author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Charles Norman EK, an Attorney at Law of the State of Minnesota.
    No. C3-00-2006.
    Supreme Court of Minnesota.
    May 16, 2002.
    Edward J. Cleary, St. Paul, for petitioner.
    Charles Norman Ek, Chugiak, AK, for respondent.
   OPINION

PER CURIAM.

In the fall of 1999, the Director of the Office of Lawyers Professional Responsibility attempted to investigate a complaint filed by one of respondent’s clients. In an untimely reply, respondent acknowledged his failure to communicate with his client and attend to the case, however respondent failed to respond to subsequent requests for information. On May 8, 2000, respondent was mailed charges of unprofessional conduct and a notice of a pre-hearing meeting requiring his attendance at which respondent ultimately failed to appear. The Director subsequently petitioned for disciplinary action based upon flagrant non-cooperation pursuant to Rule 10(d), Rules of Lawyers Professional Responsibility (RLPR). The Director’s attempt at personal service was unsuccessful as respondent had moved to Alaska. In September 2000, the petition for disciplinary action was amended pursuant to Rule 10(e), RLPR, based upon an additional allegation of misconduct received from another of respondent’s clients. On October 5, 2000, the Director served respondent by mail with the notice and disciplinary petition at the address on record for his attorney registration in Minnesota and also at a post office box he maintained in Alaska, as provided by his former receptionist. The Director received neither an executed admission of service nor an answer to the petition.

On November 16, 2000, the Director requested an order suspending respondent pursuant to Rule 12(c)(1), RLPR, “Respondent not found,” which we issued December 11, 2000. In the year following the order, respondent did not move to vacate it, and on January 30, 2002, we issued an order pursuant to Rule 12(c)(1), RLPR, directing respondent to appear before this court on April 4, 2002, to show cause why we should not take appropriate disciplinary action against him. The order to show cause was served on respondent by publication. Because respondent failed to request permission to answer the disciplinary petition and failed to answer the petition within one year of this court’s suspension order, the allegations of the petition are deemed admitted and the only issue before the court is the appropriate discipline to impose. See Rules 12(c) & 13(b), RLPR; see also In re Geiger, 621 N.W.2d 16, 17 (Minn.2001).

The two complaints filed by respondent’s former clients allege lack of communication and abandonment. In the first complaint, the client explained that respondent had indicated he would file an appeal, but thereafter neither filed the appeal nor contacted the client to advise him that he would not be doing so. In the second complaint, the client accused respondent of abandoning him after filing an appeal and brief on the client’s behalf. When the client was unsuccessful in his attempts to contact respondent by telephone regarding upcoming oral arguments on his appeal, he went to respondent’s office where the receptionist informed him that respondent had moved to Alaska.

On October 1, 1999, the Director sent respondent a notice of investigation concerning the first complaint requesting a written response within 14 days. When respondent failed to reply within the required time the District Ethics Committee (DEC) investigator wrote to respondent informing him that if he did not receive a reply from respondent by November 1, 1999, he would conclude his investigation based on the information he had. On November 1, 1999, respondent sent a reply in which he acknowledged that he had not maintained communication with the client and that although he told the client he would file an appeal, he had not done so. The DEC referred the matter back to the Director on January 12, 2000, indicating that there was an admitted violation of Minn. R. Prof. Conduct 1.4. The Director then wrote to respondent requesting additional information about his handling of the case and when respondent failed to reply, the Director sent two follow-up letters. When the follow-up letters also failed to prompt a response, the Director wrote to respondent by certified mail and first-class mail requesting respondent’s appearance at a meeting on April 11, 2000. Respondent was advised that if he was unable to attend he should contact the Director to reschedule. Respondent did not appear and did not contact the Director.

On June 9, 2000, the Director issued a notice of investigation to respondent concerning the second complaint and sent it to respondent’s Minneapolis address and his post office box in Alaska. Respondent failed to reply to the notice of investigation or to follow-up letters sent on June 28 and July 19, 2000.

The purpose of attorney discipline is not to punish the attorney, but to guard the administration of justice and protect the courts, the legal profession, and the public. In re Kaszynski, 620 N.W.2d 708, 713 (Minn.2001); In re Isaacs, 451 N.W.2d 209, 211 (Minn.1990). With that in mind, this court must determine the proper discipline by considering the nature of the misconduct, ±he cumulative weight of the rule violations, the harm to the public, and the harm to the legal profession. Geiger, 621 N.W.2d at 22; In re Madsen, 426 N.W.2d 434, 436 (Minn.1988). Although each case must be decided on its unique facts and circumstances, analogous cases may provide guidance to the court. In re Campbell, 603 N.W.2d 128, 132 (Minn.1999); Madsen, 426 N.W.2d at 436. Mitigating or aggravating factors may also be taken into consideration. In re Haugen, 543 N.W.2d 372, 375 (Minn.1996).

Respondent’s misconduct includes: (1) extensive non-cooperation with a disciplinary investigation, and (2) neglect and non-communication in two separate client matters. Failure to cooperate with a disciplinary investigation violates Minn. R. Prof. Conduct 8.1(a)(3) and Rule 25(a), RLPR. Minnesota Rules of Professional Conduct 8.1(a)(3) provides that a lawyer, in connection with a disciplinary matter, shall not “knowingly fail to respond to [a] * * * discipline authority’s lawfully authorized demand for information by either providing the information sought or making a good faith challenge to the demand.” Rule 25(a), RLPR, states that it “shall be the duty of any lawyer who is the subject of an investigation or proceeding under these Rules to cooperate” with the investigation. As to the client matters, respondent’s neglect and non-communication violate Minn. R. Prof. Conduct 1.3, which requires a lawyer to act with reasonable diligence and promptness in representing a client, and Minn. R. Prof. Conduct 1.4, which requires a lawyer to keep clients informed and comply with clients’ requests for information.

We have stated that if we are to meet our goal of protecting the public we cannot ignore conduct where a lawyer acts “with complete disregard for the disciplinary process.” In re Sigler, 512 N.W.2d 899, 901-02 (Minn.1994). In fact, we have repeatedly recognized that attorney cooperation is imperative, and have made it clear that a failure to cooperate in a disciplinary investigation constitutes independent grounds for discipline. In re Danielson, 620 N.W.2d 718, 720 (Minn.2001); In re Engel, 538 N.W.2d 906, 907 (Minn.1995); In re Cartwright, 282 N.W.2d 548, 552 (Minn.1979).

As evidence of respondent’s ongoing non-cooperation, the Director cites respondent’s failure to respond in a timely manner to the original notice of investigation in the first client complaint and his failure to respond at all to the Director’s follow-up inquiries and notice of investigation in the second client complaint. The Director notes that this is not a case in which respondent was unaware of the disciplinary investigations. Respondent did eventually respond to the first client complaint and apparently signed for correspondence informing him of a meeting with the Director’s office. Further, although he was no longer living in Minnesota, the Director was able to serve respondent with the amended petition for disciplinary action and the application for the order suspending him. Thus, respondent’s non-cooperation with the disciplinary process appears to be knowing and willful.

While emphasizing that non-cooperation alone would warrant suspension, the Director contends that respondent’s neglect and non-communication in both client matters aggravates his misconduct, providing additional support for its recommendation that this court suspend respondent indefinitely.

In determining the appropriate discipline to impose, we find guidance in the analogous case of Engel, in which an attorney similarly failed to cooperate with the Director’s investigation of two client complaints concerning neglect and non-communication. 538 N.W.2d at 906. In En-gel, we noted:

[Wjhile the allegations of misconduct underlying the Director’s investigation identify instances of client neglect and frustration, respondent’s failure to cooperate with the inquiry into the validity and seriousness of those complaints has greatly hampered the investigatory efforts and demonstrates respondent’s failure to acknowledge either the seriousness of the proceeding or her disregard for her basic obligations as an attorney or a present inability to deal with any consequences for her actions.

Id. at 907. In recognition of these failures, we ordered Engel indefinitely suspended from the practice of law. Id. Although Engel had a prior disciplinary history, an aggravating circumstance not present here, we have “generally held that an attorney’s pattern of neglect and failure to communicate with clients, combined with failure to cooperate with a disciplinary authority’s investigation, usually warrants an indefinite suspension from the practice of law.” Campbell, 608 N.W.2d at 132. Accordingly, we find indefinite suspension appropriate in this ease.

IT IS HEREBY ORDERED that respondent Charles Norman Ek is indefinitely suspended from the practice of law. Respondent shall pay $900 in costs and disbursements pursuant to Rules 24(a) and (b), RLPR, comply with the requirements of Rule 26, RLPR, and satisfy the conditions of Rule 18, RLPR, prior to reinstatement.

      . Rule 10(d), RLPR provides:
      In matters in which there are an attorney's admissions, civil findings, or apparently clear and convincing documentary evidence of an offense of a type for which the Court has suspended or disbarred lawyers in the past, such as * * * flagrant non-cooperation including failure to attend a pre-hear-ing meeting, * * * the Director may either submit the matter to a Panel or upon a motion made with notice to the attorney and approved by the Panel Chair, file the petition under Rule 12.

      . Rule 10(e), RLPR states:
      If a petition under Rule 12 is pending before this Court, the Director must present the matter to the Panel Chair * * * for approval before amending the petition to include additional charges based upon conduct committed before or after the petition was filed.

      . Rule 12(c)(1), RLPR, provides that if the respondent cannot be found in the state, the Director may apply to the court for an order suspending the respondent from the practice of law. Within one year thereafter, respondent may move the court for a vacation of the order of suspension and for leave to answer the petition for disciplinary action.

      . The amended petition for disciplinary action and the application for the order suspending respondent were personally served at a residential address provided by the United States Postal authorities in Anchorage, Alaska, late in 2000.

      . This order was requested by the Director in a January 22, 2002 petition pursuant to Rule 12(c)(2), RLPR, which provides that if the respondent does not move to vacate an order of suspension within one year, the Director shall petition this court for an order to show cause.

      . The order appeared in "Finance and Commerce,” a Twin Cities-based business newspaper, on February 8, 15, and 22, 2002. The order also appeared in the "Alaska Journal of Commerce” on February 17, 24, and March 3, 2002.

      . Minnesota Rules of Professional Conduct 1.4 states:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      (a) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      . This “cooperation’' includes complying with reasonable requests made by the Director, such as requests to "[f]urnish in writing a full and complete explanation covering the matter under consideration,” and ”[a]ppear for conferences and hearings at the times and places designated.” Rule 25(a)(2)-(3), RLPR.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    Royal JORGENSEN, et al., Respondents, v. Debra L. KNUTSON, Debtor, and Milbank Insurance Company, Appellant.
    No. C8-01-1685.
    Court of Appeals of Minnesota.
    April 16, 2002.

      Craig E. Johnson, Wegner, Fraase, Nor-deng, Johnson & Ramstad, Fargo, ND, for respondents.
    Troy A. Wolf, Smith, Bakke, Hovland & Oppegard, Moorhead, MN, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, and HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

HARTEN, Judge.

After respondents insureds and the accident victim entered into a Miller-Shugart agreement, the victim brought this action against respondents as defendants and appellant insurer as garnishee. Appellant moved for summary judgment on the ground that there was no coverage on the date of the accident because the insureds had been sent a notice canceling their policy for nonpayment of the premium; respondents moved for partial summary judgment on the ground that the notice of cancellation was void. The district court denied appellant’s motion and granted partial summary judgment, concluding that the cancellation notice was void because Minn.Stat. § 645.15 (2000) applies to insurance policy cancellation notices. Appellant then contested the reasonableness of the Miller-Shugart agreement. Following a bench trial, the agreement was found to be reasonable, and judgment for the amount of the policy was awarded against appellant. Appellant now challenges both the application of Minn.Stat. § 645.15 and the reasonableness of the Miller-Shugart agreement. We affirm.

FACTS

Debra and James Knutson had an automobile insurance policy with appellant Mil-bank Insurance Company (Milbank). Mil-bank notified the Knutsons in September 1993 that their premium was due on 26 October 1993. Milbank, however, had not received payment by 10 November 1993 when it sent the Knutsons a notice of cancellation, telling them that their policy would be cancelled as of 12:01 a.m. on 22 November 1993 unless payment was received before that time.

Milbank did not receive payment from the Knutsons until 8 December 1993, six days after Debra Knutson had a car accident in which respondent Royal Jorgensen was injured. Because the Knutsons’ policy had been cancelled, Milbank sent the Knutsons a refund of their premium on 13 December 1993.

ISSUES
1. Does Minn.Stat. § 645.15 (2000) apply to cancellation of insurance coverage under MinmStat. § 65B.16 (2000)?
2. Is the amount a jury could have awarded a proper test for the reasonableness of a Miller-Shugart agreement?

ANALYSIS

1. Application of MinmStat. § 645.15

The application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

It is undisputed that, on 10 November 1993, Milbank sent the Knutsons notice that their policy would be cancelled for nonpayment of the premium at 12:01 a.m. on 22 November 1993 unless payment was received before that time. The statute governing cancellation provides:

No notice of cancellation * * * of an automobile insurance policy under section 65B.15 shall be effective unless
* * * the notice is mailed or delivered by the insurer to the named insured[.]
* * * [W]hen nonpayment of premium is the reason for cancellation * * * at least ten days’ notice of cancellation, and the reasons for the cancellation, shall be given.

Minn.Stat. § 65B.16 (2000). Minn.Stat. § 645.15 (2000) provides that

[wjhere the performance or doing of any act, duty, matter, payment, or thing is ordered or directed, and the period of time or duration for the performance or doing thereof is prescribed and fixed by law, the time * * * shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday or a legal holiday, that day shall be omitted from the computation.

The ten days’ notice of cancellation is a “period of time” for the payment of a premium that is “prescribed and fixed by law.” Accordingly, 10 November, the first day of the ten-day period, must be excluded from the computation, and 20 November, the last day, must be included. But, in 1993, 20 November fell on Saturday, so that day was omitted from the computation, as was Sunday, 21 November. Accordingly, the tenth day of the statutory period fell on Monday, 22 November.

To be effective, a notice of cancellation sent on 10 November 1993 could not have provided for cancellation before 12:01 a.m. on 23 November. See Ophus v. Tri-State Ins. Co., 392 N.W.2d 653, 656 (Minn.App.1986) (holding that notice of cancellation is not effective unless it complies with the time requirements of MinmStat. § 65B.16), review denied (Minn. 22 Oct. 1986). Therefore, because Milbank’s notice of cancellation was ineffective, the Knutsons continued to be insured at the time of the accident.

2. The Miller-Shugart Settlement

The reasonableness of a Miller-Shugart agreement is properly evaluated in a bench trial that includes not only the customary evidence on liability and damages but also evidence of verdicts in comparable cases, the likelihood of favorable rulings on evidentiary issues if the underlying matter were to be tried, and other factors of forensic significance. Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277, 279 (Minn.1990). Reasonableness is a question of fact. Id. A district court’s findings of fact are given great deference and are not set aside unless clearly erroneous. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999).

The district court found that the Miller-Shugart settlement of $150,000 was reasonable on the ground that a jury could have awarded respondents that amount:

This Court has presided over cases where the jury, on similar property damage and less evidence of personal injury, awarded the plaintiff over $200,000. A person in Ms. Knutson’s position would be justified in limiting her exposure by agreeing to a settlement of $150,000, even though she may have realized a lesser amount if the matter had been tried.

Milbank contends that whether a jury could have awarded the amount of a settlement is an inappropriate standard for reasonableness. But this court has used that standard repeatedly in Miller-Shugart cases. See, e.g., Brownsdale Coop. Ass’n v. Home Ins. Co., 473 N.W.2d 339, 342 (Minn.App.1991) (upholding a Miller-Shu-gart settlement for an amount exceeding the policy limit because the jury could have found the defendant liable for that amount), review denied (Minn. 25 Sept. 1991); Hartfiel v. McLennan, 430 N.W.2d 215, 219 (Minn.App.1988) (reasonableness of a Miller-Shugart settlement depends on whether it was entered into at a time when the jury could have found the defendants liable and could have found damages in excess of the amount of the settlement); Osgood v. Med. Inc., 415 N.W.2d 896, 903 (Minn.App.1987) (issue when determining reasonableness is not whether party seeking indemnification would have been liable for at least the amount of the settlement but rather whether that party could have been liable under the facts shown at trial), review denied (Minn. 12 Feb. 1988).

We conclude that, given the precedents for the use of the “what a jury could have found” standard, the district court did not abuse its discretion in using that standard to find that the Miller-Shugart settlement was reasonable.

DECISION

Because Minn.Stat. § 645.15 (2000) applies to insurance cancellation notices, Mil-bank’s cancellation notice was ineffective, and the partial summary judgment determining that the Knutsons had coverage at the time of respondent’s accident is affirmed. We also affirm the judgment finding the Miller-Shugart settlement reasonable.

Affirmed.

      . The limit of the Milbank policy was $100,000.


author: PETERSON, Judge.

text:
    Debra K. HAUGLAND, as trustee for the heirs and next of kin of Robert John Donovan, Sr., Appellant, v. MAPLEVIEW LOUNGE BOTTLESHOP, INC., and Armadillo Willy’s, d/b/a Julio’s Bar, Respondents.
    No. CX-01-1395.
    Court of Appeals of Minnesota.
    May 6, 2002.

      Peter D. Plunkett, Warren F. Plunkett & Associates, Austin, for appellant.
    Peter Waldeck, Peter E. Lind, Waldeck & Lind, P.A., Minneapolis, MN, for respondent Mapleview Lounge & Bottleshop, Inc.
    Chandelle L. Heyer, Steven E. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, for respondent Armadillo Willy’s d/b/a Julio’s Bar.
    Considered and decided by PETERSON, Presiding Judge, HALBROOKS, Judge, and PARKER, Judge.

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

   OPINION

PETERSON, Judge.

This appeal is from a judgment denying appellant Debra K. Haugland’s motion to amend her complaint and dismissing the complaint because, Haugland, as trustee for the next of kin of Robert John Donovan Sr., did not have capacity to bring the action under the Minnesota Civil Damages Act, Minn.Stat. § 340A.801 (2000). We affirm.

FACTS

On February 20, 1999, Robert John Donovan Sr. died in an automobile accident. Donovan left a surviving son, Robert John Donovan Jr. On February 10, 2000, Haugland, the surviving son’s maternal aunt, was appointed his conservator.

On February 12, 2001, Haugland served a summons and complaint on respondent Mapleview Lounge and Bottleshop, Inc., and on February 13, 2001, Haugland served a summons and complaint on respondent Armadillo Willy’s, d/b/a Julio’s Bar. The complaint asserted claims against respondents under Minn.Stat. §§ 340A.801, 340A.802 (2000) based on allegations that respondents illegally provided intoxicating liquor to Robert John Donovan Sr., that Donovan’s death was caused by the influence of that intoxicating liquor, and that Donovan’s survivor suffered personal and pecuniary loss.

The caption of the complaint identified the plaintiff as “Debra K. Haugland, as trustee for the next of kin of Robert John Donovan, Sr.” On May 15, 2001, respondents moved to dismiss the complaint on the basis that the action for injury to Donovan’s survivors could not be brought in the name of a trustee for the next of kin, and the complaint could not be amended to name the real party in interest because the applicable two-year statute of limitations had expired. Haugland moved to amend her complaint. The district court denied Haugland’s motion to amend and granted respondents’ motion to dismiss.

ISSUES

1. Under the Civil Damages Act, does the trustee for a decedent’s next of kin have a right of action in the trustee’s own name for personal and pecuniary loss suffered by the decedent’s survivor?

2. If a complaint that asserts a claim under the Civil Damages Act for personal and pecuniary loss suffered by a decedent’s survivor is brought in the name of the trustee for the decedent’s next of kin, may the complaint be amended more than two years after the decedent’s death to bring the action in the name of the surviv- or?

3. Is the statute of limitations for an action under the Civil Damages Act tolled pursuant to the minority-tolling statute, Minn.Stat. § 541.15 (2000)?

ANALYSIS

1. Appellant argues that the district court erred by concluding that, as conservator for Robert John Donovan Jr., she lacked capacity to bring an action under the Civil Damages Act. In Ortiz v. Gavenda, 590 N.W.2d 119 (Minn.1999), the supreme court considered a similar issue in the context of a wrongful-death claim brought under Minn.Stat. ch. 573 (1998).

In Ortiz, Frances Ortiz, the widow of a man who died from injuries suffered when the motorcycle he was driving collided with a truck, served a complaint on the driver of the truck and his employer asserting a wrongful-death claim and seeking damages as the trustee for the heirs of the decedent. Id. at 120. The driver’s answer alleged that the complaint failed to comply with the provisions of the wrongful-death statute. Id. at 120-21.

Ortiz then signed documents to have herself appointed trustee for the next of kin of her deceased husband as required by the wrongful-death statute, but due to an error by a legal assistant, the documents were not submitted to the court, and Ortiz was not appointed trustee. Id. at 121. The mistake went unnoticed until more than three years after Ortiz’s husband died. Id.

When the mistake was discovered, Ortiz filed her petition to be appointed trustee, and the trial court appointed Ortiz trustee. Id. Ortiz then moved to amend her complaint to reflect her appointment, arguing that the amended complaint should relate back to the date of her original complaint. Id. The driver

moved to dismiss arguing (1) that Minn. Stat. § 573.02, subd. 1, required Ortiz to bring the suit as trustee for her deceased husband’s next of kin within three years of his death and (2) that because Ortiz was not appointed trustee within this time period, she lacked standing to bring the action and the trial court lacked jurisdiction to hear her claim.

Id.

The trial court denied Ortiz’s motion to amend and granted the driver’s motion to dismiss. Id. On review, this court reversed and remanded the case for trial. Id. On further review, the supreme court concluded that Ortiz could not amend her complaint to comply with the statute after the statute of limitations had run and reversed this court. Id. at 123-24. The supreme court explained that

[a] wrongful death claim is purely statutory, as common law recognized no such actions on the theory that a claim for personal injuries died with the victim.

Id. at 121. The supreme court then noted that the statute that permitted Ortiz’s wrongful-death action provided that an action may be maintained by the trustee appointed to commence an action and that the action may be commenced within three years after the date of the decedent’s death. Id. at 121-22.

Ortiz conceded that she was not appointed trustee, and therefore did not bring her wrongful-death action as trustee, within three years of her husband’s death. Id. at 122. But she argued that she should be allowed to amend her complaint to reflect her later appointment and that the amendment should relate back to the date of her original complaint. Id. The supreme court acknowledged that in common-law claims, it had permitted

untimely amendments to relate back to the date of the original complaint so long as the defendants had adequate notice of the new claim and would not be unfairly prejudiced by the amendment.

Id. But the court rejected Ortiz’s argument to apply the same rule in a statutory claim. Id. at 122-23.

The court stated that, unlike a cause of action under common law,

the limitations provisions in a statutorily created cause of action are jurisdictional, requiring dismissal for failure to comply — they do not have flexible parameters permitting them to be. ignored if their application is “too technical.”

Id. at 122. Consequently, strict compliance with the statute is required. Id.

The supreme court concluded its analysis by explaining that strict compliance with the wrongful-death statute is the underpinning of its decision in Regie de I’as surance Auto, du Quebec v. Jensen, 399 N.W.2d 85 (Minn.1987), where it held that because appointment of a trustee was a condition precedent to bringing a wrongful-death action, an action filed without it was a “legal nullity.” Id. at 122-28. Therefore, no matter how compelling the circumstances for distinguishing Ortiz’s case from Regie on equitable grounds, equity could not “breath life into a claim that has never been anything more than a ‘nullity.’ ” Id. at 123. Ortiz was not permitted to amend her complaint, and the complaint was dismissed. Id. at 124.

In a recent decision that involved an action under the Civil Damages Act, the supreme court stated:

Like an action for wrongful death, a claim brought under the Civil Damages Act is a statutorily-created cause of action in derogation of the common law.

Whitener ex rel. Miller v. Dahl, 625 N.W.2d 827, 830 (Minn.2001). And, as a creature of statute with no common-law counterpart, the supreme court concluded, the Civil Damages Act must be strictly construed. Id. at 833.

The Civil Damages Act states:

A spouse, child, parent, guardian, employer, or other person injured in person, property, or means of support, or who incurs other pecuniary loss by an intoxicated person or by the intoxication of another person, has a right of action in the person’s own name for all damages sustained against a person who caused the intoxication of that person by illegally selling alcoholic beverages. All. damages recovered by a minor under this section must be paid either to the minor or to the minor’s parent, guardian, or next friend as the court directs.

Minn.Stat. § 340A.801, subd. 1 (2000).

This language specifically identifies persons who have a right of action under the Civil Damages Act and explicitly states that they have the right of action in their own name. To have a right of action, a person must be “injured in person, property, or means of support” or incur “other pecuniary loss.” The proper party plaintiff in the action is the person entitled to damages for such injuries. Beck v. Groe, 245 Minn. 28, 33, 70 N.W.2d 886, 892 (1955). And the action must be brought by the injured party in the injured party’s own name. Id. at 45, 70 N.W.2d at 898.

Haugland’s complaint alleges that Robert John Donovan Sr.’s survivor suffered personal and pecuniary loss; it does not allege that Haugland suffered any loss, as trustee or in any other capacity. Therefore, because the statute must be strictly construed, Haugland, as trustee on behalf of the next of kin of Robert John Donovan Sr., did not have a right of action under the Civil Damages Act.

Haugland argues that because a conservator has authority to bring a lawsuit in the name of the conservatee, a conservator is the functional equivalent of a guardian. Therefore, she contends, because she had been appointed conservator when she brought the action, she complied with the statute.

This argument erroneously assumes that if Haugland had attempted to bring her action as guardian for the next of kin of Robert John Donovan Sr., rather than as trustee, she would have complied with the statute. But under the statute, only a guardian that is “injured in person, property, or means of support, or who incurs other pecuniary loss” has a right of action in the guardian’s own name. The statute does not give a guardian a right of action in the guardian’s own name for injuries suffered by someone other than the guardian. Because Haugland does not claim any injury or loss to herself in any capacity, the statute does not give her a right of action in her own name as guardian, conservator, trustee, or any other capacity.

2. Haugland argues that she should be allowed to amend her complaint more than two years after Robert John Donovan Sr. died to bring the action in the name of Robert John Donovan Jr. and that the amendment should relate back to the date of the original complaint.

This argument presents the same issue that the supreme court addressed in Ortiz in the context of a wrongful-death action. And in Ortiz, as we have already discussed, the supreme court concluded that because the attempt to file a wrongful-death action without first being appointed trustee was a legal nullity, when Ortiz moved to amend the complaint after the statute of limitations expired, nothing existed to which an attempted amendment could relate back. Ortiz, 590 N.W.2d at 123.

Just as the plaintiffs attempt to bring a wrongful-death action in Ortiz was a legal nullity because the plaintiff had not been appointed trustee when she attempted to bring the action, Haugland’s attempt to bring this action is a legal nullity because Haugland brought the action in her own name, and, under the statute, she does not have a right of action in her own name. Also as in Ortiz, the statute of limitations for an action under the Civil Damages Act expired before Haugland attempted to amend her complaint. See Minn.Stat. § 340A.802, subd. 2 (2000) (“No action may be maintained under section 340A.801 unless commenced within two years after injury.”) Therefore, Haugland’s attempted amendment cannot relate back to the original complaint because there is nothing to which the amendment can relate back.

8. Haugland’s final argument is that the statute of limitations for her action under the Civil Damages Act should be tolled pursuant to the minority-tolling statute, Minn.Stat. § 541.15 (2000). Haugland acknowledges that in Whitener ex rel. Miller v. Dahl, the supreme court held that the statute of limitations for an action under the Civil Damages Act is not tolled pursuant to Minn.Stat. § 541.15, and she asserts this argument solely to preserve this issue for possible review by the supreme court. Therefore, we will not address the merits of this issue.

DECISION

Because an action under the Civil Damages Act must be brought in strict compliance with the statute, and the statute does not grant the trustee for a decedent’s next of kin a right of action in the trustee’s own name for personal and pecuniary loss suffered by the decedent’s survivor, Haug-land’s attempt to bring an action as trustee for the next of kin of Robert John Donovan Sr. was a legal nullity, and Haugland’s complaint could not be amended to assert a claim in the name of Robert John Donovan Jr. The district court did not err when it denied Haugland’s motion to amend and dismissed her complaint.

Affirmed.

      . The caption of the complaint refers to Haugland as trustee, but the body of the complaint refers to her as conservator. Haugland was appointed conservator on February 10, 2000, but nothing in the record indicates that she has been appointed trustee.


author: DORIS OHLSEN HUSPENI, Judge.

text:
    John MOHLER, et al., Appellants, Respondents, v. CITY OF ST. LOUIS PARK, Respondent, Michael G. Christianson, et al., Respondents, Appellants.
    Nos. C9-01-1534, C9-01-1887.
    Court of Appeals of Minnesota.
    May 7, 2002.

      Wayne G. Popham, Minneapolis, MN, (for appellants Mohler, et al.).
    Susan M. Sager, St. Paul, MN, (for respondent City of St. Louis Park).
    Karen E. Marty, Bloomington, MN, (for respondents Christianson, et al.).
    Considered and decided by SHUMAKER, Judge, presiding, PARKER, Judge, and DORIS OHLSEN HUSPENI, Judge.

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

   OPINION

DORIS OHLSEN HUSPENI, Judge.

In this consolidated zoning appeal, the City of St. Louis Park granted Michael and Eileen Christianson a building permit to build a two-story garage and later granted a zoning variance for the garage. John and Karen Mohler, whose property abuts the Christiansons’ property, sued the Christiansons and the city, seeking to have the variance overturned, to have a portion of the garage removed, and to receive an award of attorney fees from the city under 42 U.S.C. § 1983. The Chris-tiansons filed a cross-claim alleging that the city incorrectly measured the garage, that the city was estopped from requiring them to change the structure, and the city was negligent in misrepresenting the zoning ordinance. The Christiansons sought dismissal of the Mohlers’ complaint and an order estopping the city from requiring changes to the garage, or in the alternative, asked that the court find the city negligent in its interpretation and application of its ordinance and award the Chris-tiansons damages to be paid by the city.

The Mohlers and the city moved for summary judgment; the district court denied the Mohlers’ motion and granted that of the city. The Mohlers appeal, asserting that (1) the city’s grant of a variance is invalid and (2) they are entitled to attorney fees under 42 U.S.C. § 1983. The Chris-tiansons also appeal, claiming that (1) the city’s grant of a variance is valid because it satisfies the requirements of reasonableness, unique circumstances, and conformity with the essential character of the locality; (2) they are entitled to damages from the city due to the city’s negligent misrepresentation of the ordinances; (3) they are entitled to a trial on their estoppel claim; and (4) the city’s actions are not protected by statutory immunity or vicarious official immunity. We affirm in part, reverse in part, and remand.

FACTS

In September 1998, the Christiansons applied for a permit to build a detached garage. Five pages detailing the budding plans for the garage were included with the application for the permit. The plans show the intended total height of the garage to be 24 feet and show an intended upper loft level labeled “living space.” The city granted the budding permit.

In the fall of 1998, the Mohlers noticed large quantities of budding materials being delivered to the Christiansons’ property. In early December 1998, the Mohlers inquired at city hall about the Christiansons’ garage. The city could not find copies of the plans but told the Mohlers that the garage did not have a second floor. The record shows the city had copies of the plans by December 14,1998.

In February 1999, the partiady constructed garage looked as if it had a second story. The Mohlers’ attorney went to city had and viewed the plans and later met with a city staff employee and discussed the plans. The employee agreed that the garage was too high and said he would notify the Christiansons. The following day, February 4, 1999, Mohlers’ attorney returned to city hall, and the city staff employee stated he had informed the Christiansons of the matter. At this time, construction had not started on the second floor. Meanwhde, Mohlers’ attorney had the city’s former planning director send a letter to the city that set out violations of the ordinance, namely that the setback requirement was not proper, the plans provided for living space that was not permitted by the ordinance, and the floor area in the structure would be too large.

On February 25, 1999, the city’s zoning administrator, in responding to the Moh-lers’ attorney’s letter, concluded that the height of the garage was 14.875 feet, which was below the maximum allowed under city ordinance and that the garage did not meet the definition of dwelling. The stated height was measured from the grade level of the east or street side of the garage to the midpoint of the east or street side gable.

Two factors added height to the zoning administrator’s 14.875-foot calculation. First, the city discovered the roof overhang on the garage encroached into the required yard setback, and the removal of the overhang increased the structural height to 16 feet. Second, although the city denied the Christiansons’ request in January 1999 to install a knee wall on the second floor, they did so anyway. As a result, on May 11, 1999, the city issued a stop work/violation notice. The addition of the knee wall increased the height of the structure to 17 feet.

Meanwhile, in March 1999, the Mohlers had appealed the city zoning administrator’s determination of the height of the garage to the board of zoning appeals (“BOZA”). In April 1999, BOZA held a public hearing and determined that the zoning administrator interpreted the zoning ordinance correctly and that the garage did not exceed the maximum height. The Mohlers appealed BOZA’s determination, and in June 1999, the city council considered the appeal. On June 7, 1999, the city council determined the city staff had improperly interpreted the ordinance and that the height should be measured from the front finished grade level (east or street side in this case) to the mean distance of the highest gable, which was the north gable, rather than the east or street-side gable that was used in the earlier measurements. This method of measurement changed the height of the building from 17 feet to 18 feet, 7 inches.

In late June or early July 1999, city staff sent a letter to the Christiansons informing them of the proper method of determining height, and that under that method, the garage was 18 feet, 7 inches and in excess of the 15 feet allowed by ordinance. On July 26, 1999, the Christiansons submitted an application for a variance for the 18-foot, 7-inch garage.

On July 30,1999, the city sent the Chris-tiansons a correction letter, which stated that maximum height allowed under the ordinance was 12 feet, not 15 feet. The city staff learned that in March 1998, the city passed an ordinance that reduced the height of garages and accessory structures located within two feet of a lot line abutting an alley or within five feet from any other lot fine from 15 feet to 12 feet. The Christiansons’ garage is located about 5 feet from the Mohlers’ lot line but only three feet from the side property line.

In March 2000, after a public hearing, BOZA denied the Christiansons’ variance request. On appeal by the Christiansons, the city granted a modified variance permitting the structure’s height to be 16 feet, and required the Christiansons to bring the garage into compliance with the variance.

As a result of the grant of the variance, the Mohlers sued both the Christiansons and the city, seeking to have the variance overturned, to have a portion of the garage removed to bring it into compliance with the city code, and to receive an award of attorney fees from the city under 42 U.S.C. § 1983. The Christiansons cross-claimed, seeking dismissal of the Mohlers’ complaint and an order estopping the city from requiring changes to the garage, or in the alternative, asking that the court find the city was negligent in its interpretation and application of its ordinance and award damages to the Christiansons.

Both the city and the Mohlers moved for summary judgment. The court, in awarding summary judgment to the city, concluded that (1) the city’s decision to grant the variance was supported by a rational basis; (2) the city properly interpreted the height requirement in its zoning ordinance; (3) the Mohlers’ claim for attorney fees under 42 U.S.C. § 1983 failed because they did not establish they had a property interest through the city’s zoning laws; and (4) the Christiansons’ claim against the city on negligence and estoppel grounds failed because it did not fall under the exception to the general rule that misinterpretations of zoning ordinances are not actionable and because the city is immune from tort claims based on exercise of a discretionary duty. This appeal followed.

ISSUES

I. Did the district court err in determining that the city council’s variance was supported by a rational basis?

II. Did the city council properly interpret its zoning ordinance in determining building height measurement?

III. Did the district court err in granting summary judgment in favor of the city on Mohlers’ 42 U.S.C. § 1983 claim?

IV. Did the district court err in granting summary judgment in favor of the city on the Christiansons’ claims under negligence and estoppel theories?

ANALYSIS

On an appeal from summary judgment, an appellate court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). A court shall grant a motion for summary judgment

when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted). An appellate court “must view the evidence in the light most favorable to the party against whom judgment was granted.” Id. No genuine issue of material fact exists where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted).

I. Variance

A municipality has broad discretionary power when considering an application for variance. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.1983). In considering zoning cases, an appellate court reviews the decision of the city council independent of the findings and conclusions of the district court, and regardless of whether the zoning matter was legislative or quasi-judicial, a reviewing court determines whether the municipality’s action was reasonable. Id. An appellate court examines the action of the municipality to determine whether it was arbitrary or capricious, or whether the reasons articulated by the municipality do not have the “slightest validity or bearing on the general welfare,” or whether the reasons were “legally sufficient and had a factual basis.” Id.

The Mohlers argue that the city’s grant of a variance is invalid because as a matter of law that variance cannot meet the requirements set forth in either the city code or Minn.Stat. § 462.357, subd. 6 (2000). In granting a modified variance that permitted a 16-foot structure rather than the 18-foot, 7-inch height requested by the Chris-tiansons, the city council adopted the analysis of a city staff report. That report addressed each of the city ordinance’s seven factors for granting a variance and concluded:

Inasmuch as staff believes that none of the criteria are satisfied, it is recommended that the request to permit an accessory budding with a height of 18 feet 7 inches instead of the maximum 12 feet be denied. Staff believes that the criteria has been met and does recommend that a variance to permit an accessory building with a height of 16 feet instead of the maximum 12 feet should be approved.

Minn.Stat. § 462.357, subd. 6(2), provides that a zoning authority may grant a variance from the literal provisions of the ordinance where “strict enforcement would cause undue hardship because of circumstances unique to the individual property” and “only when it is demonstrated that such actions will be in keeping with the spirit and intent of the ordinance.” “Economic considerations alone shall not constitute an undue hardship if reasonable use for the property exists under the terms of the ordinance.” Id. Under Minn.Stat. § 462.357, subd. 6(2), the three requirements for granting a variance under the undue hardship standard are: (1) reasonableness; (2) unique circumstances; and (3) the essential character of the locality. Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn.App.2000), review denied (Minn. July 25, 2000). All three requirements must be met to establish undue hardship. Minn.Stat. § 462.357, subd. 6. Accordingly, we consider whether the city’s grant of a modified variance was reasonable.

First, we consider whether the Christiansons’ proposed use was reasonable. The statutory undue-hardship requirement “does not mean that a property owner must show the land cannot be put to any reasonable use without the variance.” Rowell v. Bd. of Adjustment of the City of Moorhead, 446 N.W.2d 917, 922 (Minn.App.1989), review denied (Minn. Dec. 15, 1989). Rather, the property owners must show that they would like to use their property in a reasonable manner that is prohibited by the ordinance. Id.

The Christiansons want to use the structure as a garage with a playroom/office on the second level. The Mohlers assert that because the ordinance only permits garages with a height of 12 feet, a second-story living space area is prohibited. There is merit to this argument. In March 1998, when an ordinance reducing garage height from 15 feet to 12 feet was adopted, the city rejected an ordinance that would allow second-story accessory apartments and offices in a detached garage. The Christiansons’ garage is out of character with the surrounding neighborhood; other nearby residents do not use their property for a similar use. We conclude the proposed use is unreasonable.

Second, we consider whether the Christiansons’ plight is one not created by them, but is attributable to circumstances unique to the property. The city asserts that unique circumstances exist because the city staff erroneously approved the building plans to construct a 16-foot garage. The Mohlers argue, however, that there is nothing unique about the property; that it is an ordinary rectangular city lot. We recognize initially that caselaw has interpreted the statute as not limited to the physical conditions of the land. In Merriam Park, the court recognized that such limitation would make granting of a variance “practically impossible except where the topographic conditions of a specific parcel of land would render the land in question otherwise valueless.” Merriam Park Cmty. Council, Inc. v. McDonough, 297 Minn. 285, 290-91, 210 N.W.2d 416, 419-20 (1973), overruled on other grounds by NW College v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn.1979).

The Merriam court noted that MinmStat. § 462.357, subd. 6, does not prohibit the granting of nonuse variances such as those of area, height, setback, density, and parking requirements, if the grant is in keeping with the spirit and intent of the ordinance. The variance in this case has features both of nonuse (height) and use (living space above the garage). While use variances allow a use prohibited under the zoning ordinance, area or nonuse variances “control area, height, setback, density, and parking requirements for uses that are permitted by the ordinance.” Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85, 90 (Minn.App.2000), review denied (Minn. Nov. 15, 2000). Unlike a use variance, a nonuse or area variance “does not change the character of the zoned district.” Appeal of Kenney, 374 N.W.2d 271, 274 (Minn.1985) (citation omitted); see also Kismet, 617 N.W.2d at 90-91 (recognizing in Minnesota, “most use variances are prohibited by statute” but variance may be permitted when use is not prohibited in zoning district but is limited by another portion of zoning ordinance (citations omitted)). Even if we consider this variance to be nonuse only, the spirit and intent of the ordinance would not be met, because the structure is not consistent with the surrounding neighborhood.

We conclude, ultimately, that even if the unique circumstances requirement of the ordinance could be met other than by reference to the topography of the land, the city’s mistake in approving a 16-foot structure is not legally sufficient to be considered a unique condition under the statute. See VanLandschoot, 336 N.W.2d at 508 (recognizing appellate court examines city’s action to determine whether reasons were legally sufficient and had factual basis). Graham v. Itasca, 601 N.W.2d 461 (Minn.App.1999), informs our decision here. In Graham, a developer purchased two substandard adjacent lots, mistakenly believing he could develop the second lot. In affirming denial of a variance, this court stated:

Just as knowledge of a zoning ordinance does not bar granting a variance, * * * a landowner’s mistaken belief about a zoning ordinance is not a bar to granting a variance. It does not follow, however, that a property owner’s purchase of land based on an erroneous belief is a hardship because a property owner’s beliefs are not circumstances unique to the property.

Id. at 467-68 (emphasis added).

Even if the Christiansons’ mistaken belief, based on the city’s error, could be a proper factor to consider in granting a variance, we conclude, as did the court in Graham, that such mistaken belief is more properly considered under the first part of the three-part test (i.e., reasonableness). See Rowell, 446 N.W.2d at 922 (considering practical difficulty under first part of three-part test). Thus, even if the city’s mistake might be considered as having “tipped” the reasonableness factor in the Christiansons’ favor, they have still failed to establish the second requirement of the undue hardship test: unique circumstances.

The third statutory requirement in showing undue hardship cautions that the variance must not alter the essential character of the locality. The city adopted the staffs findings, which state:

Staff believes the size of the existing garage is out of character with the neighborhood. A garage of this size is nowhere else to be found in this neighborhood, and therefore deemed out of place. It is not certain whether or not this structure would impair the property-values in the area, staff does not believe that it would. It has substantially changed the view from a nearby property and is more imposing on nearby properties than intended by the ordinance or approved plans. As mentioned before, a garage of this size is not common, and another one like it is not in this area. Staff believes that this criterion has not been satisfied. While the approved 16-foot height and restoration of the original design still exceeds ordinance requirements, staff does not believe it will have an unreasonable impact upon the neighborhood.

The record is devoid of any evidence indicating why an 18-foot, 7-inch garage would significantly alter the neighborhood’s essential character, but a 16-foot garage would not (a conclusion that is all but inescapable when reviewing the staff report recommendation that an 18-foot, 7-ineh garage would not meet ordinance requirements for a variance, but a 16-foot garage would). The record does not support the city’s decision to grant a variance, and the district court erred in concluding the city’s decision was reasonable.

Not only has the city failed to comply with the statutory factors required for granting a variance, it has failed to comply with its own city code. The St. Louis Park City Code, 14:8-3.3, sets forth the city’s requirements for granting zoning variances and recognizes that the BOZA “shall consider the strict application of the provision of the Ordinance and the requirements of all applicable State Statutes.”

There is no evidence in the record to support the city’s decision that the ordinance factors were all satisfied by a 16-foot garage, but that none were satisfied by a garage having a height of 18 feet, 7 inches. It is evident that the city’s error in granting the original building permit constituted the sole basis for granting a variance permitting a 16-foot garage. We are aware of no authority recognizing such a basis as legally sufficient to support the variance granted here. Error by city staff does not constitute undue hardship under the statute or the ordinance, and the variance in this case was improperly granted.

Generally, reversal of an award of summary judgment would require a remand for trial. However, we conclude as a matter of law that the record does not contain a legally sufficient reason to grant the variance. Therefore, we reverse and remand with instructions for the district court to award summary judgment to the Mohlers on the issue of the grant of the variance. See Sunrise Lake Ass’n, Inc. v. Chisago County Bd. of Comm’rs, 633 N.W.2d 59, 62 (Minn.App.2001) (reversing grant of CUP application on certiorari appeal because record before board did not provide a lawful basis for granting CUP on present application).

Finally, a “property owner injured by [a permit issued in violation of city ordinance] is entitled to injunctive relief.” Lowry v. City of Mankato, 231 Minn. 108, 117, 42 N.W.2d 553, 560 (1950); see also McCavic v. De Luca, 233 Minn. 372, 46 N.W.2d 873 (1951) (concluding where defendant erected business building that extended seven feet into space prohibited by setback provisions of city ordinance, owners of adjoining residence property were entitled to mandatory injunction requiring removal of portion of building extending beyond setback fine). Here, the city issued a permit to the Christiansons in violation of the city code. Because we have concluded that the variance exceeded the requirements of both statute and ordinance, and-that the Mohlers are entitled to summary judgment on this issue, we direct the district court to order the city to take action to enforce the terms of the city’s ordinance requiring that a garage be no more than 12 feet in height.

II. Height Measurement

The Christiansons argue that the city council improperly interpreted the height requirement in its zoning ordinance to require a measurement from the highest gable rather than the street-side gable.

This is an appeal from an award of summary judgment, and the material facts relevant to this analysis are not in dispute. Therefore, we consider whether the district court erred as a matter of law in finding the city’s interpretation of the ordinance’s height requirements reasonable.

In construing a zoning ordinance, appellate courts generally focus on three rules of construction: (1) the ordinance should be construed in accordance with the plain and ordinary meaning of its terms, (2) the ordinance should be construed strictly against the governmental entity and in favor of the property owner, and (3) the ordinance must be considered in light of its underlying policy. SLS P’ship v. City of Apple Valley, 511 N.W.2d 738, 741 (Minn.1994); Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn.1980). But where the meaning of an ordinance or statute is free from ambiguity, there is no room for construction. Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn.1989). An ordinance is ambiguous if it is susceptible to two or more meanings. Hamline-Midway Neighborhood Stability Coalition v. City of St. Paul, 547 N.W.2d 396, 399 (Minn.App.1996), review denied (Minn. Sept. 20, 1996). Only if the court determines that an ordinance is ambiguous, should the court ascertain the legislative intent behind the ordinance and construe it so as to effectuate that intent. In re Welfare of A.L.F., 579 N.W.2d 152, 155 (Minn.App.1998).

The city ordinance defines “building height” as

[a] distance to be measured from the mean curb level along the front lot line or from the finished grade level for all that portion of the structure having frontage on a public right-of-way whichever is higher to * * * the mean distance of the highest gable on a pitched or hip roof.

(Emphasis added.) Here, the ordinance is unambiguous; it states “highest gable.” The reference to the frontage on a public right-of-way only involves the first measurement point. For a pitched roof, the type at issue here, the second measurement point is the distance to the highest gable. “Highest gable” is susceptible to only one meaning — the highest gable. The ordinance is not ambiguous. We do not look beyond the words of the ordinance, and find, therefore, that the city’s decision to measure to the highest gable was reasonable. See VanLandschoot, 336 N.W.2d at 503 (reviewing court determines whether the municipality’s action was reasonable). The award of summary judgment to the city on this issue was proper.

III. Attorney Fees Under 42 U.S.C. § 1983

The Mohlers also claim that they are entitled to attorney fees under 42 U.S.C. § 1983.

In order to establish a section 1983 claim, the Mohlers must establish that they have been deprived of a right, privilege, or immunity secured by the constitution or law of this state by any person acting “under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory.” Gomez v. Toledo, 446 U.S. 635, 638, 100 S.Ct. 1920, 1922-23, 64 L.Ed.2d 572 (1980)(quotation omitted). A substantive due process claim under 42 U.S.C. § 1983

in the zoning context exists, if at all, only in the extraordinary situations and will not be found in “run-of-the-mill” zoning disputes.

Northpointe Plaza v. City of Rochester, 465 N.W.2d 686, 689 (Minn.1991). To establish such a claim, the court considers (1) “whether there has been a deprivation of a protectible property interest,” and (2) “whether the deprivation results from an abuse of governmental power sufficient to state a constitutional violation.” Id.

State law and the city’s ordinance recognize that certain adjacent property owners can sue to require enforcement of the zoning laws. See, e.g, Lowry v. City of Mankato, 231 Minn, at 117, 42 N.W.2d at 559 (1950). It does not necessarily follow, however, that this right confers a protecti-ble property interest for purposes of the substantive due process clause and 42 U.S.C. § 1983. Minnesota law has recognized that zoning ordinances do not create a property right in adjacent landowners:

[S]etback lines or building lines do not really create an easement in the strict legal sense. * * * The effect of setback lines and open yards and spaces in zoning ordinances is merely to regulate the use of property. It gives no beneficial use to another, except as light and air may rest undisturbed in the space where structure are prohibited. This restriction of use is based upon the exercise of the police power for the general welfare, and is not based on contract rights or the exercise of the power of eminent domain.

McCavic, 233 Minn. at 378, 46 N.W.2d at 876 (quotation omitted). Although McCavic involved setback lines, we find the rationale of that case applicable to the height requirement at issue here. Accordingly, we conclude the Mohlers have not established that the city deprived them of a property right.

Even assuming for the sake of further analysis that the Mohlers could establish deprivation of a property right, in the zoning context,

[w]hether government action is arbitrary or capricious within the meaning of the Constitution turns on whether it is so egregious and irrational that the action exceeds standards of inadvertence and mere errors of law.

Northpointe, 465 N.W.2d at 689 (citation omitted). “Egregious,” “irrational,” or “extraordinary” have not been precisely defined. Id. at 691.

Here, the city did not act in an exemplary manner. It failed initially to retain copies of the Christiansons’ plans, and erroneously informed the Mohlers that the garage did not contain a second story. Months later, when it became apparent that the structure did contain a second story, and the Mohlers complained to the city that the ordinance was being violated, the city made little effort to address the issue. Had the city acted more promptly, expenses caused to the Christiansons could have been minimized, and the Mohlers would have avoided the expense incurred in taking legal action. We are not insensitive to the toll, both financial and emotional, this litigation has imposed upon both the Christiansons and the Mohlers. Neither are we unaware that the city could foresee, unfortunately, that whatever its decision on the variance question, there was a likelihood that future legal action would ensue; initiated by either the Chris-tiansons or the Mohlers, if not both. Nonetheless, we must apply the law in reviewing the record and resolving the issues as they are presented to us; much as we might wish that circumstances had been such as to enable all of these parties to avoid legal proceedings.

Northpointe cautioned:

At the municipal level of government, zoning decisions are made daily and frequently. To allow the loser of each zoning decision, both those who seek a change and those who seek to block changes, to sue in federal court on bald allegations of arbitrariness would significantly burden both federal courts and local zoning decisionmakers.

Id. at 690 (quoting Queen Anne Courts v. City of Lakeville, 726 F.Supp. 733 (D.Minn.1989)). In Queen Anne, the court determined that the plaintiffs’ allegations that the city caved in to neighborhood opposition, ignored its owns studies, and had no factual basis for its decision did not rise to the level of egregious and irrational conduct that would state a federal substantive due process claim. 726 F.Supp. at 738. Likewise, in Northpointe, the court concluded the city actions were not egregious and irrational and did not state a substantive due process claim, despite the city’s reliance on an expert with an obvious conflict of interest, and rejection of the only credible expert studies and recommendations. 465 N.W.2d at 691. Although we recognize in this case the regrettable conduct of the city, our reading of Queen Anne and Northpointe compels a conclusion that the city’s merely negligent misrepresentation of the law did not rise to the level of egregious and irrational conduct that would support a substantive due process claim. Accordingly, we affirm the award of summary judgment to the city on this issue.

IV. Christiansons’ Claims

The Christiansons, in their appeal, argue that (1) they are entitled to a trial on their damage claim against the city due to the city’s negligent misrepresentation of the ordinances, (2) they are entitled to a trial on their estoppel claim, and (3) the city’s actions are not protected by statutory immunity or vicarious official immunity.

A. Negligent Misrepresentation

Because this is an appeal from a district court’s order granting summary judgment, we assume the allegations in the Christian-sons’ complaint are true and consider if the Christiansons have established a cause of action against the city for negligence. Northernaire Prods. Inc. v. Crow Wing County, 309 Minn. 386, 389, 244 N.W.2d 279, 281 (1976).

Negligent misrepresentation of fact is actionable against government officers and employees, because members of the public have no other access to factual information maintained by the government except through those individuals. Id. at 390, 244 N.W.2d at 282. Misrepresentations of law, in contrast, are not actionable. Id. at 388-89, 244 N.W.2d at 281. The Christiansons assert that the city’s representations constituted a negligent misrepresentation of fact, not a misrepresentation of law. We cannot agree. The record establishes that the city on several ocea-sions interpreted the ordinance for the Christiansons. There is no indication that the city made any representations of fact. Thus, we conclude that any misrepresentation by the city was one of law and, as such, not actionable.

Even if we were to interpret the city’s misrepresentation as one of fact, however, we would conclude that summary judgment on this issue was proper. The Christiansons assert that the March 1998 ordinance, which reduced the permissible garage height from 15 feet to 12 feet, was not included in the city’s codified ordinances. They claim instead that the city provided a flyer dated May 7, 1998, detailing requirements for building a garage or storage shed, but that flyer did not incorporate the March 1998 height reductions. The record, however, does not contain the flyer described by the Christiansons; it does contain a flyer titled “Building a Storage Shed in St. Louis Park,” whose only reference to size states “if the building exceeds 120 square feet use the requirements for building a garage.” The record contains no flyer pertaining to garages.

We recognize that whether the March 1998 ordinance was available to the Chris-tiansons is a fact issue, and that negligence is rarely decided by summary judgment. Brittain v. City of Minneapolis, 250 Minn. 376, 84 N.W.2d 646 (1957). “Any doubt as to whether issues of material fact exist [must be] resolved in favor of the party against whom summary judgment was granted.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995) (citation omitted). But

there is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.

DLH, 566 N.W.2d at 71. We conclude that the Christiansons have failed to provide sufficient evidence to establish that they did not have access to the March 1998 ordinance or that it was not included in the city’s codified ordinances.

Further, whether the city employees who issued the building permit knew of the ordinance is not relevant to whether the Christiansons had access to the ordinance. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786-87 (Minn.1989). In Snyder, city employees approved a permit that “clearly failed to satisfy” the off-street parking requirements in the city ordinance. Id. The court, citing Anderson v. City of Minneapolis, 287 Minn. 287, 178 N.W.2d 215 (1970), noted that “city employees who approved the permit did not have discretion to approve permits in clear violation of the law,” and that in such situations the “permit issuee would be charged with knowledge of the law regulating the granting of building permits.” Snyder, 441 N.W.2d at 787. The supreme court carved out a “narrow exception” to the rule of discretionary immunity, however, and concluded that damages could be recovered in that case because the city’s policy against using publicly dedicated parking to satisfy the ordinance’s off-street parking requirement was an unwritten policy, and thus, the party to whom the permit was issued could not be charged with the knowledge of the illegal nature of his proposed land use. Id.

The Christiansons argue that they fall under the narrow exception carved out in Snyder. We disagree. Unlike Snyder, the ordinance in this case was written; it was signed by the mayor, the city clerk, and the city manager.

The Christiansons have not established a claim against the city for damages based on negligence. Therefore, we affirm the award of summary judgment to the city on this claim.

B. Estoppel

The Christiansons next argue that they are entitled to a trial on their claim that estoppel prevents the city from requiring that they reduce the height of their garage. We cannot agree. While the result may be harsh, a “municipality cannot be estopped from correctly enforcing the ordinance even if the property owner relied to his detriment on prior city action.” Frank’s Nursery, 295 N.W.2d at 607. The asserted basis for the Christian-sons’ estoppel claim is the same as the basis for their negligence claim (i.e., storage shed flyer, allegation that the city did not codify the ordinance). We conclude that there is insufficient evidence to create a material fact question to present to a fact-finder on this issue. DLH, 566 N.W.2d at 71. Accordingly, we affirm the award of summary judgment to the city on the estoppel issue.

C. Immunity

Finally, the Christiansons assert that the district court erred in granting summary judgment in favor of the city based on the city’s defense of statutory and vicarious immunity. Whether discretionary immunity applies is a question of law for an appellate court to review without deference to the trial court. Snyder, 441 N.W.2d at 786. If the city decisions challenged by appellant are protected by immunity, the city is entitled to judgment as a matter of law, and the district court’s grant of summary judgment was proper. Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 416 (Minn.1996).

Although Minnesota’s Tort Claims Act in Minn.Stat. ch. 466 (2000) generally allows governmental entities to be held liable for their torts, the Act contains a “discretionary function” exception. Minn.Stat. § 466.03, subd. 6, provides that a public corporation and political subdivision are not liable for their torts and those of their employees acting within the scope of their employment for

[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

Minn.Stat. § 466.03, subd. 6.

Under Minnesota caselaw, issuance of a building permit is discretionary. Anderson v. City of Minneapolis, 287 Minn. 287, 288, 178 N.W.2d 215, 217 (1970) (concluding act of city employee in issuing the building permit involved an exercise of discretion in sense that employee had to make judgment about whether submitted plans constituted permissible use of the property in the area involved). Taking the evidence in the light most favorable to the Christiansons, as we must do, they have failed to show that the city was not exercising discretion in granting the building permit. Accordingly, we conclude that summary judgment for the city was properly awarded on the issue of statutory immunity.

Because we have concluded that the city is entitled to statutory immunity, we need not consider whether the city is also protected under the doctrine of official immunity. We note, nonetheless, that determinations made by city personnel on the question of whether proposed budding plans met ordinance requirements involved the exercise of discretion, and did not constitute mere ministerial action.

DECISION

The city’s decision that error by city staff constituted hardship within the meaning of Minn.Stat. § 462.357, subd. 6 (2000), was unreasonable. We remand for an award of summary judgment to the Mohlers and enforcement of the city ordinance’s 12-foot garage height requirement. The city’s interpretation of the garage height measurement calculation is reasonable, and summary judgment for the city on this issue was proper. The city did not deprive the Mohlers of a property right sufficient to maintain a 42 U.S.C. § 1983 claim, and summary judgment for the city was appropriate on that claim. Summary judgment was awarded properly on the Christiansons’ negligence and estoppel claims because there are no material fact questions in either. The city’s actions are protected by statutory immunity; therefore, an award of summary judgment in favor of the city on that basis was proper.

Affirmed in part, reversed in part, and remanded.

      . The record also shows that during a site inspection in January 1999, the city’s building inspector anticipated the height would be 15 feet, 6 inches, resulting in six inches above what the city believed the ordinance permitted at the time. The city indicated to the Christiansons that six inches was an "acceptable construction error.” Thus, at a minimum, in January 1999, the Christiansons were aware their garage slightly exceeded the 15-foot height permitted by ordinance.

      . Although the city staff did not specifically address the statutory requirements set forth in Minn.Stat. § 462.357, subd. 6(2), the city staff addressed the requirements in its analysis of whether the requirements for a variance under the city ordinance were satisfied.

      . We note, however, the importance of topography of the land under the plain language of the city’s ordinance. As one of several factors, the ordinance permits a variance
      [w]here by reason of narrowness, shallowness, or shape of a lot, or where by reason of exceptional topographical or water conditions or other extraordinary and exceptional conditions of such lot, the strict application of the terms of this Ordinance would result in peculiar and practical difficulties or exceptional or undue hardship upon the owner * * *.
      St. Louis Park, Minn., City Code § 14:8-3:3. Thus, even presuming the city's mistake could qualify under the statute, such mistake does not qualify under the plain language of the city’s code.

      . The provision allows the BOZA to grant a variance from the strict application of the provisions of the ordinance provided that:
      1. Where by reason of narrowness, shallowness, or shape of a lot, or where by reason of exceptional topographical or water conditions or other extraordinary and exceptional conditions of such lot, the strict application of the terms of this Ordinance would result in peculiar and practical difficulties or exceptional or undue hardship upon the owner of such lot in developing or using such lot in a manner customary and legally permissible within the Use District in which said lot is located.
      2. Conditions applying to the structure or land in question are peculiar to the property or immediately adjoining property, and do not apply, generally, to other land or structures in the Use District in which the land is located.
      3. The granting of the proposed variance is necessary for the preservation and enjoyment of a substantial property right of the applicant.
      4. The granting of the proposed variance will not impair an adequate supply of light and air to the adjacent property, unreasonably increase the congestion in the public streets, increase the danger of fire, or endanger public safety.
      5. The granting of the variance will not unreasonably impact on the character and development of the neighborhood, unrea: sonably dimmish or impair established property values in the surrounding area, or in any other way impair the health, safety, and comfort of the area.
      6. The granting of the proposed variance will not be contrary to the intent of this Ordinance and the Comprehensive Plan.
      7. The granting of a variance will not merely serve as a convenience to the applicant but is necessary to alleviate a demonstrable undue hardship or difficulty.

      . The Christiansons also argue that the city should have granted the variance at 18 feet, 7 inches instead of 16 feet. Because we agree with the city’s conclusion that none of the seven ordinance factors were satisfied by a garage of 18 feet, 7 inches, we also agree that the city’s decision not to grant a variance at that height was reasonable.

      . While we recognize that this decision will require alteration to the existing structure, we trust that the burden of that alteration will be minimized in view of the fact that the city’s grant of a 16-foot variance would likewise have required alterations to the existing structure.

      . The city argues that no duty is owed to the Mohlers, and thus, they cannot maintain a negligence claim against the city. A review of the record indicates, however, that the Moh-lers did not request damages under a negligence theory, but rather under the theory that the city violated 42 U.S.C. § 1983. Accordingly, we need not decide whether the city owed a duty to the Mohlers.

      . Arguably, the actions of the municipalities in those cases (actions found not egregious enough to support an award under section 1983) were harsher than those of the city here. Northpointe involved denial of a conditional use permit to appellant and subsequent issuance to another applicant. 465 N.W.2d at 686. Queen Anne involved the city’s refusal to permit expansion of a mobile home park onto adjoining undeveloped parcels owned by the applicant. 726 F.Supp. at 735.


author: HANSON, Judge.

text:
    Harvey CHRISTENSEN, Respondent, v. MILBANK INSURANCE COMPANY, Appellant.
    No. C3-01-2078.
    Court of Appeals of Minnesota.
    May 7, 2002.

      Robert E. Kuderer, Teresa M. Thompson, Johnson & Condon, P.A., Minneapolis, for respondent.
    John H. Scherer, Rajkowski Hansmeier Ltd., St. Cloud, for appellant.
    Considered and decided by HANSON, Presiding Judge, SCHUMACHER, Judge, and PORITSKY, Judge.

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

   OPINION

HANSON, Judge.

This appeal presents a conflict between two automobile insurance policies, one issued to the school district and covering the district’s driver’s education vehicle, and the other issued to the driver’s education teacher and covering his personal vehicle. The district court granted summary judgment determining that the teacher’s personal insurer was obligated to defend and indemnify the teacher for claims arising from his use of the school district’s vehicle. The court held that the school district did not have any vicarious liability as owner because the initial permission it gave the teacher to use the vehicle had been defeated by the teacher’s “conversion” of the vehicle. The court awarded attorney fees and costs to respondent teacher. We reverse.

FACTS

Respondent Harvey Christensen works for Independent School District No. 787 as a driver’s education teacher. The school district provides Christensen with a vehicle for driver’s education and school district business. One Friday, after his last driver’s education lesson, Christensen drove the school district vehicle to his home to wash it. After washing the vehicle and drinking some beer at home, he took some more beer with him as he drove the school district vehicle to look for fishing sites. While traveling on State Highway 10, Christensen collided with a vehicle driven by Veronica Wagner. The school district’s vehicle was totally destroyed in the collision.

Wagner and her passengers sued Christensen and the school district for damages resulting from the accident. The school district is insured by the Minnesota School Board Association Insurance Trust (MSBAIT). MSBAIT undertook the defense of both the school district and Christensen, but later tendered the defense to Christensen’s personal insurer, appellant Milbank Insurance Company. Milbank refused to accept the tender of defense, contending that its policy was excess and the MSBAIT policy was primary.

Christensen settled all claims by the payment of $78,000 pursuant to a loan receipt provided by MSBAIT. Christensen then sought a declaratory judgment against Milbank for the breach of its duties to defend and indemnify him, and for recovery of attorney fees and costs incurred in the original action and the declaratory judgment action.

The district court granted Christensen’s motion for summary judgment, ruling that Milbank owed Christensen a duty to defend and a duty to indemnify. The court determined that the school district had no vicarious liability as owner, even though it had given initial permission to Christensen, because Christensen’s use and destruction of the vehicle was conversion, which defeated the initial permission. MSBAIT’s policy did not cover non-permissive drivers. The district court ordered judgment against Milbank for the amount of the settlement plus attorney fees and costs in the original action and the declaratory judgment action. This appeal followed. Christensen filed a notice of review with respect to the amount of attorney fees awarded.

ISSUES

1. Did the district court err by finding that Christensen’s actions constituted conversion of the school district’s vehicle, so as to defeat the initial-permission rule?

2. Did the district court err by finding that Milbank is the primary insurer?

ANALYSIS

On appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Garrick v. Northland Ins. Co., 469 N.W.2d 709, 711 (Minn.) (1991). In making this determination, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

“Interpretation of an insurance policy and application of the policy to the facts in a case are questions of law that we review de novo.” Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn.2001) (citation omitted). When reviewing an insurance policy, this court is to ascertain and give effect to the parties’ agreement. Fillmore v. Iowa Nat'l Mut. Ins. Co., 344 N.W.2d 875, 877 (Minn.App.1984). Appellate courts apply general principles of contract interpretation to interpret insurance policies. Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998).

I

Minnesota law provides that an owner of a motor vehicle may be held vicariously hable for a driver’s use of that vehicle if the driver obtains express or implied consent from the owner.

"Whenever any motor vehicle shah be operated within this state, by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof.

Minn.Stat. § 170.54 (2000).

The policy of this law is to ensure members of the public injured by the negligent operation of a motor vehicle “an approximate certainty of an effective recovery” when liability would not otherwise exist. Milbank Mut. Ins. Co. v. U.S. Fid. & Guar. Co., 332 N.W.2d 160, 165 (Minn.1983) (quotation omitted). The Minnesota Supreme Court has consistently reiterated that the statute must be interpreted liberally to accomplish its purpose. See, e.a., id. at 165-66.

When interpreting Minn.Stat. § 170.54, the Minnesota Supreme Court has adopted the “initial permission” rule. It has said:

when permission to use a vehicle is initially given, subsequent use short of actual conversion or theft remains permissive within the meaning of the omnibus clause, even if such use was not within the contemplation of the parties or was outside any limitations placed upon the initial grant of permission.

Id. at 162; see also Pluntz v. Farmington-Ford Mercury, Inc. 470 N.W.2d 709, 712 (Minn.App.1991) (finding driver’s employer liable for damages caused by driver where employer consented to driver’s use of employer’s automobile, regardless of whether driver was acting within the course and scope of his employment when the accident occurred), review denied (Minn. Jul 24, 1991); State Farm Mut. Auto. Ins. Co. v. Budget Rent-A-Car Sys., Inc., 359 N.W.2d 673, 677 (Minn.App.1984) (finding that the driver, who was the lessee’s permittee, was covered under the car-rental company’s insurance policy by virtue ' of the initial-permission rule).

In adopting the initial-permission rule, the supreme court overruled earlier decisions to the extent they had held that major departures from the scope of the owner’s permission would relieve the owner of vicarious liability. Milbank, 332 N.W.2d at 167; see also Peterson v. Maloney, 181 Minn. 437, 442, 232 N.W. 790, 792 (1930) (holding owner liable where driver used the automobile for a purpose other than that for which he obtained owner’s permission). The supreme court stated that the only acts of the permittee that would relieve the owner and its insurer from liability are “theft or conversion.” Milbank, 332 N.W.2d at 167. There are no supreme court cases defining the term “conversion” when used in this context.

The district court, viewing the evidence in the light most favorable to Milbank, assumed that Christensen had initial permission to use the school district’s vehicle. See Goins v. West Group, 635 N.W.2d 717, 722 (Minn.2001) (stating that when the district court considers a motion for summary judgment it must view the evidence in the light most favorable to the nonmovant). Under this assumption, MSBAIT’s omnibus clause would provide primary coverage for Christensen’s use of the vehicle, absent theft or conversion by Christensen, because it provides that “[ajnyone else is a plan participant while using, with [the School District’s] permission, a covered auto [the School District] own[s], hire[s] or borrow[s]”.

The district court then considered whether Christensen’s conduct amounted to “conversion.” The court observed that conversion “is established when a person deprives another of his or her property interest” and that

deprivation can be found both when property is not returned to an owner, * * * as well as when property is taken from an owner and ultimately destroyed.

The court concluded that when Christensen took the vehicle, failed to return it, and eventually destroyed it, this established conversion and negated the initial permission given by the school district.

We conclude that the district court’s definition of conversion was too broad. Under Minnesota law, conversion is defined as “an act of willful interference with the personal property of another which is without justification or which is inconsistent with the rights of the person entitled to the use, possession or ownership of the property.” Dain Bosworth Inc. v. Goetze, 374 N.W.2d 467, 471 (Minn.App.1985) (emphasis added) (citing Larson v. Archer-Daniels-Midland Co., 226 Minn. 315, 317, 32 N.W.2d 649, 650 (Minn.1948)); see also Herrmann v. Fossum, 270 N.W.2d 18, 21 (Minn.1978) (“Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” (emphasis added) (citation omitted)). In a situation in which the property is destroyed, conversion may be shown only if the destruction was intentional. See id. at 20 (stating that conversion is an intentional tort); Wangen v. Swanson Meats, Inc., 541 N.W.2d 1, 3 (Minn.App.1995) (stating that one who intentionally destroys a chattel is subject to liability for conversion to the owner), review denied (Minn. Jan. 25, 1996).

Applying these principles of law to the present facts, the district court erred in granting summary judgment for Christensen. There is no evidence that Christensen’s destruction of the vehicle was intentional. To the contrary, all parties seem to agree it was accidental. Thus, the destruction of the vehicle is not sufficient to establish conversion. Moreover, under the initial-permission rule, Christensen’s use of the vehicle for personal reasons, including his transportation of alcoholic beverages, do not defeat the initial permission, even if these acts were contrary to specific limitations placed on Christensen’s use of the vehicle by the school district. See Milbank, 332 N.W.2d at 167 (finding permissive use even though vehicle was used for personal reasons and in a manner that exceeded the owner’s express limitations on the driver’s use).

Moreover, although the district court assumed, arguendo, the existence of initial permission, there is no fact dispute that such permission was given; the only fact dispute concerns the scope of that permission. Because the scope of permission is not material under the initial-permission rule, we conclude that Milbank is entitled to summary judgment determining that the school district had vicarious liability as owner of the vehicle and that the MSBAIT policy provides coverage to both the school district and Christensen.

II

Milbank acknowledges that its policy also provides coverage to Christensen, but argues that its coverage is excess of that provided by MSBAIT. The district court decided that the Milbank policy was primary, based on an analysis of the insuring intent of the two policies. Under some circumstances, courts may look at the function and insuring intent of the policies, instead of simply looking at the “other insurance” clauses. Garrick, 469 N.W.2d at 711-12. But the Garrick court expressly limited this analysis of the insuring intent to the situation in which the policies contain conflicting “other insurance” clauses. Id. It stated:

When it is clear that two or more companies are among themselves liable to the insured for his loss but the apportionment among the companies cannot be made without violating the other insurance clause of at least one company, then the courts must look outside the policies for rules of apportionment.

Id. (quoting Integrity Mut. Ins. Co. v. State Auto. & Cas. Underwriters Ins. Co., 307 Minn. 173, 174-75, 239 N.W.2d 445, 446 (1976)).

The MSBAIT insurance policy provides that its coverage is primary for any covered vehicle that the school district owns. The Milbank policy, conversely, provides that if the insured is involved in an accident while operating a non-owned vehicle, the Milbank coverage is excess to other collectible insurance. Because there is no conflict between the language of the two policies, MSBAIT is the primary insurer. See Milbank, 332 N.W.2d at 161 (finding employer’s liability omnibus coverage was primary and coverage under employee’s policies on his personal vehicles was secondary or excess).

DECISION

Because Christensen’s accidental destruction of the vehicle was not conversion, we conclude that the school district was vicariously liable for Christensen’s negligent use of the vehicle under the “initial permission” rule. Accordingly, both the MSBAIT and the Milbank policies provide coverage for the accident. Because there is no conflict between the language of the two policies, MSBAIT is the primary insurer. And because we reverse the district court’s grant of summary judgment to Christensen, we also reverse the district court’s award of attorney fees and costs to Christensen.

Reversed.