author: MINGE, Judge.

text:
    SCOTTSDALE INSURANCE COMPANY, Plaintiff (C8-02-1924), Respondent (C0-02-2114), v. TRANSPORT LEASING/CONTRACT, INC., et al., Defendants and Third Party Plaintiffs, Respondents (C8-02-1924), Appellants (C0-02-2114), RLI Insurance Company, Defendant and Third Party Plaintiff (C8-02-1924), Respondent (C0-02-2114), v. Insurance Brokers Service, Inc., Third Party Defendant, Summit Global Partners, Inc., of Illinois, Inc., et al., Appellants (C8-02-1924), Third Party Defendant (C0-02-2114).
    Nos. C8-02-1924, C0-02-2114.
    Court of Appeals of Minnesota.
    July 22, 2003.

      Mark J. Ayotte, Matthew A. Slaven, Briggs and Morgan, P.A., St. Paul, MN; and Steven A. Pletcher, Scopelitis, Garvin, Light & Hanson, P.C., Indianapolis, IN, for appellants Transport Leasing/Contraet Inc., ATS, Inc. and ATS, Inc. of Georgia.
    Todd A. Wind, Crystal M. Ovsak, Fre-drikson & Byron, P.A., Minneapolis, MN, for appellants Summit Global Partners, Inc. and Michael P. Lopeman.
    Thomas P. Kane, Sean R. Simpson, Hin-shaw & Culbertson, Minneapolis, MN, for respondent Scottsdale Insurance Company.
    Joel M. Muscoplat, Gislason, Martin & Varpness, P.A., Minneapolis, MN; and William T. Corbett, Jr., admitted pro hac vice, Drinker, Biddle & Shanley LLP, Florham Park, NJ, for respondent RLI Insurance Company.
    Considered and decided by TOUSSAINT, Chief Judge, STONEBURNER, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

This action was initiated by respondent Scottsdale Insurance Company to determine its liability for claims against appellant, insured, Transport Leasing Company and its subsidiaries (TLC) under the non-owned auto endorsement to a liability insurance policy and was expanded by third-party actions initiated by TLC. The district court found that the insurance policies with the endorsements issued by the respondent insurance companies covered accidents of truck drivers employed by TLC and leased to trucking firms, but entered partial summary judgment rescinding the insurers’ liability for such leased drivers. TLC challenges the summary judgment determination of rescission. Respondent insurers appeal denial of summary judgment of their alternative claim that the nonowned auto endorsement does not cover the damages arising out of accidents of these leased truck-driver employees of TLC. Appellants’ insurance agency and insurance agent challenge the refusal of the district court to enter summary judgment relieving them of liability to TLC for failure to obtain insurance for accidents of leased truck drivers. This court granted discretionary review.

Because we conclude that the nonowned auto endorsement to the insurance policies does not cover accidents of TLC’s leased truck-driver employees and because we do not reach the issue of rescission, we reverse the determination that there was coverage and affirm on different grounds the grant of summary judgment in favor of the insurers. Because we agree with the district court that the claims of TLC against the insurance agency and the insurance agent are not suitable for summary judgment, we affirm the denial of summary judgment to those appellants.

FACTS

TLC is the parent company of ATS, Inc. and ATS, Inc. of Georgia, and we will refer to the collective companies as TLC. TLC employs truck drivers and loans those drivers to various trucking firms, usually as full-time employees. In many cases these drivers had been regular employees of the trucking firm prior to the TLC arrangement. TLC describes its business as “employee leasing.”

Through the employee leasing arrangement, TLC provides the trucking companies with services including handling the drivers’ payroll, payroll taxes, worker’s compensation insurance, and upon request, health insurance plans, 401(k) programs, and disability benefits. Also upon request, TLC monitors driver compliance with physical examination requirements and the driver’s license status of each employee. By serving as the employer, TLC allows trucking firms to contract out these portions of the employers’ responsibilities. Otherwise, the trucking firms fully control all aspects of the leased drivers’ work activity.

Prior to 1997, TLC intentionally did not carry any liability insurance coverage on any of the leased truck drivers. Instead, TLC relied upon indemnification agreements and lease requirements that TLC be named as an additional insured on the insurance policies of the trucking firms. TLC believed that because it did not control the day-to-day activities of the leased truck drivers, it would not be held vicariously liable for their acts.

In February 1997, an investor in TLC asked an insurance broker, Aon Corporation, to evaluate TLC’s insurance coverage, to identify insurance risks, and to recommend needed coverage. Aon expressed concern that TLC was potentially exposed to a huge risk if a trucking customer carried insufficient liability insurance or allowed insurance to lapse. Aon recommended that TLC purchase a full liability policy covering the leased drivers and submitted a bid to TLC for such a policy with a yearly cost of $25,000.

TLC requested that appellant insurance agent Michael Lopeman and appellant Summit Global Partners (Summit), the firm for which Lopeman worked, obtain liability insurance coverage for TLC. Lopeman had been working with TLC on insurance matters since 1994. Lopeman testified in his deposition that because of his experience with several transportation businesses, he was knowledgeable about transportation insurance. Lopeman did not acquire the liability coverage directly. Instead, he submitted coverage requests to a wholesale insurance broker, Insurance Brokerage Services (IBS), and IBS in turn submitted the information to appellants Scottsdale Insurance Company and RLI Insurance Company. Scottsdale wrote basic coverage with $1 million limits and RLI wrote $25 million commercial umbrella coverage. Included in the application for coverage were the following:

• A letter from Lopeman describing TLC as “an employee leasing company headquartered in Minnesota * * * [that] specializes in leasing small groups of drivers to existing larger trucking companies.”
• A business vehicle insurance application form requesting nonowned liability coverage and listing Minnesota and Indiana as business locations with the size of their offices even though TLC had drivers in 48 states.
• A profit and loss statement listing driver wages at over $27.1 million as of June 30, 1996 (the 1998 renewal application listed payroll at $46.5 million).
• A statement that TLC had 1,900 employees and a payroll of $46.5 million on the 1997 RLI application form.

The underwriter at Scottsdale testified in his deposition that he did not consider the financial information, payroll information, description of TLC’s business, or the business vehicle form when evaluating the request for coverage. He testified that he “never imagined” that TLC’s leased truck drivers would be covered by the nonowned vehicle endorsement and that he based the underwriting on the reported square footage of TLC’s office, assuming the endorsement was for office-employee exposure. Based on this assessment of risk, Scottsdale/RLI quoted a premium of $300 for the nonowned auto endorsement. Because Aon had quoted a premium of $25,000, TLC questioned Lopeman about the difference in the two bids. On February 3, 1997, Lopeman sent the following memo to TLC:

The program we proposed includes a quote for Non Owned Auto with a $1,000,000 limit. For this quote, we provided the insurance company with information on how your business operates. In other words, the auto exposure is insured by your clients and your clients agree under contract that they will hold you harmless and indemnify you for any loss. Therefore, the insurance company sees the exposure as TLC’s actual office employees and has priced the coverage accordingly.
Based on what I’ve heard regarding the other quote you received for an auto policy, I don’t believe the underwriter fully understands the exposure of TLC.

The TLC officer in charge of insurance testified in his deposition that he had approximately ten conversations with Lope-man regarding nonowned auto coverage. He stated that Lopeman told him that TLC would have liability coverage related to the trucks operated by their customers under the nonowned auto policy and the general liability policy. The TLC officer also testified that TLC requested the insurance coverage for the truck drivers because “it was mandated as a result of * * * [the] transaction with [the investor in TLC]” and that he trusted Lopeman’s judgment.

Lopeman testified that he could not recall what generated his February 3, 1997 memo to TLC. He testified that he remembered TLC asking for coverage for the office employees, but he did not remember TLC asking for coverage for the leased truck-driver employees. Lopeman did not deny that TLC asked for coverage for the leased truck-driver employees; he testified only that he did not recall such a request. The initial proposals from Lopeman were for a coverage period of December 31, 1996 to December 31, 1997. TLC purchased the Scottsdale/RLI liability coverage with the nonowned auto endorsement through Lopeman and Summit. TLC asserts that it understood this endorsement would cover its leased truck-driver employees.

On October 27, 1997, TLC requested that Aon again analyze TLC’s insurance coverage. Included in the second request was a list of “the types of insurances, the issuing companies, the policy dates, and the dollar amount of the coverages” currently held by TLC. On December 3, 1997, TLC provided Aon with copies of TLC’s general liability policy provided by Scottsdale and excess liability provided by RLI. In the December 3, 1997 letter, TLC stated

the TLC Companies would like you to see to it that the appropriate people at AON and/or AIG critically analyze and review our entire insurance portfolio for cost, adequacy of coverages, existence of any gaps or overlaps in coverages, effectiveness of our umbrella policy in supplementing the coverages afforded by our other policies (where appropriate), etc.
After the review is completed, we would request that you prepare a detailed letter in which you give us advice and suggestions on changing our insurance portfolio to make absolutely certain— from an insurance point of view — that all of the TLC Companies’ interests and assets are properly and adequately protected.

The TLC official then arranged a conference call between a TLC executive and Aon for February 13, 1998. A TLC fax setting up the meeting stated

[Aon’s agent] stressed that he is particularly concerned with the probable lack of coverage under the “Hired Auto and Non-Owned Auto Liability” endorsement on our Scottsdale General Liability policy. He stated that the extent of the coverage is not entirely clear, but that the low premium, combined with the murky language, leads him to suspect we may have some real exposure if one of our employees were to drive someone else’s vehicle and have an accident. He cited as a nightmare scenario an accident where one of our leased drivers in a truck plows into a school bus. [Aon’s agent] described the potential liability there as possibly “wiping out the company.”

Some time after that, TLC posed the hypothetical truck crashing into the school bus scenario to Lopeman and questioned Lopeman about the coverage available for that scenario. TLC did not ask Lopeman to analyze its coverage, nor was Lopeman told that Aon was analyzing TLC’s coverage. Lopeman’s faxed response on March 12,1998 was as follows:

With regard to coverage in the event (example) an employee leased by TLC to a trucking company is driving a company truck and hits a school bus causing serious injury to the children and TLC is brought into the suit by the claimants:
1. As the underwriter knew the number of employees and the fact that TLC is in the employee leasing business and
2. the policy does not have a specific exclusion for leased employees
the policy would provide coverage to TLC, but would not provide any coverage to the owner of the truck.

Also on March 12, 1998, Mary Lovell, another agent at Summit and an assistant to Lopeman, sent a memo to TLC regarding the hired/nonowned vehicle coverage versus contingent vehicle coverage. The memo stated:

I have received confirmation from the underwriter that TLC would have coverage in the event that one of your employees uses their own personal automobile in connection with their employment whether or not the employee had auto liability coverage. The coverage is provided under non-owned auto liability as described below:
Nonowned Auto is autos you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes autos owned by your employees or partners or members of their households but only while used in your business.
Hired Autos picks up the autos you do lease, hire, rent or borrow, but does not include vehicles borrowed from any of your employees.
As you can see, both coverages are required as they cover different situations.

The insurance policies defined “auto” to include trucks and other vehicles. Lovell stated in her deposition that she did not recall any conversations with TLC personnel about endorsements providing hired and nonowned auto coverage. Summit asserts that Lovell’s memo was in response to another scenario posed by Lopeman. In this scenario, an office employee would be in an accident while using a personal auto for company errands. According to Summit, TLC was particularly interested in knowing what would happen if the driver had no insurance.

Despite Aon’s concerns, TLC stated that it relied on and trusted Lopeman’s opinion that truck drivers were covered and did not purchase any additional coverage in late 1997 or early 1998. Aon stated that in its opinion, TLC’s liability exposure was the “contingent automobile risk.” In response, TLC disagreed and indicated to Aon’s official that he had limited understanding of the risk. The Aon official also stated that the reason for TLC’s view of their insurance needs was that

it was [TLC’s] understanding that the clients that they were leasing employees to were statutorily obligated to maintain automobile insurance. On that basis [TLC] had no worries on that issue.

The initial policies from Scottsdale and RLI ran from February 20,1997 to February 20, 1998, and they were renewed in February 1998. On April 23, 1998, Summit sent TLC’s chief financial officer two supplemental questionnaires from Scottsdale; the questionnaires covered the endorsements providing hired vehicle and nonowned vehicle coverage. The questions on the forms addressed why hired and nonowned coverage was requested, how many autos were to be scheduled on the policies, the estimated annual mileage usage, and the maximum distance the non-owned auto was to be driven.

Because TLC did not return the forms to Summit, Summit sent them again on June 11, 1998. On June 18, 1998, TLC’s CFO signed the questionnaires, and they were faxed to Summit. The answers on the questionnaires indicated that the coverage was for employee vehicles used in employee errands for a maximum distance of 1.5 miles. According to the CFO, he did not fill out the forms, but neither he nor anyone else at TLC could determine who completed them. The CFO had no responsibilities for insurance issues at TLC; the person who did have the responsibility had no knowledge of the forms and did not know why the forms were sent to TLC. Neither Lopeman nor Lovell participated in filling out the questionnaires or recalled reviewing them once they were sent back by TLC. Summit simply forwarded the questionnaires to Scottsdale.

The precipitating event for this consolidated appeal was a fatal truck/auto accident on May 27, 1999, in Tennessee. The driver of the truck, Roger Dale Walker, was an employee of ATS, Inc. of Georgia, which is a subsidiary of TLC. He was leased to Mercer Trucking in Georgia. The accident resulted in the deaths of four people. The jury in the resulting personal injury case found that TLC was vicariously liable for Walker’s conduct. Judgment was entered jointly and severally against TLC’s subsidiary and Mercer Trucking in the amount of $24.5 million, including $15 million in punitive damages.

TLC notified Scottsdale of Walker’s accident. Scottsdale denied coverage stating

[t]he accident arose out of an * * * accident in which an employee leased to Mercer Trucking was operating a vehicle owned by Mercer Trucking for a purpose benefiting Mercer Trucking. As he was operating a nonowned vehicle for the use of Mercer Trucking as opposed to your business, there is no coverage for this loss under this policy. At this time, under these circumstances, Scottsdale Insurance Company must respectfully disclaim coverage for this claim. We will not participate in the indemnification of this matter.

The coverage was also denied by RLI under the umbrella policy. In a second letter to TLC, Scottsdale again denied coverage for Walker’s accident, stating that TLC’s business was employee leasing and that TLC was not in the business of transporting goods. Scottsdale also asserted that it was entitled to rescind coverage “based on [TLC’s] material misrepresentations in its application for Nonowned Auto coverage.” Scottsdale agreed to provide TLC with a defense on the claim but reserved the right to withdraw from the defense.

Scottsdale commenced this action against TLC and RLI requesting declaratory relief and rescission of the nonowned vehicle endorsement. At issue is whether the policy with the endorsement for non-owned vehicle liability provided coverage and if so, whether TLC misrepresented material facts enabling Scottsdale to rescind the endorsement. RLI was joined as a party due to its issuance of the $25 million “following form” umbrella liability policy to TLC. TLC counterclaimed for a declaration that it was entitled to the coverage that Scottsdale and RLI disavowed. TLC filed third-party claims against appellants Summit, Lopeman, and IBS on the basis that if TLC were denied coverage under the Scottsdale and RLI policies, then Summit, Lopeman and/or IBS negligently breached their duties as agents to procure the insurance coverage TLC sought.

Following the filing of the cross-motions for summary judgment, the district court partially granted Scottsdale and RLI’s motion. The district court effectively denied TLC’s cross-motions for summary judgment against Scottsdale and RLI. Although the district court held that the nonowned vehicle endorsement, by its plain language, covered TLC’s liability for trucking accidents, it went on to conclude that Scottsdale was nevertheless entitled to rescind the endorsement and deny coverage to TLC due to the answers on the supplemental questionnaires. Since the RLI coverage was for liability in excess of the Scottsdale limits, it fared the same as Scottsdale. As a result, TLC was left without coverage from either Scottsdale or RLI. The district court did not reach the breach of contract or the policy reformation claims asserted by Scottsdale or the other claims advanced by RLI. The district court granted IBS summary judgment dismissing it from the litigation and denied Summit and Lopeman’s summary judgment motion that they be dismissed. This appeal followed.

ISSUES
I. Did the district court err by determining that the nonowned vehicle endorsement to the Scottsdale policy covered accidents of TLC’s leased truck drivers?
II. Did the district court err by granting Scottsdale/RLI’s motion for summary judgment on its claim for rescission of the nonowned auto endorsement?
III.Did the district court err by denying the motion of Summit and Lopeman for summary judgment relieving them from liability to TLC?

ANALYSIS

These consolidated appeals all originate from either a grant or a denial of summary judgment by the district court. This court asks two questions on an appeal from summary judgment: “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). A district court can 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. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citations omitted).

I.

The first issue is whether the district court erred by determining that the nonowned vehicle endorsement to the Scottsdale/RLI policy insured TLC for accidents of its leased truck drivers. The district court found that coverage for non-owned vehicles was included in the non-owned auto endorsement, which stated

[t]he insurance provided under COVERAGE A (Section 1) applies to “bodily injury” ... arising out of the use of any “nonowned auto” in your business by any person other than you.

(Emphasis added.) A nonowned auto was defined in the endorsement as “any ‘auto’ you do not own, lease, hire, rent, or borrow which is used in connection with your business.” Autos are any motor vehicle, including trucks.

We are asked to determine whether the district court erred by determining that the trucks driven by TLC’s leased employees were used “in the business” of TLC. Interpretation of an insurance policy is a question of law for the court to decide by looking at the language of the policy. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn.1978). In making this determination, language is to be given its plain and ordinary meaning. General Mills, Inc. v. Gold Medal Ins. Co., 622 N.W.2d 147, 151 (Minn.App.2001), review denied (Minn. Apr. 17, 2001). If the court does find an ambiguity within the policy, the court is to construe that ambiguity in favor of providing coverage to the insured. See SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 316 (Minn.1995) (noting that ambiguities regarding an insurance company’s duty to defend are resolved in favor of the insured).

TLC is known as an employee leasing company. Its primary customers are trucking companies. Its business includes leasing back to trucking companies employees who were initially hired by the trucking company as well as signing up new hires and leasing them to trucking firms that had preselected these drivers. In the Tennessee accident involving Mercer Trucking, Mercer, like other TLC customers, was in the business of moving freight. As part of that business, Mercer has the exclusive ownership of the trucks, the control and direction of the driver, and control over the freight hauled. See Bed-dingfield, — So.2d at -, 2003 WL 1950005, at *1 (stating that [TLC] ’s leasing contract is “essentially one of form instead of substance” because the contract between TLC and Mercer does not alter the employees’ job responsibilities; Mercer still retains primary responsibility for hiring and firing the drivers). Thus, TLC is in the business of leasing employees, and Mercer is in the business of operating ■ trucks to haul freight.

It is possible that both TLC and Mercer could be in the business of operating trucks to haul freight if both companies played some role in the day-to-day business or the control of the drivers. In a joint operation, we would expect to see TLC play an active role in deciding whether a driver should be hired or fired and in supervising that driver; or some presence in the trucking company’s operation; or some control over the trucks themselves; or some contact with customers; or some sharing of revenue. Here, none of these conditions exist. The drivers are not operating as part of any blended business.

Although they do not directly bear on the clarity of coverage under the language of the policy, two other considerations bear mention. First, the coverage in the endorsement cost only $300 but had aggregate policy limits of $26 million. TLC wished to cover almost 2,000 truck drivers operating in almost every state in the union. Scottsdale thought it was only covering occasional trips by a few office employees in their own cars for TLC’s own business. As Aon told TLC, there was reason to doubt it had coverage. TLC never brought this question up with Scottsdale. The questionnaires that were initially and subsequently completed by RLI indicate that TLC’s office locations in Minnesota and Indiana were the material insured locales. This supports the Scottsdale/RLI view.

Second, this coverage was special, supplemental insurance being purchased by a sophisticated business through an insurance brokerage firm. A special policy endorsement was being obtained. Although the endorsement may have been standard language, it was not necessarily nonnegotiable. This is not a contract of adhesion or a consumer policy where the customer has little ability to decipher a complex contract.

Based on the language in the endorsement and the undisputed facts in this case, we conclude that the district court erred by holding that the leased truck drivers were driving in the business of TLC within the meaning of the nonowner auto endorsement and that the Scottsdale/RLI policies covered accidents of those drivers. The plain language of the nonowned auto endorsement limits coverage to TLC’s business of employee leasing. TLC is not in the business of hauling freight or operating trucks. Accordingly, we reverse the district court’s finding of coverage.

We note that in the underlying negligence litigation, the Alabama Supreme Court held that under the loaned-servant doctrine, TLC was not vicariously hable for the truck driver’s negligent and reckless actions. Beddingfield, — So.2d at -, 2003 WL 1950005, at *4. That court noted that

the important question is not whether or not [the employee] remains the servant of the general employer as to matters generally, but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other.

Id. (quotations omitted) (emphasis added). According to the Alabama Supreme Court, the driver was acting in the business of the trucking company, not TLC. This is consistent with our conclusion that there is not coverage.

II.

The second issue is whether the district court erred by granting Scottsdale’s motion for summary judgment for rescission. Because we find that TLC’s leased drivers were not covered under the vehicle endorsement, we do not address this issue.

III.

The third issue is whether the district court erred by denying summary judgment in favor of Summit and Lope-man. Resolution of this issue rests on the determination of three questions: (1) was there a special relationship between TLC and Summit/Lopeman; (2) did TLC specifically request that Summit/Lopeman obtain insurance coverage for the leased truck drivers, and if so did Summit/Lope-man follow TLC’s instructions for the leased employees; and (3) did Summit/Lopeman know, or should they have known, that the supplemental questionnaires were inaccurate or incomplete.

Special Relationship

To determine whether there is a special relationship or special circumstances existing between Summit/Lopeman and TLC, the court must first determine if there is a legal duty running from Summit/Lopeman to TLC. Whether a legal duty exists is a question of law for the court. Johnson v. Urie, 405 N.W.2d 887, 891 n. 5 (Minn.1987). But, to determine if there is a legal duty, the court must look at the factual circumstances of the case. Gabrielson v. Wamemunde, 443 N.W.2d 540, 543 n. 1 (Minn.1989). If the facts are disputed, the finder of fact is to resolve the disputed facts before the court can determine if a duty exists. Id. (citing Urie, 405 N.W.2d at 891 n. 5).

The legal duty of an insurance agent is to exercise the skill and care that a reasonably prudent insurance agent would exercise under similar circumstances. Gabrielson, 443 N.W.2d at 543. Unless there is a special circumstance or relationship, the agent’s duty is to act in good faith and to simply follow the instructions of the insured. See id. (noting that “[ajbsent an agreement to the contrary, an agent has no duty beyond what he or she has specifically undertaken to perform for the clients”). But, if there is a special circumstance or relationship or a long-term relationship, the agent knows or should know that the insured is relying on the agent’s judgment. Gabrielson, 443 N.W.2d at 543-44. Such a relationship exists when the insured asks the agent to examine the insured’s exposure and advise the insured on the potential exposure.

Lopeman had worked with TLC prior to Aon evaluating TLC’s insurance coverage. Whether this particular ongoing relationship was sufficient to result in a determination that a special relationship existed is a factual question. If a special relationship did exist, its significance is also a question for the trier of fact. Although TLC did not delegate any decision-making authority to Summit/Lopeman, TLC may have relied on Lopeman’s advice when Aon questioned whether the Scottsdale endorsement provided the recommended coverage. See Beauty Craft Supply & Equip. Co. v. State Farm Fire & Cas. Ins. Co., 479 N.W.2d 99, 101 (Minn.App.1992) (finding no special relationship without a delegation of decision-making authority and a lack of sophistication on the part of the insured), review denied (Minn. Mar. 19, 1992). TLC’s officer responsible for insurance decisions stated that he relied on Lopeman and that he believed Lopeman understood more than “any other broker in the country” about their business and the type of insurance coverage they needed. By his own admission, Lopeman strove to convey to his customers that his specialty was transportation companies.

On the other hand, TLC asked for an analysis of its insurance needs from Aon and supplied Aon with a list of its current coverage, including liability limits. This same question was not posed to Summit/Lopeman; Summit/Lopeman was never asked to make a detailed analysis of TLC’s insurance needs; and Aon’s reports were not provided to Summit/Lopeman. This may indicate TLC’s lack of reliance on Summit/Lopeman. We agree with the district court that whether there was a special relationship is question of fact to be determined by the trier of fact.

Following Instructions

There is conflicting evidence concerning whether TLC instructed Lopeman to secure coverage for the 1,900 drivers. If Lopeman did receive that instruction, and if he knew or should have known that the endorsement did not provide that coverage, then there is a basis for finding that Lopeman failed to follow TLC’s instructions regarding the coverage.

There are additional factors for consideration by the finder of fact. TLC claims that its officers spoke with Lopeman at least ten times about the coverage, that Lopeman assured TLC that the endorsement would cover the leased drivers, and that the communications from Lopeman to TLC reassured it of coverage. For example, Lopeman sent a fax transmission explaining that the nonowned vehicle endorsement was priced so low because “the insurance company sees the exposure as TLC’s actual office employees and has priced the coverage accordingly.” Finally, when Lopeman was specifically asked about TLC’s liability if a truck hit a school bus (an example previously supplied by Aon), Lopeman stated that the policy would provide coverage for TLC. We agree with the district court that whether Lopeman followed instructions is a question for the finder of fact and that summary judgment was appropriately denied.

Incomplete/Inaccurate Questionnaire

Some states suggest that an insurance agent “does not have [a duty] to assist an applicant in completing [an insurance] application.” Golden Rule Ins. Corp. v. Greenfield, 786 F.Supp. 914, 916 (D.Colo. 1992); see also Jackson v. Hartford Life & Annuity Ins. Co., 201 F.Supp.2d 506, 511 n. 3 (D.Md.2002) (“Law does not impose a duty on an insurance agent to investigate or verify the answers to an application’s questions.”). But an agent does have a duty to exercise the skill and care that a reasonably prudent insurance agent would exercise under similar circumstances. Ga-brielson, 443 N.W.2d at 543. Although whether a general duty exists to provide such assistance is a question of law that is not clear in Minnesota, the facts developed at trial will be important in making that determination in this case. Until the record is fully developed in this regard and findings of fact are made, we cannot address that question: Whether Lopeman had a duty to know about the questionnaire, direct the questionnaire to the appropriate person at TLC, review the questionnaire when it was returned to Summit, or discuss TLC’s answers with TLC before forwarding the form to Scottsdale are all questions for the finder of fact. We agree with the district court that given these questions, denial of summary judgment was proper.

IV.

Although Scottsdale and RLI have argued for reformation of the insurance policy, we do not reach this issue because of our determination that TLC’s leased drivers were not covered under the vehicle endorsement.

DECISION

Because TLC’s leased truck drivers do not drive trucks in furtherance of TLC’s business, we reverse the district court’s determination that the nonowned auto endorsement in Scottsdale’s policy provided liability coverage for TLC’s leased truck drivers. Because there are material facts to be considered as to whether Summit/Lopeman had a special relationship with TLC, followed TLC’s instructions in the acquisition of coverage, or knew or should have known that the supplemental questionnaires were inaccurate or incomplete, we affirm the district court’s denial of summary judgment on these issues.

Affirmed in part, reversed in part, and remanded.

      . The Alabama Supreme Court recently reversed the finding that TLC or its subsidiary was liable. ATS, Inc. v. Beddingfield, - So.2d-, 2003 WL 1950005 (Ala. Apr. 25, 2003). The appeal before this court continues both because substantial attorneys fees have been incurred in the Beddingfield case and because other accidents have occurred. One other claim has been made against TLC, and others may be made in the future. Therefore, the issues raised in the appeal are not moot.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Daniel James BERGERSON, Appellant.
    No. A03-112.
    Court of Appeals of Minnesota.
    Oct. 28, 2003.

      Charles A. Ramsay, Rebecca Rhoda Fisher, Ramsay, DeVore, Olson, P.A., Roseville, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge, and HARTEN, Judge, and G. BARRY ANDERSON, Judge.
   OPINION

HARTEN, Judge.

Appellant was convicted of conspiracy to commit first-degree controlled substance crime. In a direct appeal, he challenges the district court’s denial of his motion to suppress evidence obtained as a result of the protective sweep search conducted immediately after his arrest. In his associated postconviction appeal, appellant contests the summary denial of his petition for relief for ineffective assistance of counsel. Because we see no valid basis for suppressing the evidence and no abuse of discretion in the denial of the postconviction petition, we affirm.

FACTS

Two Anoka County deputies attempted to execute an arrest warrant on appellant Daniel Bergerson. When the deputies arrived at appellant’s parents’ residence, a rural farmhouse, they followed a driveway leading to an unattached pole barn near the house because they saw that the overhead, garage-style door of the barn was raised about four feet from the ground.

The deputies approached and peered under the open door into the pole barn. Both saw an individual from the waist down who was standing near a vehicle. The deputies announced their presence and one knocked on the service door adjacent to the overhead door. The other deputy noticed the individual’s feet turn away from the doorway. After the deputies called out several times, a man emerged from underneath the overhead door and identified himself as John Hanson. He was the subject of an arrest warrant for traffic violations and was immediately taken into custody.

The deputies asked Hanson if appellant was inside the pole barn. Hanson denied that appellant was in the pole barn and gave other evasive answers. After Hanson was told that he could be charged with aiding and abetting for lying, he admitted that appellant was inside the pole barn. The deputies placed Hanson in one of the squad cars and called for backup.

Several minutes later, the deputies returned to the overhead door and shouted for appellant to come out. When appellant came to the door, the deputies arrested him. After appellant was secured by other officers, two deputies returned to the pole barn to make sure no one else remained inside. They searched the interior of the pole barn and the vehicles inside it. Both deputies had their service revolvers drawn during the search, which lasted two to four minutes. The deputies found no other persons, but they observed evidence indicating the manufacture of methamphetamine, which was later used to convict appellant.

Appellant and Hanson were charged with conspiracy to commit controlled substance crime in the first degree (manufacture of methamphetamine). Appellant moved to suppress the evidence obtained from the pole barn on the ground that the deputies’ initial search of the pole barn violated the Fourth Amendment. The district court denied appellant’s motion, finding that the deputies had a reasonable suspicion that someone else was in the pole barn. Appellant was convicted; he petitioned for postconviction relief. The district court denied the petition without a hearing. Appellant challenges the validity of the search of the pole barn and the denial of his motion.

ISSUES

1. Was the initial search of the pole barn justified as a protective sweep search?

2. Did the postconviction court abuse its discretion in denying appellant relief based on ineffective assistance of counsel?

ANALYSIS

1. Protective Sweep Search

When reviewing pretrial orders on motions to suppress evidence where the facts are undisputed, We may independently review the facts to determine, as a matter of law, whether evidence need be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992).

The validity of a “protective sweep” search is an issue of first impression in Minnesota. Relying. on Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093,-108 L.Ed.2d 276 (1990), the district court determined that the deputies’ initial search of the pole barn met the criteria of a “protective sweep” exception to the warrant requirement under the Fourth Amendment. We agree.

Buie recognized that officers have an interest in taking steps to assure that the area where a suspect is arrested, or was recently arrested, does not harbor other individuals who could be dangerous and capable of aggression. Buie, 494 U.S. at 333, 110 S.Ct. at 1097-98. This interest justifies a limited intrusion such as taking reasonable steps to ensure officer safety; this intrusion is comparable to the reasonable steps the police may take to neutralize the dangers of making on-the-street investigative encounters or roadside investigatory stops. Id. at 333, 110 S.Ct. at 1098.

Buie authorized two types of protective searches in conjunction with an arrest. The first type permits officers who have neither probable cause nor reasonable suspicion to look in spaces immediately adjoining the place of arrest, such as closets, “from which an attack could be immediately launched.” Buie, 494 U.S. at 334, 110 S.Ct. at 1098. The second type involves searches of areas near, but not immediately adjoining, the place of arrest. The reasonable articulable suspicion standard applies to these searches:

[Tjhere must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. This is no more and no less than was required in Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] and [Michigan v.] Long [463 U.S. 1032, 103 S.Ct. 3469 (1983) ], and as in those cases, we think this balance is the proper one.

Id. A protective sweep search is limited and “may extend only to a cursory inspection of those spaces where a person may be found.” Id. at 335, 110 S.Ct. at 1099. The time frame of the search is also limited; it may last no longer “than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id. at 336, 110 S.Ct. at 1099.

The Buie standard for protective sweep searches has been routinely utilized in the federal circuits and adopted in many states. We are persuaded that the rationale underlying the protective sweep search is compelling and that the doctrine is appropriate for application in Minnesota. In accordance with Buie, we hold that law enforcement officers may conduct, as a precautionary measure, protective sweep searches of areas immediately adjoining the place of arrest without probable cause or reasonable suspicion to believe criminal conduct is occurring. In addition, we hold that officers may conduct a protective sweep search of areas near, but not immediately adjacent to, the place of an arrest if articulable facts and rational inferences from those facts warrant a reasonable suspicion that the area to be searched harbors one or more individuals who threaten the safety of officers and others at the scene.

Appellant argues that in the instant case, the law enforcement officers did not have a reasonable suspicion that another individual was in the pole barn. Specifically, appellant challenges five of the district court’s eight factual findings supporting the court’s conclusion that there was a reasonable suspicion. Findings of fact are subject to a clearly erroneous standard of review. State v. Wiernasz, 584 N.W.2d 1, 8 (Minn.1998) (in mixed questions of fact and law, factual findings are reviewed for clear error and legal determinations are reviewed independently).

First, appellant challenges the finding that the deputies knew he had avoided service of the arrest warrant in the past. One deputy testified that he had previously tried to serve the warrant several times; the other deputy testified that he had twice tried to serve the warrant at appellant’s parents’ residence; and appellant’s father testified that deputies had been to his residence “probably three or four times.” Appellant’s father also admitted lying to officers by telling them that appellant did not live at his residence. The record supports the finding of avoidance.

Second, appellant challenges the finding that the deputies knew of appellant’s potential for violence. One deputy testified about a prior domestic incident involving appellant, his then-girlfriend, and some burned clothing at a site that had surveillance equipment and a large dog. While this incident is not direct evidence of appellant’s violent nature, it is adequate to support the finding that the deputies knew of appellant’s “potential for violence” (emphasis added).

Third, appellant challenges the finding that 'the deputies were surprised by Hanson’s presence. This finding could easily be inferred from the fact that the deputies were seeking and expecting to find appellant, not another suspect, at his parents’ residence. See State v. Victorsen, 627 N.W.2d 655, 664 (Minh.App.2001) (due weight must be given to inferences drawn from district court’s findings of fact).

Fourth, appellant challenges the finding that the deputies perceived facts that inferred methamphetamine manufacturing inside or outside the pole barn. One deputy testified that, when peering underneath the overhead door, he saw a can of acetone, a high-pressure tank, and a fan blowing fresh air into the pole barn. The other deputy testified about an ether-ammonia odor that he noticed before entering the pole barn. This finding supports a reasonable suspicion of methamphetamine involvement.

Finally, appellant challenges the finding that the deputies reasonably inferred that appellant would associate himself with others who engaged in similar behaviors. But the deputies testified that they already knew that appellant was associating with at least one other person and that before Hanson appeared they had perceived evidence that they suspected was linked to the manufacture of methamphetamine. See Victorsen, 627 N.W.2d at 664. This finding reflects the deputies’ reasonable concern that appellant had sympathetic companions at the scene.

We conclude that, because the district court’s factual findings are supported either directly or by reasonable inferences from the evidence, they are not clearly erroneous.

Appellant nonetheless argues that, even if the district court’s factual findings are not clearly erroneous, they do not support a conclusion that officers had a reasonable suspicion. Courts must look to the totality of the circumstances involved in the case to determine whether the officers had a particularized and objective basis for their suspicions. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002); see also State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001) (using the totality of the circumstances to determine reasonable suspicion for a traffic stop, including inferences and deductions made by trained and experienced officers).

Here, the deputies had a reasonable suspicion that someone sympathetic to appellant who was a threat to their safety was present in the pole barn. The deputies were not expecting to find Hanson in the pole barn, and Hanson was evasive in answering the questions as to whether anyone else was in the pole barn. See United States v. Brown, 217 F.3d 605, 607 (8th Cir.2000) (holding that a pause before an answer to officers’ questions led to the reasonable suspicion).

While both deputies acknowledged that Hanson eventually honestly named appellant, who was inside the pole barn, they could not have known this until after their protective sweep search. Given appellant’s potential for violence, Hanson’s evasive answers, and the evidence of methamphetamine manufacturing, we conclude that the deputies had a reasonable suspicion that another individual who posed a danger to the deputies’ safety was inside the pole barn.

2. Ineffective Assistance of Counsel

The decisions of a postconviction court will not be disturbed absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Claims of ineffective assistance of counsel are reviewed under a two-pronged test of deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003).

Under the deficiency prong, appellant has the burden of showing by a preponderance of the evidence that his counsel’s performance fell below an “objective standard of reasonableness.” Dukes, 621 N.W.2d at 252 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064). “In Minnesota, an attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (quotation omitted).

Appellant argues that his counsel’s performance was deficient in not eliciting specific information as to the layout of the pole barn during the omnibus hearing. But trial counsel has broad discretion to determine trial tactics, including decisions of what evidence to present. Id. Moreover, “[a]ppellate courts, which have the benefit of hindsight, do not review for competency matters of trial strategy.” Id.

As to the prejudice prong, appellant is required to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. This determination requires courts to consider the totality of the evidence received. Id. at 695, 104 S.Ct. at 2069. Appellant argues that, if the specific information regarding the dimensions and layout of the pole barn had been presented to the district court, his motion to suppress could have been granted. We disagree. Evidence of the dimensions and layout of the pole barn was presented during the omnibus hearing, and the district court’s finding of reasonable suspicion was based on many factors other than the layout of the pole barn.

The postconviction court did not abuse its discretion in summarily denying appellant’s petition.

DECISION

The deputies articulated a reasonable suspicion that other dangerous individuals remained inside the pole barn following appellant’s arrest, which justified their search of the pole barn as a protective sweep within the exception to the warrant requirement. The evidence found in the pole barn was lawfully admitted into evidence. The failure of appellant’s trial counsel to elicit certain testimony was a tactical decision that, in any event, would not have altered the result.

Affirmed; appellant’s motion to strike denied; respondent’s motion to strike granted.

      . However, the Minnesota Supreme Court declined to address whether a cursory search to prevent the destruction of evidence constituted a protective sweep because the officers had probable cause to search the premises. State v. Alayon, 459 N.W.2d 325, 330 (Minn. 1990).

      . As a threshold matter, appellant argues that we need not reach a reasonable suspicion analysis under Buie because the deputies could have safely departed with him and Hanson once they were in custody. But the deputies' reasonable suspicion of danger continued after appellant was taken into custody. See United States v. Henry, 48 F.3d 1282, 1285 (D.C.Cir.1995) (recognizing that although officers could have left, they would then have become targets for any armed persons who remained in the building); see also United States v. Boyd, 180 F.3d 967, 975 (8th Cir.1999) (fact that defendant was in custody does not invalidate an otherwise justified sweep).

      . See, e.g., United States v. Gould, 326 F.3d 651, 654 (5th Cir.2003); United States v. Cavely, 318 F.3d 987, 995 (10th Cir.2003); United States v. Boyd, 180 F.3d 967, 975 (8th Cir. 1999); United States v. Chaves, 169 F.3d 687, 691 (11th Cir. 1999); Shairar v. Felsing, 128 F.3d 810, 822 (3rd Cir. 1997); United States v. Blue, 78 F.3d 56, 59 (2nd Cir.1996); United States v. Colbert, 76 F.3d 773, 775 (6th Cir.1996); United States v. Stanfield, 109 F.3d 976, 980 (4th Cir.1997); United States v. Burrows, 48 F.3d 1011, 1013 (7th Cir.1995); United States v. Ford, 56 F.3d 265, 266 (D.C.Cir.1995); Crooker v. Metallo, 5 F.3d 583, 584 (1st Cir.1993); United States v. Flip-pin, 924 F.2d 163, 165-66 (9th Cir.1991); People v. Ledesma, 106 Cal.App.4th 857, 863, 131 Cal.Rptr.2d 249 (Cal.Ct.App.2003); United States v. Harris, 629 A.2d 481, 483 (D.C.1993); State v. Hedley, 593 A.2d 576, 580 (Del.Super.Ct.1990); Runge v. State, 701 So.2d 1182, 1183 (Fla.Dist.Ct.App.1997); State v. Slater, 133 Idaho 882, 994 P.2d 625, 629 (Idaho Ct.App.1999), review denied (Idaho Mar. 3, 2000); People v. Rushing, 272 Ill. App.3d 387, 208 Ill.Dec. 553, 649 N.E.2d 609, 612 (Ill.App.Ct.1995); State v. Estep, 753 N.E.2d 22, 26 (Ind.Ct.App.2001); State v. Luttig, 54 P.3d 974, 977 (Kan.Ct.App.2002); State v. Bradley, 611 So.2d 757, 758 (La.Ct. App.1992); Dashiell v. State, 374 Md. 85, 821 A.2d 372, 382 (Md.2003); Commonwealth v. Bui, 419 Mass. 392, 645 N.E.2d 689, 692 (Mass.1995); People v. Cartwright, 454 Mich. 550, 563 N.W.2d 208, 211 (Mich.1997); McNeil v. State, 813 So.2d 767, 770 (Miss.Ct. App.2002); State v. Roberts, 957 S.W.2d 449, 452 (Mo.Ct.App.1997); State v. Olson, 311 Mont. 270, 55 P.3d 935, 940 (2002); State v.
        Farber, 1 Neb.App. 460, 498 N.W.2d 797, 800 (1993); State v. Smith, 141 N.H. 271, 681 A.2d 1215, 1217 (1996); State v. Valdez, 111 N.M. 438, 806 P.2d 578, 580 (1990), review denied, (N.M. Feb. 6, 1991); People v. Febus, 157 A.D.2d 380, 556 N.Y.S.2d 1000, 1001 (N.Y.App.Div.1990); State v. Bullin, 150 N.C.App. 631, 564 S.E.2d 576, 583 (2002); State v. Lyons, 83 Ohio App.3d 525, 615 N.E.2d 310, 315 (1992); State v. Cocke, 334 Or. 1, 45 P.3d 109, 112 (2002); Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261, 1267 (2001); State v. Meyer, 587 N.W.2d 719, 724 (S.D.1998); Reasor v. State, 12 S.W.3d 813, 815-16 (Tex.Crim.App.2000); State v. Grossi, 72 P.3d 686, 689 (Utah Ct.App.2003); Conway v. Commonwealth, 12 Va.App. 711, 407 S.E.2d 310, 315 (1991); State v. Hopkins, 113 Wash.App. 954, 55 P.3d 691, 694 (2002); State v. Murdock, 155 Wis.2d 217, 455 N.W.2d 618, 622 (Wis.1990).

      . For purposes of this opinion, we assume, without deciding, that the sweep search here took place in an area near, but not adjacent to, the place of appellant's arrest, thereby invoking the more strict standard of reasonable suspicion to justify the sweep.

      . The parties neither raised nor litigated whether there was probable cause to enter the pole bam.

      . Both parties brought motions to strike. Appellant moves to strike portions of respondent's brief, claiming that factual assertions were not supported by the record. We conclude that the assertions that appellant wants stricken are adequately addressed in appellant’s challenges to the district court's factual findings, are supported by the record, or are simply irrelevant and immaterial, and therefore deny the motion.
      Respondent moves to strike the portion of appellant’s reply brief, in which appellant argues for the first time that, even if the protective sweep search was justified by reasonable suspicion, the scope of the search exceeded what is permitted under the protective sweep exception outlined in Buie. We do not address this argument because it was not raised in the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (This court will generally not consider matters not argued and considered in the district court.). See also, Minn. R. Civ.App. P. 128.02, subd. 3 (an appellant may not raise a new issue in a reply brief). We therefore grant the motion to strike.


author: WRIGHT, Judge.

text:
    In the Matter of the Mary O. FOLEY TRUST created under Agreement dated August 22, 1974.
    No. A03-43.
    Court of Appeals of Minnesota.
    Nov. 18, 2003.

      Mary R. Vasaly, Jason A. Lien, Maslon, Edelman, Borman & Brand, LLP, Minneapolis, for appellants.
    Harold R. Fotsch, Fotsch & Otto, P.A., St. Paul, for respondents U.S. Bank and Sister Mary Denise Villaume.
    Philip R. Schenkenberg, Briggs & Morgan, P.A., St. Paul, for respondent Janet Villaume.
    Considered and decided by WRIGHT, Presiding Judge; TOUSSAINT, Chief Judge; and G. BARRY ANDERSON, Judge.
   OPINION

WRIGHT, Judge.

On appeal from an order construing a trust and an order denying a motion for a new trial, appellants contend that the district court erred in considering extrinsic evidence to construe the trust and in reforming earlier transactions in the trust. We affirm as modified.

FACTS

Mary O. Foley established the Mary O. Foley Trust (Foley trust) in 1974 to provide for her heirs upon her death. The trust agreement provided that the trustees could make distributions from the trust at the direction of Foley unless she was under an incapacity. In the event of Foley’s incapacity, the trustees were authorized only to make payments from the trust for her maintenance, care, and support. In addition to the Foley trust, Foley had created a trust for her daughter, Janet Vill-aume, in 1966 to provide for Janet Vill-aume’s care and support because Janet Villaume was unable to provide for herself.

At Foley’s death, the trust assets were to be distributed in four parts to her children or their heirs if her children predeceased her. Mary Foley had four children: Mary Denise Villaume, Janet Villaume, Eugene Villaume, and Walter Villaume. Her two sons predeceased her and each is survived by three children. These six grandchildren are the appellants here. The trust also provided that certain pre-death gifts were to be considered advances on the final distribution. These included Foley’s gifts to her two sons of $107,500 each, and the value of Janet Villaume’s 1966 trust at the time of Foley’s death.

The trustees of the Foley trust during the relevant time period were U.S. Bank and Sister Mary Denise Villaume. In spring 2000, the grandchildren approached U.S. Bank to discuss whether they could receive pre-death gifts from the Foley trust to minimize taxes the Foley trust would otherwise incur upon a forced sale of certain stock. The bank’s administrator for the trust met with Foley to discuss the gifts. The administrator concluded that Foley, who was 92 years old, lacked the capacity to direct the trustees to make the gifts. Instead, the trustees and the grandchildren decided to make the gifts from the Foley trust. The beneficiaries, including Janet Villaume, Sister Mary Denise Villaume, and all of the grandchildren, signed an agreement consenting to the gifts. The trustees then transferred funds from the Foley trust as follows:

• $225,000 divided among the three children of Eugene Villaume.
• $225,000 divided among the three children of Walter Villaume.
• $225,000 to be directed by Sister Mary Denise Villaume, who was a nun and had taken a vow of poverty, to a charity of her choice.
• $225,000 to Janet Villaume, which was distributed to her 1966 trust.

Mary Foley died on October 23, 2000, shortly after the 2000 gifts were made. In a petition dated February 27, 2001, the trustees sought allowance and approval of accounts, distribution of the Foley trust assets, and termination of the trust. In its April 11, 2001, order, the district court allowed the accounts, confirmed the distribution of the assets, and terminated the trust.

A question arose later as to how the 2000 gifts should be treated in the final distribution of the trust assets. In a November 29, 2001, petition, the trustees sought construction of the Foley trust, division of assets, and distribution of the Foley trust shares. The trustees noted that, under the Foley trust agreement, the gift to Janet Villaume would be counted against her share of the trust, but the gifts to the grandchildren would not reduce the shares to which they are entitled. Settlement talks commenced. When the matter could not be settled, it was set for a hearing. In March 2002, the trustees moved to amend the petition to raise explicitly the validity of the beneficiaries’ consent to the 2000 gifts and, if found invalid, to seek instructions on how to distribute the trust’s assets. The district court denied the motion as unnecessary, ruling that the November petition “set forth the issues to be determined.”

At the hearing on the petition, the grandchildren objected to the introduction of extrinsic evidence. The district court overruled the objection, and extrinsic evidence was introduced. After the hearing, the district court ruled that, although the 2000 gifts were not authorized by the trust, it declined to void them because of the tax benefits to the trust that the transaction produced. The district court, however, found that the transaction was unfair to Janet 'Villaume because the distribution to her 1966 trust would have been $57,000 greater had the gift transaction not occurred. The district court remedied this unfairness first by reforming the gift so that it went to the February 14, 2002, Janet Villaume revocable trust rather than her 1966 trust. Second, the district court ordered the trustees to recalculate the value of Janet Villaume’s 1966 trust at the time of Foley’s death and redistribute the residue of the Foley trust without consideration of the 2000 gift. The district court denied the grandchildren’s posttrial motions, and this appeal followed. Respondent trustees advised this court that they are neutral parties in the appeal and did not file a brief.

ISSUES

I. Did the district court err in considering extrinsic evidence in resolving the issues raised in the petition for construction?

II. Did the district court abuse its discretion in reforming the gift?

ANALYSIS

We “review a district court’s construction of an unambiguous instrument de novo.” In re Estate and Trust of Anderson, 654 N.W.2d 682, 687 (Minn.App. 2002), review denied (Minn. Feb. 26, 2003). “The application of the parol evidence rule is [also] a question of law subject to de novo review.” Mollico n Mollico, 628 N.W.2d 637, 640 (Minn.App.2001). But when the district court makes findings based on disputed evidence, we review those findings under a clearly erroneous standard. Toombs v. Daniels, 361 N.W.2d 801, 805 (Minn.1985). Absent an abuse of discretion, we will not reverse the district court’s decisions in its exercise of equitable jurisdiction pursuant to a petition under Minn.Stat. § 501B.16(4). See Plunkett v. Lampert, 231 Minn. 484, 492, 43 N.W.2d 489, 494 .(1950); First Trust Co., Inc. v. Union Depot Place Ltd. P’ship, 476 N.W.2d 178, 184 (Minn.App.1991), review denied (Minn. Dec. 13, 1991).

I.

A trustee may petition the district court for an order “to construe, interpret, or reform the terms of a trust, or authorize a deviation from the terms of a trust....” Minn.Stat. § 501B.16(4) (2002). “The primary function of the court in exercising jurisdiction over trusts is to preserve them and to secure their administration according to their terms.” In re Trusts of Campbell, 258 N.W.2d 856, 868 (Minn.1977). The district court has supervisory control over the trust and protects the trustee when “the meaning of the trust instrument may be in doubt or ... where there was uncertainty as to the proper application of the law.” In re Trust of Warner, 275 Minn. 174, 179-80, 145 N.W.2d 542, 546 (1966). “The court’s purpose in construing a trust is to ascertain the intent of the settlor.” In re Trust Created Under Agreement with McLaughlin, 361 N.W.2d 43, 44 (Minn.1985). On a petition for construction, the district court shall issue an order as it considers appropriate. MinmStat. § 501B.21 (2002).

The grandchildren assert that the district court erred in considering extrinsic evidence in construing the trust language. But their argument is premised on their underlying claim that the issue properly before the district court was whether, under the Foley trust agreement, the 2000 gift to the 1966 Janet Villaume trust should be considered in calculating the amounts of the final distribution. They assert that the district court, in reaching the validity of the 2000 gifts, misconstrued its earlier order denying the trustees’ motion to amend its petition and misinterpreted the scope of the hearing. The grandchildren contend that consideration of the validity of the 2000 gifts was highly prejudicial and, had they known it was at issue, they would have submitted additional evidence.

“It is fundamental that a party must have notice of a claim against him and an opportunity to oppose it before a binding adverse judgment may be rendered.” Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn.1983). Thus, we begin our analysis with a determination of whether the validity of the 2000 gifts was properly before the district court.

In the November 29, 2001, petition for construction of the trust, the trustees, among other things, described the details of the 2000 gifts to the beneficiaries and explained that, under the terms of the Foley trust, the gift to Janet Villaume’s 1966 trust would be credited against her share of the final distribution, while the gifts to the grandchildren would not reduce their shares. The petition then stated:

Pursuant to Minn.Stat. § 501B.16(4), Petitioners seek the construction of the governing trust instrument as to whether the gift made by the Settlor to the Janet M. Villaume Trust immediately prior to Settlor’s death should be taken into account in determining the amount to pass to the Janet M. Villaume Trust.

The relief the trustees sought included, in relevant part, an order “[ijnstructing the trustees as to the division of the trust assets among the beneficiaries thereof.”

In the proposed amended petition, the trustees specifically sought a determination as to whether the consent to receive the 2000 gifts that the beneficiaries had signed was valid. If not, the trustees sought instructions from the district court as to how to proceed with the distribution of the Foley trust estate. The district court, however, denied the motion to amend the petition as unnecessary, noting that the proposed amendments were “designed to seek instructions from the court to determine that certain agreements are valid and for other relief’ and concluding that the “original [pjetition before this [cjourt set forth the issues to be determined.” The district court reasoned that the proposed amendment to the petition appeared to be designed to give the parties additional time for discovery and settlement negotiations.

At the hearing, the parties and the district court addressed which issues were before the court. The trustees asserted that the only contested issue was “the intent of the settlor ... as to gifts made by her to her daughter Janet Villaume and her grandchildren shortly before her death.” The grandchildren objected to consideration of any extrinsic evidence as to the circumstances of the 2000 gifts. The district court overruled the objection, holding that all of the facts would be considered. On review, based on the petition, the district court’s order denying the motion for the amended petition, and its rulings at the commencement of the hearing, it is clear that the issue of the validity of the 2000 gifts was properly before the district court and the grandchildren had notice that this issue would be decided.

We next consider whether the district court properly considered extrinsic evidence to address the validity of the 2000 gifts. “Where the intent of the testator-settlor is clear from the language of the instrument, parol evidence is not admissible; where there is ambiguity as to the intent, parol evidence may be admitted for clarification.” Campbell, 258 N.W.2d at 864. Whether consideration of parol evidence is proper is a question of law subject to de novo review. Mollico, 628 N.W.2d at 640. As discussed above, the issue before the district court was not merely interpretation of the trust language. Rather, it was an assessment of the validity of the 2000 gifts. Because the 2000 gifts weré not contemplated by the trust agreement, sufficient ambiguity exists as to Foley’s intent under these unforeseen circumstances so as to make consideration of extrinsic evidence proper. Accordingly, the district court did not err in considering extrinsic evidence.

II.

We next consider the grandchildren’s challenges to the district court’s reformation of the 2000 gift to Janet Vill-aume. The district court concluded that the distribution of the 2000 gifts was not authorized by the Foley trust or otherwise. Under the terms of the Foley trust, Foley could direct distribution of the trust assets unless she was under an incapacity. The trustees determined, and the grandchildren do not dispute, that when the gifts were proposed, Foley was under an incapacity and unable to direct distributions. The grandchildren argue that the gifts were consistent with the distribution plan articulated in the trust. But they do not cite trust language authorizing the transaction. The trust agreement provides that, in the event of Foley’s incapacity, the trustees are authorized only to make distributions for Foley’s maintenance, care, and support. Thus, we agree with the district court’s conclusion that the unambiguous trust language contains no authorization for the 2000 gifts. Therefore, we must determine whether the gifts were otherwise authorized.

The trustees could have sought the district court’s approval for this distribution under Minn.Stat. § 501B.16(4), but they did not do so. Although Sister Mary Denise Villaume had power of attorney for Foley, she did not use it to direct the gifts. Thus, as the district court concluded, there was no authority under the Foley trust or otherwise for the gifts.

The grandchildren contend that the gifts were valid because the beneficiaries consented. The district court found that Janet Villaume was not involved in the decision-making process as to the gifts, she was not represented by counsel as the others were, and she believed she was being treated like the others when she signed the consent form. Further, the district court found that the grandchildren did not intend to treat Janet Villaume unfairly. A review of the record establishes that the district court’s findings are not clearly erroneous.

In addition, we consider whether there is legal authority for the proposition that the beneficiaries can consent to these gifts. Under Minnesota law, it is the responsibility of the courts to construe, interpret, or reform the terms of a trust. Minn.Stat. § 501B.16(4). In exercising its jurisdiction over trusts, the district court utilizes its supervisory power to protect the trustees in situations where interpretation of trust terms are in doubt or uncertain. Warner, 275 Minn, at 179-80, 145 N.W.2d at 546. Granting beneficiaries power to consent to gifts from a trust that are not authorized by the trust agreement would be inconsistent with statutory authority and legal precedent giving the courts supervisory power over trusts. See MinmStat. § 501B.16(4); Warner, 275 Minn, at 179-80, 145 N.W.2d at 546. Consequently, there is no legal authority to support the grandchildren’s argument that the beneficiaries may consent to these gifts.

The grandchildren also challenge the district court’s remedy of reformation. The district court found, and the parties do not dispute, that the Foley trust saved $400,000 in taxes by the pre-death distribution of the trust assets to the beneficiaries. It is also undisputed that the final distribution of the Foley trust’s assets to Janet Villaume’s 1966 trust would have been $57,000 greater without the pre-death gift, because the Foley trust provided that the value of the 1966 Janet Villaume trust was to be credited against Janet Vill-aume’s final share of the Foley trust.

Despite this unfairness, the district court determined that the tax benefits to the Foley trust derived from the 2000 gifts warranted preservation of the gifts. Thus, to remedy the unfair effect of the 2000 gifts, the district court ruled that the $225,000 gift to the 1966 Janet Villaume trust would not be credited against Janet Villaume’s share of the Foley trust. The grandchildren contend that, by doing so, the district court provided full relief under the petition for construction. They also assert correctly that the decision not to credit the 2000 gift against Janet Vill-aume’s share is contrary to the express terms of the Foley trust. But a district court may use its equitable powers to address the trustee’s request for construction and will not be reversed absent an abuse of discretion. Plunkett, 231 Minn, at 492, 43 N.W.2d at 494. Here, the district court, faced with an unfair result from an unauthorized transaction, employed its equitable powers to remedy the situation. Under the facts and circumstances presented, we find no abuse of discretion.

Finally, we review the grandchildren’s challenge to the district court’s decision directing the trustees to distribute the $225,000 gift to the February 14, 2002, revocable trust for Janet Villaume, rather than the 1966 trust into which the Foley trust agreement directed that all distributions from the Foley trust on behalf of Janet Villaume must be placed. The grandchildren argue that this was error because the Foley trust and the 1966 Janet Villaume trust prohibit Janet Villaume from controlling the distribution of her 1966 trust funds. They also argue for reversal of the decision because it orders an unauthorized distribution of the Foley trust assets to the 2002 Janet Villaume revocable trust, which (1) is not a beneficiary of the Foley trust and (2) unlike the 1966 trust, does not direct its assets to be distributed to the grandchildren after Janet Villaume’s death.

As an initial matter, we note that there is nothing in the record setting out the terms of the 2002 Janet Villaume revocable trust, including the terms and conditions of Janet Villaume’s use of its assets and whether the grandchildren are beneficiaries upon Janet Villaume’s death. Consequently, we cannot decide the issue on the basis of arguments regarding the nature of the 2002 trust. But the grandchildren’s claims regarding distribution of the Foley trust assets to a beneficiary that was not designated by the Foley trust agreement have merit. The Foley trust agreement provides that distributions on behalf of Janet Villaume are to be distributed to her 1966 trust. In exercising jurisdiction over trusts, the district court’s purposes are to ascertain and effectuate the intent of the settlor. See McLaughlin, 361 N.W.2d at 44; Campbell, 258 N.W.2d at 868. Because the trust agreement clearly establishes that it was Foley’s intent that distributions on Janet Villaume’s behalf be made to her 1966 trust, it was an abuse of discretion for the district court to order that the 2000 gift to Janet Villaume be placed in her 2002 trust. We, therefore, modify the district court’s order and direct the trustees to distribute the 2000 gift to the 1966 Janet Villaume trust without crediting the 2000 gift against Janet Vill-aume’s share of the Foley trust.

DECISION

The district court properly considered extrinsic evidence to determine the validity of the 2000 gifts. The district court correctly ruled that the 2000 gifts were unauthorized by the Foley trust, and the district court was within its discretion to remedy the unfair result to Janet Villaume by ordering a recalculation of the Foley trust distribution without consideration of her 2000 gift. But we hold that it was an abuse of discretion for the district court to order the 2000 gift to be placed in a trust other than the 1966 trust to which the Foley trust agreement requires all of the Foley trust distributions on behalf of Janet Villaume to be made.

Affirmed as modified.