the sole shareholder, sole director, and only officer of Bloomington Steel, must be imputed to Bloomington Steel. As a result, Travelers alleged, any damages awarded to Padilla in the underlying action would not be covered under the policy due to the requirement that the injury be “unexpected and unintended by the insured.”

Padilla, Bloomington Steel, and Travelers each moved for summary judgment in the coverage action. In support of his motion for summary judgment against Travelers, Padilla alleged that Reiners had a history of violent behavior, including one incident in which Reiners threatened to kill an employee with a hammer and another in which Reiners threw rocks at an employee’s vehicle. Travelers did not contest any of these allegations and used them as a basis for its argument that Blooming-ton Steel should therefore have “expected” Reiners’ assault against Padilla. However, there is no admissible evidence in the record of Reiners’ violent past, and, for purposes of this appeal, Padilla’s allegations are nothing more than allegations.

In entering judgment for Travelers, the court concluded that the exclusion in the Travelers’ policy for intentional acts precluded coverage for any damages Bloom-ington Steel could be legally obligated to pay to Padilla. The court cited American Family Mutual Insurance Co. v. M.B., a case in which the insured corporation was held to have no coverage for sexual harassment because the corporation’s president knew or should have known the harassment was likely to occur, and therefore the harassment was held to have been “expected” from the standpoint of the insured corporation. 563 N.W.2d 326, 328-29 (Minn.App.1997), rev. denied (Minn. July 28, 1997). The court reasoned that, “given Reiners’ extensive history of physical violence on the job,” Bloomington Steel “knew or should have known that an outburst of violence by Reiners was highly likely to occur.” Moreover, the court reasoned, if a company president’s knowledge is to be imputed to the corporation under M.B., then Reiners’ knowledge, as the sole owner, director, and operator of Blooming-ton Steel, of his own violent tendencies made the assault of Padilla “expected” under the Travelers’ policy exclusion.

On appeal to the court of appeals, Padilla argued that the district court erred in applying the objective test of M.B., and argued that this court had adopted a stricter, subjective standard in the case of Domtar v. Niagara Fire Insurance Co., 563 N.W.2d 724 (Minn.1997). In Domtar, we observed that “it is the insured’s actual expectation of damage that allows a defense to coverage.” Id. at 735. The court of appeals declined to decide whether an objective or subjective standard applied, concluding that under either standard Bloomington Steel must be held to have expected the damages resulting from Padilla’s injuries. Travelers, 695 N.W.2d at 411. “[Gjiven Reiners’s lengthy record of violent behavior,” the court concluded, “[t]he commingled identity of Reiners and Bloomington Steel permits no other rational result.” Id. Nothing in the court of appeals’ decision explains the “commingled identity” of Reiners and Bloomington Steel beyond the fact that Bloomington Steel had been wholly owned by Reiners since 1991.

II.

On appeal from summary judgment, this court determines “whether there are any genuine issues of material fact, and whether the lower court erred in its application of the law.” Olmanson v. LeSueur County, 693 N.W.2d 876, 879 (Minn.2005). We view the evidence in a light most favorable to the nonmoving party, here Padilla. See Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 371 (Minn.1995).

We begin our analysis of the issue presented here by considering the terms of the insurance policies between Travelers and Bloomington Steel. Interpretation of an insurance policy is a question of law we review de novo. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn.2002). If the language of an insurance contract is unambiguous, it must be given its plain and ordinary meaning. Id. at 880. But if the language is ambiguous, it will be construed against the insurer, as drafter of the contract. Progressive Specialty Ins. Co. v. Widness, 635 N.W.2d 516, 518 (Minn.2001). Coverage provisions are construed according to the expectations of the insured. See Atwater Creamery Co. v. Western Nat'l Mut. Ins. Co., 366 N.W.2d 271, 276-77 (Minn.1985).

While the insured bears the initial burden of demonstrating coverage, the insurer carries the burden of establishing the applicability of exclusions. Domtar, 563 N.W.2d at 736. Insurance contract exclusions are construed narrowly and strictly against the insurer, Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609, 613 (Minn.2001), and, like coverage, in accordance with the expectations of the insured. Am. Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418, 422 (Minn.1987).

Under the policies at issue here, Travelers is obligated to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” The parties do not dispute that, viewing the facts most favorably to Padilla, Bloomington Steel could be legally obligated to pay damages to Padilla as a result of bodily injury Padilla suffered at the hands of Reiners.

Both policies exclude coverage for bodily injury “expected or intended from the standpoint of the insured.” The named insured in each of the policies at issue is Bloomington Steel. Thus, the question is whether Padilla’s injuries were expected or intended from the standpoint of Bloomington Steel. On that question, Travelers bears the burden of proof.

A.

Travelers argues that Reiners’ intent and expectations must be imputed to Bloomington Steel simply because Reiners was the sole shareholder, director, and officer of the company. According to Travelers, “when the control over the corporate entity is so complete by one agent of the entity, the intent and expectation must be imputed to the corporation.” We disagree.

The language of the Travelers’ policies requires that Reiners and Bloom-ington Steel be considered separately. Under the terms of the policies, each policy applies “as if each Named Insured were the only Named Insured” and “separately to each insured against whom claim is made or ‘suit’ is brought.” As we observed in Utica Mutual Insurance Co. v. Emmco Insurance Co., 309 Minn. 21, 31, 243 N.W.2d 134, 140 (1976), such a sever-ability clause requires that coverage exclusions be construed only with reference to the particular insured seeking coverage. Because it is Bloomington Steel that seeks coverage here, the exclusion for bodily injury expected or intended by “the insured” is limited to bodily injury expected or intended by Bloomington Steel itself. Moreover, Travelers insured Bloomington Steel as a corporation, as indicated by the policy declarations. Although Travelers now argues that Reiners’ expectation and intent must be attributed to Bloomington Steel because Reiners was “the sole owner and operator of the corporation,” Travelers explicitly acknowledged Bloomington Steel’s separate status for coverage purposes when it issued the policies at issue here.

The language of the Travelers’ policies excludes coverage for bodily injury expected or intended from the standpoint of “the insured.” Travelers could have made clear that it was not insuring Bloomington Steel for the risk of an intentional act committed by Reiners in at least two different ways. Instead of excluding coverage for bodily injury expected or intended from the standpoint of “the ” insured, the Travelers’ policies could have excluded coverage for bodily injury expected or intended from the standpoint of “an ” or “any ” insured. As we held in Watson v. United Services Automobile Ass’n, 566 N.W.2d 683, 691-92 (Minn.1997), an exclusion in a fire insurance policy for loss caused by the act of “an insured” excludes coverage for co-insured spouses, even when they are not responsible for the property damage at issue, although such clauses conflict with the Minnesota standard fire insurance policy and are therefore unenforceable under MinmStat. § 65A.01 (2004). There is no comparable standard CGL policy language under Minnesota law and therefore such a clause in the policies issued by Travelers to Bloomington Steel would have been enforceable here and would have barred coverage for Bloomington Steel for Reiners’ acts to the extent Reiners was also insured under the policies.

As we have recognized, an insurance policy is a contract between insurer and insured. See Vetter v. Sec. Cont’l Ins. Co., 567 N.W.2d 516, 521 (Minn.1997). Because the relationship between insurer and insured is contractual, the parties are free to contract as they desire and, so long as coverage required by law is not omitted and the provisions in the policy do not contravene applicable statutes, the extent of the insurer’s liability is determined by the insurance contract. Thommes, 641 N.W.2d at 882. At the same time, as we have recognized, insurance contracts are contracts of adhesion. Canadian Universal Ins. Co. v. Fire Watch, Inc., 258 N.W.2d 570, 574-75 (Minn.1977). Because policy exclusions are strictly construed against the insurer, and because Travelers could have unilaterally included provisions in its policies that would have unambiguously excluded coverage for Bloomington Steel for claims against it resulting from Reiners’ actions, we conclude that the language of the Travelers’ policies does not require that Reiners’ intent be automatically imputed to Bloomington Steel.

B. .

Travelers argues that Reiners’ knowledge nevertheless must be attributed to Bloomington Steel under general corporate legal principles. It is true that “a corporation is charged with constructive knowledge * * * of all material facts of which its officer or agent * * * acquires knowledge while acting in the course of employment within the scope of his or her authority.” 8 William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations, § 790 (2002); see Brooks Upholstering Co. v. Aetna Ins. Co., 276 Minn. 257, 262, 149 N.W.2d 502, 506 (1967) (“[I]f the officer or agent was one who was acting within the scope of his duties, his knowledge is imputable to the corporation.”).

We conclude that Travelers’ argument must fail for two reasons. First, Travelers points us to no law holding that general corporate legal principles can create an exclusion from coverage not found in the insurance policy itself. To adopt Travelers’ position would require us to override long-standing principles of interpretation of insurance policies holding that exclusions in insurance contracts are to be read narrowly against the insurer. See Atwater Creamery, 366 N.W.2d at 276.

Second, general corporate legal principles limit the knowledge that is attributed from agent to principal to that knowledge acquired by the agent “while acting in the course of employment within the scope of his or her authority.” 3 Fletcher, supra, § 790. While the parties contend Reiners’ history of violence in the workplace is undisputed, there is no admissible evidence of that history in the record before us. As a result, we cannot say on this record that Reiners had a history of violence, much less that Bloomington Steel should be charged with knowledge of it.

But our resolution of this matter should not be construed to mean that Bloomington Steel cannot be charged with knowledge of Reiners’ propensity for violence, or that Bloomington Steel cannot have been negligent in its retention or supervision of Reiners. A corporation can be held liable for a tort just as a natural person can. 10 Fletcher, supra, § 4877. In determining the corporation’s tort liability, the intent of an agent or employee of the corporation will be imputed to the corporation when the agent or employee “acted on behalf of the corporation.” Id.; see Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 558 N.E.2d 958, 969 (1990). Under the general corporate legal principles cited by Travelers, Bloom-ington Steel is charged with knowledge of Reiners’ acts, if any, committed in the course of his employment and within the scope of his authority, and is charged with Reiners’ intent when Reiners acted on its behalf.

It will be up to the finder of fact to determine, based on the knowledge attributed to Bloomington Steel using the principles set forth above, whether Bloom-ington Steel, as an entity separate and distinct from Reiners, expected Reiners’ assault of Padilla. Our previous statement in Domtar sets out the proper definition of “expectation”:

“[EJxpected” damage [requires] a certainty of harm on the part of the insured greater than general standards of foreseeability used to impose liability on the insured. In explaining the high degree of certainty demanded, we have also equated “expected” damage with “reckless” conduct. Of course, this standard does not preclude the use of circumstantial evidence or proof of willful blindness, but is the insured’s actual expectation of damage that allows a defense to coverage.

563 N.W.2d at 735 (citations omitted). We emphasize that, as indicated in Domtar, showing that an insured “expected” the injury suffered requires more than showing sufficient “foreseeability” to maintain a negligence action against the insured. See Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 908, 911 (Minn.1983) (using a “foreseeability” standard to analyze case based on negligent hiring). Whether Bloomington Steel expected Reiners’ assault of Padilla based on its actual and imputed knowledge of other incidents of violence will be a fact-specific determination. On the record before us, we express no opinion as to whether Bloomington Steel expected the assault of Padilla or whether Bloomington Steel was negligent in its retention or supervision of Reiners.

C.

Finally, Travelers urges us to affirm the lower courts on grounds that to do otherwise would allow Reiners “to hide behind a corporate form to protect himself from the economic consequences of his violent assault.” Travelers’ concern is legitimate and appropriate, and we have expressed such concern ourselves on other occasions. For example, in Hogs Unlimited v. Farm Bureau Mutual Insurance Co. we addressed whether two partners in a hog farming operation could recover under the partnership’s casualty insurance policy after the third partner killed the partnership’s hogs by deliberately gassing them with anhydrous ammonia. 401 N.W.2d 381, 381, 383 (Minn.1987). We held that the innocent insured partners could recover their proportionate interests under the insurance policy provided that, among other things, “payment of the insurance proceeds to the innocent partners [could] be accomplished to deny, in a practical manner, any appreciable benefit to the guilty partner.” Id. at 386.

But the concern that Reiners might benefit here cannot be the basis for overriding the terms of the Travelers’ policies. We note that in the underlying litigation Padilla brought claims against both Reiners and Bloomington Steel. The record does not disclose how Padilla’s claims against Reiners were resolved, if indeed they have been resolved. Therefore, on the record before us, we cannot conclude that requiring Travelers to indemnify Bloomington Steel for the damages suffered by Padilla would result in an undue benefit to Reiners or would allow Reiners to protect himself from the economic consequences of his assault of Padilla.

Reversed and remanded.

      . Padilla apparently later withdrew his claim for negligent hiring.

      . Padilla asserts, and Travelers does not contest, that he and Bloomington Steel entered into a Miller v. Shugart agreement after the district court's grant of summary judgment in Travelers’ favor. See Miller v. Shugart, 316 N.W.2d 729, 732-36 (Minn.1982) (allowing personal injury plaintiff to collect on stipulated judgment in garnishment action against defendant's liability insurer). A copy of the agreement between Padilla and Bloomington Steel is not part of the record.

      . All of the above quoted language is taken from the commercial general liability policy. However, we refer generally throughout the opinion to “the policies” because they do not differ in any aspect relevant to this opinion.

      . The policies also insured Bloomington Steel’s stockholders, executive officers, directors, and employees under certain conditions.

      . Travelers does not clearly argue, and we do not reach, the issue of whether the intent of an agent, for whose acts a corporate insured is vicariously liable under the doctrine of re-spondeat superior, can be imputed to the insured for purposes of the “expected or intended injury” exclusion in the policies at issue. While Travelers argues that Reiners’ intent should be imputed to Bloomington Steel because of the level of control he held over Bloomington Steel, Travelers concedes that "the intent or knowledge of any agent of a corporation should not necessarily be imputed in every instance to the corporation for purposes of a coverage analysis.” But by arguing that Reiners' intent should be imputed here simply because he is the sole shareholder, officer, and director, Travelers leaves us no principled way to differentiate between those circumstances in which intent of an agent should be imputed and those in which it should not.
      To take but one example, consider a situation in which a single person is the sole shareholder, officer, and director, but another individual actively manages the corporation. Should the shareholder/officer/director’s knowledge and intent be attributed to the corporation, even though that individual has no role in managing the corporation? Should the manager's intent be attributed to the corporation even though that individual has no ownership? And what about knowledge obtained by the shareholder/officer/director outside the scope of his employment? For example, if Reiners were perfectly behaved in the workplace but prone to fighting in bars after hours and on his own time, should that knowledge be attributed to Bloomington Steel? We believe our resolution of the matter avoids these problems inherent in the rule Travelers advocates.

      . For example, while the parties apparently agree that an employee of Key Star alleged that Reiners had assaulted him three times before Reiners assaulted Padilla, the only evidence of these assaults referenced by the parties is a question posed to Reiners in his deposition in the underlying action. Reiners asserted his Fifth Amendment privilege and did not answer the question. The parties have not detailed when these assaults occurred. With the exception of one incident, in which Reiners aggressively shook a business associate's hand, the remaining incidents cited by the parties to this court appear to have involved damage to property or verbal threats to individuals and are based on hearsay statements contained in depositions in the underlying action.

      . The following additional issues are raised in the brief of amicus curiae Minnesota Trial Lawyers Association (MTLA): (1) whether an intentional act, for which a corporation is liable under respondeat superior, can constitute an ''occurrence'' under the policies at issue and (2) whether, assuming that "negligent retention and supervision” is the only potential "occurrence” in this case, proper interpretation of the policies requires that the "expectation and intent” of Bloomington Steel be evaluated at the time of the negligent retention and supervision. We decline to reach these issues because they were not decided by the lower courts and are outside the scope of the briefing order given by this court to the parties. Because we decline to reach the separate issues raised by MTLA, Travelers' motion to strike MTLA’s brief is moot.