author: ANDERSON, PAUL H., Justice. MEYER, Justice PAGE, Justice

text:
    Royal JORGENSEN, et al., Respondents, v. Debra L. KNUTSON, Debtor, Milbank Insurance Company, petitioner, Appellant.
    No. C8-01-1685.
    Supreme Court of Minnesota.
    June 19, 2003.

      Troy A. Wolf, Smith, Bakke, Hovland & Oppegard, Moorhead, MN, for Appellant.
    Craig E. Johnson, Fraase, Johnson, Ramstad & Mottinger, PLLP, Fargo, ND, for Respondent.
   OPINION

ANDERSON, PAUL H., Justice.

Debtor Debra Knutson and her husband were insured by an automobile liability policy with garnishee-appellant Milbank Insurance Company. When the Knutsons failed to make their first premium payment for the relevant policy period, Mil-bank sent a notice of cancellation notifying them that their coverage would cease on a specific date at 12:01 a.m. unless the full policy premium was received before that date. Ten days after this cancellation date, Debra Knutson was involved in an automobile accident in which creditor-respondent Royal Jorgensen was injured. Six days after the accident, Milbank received and deposited a check from the Knutsons for the premium payment, but on that same day, Milbank sent the Knut-sons a memorandum stating the policy had been cancelled. Milbank fully refunded the payment five days later.

Debra Knutson sought but was denied coverage by Milbank, which asserted that the Knutsons’ policy had been cancelled due to nonpayment. Debra Knutson then entered into a Miller-Shugart settlement in which she confessed judgment in a specific amount and allowed Jorgensen and her husband to pursue an action against Milbank. The Miller-Shugart settlement resulted in a district court judgment. The Jorgensens then commenced a garnishment action against Milbank. On a motion for summary judgment, the district court ruled in favor of the Jorgensens on the ground that Milbank had not given the ten-days’ cancellation notice required by Minn.Stat. § 65B.16 (2000). Following a bench trial, the court found the Miller-Shugart settlement to be reasonable and entered judgment in favor of the Jorgen-sens, finding Milbank liable for two-thirds of the Miller-Shugart settlement amount. The court of appeals affirmed. We affirm in part, reverse in part, and remand.

Debra Knutson and her husband had been insured off and on since 1987 under automobile liability policies with Milbank Insurance Company. On September 26, 1993, Milbank sent the Knutsons a renewal insurance policy and invoice for the period of October 26, 1993 through April 26, 1994. The invoice contained an “IMPORTANT NOTICE” instructing the Knutsons not to pay the premium until they received their bill. When no premium payment had been made by or after the October 26, 1993 due date, Milbank sent a notice of cancellation on November 10 warning the Knutsons that coverage would cease at 12:01 a.m. on November 22, 1993, unless the full policy premium was received before that date.

The Knutsons maintain that they mailed their payment on November 20, 1993, the date written on their check. Milbank asserts that it did not receive the Knutsons’ check until December 8, 1993. Milbank asserts that, in accordance with company policy, it deposited the Knutson check on the same day it was received. On that same day, however, Milbank sent the Knutsons a “Memorandum of Cancellation” stating that (1) the policy had been cancelled, (2) it had received the Knutsons’ delayed payment, and (3) if there were no outstanding charges on the account, a full refund would be issued. Five days later, on December 13, 1993, Milbank mailed the Knutsons a full refund of their payment.

Meanwhile, on December 2, 1993, Debra Knutson was involved in an automobile accident with a vehicle in which Royal Jorgensen was a passenger. Royal Jor-gensen was injured in the accident and suffers from chronic neck pain and headaches that have left her functionally disabled. When the insurer of the driver of the vehicle carrying Royal Jorgensen attempted to discuss recovery with Milbank, Milbank sent a letter stating that the Knutsons’ policy had been cancelled. The Jorgensens then commenced an action against Debra Knutson. Knutson subsequently entered into a Miller-Shugart settlement with Royal Jorgensen and her husband, Thomas Jorgensen, in which the parties agreed to the following: (1) Royal Jorgensen’s damages exceed $150,000; (2) a jury could render a verdict against Debra Knutson in excess of that amount; (3) the Jorgensens would seek collection of the judgment solely from the Knutsons’ insurance carrier, Milbank; (4) Debra Knutson consented to the entry of judgment against her and in favor of the Jor-gensens; and (5) the parties would be bound by the amount the court determined to be reasonable, but this amount was to be payable only by Milbank. The settlement was filed with the Clay County District Court and a judgment consistent with the settlement was entered on December 13,1999.

The Jorgensens served Milbank with a garnishment summons, and on June 22, 2000, the district court granted the Jor-gensens’ motion to file a supplemental complaint against Milbank. Milbank and the Jorgensens brought cross-motions for summary judgment on the issue of whether the insurance policy was in effect at the time of the accident. After a hearing, the court denied Milbank’s motion and granted the Jorgensens partial summary judgment. The court used the computation method described in Minn.Stat. § 645.15 (2002) to determine that the ten-days’ notice of cancellation required under Minn.Stat. § 65B.16, the automobile insurance cancellation statute, had not been given. It then found that the cancellation was not legally effective.

On June 19, 2001, a bench trial was held on the reasonableness of the Miller-Shuga/rb settlement. The trial consisted of testimony about Royal Jorgensen’s injuries, the circumstances leading to the settlement, and expert testimony on behalf of each party as to the reasonableness of the settlement. On July 31, 2001, the district court found that a jury “could have” awarded Royal Jorgensen damages equal to $150,000 and that the settlement was reasonable. The court considered many factors in determining reasonableness, including the following: what a reasonably prudent person would have done in the defendant’s place; the presence of an undisputed injury; the risks of trial; expert testimony for both parties on the issues of the likely size of a jury award, the extent of damages, and liability; and the judge’s own personal experience with jury awards in similar cases. The court then entered judgment in favor of the Jorgensens in the amount of $100,000, the Milbank policy limit. Milbank appealed and the court of appeals affirmed. Milbank then petitioned for and was granted review from this court.

I.

The first issue to be decided is whether Milbank’s notice of cancellation was statutorily sufficient. To answer this question, we must decide whether the default statutory time-computation method established in Minn.Stat. § 645.15 applies to the ten-days’ notice requirement for automobile insurance policy cancellations as described in Minn.Stat. § 65B.16. The district court decided this issue on summary judgment when it found that Minn. Stat. § 645.15 does apply to Minn.Stat. § 65B.16.

Our standard of review of a summary judgment award “is limited to determining whether there are any genuine issues of material fact and whether the district court erred in its application of the law.” Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 383 (Minn.1999). We apply de novo review to statutory interpretation and interpretation of insurance contracts. Dohney v. Allstate Ins. Co., 632 N.W.2d 598, 600 (Minn.2001). In this case, our interpretation of Minn.Stat. § 65B.16 and, in particular, whether it is governed by Minn.Stat. § 645.15, will determine whether Milbank’s notice of cancellation was sufficient. We therefore review this issue de novo.

Minnesota Statutes § 65B.16 establishes that an insurer must give at least ten days’ notice before canceling an automobile liability insurance policy for nonpayment. The required notice is defined as follows:

No notice of cancellation * * * 0f * * * an automobile insurance policy * * * shall be effective unless * * * the notice is mailed or delivered by the insurer to the named insured at least 30 days prior to the effective date of cancellation; provided, however, that when nonpayment of premium is the reason for cancellation * * * at least ten days’ notice of cancellation * * * shall be given.

Minn.Stat. § 65B.16. At issue is whether we use only the language of Minn.Stat. § 65B.16, the cancellation statute, to define the required ten-days’ notice, or whether we apply Minn.Stat. § 645.15, the computation statute.

In defining the “ten days’ “ period of required notice, the district court applied the computation statute, which provides as follows:

Where the performance or doing of any act * * * 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.

Minn.Stat. § 645.15.

The choice of computing method is dis-positive in this case. If we look only at the actual number of calendar days included within the notice period, the Knutsons were given more than ten days’ notice of cancellation because the notice was mailed November 10, more than ten days before cancellation was set to occur at 12:01 a.m. November 22. If, however, the ten-days’ notice requirement is calculated according to the computation statute, the first day, the mailing date of November 10, is excluded. Then, because the tenth day falls on Saturday, November 20, the cancellation cannot be effective unless the notice period includes the next nonweekend or nonholiday day, which would be Monday, November 22. Milbank made the cancellation effective at 12:01 a.m. on November 22 and thereby excluded that day from the notice period. Accordingly, under the computation statute, when the first day and the Saturday and Sunday that fall at the end of the period are excluded, the Knutsons were given only nine days’ notice.

Milbank argues that the computation statute applies only when the statute providing the time period, in this case the cancellation statute, fails to specify an alternative computation method. See Kokesh v. City of Hopkins, 807 Minn. 159, 163, 238 N.W.2d 882, 885 (1976); Nelson v. Sandkamp, 227 Minn. 177, 181-82, 34 N.W.2d 640, 643 (1948). Milbank asserts that the cancellation statute directs that notice be “mailed or delivered” at least ten days prior to the cancellation date and that this language is sufficiently specific to preclude any application of the computation statute.

The Jorgensens respond to Milbank’s argument by asserting that the cancellation statute’s requirement that notice be “mailed or delivered” at least ten days before cancellation is not specific enough to avoid the rule we established in Kokesh. We stated in Kokesh that the computation statute applies “uniformly to all questions of time computation unless the terms of a statute affirmatively specify another method of computation.” Kokesh, 307 Minn. at 163, 238 N.W.2d at 885.

The computation statute is a codification of a common law computing method that was uniformly applied to all statutes that required the performance of a legal act within a number of days. See Nelson, 227 Minn. at 179-80, 34 N.W.2d at 642 (“Our computation-of-time statute, § 645.15, is but declaratory of the general common-law rule.”). The Jorgensens assert that when the legislature intends to supercede the computation statute in a specific statute, it uses more explicit language than a general provision such as “at least ten days’ notice,” as is required by the cancellation statute. See, e.g., Minn.Stat. § 72A.201, subd. 9(1) (2002) (requiring a response “within 15 working days”); Minn.Stat. § 47.205, subd. 2(3) (2002) (requiring response “within 15 business days”); Minn. Stat. § 43A.33, subd. 3(a) (2002) (requiring notice that an appeal may be brought “within 30 calendar days”); and Minn.Stat. § 176.183, subd. 4 (2002) (requiring a notice of payment to be served “ten calendar days before commencing payment”). The Jorgensens argue that because there is no similar qualifying language in section 65B.16, the cancellation statute, section 645.15, the computation statute, applies.

The Jorgensens’ argument is persuasive, but even more persuasive is our survey of the varied fields of statutory law listing general requirements such as “within 30 days” or “three days notice” to which we have consistently applied the computation statute. We have applied the computation statute to subject areas as varied as property redemption, criminal appeals, city negligence, appointment of guardians, and employment law. Milbank’s argument that the time computation language in the cancellation statute is explicitly specific enough to trump the use of the computation statute is undermined by our consistent use of the computation statute in conjunction with so many other and varied statutes that are equally as specific as the cancellation statute.

We conclude that the district court and the court of appeals correctly applied the time-computation method of Minn.Stat. § 645.15 to the notice requirement in Minn.Stat. § 65B.16, and therefore we hold that the cancellation notice Milbank provided to the Knutsons was insufficient to cancel their policy as of 12:01 a.m. on November 22,1993.

II.

Having determined that Milbank provided insufficient notice to cancel the Knutsons’ policy as of 12:01 a.m. November 22, 1993, we must now decide the legal consequence, if any, of the notice Milbank did provide. The Jorgensens argue that Milbank’s notice should be rendered wholly ineffective. Milbank argues that a cancellation notice that is statutorily compliant in all other ways, but is insufficient as to how the notice period is calculated under Minn.Stat. § 645.15, should simply be extended through to the end of the accurately calculated ten-days’ period. In essence, Milbank asks us to hold that its notice became effective after the lapse of the full notice period required by the statute.

The Jorgensens assert that Minn.Stat. § 65B.16 requires that insufficient notice be deemed ineffective notice, so that in order for Milbank to cure its failure to provide a sufficient notice, it must send a new notice that meets the statutory time requirement. The district court and the court of appeals agreed with this argument and, in so doing, relied largely on the analysis in Ophus v. Tri-State Ins. Co., 392 N.W.2d 653 (Minn.App.), rev. denied (Minn. Oct. 22, 1986).

In Ophus, the court of appeals compared the notice requirement in Minn.Stat. § 65B.16 to the notice requirement in a workers’ compensation statute that we interpreted in Zakrajshek v. Shuster, 307 Minn. 327, 239 N.W.2d 919 (1976). Ophus, 392 N.W.2d at 656. In Zakrajshek, we interpreted a statute governing the notice required to cancel a workers’ compensation insurance policy, Minn.Stat. § 176.195, subd. 1 (1974). Zakrajshek, 307 Minn. at 330-31, 239 N.W.2d at 920-21. We construed the provision in the statute that required 30 days’ notice of cancellation to mean that the only effect of the specified cancellation date in the notice falling before the appropriate statutory notice period had lapsed was to delay the cancellation date until the full notice period had expired. Id. at 331, 239 N.W.2d at 921.

In distinguishing Zakrajshek, the court of appeals in Ophus noted that the statute at issue in Zakrajshek stated the cancellation “shall not become effective until 30 days after written notice has been filed,” whereas Minn.Stat. § 65B.16 stated “[n]o notice of cancellation shall be effective unless * * * the notice is mailed * * * at least 30 days prior to the effective date of cancellation.” Ophus, 392 N.W.2d at 656 (evaluating notice of cancellation for reasons other than nonpayment of premium, for which the required notice period is only ten days). Making a distinction between the words until and unless, the court of appeals acknowledged that under the workers’ compensation statute, an insufficient notice becomes effective once the required time period has lapsed because cancellation is not effective “until” that point. But the court held that insufficient notice under Minn.Stat. § 65B.16 cannot be cured by the passage of time because § 65B.16 differs from the workers’ compensation statute because it provides that notice cannot be effective “unless” the notice period was sufficient. Ophus, 392 N.W.2d at 656.

Milbank argues that the court of appeals’ analysis in Ophus and this case is flawed. It asserts that we should interpret the cancellation provision in Minn. Stat. § 65B.16 to mean that an otherwise valid notice that specifies a legally insufficient notice time period is simply extended to cover the appropriate notice period instead of being deemed legally ineffective. This is how we interpreted the workers’ compensation statute in Zakrajshek. Mil-bank’s approach is consistent with a general tenet of insurance law — notice that is otherwise sufficient in form and content but that provides less time than is required by statute or policy is effective after the lapse of the full, required period. 2 Lee R. Russ & Thomas F. Segalla, Couch on-Insurance § 32.52 (3d ed.1995).

At least ten other states and one federal circuit follow the method of insurance law interpretation advocated by Milbank. A recent Ohio case, Love v. Motorists Mutual Insurance Co., is of particular relevance because the facts in Love are similar to this case. 86 Ohio App.3d 394, 620 N.E.2d 987, motions overruled, 66 Ohio St.3d 1497, 613 N.E.2d 239 (1993). In Love, the insurance company’s cancellation notice bore an effective date one day earlier than that mandated by statute. Id. at 991. Several months later, the insured was involved in an accident and claimed to be covered by the insurer, asserting that the policy was still in force due to ineffective notice of cancellation. Id. at 989, 990. The court disagreed, holding that the policy was not in effect at the time of the accident. Id. at 992.

The Ohio court concluded that “rather than rendering the cancellation notice completely ineffective,” the notice acted to cancel coverage effective as of the earliest date allowable under Ohio law. Id. In support of its holding, the court cited to the following language from Couch:

[WJhere the policy or statute fixes a 5-day limit, the policy remains in full force and effect for that length of time after receipt of the notice of cancellation, even though the notice fixes a shorter period of time, since the insured is entitled to the full number of days allowed by statute or the policy, to enable him, if he so desires, to' protect himself by other insurance before the canceled policy expires.
The fact that the notice contains a time limitation which is void because it is less than that required by the policy does not void the notice or make it inoperative. To the contrary, the notice takes effect as a notice, the insured, however, being entitled to the full period specified by the policy. Thus, the notice is effective, but is to be read as though it stated the proper date which, would be allowed by the policy.
Id. (citing 17 Couch on Insurance 2d (Rev. Ed.1983) 629-630, Section 67:169). The court then stated “Couch represents the majority view on this issue * * * we are persuaded that the majority view is correct. * * * We hold, in accordance with the prevailing view.” Id.

Applying Couch to the notice provision in Minn.Stat. § 65B.16 is consistent with the language of the statute. The notice provision at issue requires that notice be mailed “at.least 30 days prior to the effective date of cancellation”; or, if cancellation is due to nonpayment, “at least ten days’ notice of cancellation * * * shall be given.” Minn.Stat. § 65B.16 (emphasis added). We determined that the time computation statute, Minn.Stat. § 645.15, applies to the notice statute. Therefore, the “effective date of cancellation” is the date as calculated by the computation statute. In a situation where ten days’ notice, as calculated by Minn.Stat. § 645.15, is required, the “effective date of cancellation” is the first date at which ten days will be deemed to have passed under the computation method of Minn.Stat. § 645.15. As long as the notice was mailed at least ten days before that date and is in all other ways statutorily compliant, it satisfies the notice requirement. That result is the same one advocated by Couch: when an insurance company lists an inaccurate alleged cancellation date, it does not render the notice legally ineffective; the actual notice period is merely extended through to the “effective date of cancellation” as calculated by Minn.Stat. § 645.15.

Our stated policy considerations for insurance cancellation notice provisions, as articulated in Zakmjshek, provide further support for following Couch in interpreting Minn.Stat. § 65B.16. In Zakmjshek, we said the following:

[The workers’ compensation notice statute] was not intended to provide free insurance to employers who are delinquent in their premium payments. It was intended to provide the employer a reasonable opportunity to obtain replacement insurance before his coverage is terminated and to provide the department a reasonable time to see that he does. This purpose is fulfilled by continuing coverage for 30 days following the filing of notice with the department, even if the notice erroneously specifies that cancellation will become effective sooner than 30 days.

Zakrajshek, 307 Minn. at 330, 239 N.W.2d at 921. Similarly in this case, the purpose of notice is not to provide a shelter for insureds who make delinquent payments; it is to provide insureds with time to either pay the owed premium or find other coverage. Extending notice through the correctly computed “ten days’ “ achieves that purpose.

Such an interpretation is especially appropriate under these facts where ten calendar days of notice were actually given and, even if the notice period had been extended through 12:01 Tuesday, November 23, the end date of the correctly computed ten-days’ notice, there is evidence that the premium payment still was not timely received. In fact, Milbank asserts that the Knutsons’ premium payment was not received until December 8, over five weeks after the October 26 premium due date and almost a full week after the December 2 accident for which the Knutsons seek liability insurance coverage.

If we adopt the lower courts’ determination that the insufficient notice period rendered Milbank’s attempt at notice wholly ineffective, then the policy would have stayed in effect until either the policy period ended or a new notice of cancellation was sent. The Knutsons, therefore, could have been insured through the end of their policy period without sending a single premium payment simply because Milbank’s cancellation notice, though it provided more than ten calendar days’ notice and was in all other ways statutorily sufficient, was one day short of meeting the Minn. Stat. § 645.15 computed ten-days’ notice period. Such a result is contrary to public policy because it ensures that insurers that make good faith attempts at providing legally sufficient notices of cancellation will be penalized for inadvertently scheduling the end of the notice period on a weekend or holiday. See Zakrajshek, 307 Minn. at 330, 239 N.W.2d at 921 (discussing the public policy notice provisions are intended to serve).

We conclude that the court of appeals erred in holding that Milbank’s failure to meet the ten-days’ notice requirement as computed according to Minn.Stat. § 645.15 rendered the notice wholly ineffective. We conclude that when an insurance company seeking to cancel a policy for unpaid premiums provides at least ten calendar days’ notice that meets all other statutory requirements except to provide ten days’ notice as calculated by Minn.Stat. § 645.15, the consequence of such insufficient notice is an extension of the notice period through the end of the accurately calculated ten-day period. Here, the extended notice period ended November 23. Accordingly, we reverse the court of appeals and hold that if the Knutsons’ premium payment was not received by 12:01 a.m. November 23, 1993, then their Mil-bank insurance policy was effectively can-celled as of that time and date.

III.

The Jorgensens also argue that even if we conclude that Milbank effectively cancelled the Knutsons’ insurance policy under Minn.Stat. § 65B.16 (2001), they were still entitled to summary judgment based on the legal theories of estoppel and risk of delivery. The district court never addressed the merits of these arguments, stating, “[i]n light of this ruling, the Court does not address the Creditor’s other arguments for partial summary judgment.” Our review is limited to those issues decided by the lower court. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 68 n. 2 (Minn.1979). Accordingly, we remand to the district court to decide these issues in a manner consistent with this opinion.

rv.

Lastly, we turn to Milbank’s argument that the lower courts applied the incorrect standard in evaluating the reasonableness of the Miller-Shugart settlement by deciding whether a jury could have awarded that amount. We acknowledge that having decided that Milbank may have effectively cancelled the Knut-sons’ policy, the issue of whether this Miller-Shugart settlement was reasonable may be moot. Nevertheless, to provide clarification for future cases, we take this opportunity to address the issue of how to appropriately evaluate reasonableness.

Under a Miller-Shugart settlement, the defendant settles a claim with the plaintiff for a stipulated sum, but conditions the settlement on the plaintiffs seeking recovery solely from the defendant’s insurer if coverage is established. Miller v. Shugart, 316 N.W.2d 729, 735 (Minn.1982). In seeking to recover from the insurer, however, the plaintiff has the burden of proving that the settlement was “reasonable.” Id. In Miller v. Shugart, we defined the test for reasonableness as “what a reasonably prudent person in the position of the defendant would have settled for on the merits of plaintiffs elaim[,]” and we required consideration of any facts that bear on the issues of liability, damages, and the risks of trial. Id.

In upholding as reasonable the Miller-Shugart settlement reached by the Knutsons and the Jorgensens, the court of appeals affirmed the district court’s determination that the settlement was reasonable based “on the ground that a jury could have awarded respondents that amount.” Jorgensen v. Knutson, 643 N.W.2d 615, 618 (Minn.App.2002) (emphasis added). While considering “what a jury could award” is an appropriate factor in assessing the reasonableness of a Miller-Shugart settlement, it cannot be considered in isolation. The court must also consider all the other relevant factors that we mentioned in Miller v. Shugart. Here, the district court did address other relevant factors such as an undisputed injury; the risks of trial; expert testimony for both parties on issues of the likely size of a jury award, the extent of damages and liability; and the judge’s own personal experience with jury awards in similar cases.

Applying “what the jury could have awarded” as the sole criterion in evaluating reasonableness is likely to lead to higher settlement figures because it fails to consider the other factors that could counteract an inflated estimate of a jury award. We have previously expressed our concern about crafting policies that encourage overreaching in Miller-Shugart settlements, and that concern motivates us in this case. See Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277, 280 (Minn.1990) (concluding that when a Miller-Shu-gart settlement is deemed unreasonable, it is also deemed unenforceable and the plaintiffs claim against the defendant insured is reinstated for trial because allowing the district court to instead decide on a smaller, more reasonable settlement sum may encourage overreaching in settlement negotiations).

Our desire to discourage possible overreaching in Miller-Shugart settlement negotiations prompts us to clarify that “what the jury could have awarded” cannot be the sole factor a court considers in evaluating the reasonableness of such a settlement. Accordingly, we conclude that the district court correctly considered many relevant factors in analyzing the reasonableness of the Miller-Shugart settlement, but the court of appeals erred in focusing solely on “what the jury could have awarded” when it affirmed the district court’s reasonableness determination.

Affirmed in part, reversed in part, and remanded.

Concurring in part and dissenting in part, MEYER, J. and PAGE, J.

MEYER, Justice

(concurring in part, dissenting in part).

I concur with the majority’s conclusion in Part I that Milbank’s notice of cancellation did not meet the statutory requirements. I disagree, however, that a statutorily deficient notice can become legally effective. The clear intent of the legislature was to force insurers to strictly comply with the ten-day notice, and decisions from other states as well as sound public policy support such a holding.

Minnesota Statutes § 65B.16 (2000) states in clear language that “[n]o notice of cancellation * * * shall be effective unless” it complies with the timing set out in the statute. When the words of a statute are clear and unambiguous, courts must give effect to the intent of the legislature in questions of statutory interpretation. See Minn.Stat. § 645.16 (2002). Section 65B.16 is clear that a notice of cancellation for nonpayment of premium is rendered ineffective if the insured is given less than ten days’ notice. Having found Milbank did not comply with the statute, we should enforce the statute’s remedy and find the cancellation inoperative.

At least five state supreme courts have looked at similar insurance cancellation statutes, and for reasons of statutory interpretation or public policy have held that a shorter notice of cancellation than required by statute is rendered ineffective. See Grubbs v. Credit General Ins. Co., 327 Ark. 479, 939 S.W.2d 290, 292-94 (1997) (holding that a statute declaring “[n]o notice of cancellation * * * shall be effective unless mailed” at least ten days prior to the effective date was unambiguous and an “invalid effective date of cancellation voided the cancellation”); Pedersen v. United Life Ins. Co. of Kan., 139 Kan. 695, 33 P.2d 297, 299 (1934) (construing a statute’s mandate that “[a]ny attempt on the part of such insurance company * * * to cancel or forfeit any such policy without the notice herein provided shall be null and void” strictly against insurers); Me. Bonding & Cas. Co. v. Knowlton, 598 A.2d 749, 750 (Me.1991) (noting that “[t]he legislature’s use of the word ‘unless’ is indicative of its intent to require that insurers comply strictly with the statute’s terms in order to effect a policy cancellation”); Pearson v. Nationwide Mut. Ins. Co., 325 N.C. 246, 382 S.E.2d 745, 747-48 (1989) (concluding that insurers must strictly comply with statute stating “[n]o cancellation * * * shall be effective unless” the insured is given fifteen days’ notice, or the cancellation will be ineffective); U.S. Fid. & Guar. Co. v. Sec. Fire & Indem. Co., 248 S.C. 307, 149 S.E.2d 647, 649, 651 (1966) (holding that “the coverage of the policy does not end until after the notice requirements are met” when the statute specified that insurance “shall not be cancelled or terminated until at least ten days after a notice of cancellation”). See also Carroll v. State Farm Mut. Auto. Ins. Co., 419 So.2d 57, 59 (La.Ct.App.1982) (“Because the notice of cancellation in this case was not mailed 10 days prior to the effective date of cancellation and the date of the accident, the purported cancellation was ineffective and the insurance policy remained in effect through the date of the accident.”). These cases conform with a tenet of insurance law, namely that “[n]otices not conforming to the statutory requirements would be ineffective to terminate the insurance contract for nonpayment of premiums.” 3 Eric Mills Holmes, Holmes’ Appleman on Insurance 2d § 16.10 at 447 (1998).

Good policy rationale support a legislative decision to force insurers to strictly comply with the notice provisions of statutes, or risk covering the accidents of insureds that they attempted to cancel. Such a rule provides a very clear incentive for insurance companies to comply with the notice requirements placed on them by our legislature. Those notice requirements are important to allow insureds time to either pay their premiums or find replacement coverage. See generally Appleman, supra, § 16.10 at 441 (stating that “[n]otice gives the insured an opportunity to protect the insurance interest immediately by paying assessments and being reinstated, or by taking out other insurance.”). In addition, strict construction protects third parties. See Pearson, 382 S.E.2d at 748 (“[f]or the protection of both the motoring public and the insured, automobile insurance cancellation dates * * * should not be left to the possible vagaries of date calculations nor to the uncertainties which result when less than the statutorily prescribed period of time has been given.”). Fewer accident victims will face the prospect of a negligent party without insurance when we have bright-line rules surrounding cancellation.

Instead of deferring to legislative intent, the majority turns to “a general tenet of insurance law” — that a notice of cancellation which provides less time than required by statute becomes effective after the appropriate statutory time period has elapsed. As authority for that general proposition, the majority cites first a treatise, and then eleven opinions cited within that treatise. The bulk of the cited cases do not involve a statutory notice requirement at all, but instead wrestle with an insurer’s alleged failure to abide by the policy’s contractual notice provision. See Ocean Accident & Guarantee Corp. v. Felgemaker, 143 F.2d 950 (6th Cir.1944); Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250 (1923); Commercial Union Fire Ins. Co. v. King, 108 Ark. 130, 156 S.W. 445 (1913); Am. Glove Co. v. Pa. Fire Ins. Co., 15 Cal.App. 77, 113 P. 688 (1910); Mancillas v. Campbell, 42 Colo.App. 145, 595 P.2d 267 (1979); Matin v. Neth. Ins. Co., 203 Mo.App. 153, 219 S.W. 143 (1920); Fritz v. Pa. Fire Ins. Co., 85 N.J.L. 171, 88 A. 1065 (1913); Pinzhoffer v. Franzen, 46 Pa. D. & C. 234 (Ct.Com.Pl.1943).

Only two of the cases cited by the majority deal with statutory notice requirements and support its analysis. One of those two is not directly applicable here because the statute being interpreted did not prescribe that notice would be ineffective if it did not comply. See Ins. Mgmt. Inc. v. Guptill, 16 Wash.App. 226, 554 P.2d 359, 363 (1976). After setting aside the inapposite eases from the majority’s original string of citations, we are left with only one case analyzing a similar notice requirement statute that supports the majority’s result, and it is from an intermediate Ohio court: Love v. Motorists Mut. Ins. Co., 86 Ohio App.3d 394, 620 N.E.2d 987 (1993).

As the unambiguous language of Minn. Stat. § 65B.16 dictates such a result and I find no persuasive countervailing authority, I would hold that the notice of cancellation was ineffective. In so holding, we would join with the five state supreme courts to have squarely addressed the effect of failure to give proper statutory notice of cancellation.

Finally, I would hold that the Miller-Shugart agreement was enforceable for the reasons set forth by the majority.

PAGE, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Meyer.

      . The coverage limit in the Knutsons' insurance policy with Milbank (Policy No. MDA YD-69-50) provided for coverage of $100,000 per person and $300,000 per accident for liability in causing bodily injury and $50,000 for property damage.

      . A Miller-Shugart settlement is one like that from the eponymous case. Miller v. Shugart, 316 N.W.2d 729 (Minn.1982). Using a Miller-Shugart settlement, a defendant may settle a claim with a plaintiff for a stipulated sum, but condition the agreement on the plaintiff's seeking recovery solely from defendant’s insurer if coverage is established. In seeking to recover from the insurer, however, the plaintiff has the burden of proving that the settlement was "reasonable.” Id. at 735. The definition of "reasonable” is at issue in this case.

      . In 2001, the legislature amended the statute, substituting "delivered by the insurer so as to provide the named insured with at least 30 days' notice prior to the effective date of cancellation” for the earlier language "[notice must be mailed or] delivered by the insurer to the named insured at least 30 days prior to the effective date of cancellation.” Act of May 29, 2001, ch. 215, § 32, 2001 Minn. Laws 1004, 1027.

      . In re Nelson, 495 N.W.2d 200, 202 (Minn.1993) (applying section 645.15 to property redemption statute); State v. Fischer, 305 Minn. 538, 539, 233 N.W.2d 560, 561 (1975) (applying section 645.15 to a statute governing requisite notice for filing a criminal appeal); Township Bd. of Lake Valley Township, Traverse Cty. v. Lewis, 305 Minn. 488, 490-91, 234 N.W.2d 815, 817 (1975) (applying section 645.15 to statute governing required notice for town board meetings); Kearns v. Julette Originals Dress Co., 267 Minn. 278, 279 n. 3, 126 N.W.2d 266, 267 n. 3 (1964) (applying section 645.15 to statute governing appeals from referee decisions of the Industrial Commission); Diker v. City of St. Louis Park, 268 Minn. 461, 463, 130 N.W.2d 113, 115 (1964) (applying section 645.15 to the statute governing notice required by an individual claiming damage from city negligence); Jasperson v. Jacobson, 224 Minn. 76, 84-85, 27 N.W.2d 788, 794 (1947) (applying section 645.15 to statutory requirements for appointing the guardian of an alleged incompetent); Gun Lake Ass’n v. County of Aitkin, 612 N.W.2d 177, 180-81 (Minn.App.) (applying section 645.15 to agency zoning approval requests), rev. denied (Minn. Sept. 13, 2000); Career Resources, Inc. v. Pearson Candy Co., 435 N.W.2d 114, 116 (Minn.App.1989) (declaring section 645.15 to be a codification of a common law computation method and applying that method, as codified in section 645.15, to a "within 30 days of employment” clause of an employment contract).

      . Ocean Accident & Guarantee Corp. v. Felgemaker, 143 F.2d 950 (6th Cir.1944); Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250 (1923); Commercial Union Fire Ins. Co. v. King, 108 Ark. 130, 156 S.W. 445 (1913); Am. Glove Co. v. Pa. Fire Ins. Co., 15 Cal.App. 77, 113 P. 688 (1910); Mancillas v. Campbell, 42 Colo.App. 145, 595 P.2d 267 (1979), affd, 628 P.2d 96 (Colo.1981); Dupree v. Ga. Mut. Ins. Co., 188 Ga.App. 857, 374 S.E.2d 546 (1988) (secondary holding superceded by statute); Malin v. Neth. Ins. Co., 203 Mo.App. 153, 219 S.W. 143 (1920); Fritz v. Pa. Fire Ins. Co., 85 N.J.L. 171, 88 A. 1065 (1913); Love v. Motorists Mut. Ins. Co., 86 Ohio App.3d 394, 620 N.E.2d 987 , motions overruled, 66 Ohio St.3d 1497, 613 N.E.2d 239 (1993); Pinzhoffer v. Franzen, 46 Pa. D & C 234 (Ct.Com.P1.1943); Ins. Mgmt. Inc. v. Guptill, 16 Wash.App. 226, 554 P.2d 359 (1976).

      . The dissent overreaches when it characterizes Love as the only one of the above cited cases to "support Othe majority's result.” We cite these cases for the proposition that notice "that provides less time than is, required by statute or policy is effective after the lapse of the full, required period” (emphasis added). Russ & Segalla, supra, § 3252. As the dissent correctly asserts, many of the above cited cases deal with policy language as opposed to statutory language, yet the legal theory is the same; when ah insurer gives a notice of cancellation that purports to provide less time than is required by the notice period, whether articulated by statute or policy, the cancellation becomes effective after the requisite notice period has elapsed. The fact that many of the cases that have adopted this legal theory have done so when applying it to insurance policies instead of statutes does not render those cases “inapposite” as the dissent claims. Moreover, the dissent attempts to dismiss one of the cited cases as having an "irrelevant holding(s),” even though this case deals with an insurance statute instead of a policy. Georgia Mut. Ins., 374 S.E.2d at 547 (stating that, where the statute requires the insurer to notify the Department of Public Safety within 5 days of the effective date of the cancellation, a failure to provide the five days' notice would only result in the cancellation not being effective until such notification actually was made). Finally, the dissent asserts that another of the cases dealing with a statute is "not directly applicable here because the statute being interpreted did not prescribe that notice would be ineffective if it did not comply.” Yet, the statute at issue in that case states, "the insurance contract or contracts shall not be canceled by the premium finance company unless such cancellation is effectuated in accordance with this section.” Wa. Stat. § 48.56.110 (2002) (cited in Guptill, 554 P.2d at 363).
      Having incorrectly characterized ten of the eleven cases we cite as not supporting our position, the dissent goes on to cite six jurisdictions it claims support its position and the policy rationale for such a position. But the dissent cites Carroll v. State Farm Mutual Automobile Insurance Co. as supporting its position, when the court in Carroll failed to reach this issue. 419 So.2d 57, 59 (La.Ct.App.1982) (stating "the purported cancellation was ineffective” but failing to address whether the cancellation became effective after the required period had passed because the accident for which the insured sought coverage occurred between the purported cancellation date provided by the insurer in the cancellation notice and the actual effective date of cancellation as calculated by statute). The dissent borrows its policy arguments from a single treatise and authority from other jurisdictions, just as it criticized the majority for doing as authority for our position. The policy that most strongly supports our position, however, was articulated in an earlier case from this court. See Zakrajshek, 307 Minn. at 330, 239 N.W.2d at 921.

      . Love was appealed to the Ohio Supreme Court on a motion to certify the record, which serves the same role as a petition for review, but the court overruled the motion, essentially denying the petition for review. 613 N.E.2d 239 (Table No. 93-530) (Ohio June 2, 1993).

      . A final case cited by the majority, Dupree v. Ga. Mut. Ins. Co., 188 Ga.App. 857, 374 S.E.2d 546 (1988), has two irrelevant holdings. The first, regarding an insurer’s failure to comply with a statutory mandate to notify a public agency of cancellation, has been super-ceded by statute. Walter v. Allstate Ins. Co., 206 Ga.App. 186, 424 S.E.2d 866, 868 (1992) (recognizing that Dupree is no longer "valid precedent”). Dupree's second holding concerns an insurer’s compliance with statutory requirements regarding how notices shall be delivered to the post office, and although still valid precedent, has little bearing on our decision today. Dupree, 374 S.E.2d at 547-48 (finding the testimony of the insurer’s bulk mail clerk and the presence of a certified receipt from the post office satisfy the statute’s requirement).


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    U.S. SPECIALTY INSURANCE COMPANY, Appellant, v. JAMES COURTNEY LAW OFFICE, P.A., et al., Respondents. Dale Swapinski as Trustee for the heirs and next of Kin of Jill N. Townsend-Swapinski, Decedent, Respondent.
    No. C2-01-1813.
    Supreme Court of Minnesota.
    June 19, 2003.

      Michael C. Lindberg, Johnson & Lind-berg., P.A., Minneapolis, MN, for Appellant.
    Charles T. Hvass, Jr., Hvass, Weisman & King, Philip Gainsley, Minneapolis, MN, for Respondents.
    Eric Magnuson, Kimberly T. Ross, Rider, Bennett, Egan & Arundel, L.L.P., Minneapolis, MN, Amici Curiae, AIG Aviation Corp., Phoenix Aviation, USAIG, W. Brown & Assoc., XL Specialty Ins. Co.
   OPINION

BLATZ, Chief Justice.

Appellant U.S. Specialty Insurance Company brought a declaratory judgment action to determine whether exclusions in a standard aviation liability insurance policy issued to respondents James Courtney and James Courtney III Law Office, P.A. violated state law. The district court found that the policy exclusions, which excluded coverage for claims made by employees for work-related injuries, were violative of Minn.Stat. § 60A.081, subd. 2 (2002). Minnesota Statutes section 60A.081, subd. 2 states that:

[N]o policy of insurance issued or delivered in this state covering an aircraft equipped with passenger seats and covering liability hazards shall be issued excluding coverage for injury to or death of passengers or nonpassengers * * *.

Upon appeal, a divided panel of the court of appeals affirmed the district court’s decision. We granted further review, and we now affirm the court of appeals.

James Courtney, a Duluth, Minnesota lawyer and sole shareholder of James Courtney III Law Office, P.A., was counsel of record for a federal administrative hearing to be held in Green Bay, Wisconsin. Having decided to fly to the Green Bay hearing, Courtney and an employee from his law office, Jill N. Townsend-Swapinski, departed Bong Airport in Superior, Wisconsin, on August 4,1998 at 8:00 a.m. They flew in a Cessna aircraft owned by the law office and piloted by Courtney.

While en route to Green Bay, both Courtney and Townsend-Swapinski were fatally injured when the aircraft crashed. The surviving dependents of both Courtney and Townsend-Swapinski were eligible for, and received, workers’ compensation benefits.

Townsend-Swapinski’s husband, Dale Swapinski (Swapinski), as trustee for the heirs and next of kin of Townsend-Swapin-ski, began a wrongful death action against Courtney’s estate, alleging both negligence and gross negligence. Aircraft liability insurance coverage was provided by U.S. Specialty under a policy that listed both the law office and Courtney as named insureds. Courtney’s estate tendered defense to U.S. Specialty and requested indemnification. Relying on two exclusions set forth in the policy, U.S. Specialty denied coverage and began a declaratory action.

At the district court, U.S. Specialty alleged that the following policy provisions, in relevant part, operated to exclude coverage for employees for injuries that occurred in the course and scope of employment:

3. Who is Not Protected
Your bodily injury and property damage coverage does not protect:
a. Employees
Any employee for injuries to any person who is in the course and scope of employment by the same employer[.]
4. What is Not Covered We do not cover any
b. Employees
Bodily injury to any person in the course and scope of employment either by you or by anyone we protect for any claim against you, against anyone we protect or against a fellow employee[.]

Rejecting U.S. Specialty’s argument, the district court granted summary judgment for Courtney’s estate, concluding that the policy exclusions were prohibited by the express language of Minn.Stat. § 60A.081, subd. 2, which mandates aircraft Lability coverage. On appeal, U.S. Specialty again relied on the express language of the policy as the basis for denying coverage but also argued that the Workers’ Compensation Act, Minn.Stat. § 176.031 (2002), was the exclusive remedy for work-related injuries.

The court of appeals agreed with the district court, concluding that the mandated coverage required by Minnesota’s statutory scheme clearly prohibited any exclusions for passengers or nonpassengers, regardless of employment status. U.S. Specialty Ins. Co. v. James Courtney Law Office, P.A., No. C2-01-1813, 2002 WL 1056998 at *1 (Minn.App. May 28, 2002). In so holding, the court of appeals rejected U.S. Specialty’s claim that the exclusiveness of the remedy of the Workers’ Compensation Act permitted employee exclusions in aviation policies for work-related injuries. Id. at 2. The court of appeals also noted that the original lawsuit alleged coemployee gross negligence. U.S. Specialty petitioned this court for review.

As a preliminary matter, it is important to note that the sole issue, aside from attorney’s fees, litigated in the declaratory judgment action below was the validity of the two exclusions contained in the aircraft liability policy issued by U.S. Specialty. One exclusion precluded coverage for claims against an employee for causing injury to a coemployee in the course and scope of employment and the other exclusion precluded coverage for injuries to the insured’s employees sustained in the course and scope of employment. Before this court and the court of appeals, U.S. Specialty suggests that the underlying action is barred by the exclusive remedy provision of the Workers’ Compensation Act, but that issue was neither litigated nor decided below. The dispositive matter before us, then, involves only whether the two exclusions relied on by U.S. Specialty to deny coverage can be considered valid in light of Minn.Stat. § 60A.081, subd. 2. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Nonetheless, we do choose to address the interplay between Minnesota’s workers’ compensation scheme and mandatory insurance coverage.

Our review and construction of statutes is de novo. CUNA Mut. Ins. Soc’y v. Comm’r of Revenue, 647 N.W.2d 533, 537 (Minn.2002) (citing Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998)). “[T]he court must give a plain reading to any statute it construes, and when the language of the statute is clear, the court must not engage in any further construction.” Gomon v. Northland Family Physicians, Ltd., 645 N.W.2d 413, 416 (Minn.2002) (citing State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996)); Minn.Stat. § 645.16 (2002).

U.S. Specialty’s position in this case relies upon its assertion that the plain language of Minn.Stat. § 60A.081, subd. 2, which clearly mandates coverage for “injury to or death of passengers or nonpassen-gers,” can be constructed in such a way as to allow the policy’s employee exclusions. Such an interpretation could therefore dovetail with the exclusive remedy provision of the Workers’ Compensation Act, set forth in Minn.Stat. § 176.031 (2002). That provision provides that the employer’s liability to pay workers’ compensation benefits “is exclusive and in the place of any other liability.” Minn.Stat. § 176.031.

Although there have been slight changes in wording, the current version of the exclusive remedy provision in the Workers’ Compensation Act was enacted in 1953. Act of April 24, 1953, ch. 755, § 3, 1953 Minn. Laws 1099, 1103-04. Further, the concept has been a part of workers’ compensation law in Minnesota since its inception in 1913. Act of April 24, 1913, ch. 467, § 10, 1913 Minn. Laws 675, 677-78, 704. The exclusive remedy provision is part of the quid pro quo of the workers’ compensation scheme in which the employer assumes liability for work-related injuries without fault in exchange for being relieved of liability for certain kinds of actions and the prospect of large damage verdicts. Karst v. F.C. Hayer Co., Inc., 447 N.W.2d 180, 183-4 (Minn.1989) (citing 2A A. Larson, Workmen’s Compensation Law, § 65.11 (1988)).

U.S. Specialty also relies upon our holding in Peterson v. Kludt, 317 N.W.2d 43 (Minn.1982), in support of its proposition that exclusions are valid and that workers’ compensation is therefore the exclusive remedy in the instant case. In Peterson, an automobile insurance case, we concluded that, because workers’ compensation coverage was primary, the cross-employee exclusion in the liability policy did not violate the no-fault act. 317 N.W.2d at 48. However, the no-fault law expressly provides that workers’ compensation benefits shall be primary over no-fault benefits. Minn.Stat. § 65B.61 (2002). While U.S. Specialty attempts to analogize the mandate of universal no-fault automobile coverage to the mandate of universal aircraft liability coverage, the analogy to the no-fault law does not provide sufficient support for U.S. Specialty’s position given the lack of an express coordination provision in the aviation insurance statute.

U.S. Specialty takes the position that allowing insurance coverage for employee claims, as is the case here, is inconsistent with the workers’ compensation exclusive remedy provision and that the exclusions found here are therefore warranted. However, there are exceptions to the workers’ compensation exclusive remedy provision, such as coemployee immunity. Minn.Stat. § 176.061, subd. 5 (2002) (stating that coemployees are not liable to each other for personal injury absent gross negligence or intentional conduct). The coemployee gross negligence exception, Minn.Stat. § 176.031 (2002), allows one employee to sue another directly when gross negligence is alleged.

An employer might also become vulnerable to a tort suit by an employee in instances where the employer possesses “a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person.” 6 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law, § 113.01(1) (2002). Further, a number of classes of employees are categorically excluded from the exclusive protection of workers’ compensation, including employees of family farms and household workers who earn less than $1000 in a three-month period. See Minn.Stat. § 176.041 (2002). Finally, injuries are not compensable under the Workers’ Compensation Act unless they arise out of and in the course and scope of employment. Foley v. Honeywell, 488 N.W.2d 268, 271 (Minn.1992); Minn.Stat. § 176.021, subd. 1 (2002). The mandatory coverage of the aviation insurance law, however, appears to be broader and encompasses claims that might not otherwise be compensable under the Workers’ Compensation Act.

The amici, a number of aviation insurers, join the arguments set forth by U.S. Specialty and contend that a decision affirming the lower courts will cause problems for insurers and the insured. Included in their list of concerns is the prospect of insureds paying double premiums and injured employees being compensated twice for the same injury. Inasmuch as the statute expressly mandates passenger insurance for airplanes with passenger seats and workers’ compensation insurance is mandatory, it is true that both kinds of insurance will be required. On the other hand, the alleged risk of “double recovery” is questionable given Minnesota’s statutory formula for calculating workers’ compensation third-party actions that prevents double recovery. Minn.Stat. § 176.061, subd. 5-6 (2002).

Finally, U.S. Specialty also asserts that the court of appeals holding in this case is inconsistent with the court of appeals’ prior holding of RLI Ins. Co. v. Pike, 556 N.W.2d 1 (Minn.App.1996), rev. denied (Minn. Jan. 29, 1997). In RLI, two of the individuals who died in a plane crash were both named insureds on the aviation insurance policy which excluded coverage for named insureds. RLI, 556 N.W.2d at 2. The estate of one of the named insureds, Lowell Pike, sought coverage for Pike as a passenger. Id. The court of appeals rejected the estate’s claim that Minn.Stat. § 60A.081, the same statute at issue in this case, prohibited application of the policy exclusion. Id. at 3-4. Instead, the court of appeals concluded that section 60A.081 and a corollary statute making the failure to maintain aviation liability insurance protecting passengers a misdemeanor, Minn. Stat. § 360.92 (2002), were aimed at providing coverage for claims made by third parties against the insured. Id. at 3. In RLI, the court of appeals noted that the claim was for the injury or death of an insured, and was therefore a claim for first-party coverage. Id. at 3-4. The court of appeals explained:

By their plain language sections 60A.081 and 360.92 relate to liability insurance requirements. In the absence of clear language to the contrary, we conclude that the statutes do not require that third-party liability coverage be converted to first-party coverage where a named insured is a passenger in an airplane. The statutes require coverage for injury to or the death of passengers and nonpassengers. But they do not mandate coverage for “all” passengers or define “passengers” to include named insureds. We will not read those terms into sections 60A.081 and 360.92, because this court cannot supply that which the legislature has omitted or overlooked.

Id.

Before this court, U.S. Specialty argues that the court of appeals’ rationale in RLI applies here, and that section 60A.081 does not mandate coverage for “all” passengers and therefore the term “passengers” does not include employees of the insured. We disagree. RLI simply holds that the legislature did not intend to mandate that third-party liability insurance include coverage for first-party named insureds. Such a holding is consistent with our pronouncements on the key differences between liability (third-party) insurance and first-party coverage. See Progressive Specialty Ins. Co. v. Widness ex rel. Widness, 635 N.W.2d 516, 522 (Minn.2001) (stating that, under the no-fault act, liability coverage differs from first-party coverage and noting that nothing in our case law suggests that liability coverage must extend to the same persons and under the same circumstances as first-party liability coverage); Lynch ex rel. Lynch v. Am. Family Mut. Ins. Co., 626 N.W.2d 182, 188 (Minn.2001) (explaining that “third-party coverage protects an insured from having to pay damages when the insured’s negligence causes injury to others, while first-party coverage protects an insured when someone else’s negligence causes injury to the insured and the tortfeasor has insufficient liability coverage”); Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 250 (Minn.1998) (holding that distinction between third-party and first-party benefits is crucial when determining the validity of a policy exclusion). As such, it is clear that the holding in RLI was limited to the principle that third-party liability insurers are not mandated, under the aviation insurance statute, to provide coverage to first-party named insureds. Therefore, RLI’s holding is neither persuasive authority nor in conflict with our holding today.

In summary, we conclude that neither statutory nor case law supports U.S. Specialty’s position. The legislature has seen fit to expressly mandate aviation liability coverage for passengers and nonpas-sengers. Given the plain language and clear mandate of Minn.Stat. § 60A.081, we affirm the court of appeals.

Affirmed.

      . The allegation of gross negligence, if proved, overcomes the exclusivity of workers' compensation: "A coemployee working for the same employer is not liable for a personal injury incurred by another employee unless the injury resulted from the gross negligence of the coemployee or was intentionally inflicted by the coemployee.” Minn.Stat. § 176.061, subd. 5(c) (2002).

      . The parties to the underlying wrongful death action, Swapinski and the Courtney estate, have entered into a Miller-Shugart settlement which provides for the satisfaction of any judgment from U.S. Specialty. In Miller v. Shugart, 316 N.W.2d 729, 734 (Minn.1982), we held that a defendant may settle a claim with a plaintiff for a stipulated sum and condition the agreement on the plaintiff seeking recovery solely from the defendant's insurer if coverage is established.

      . This provision helps to prevent injured employees from thwarting the purpose of the exclusive remedy provision. Prior to the implementation of the coemployee immunity provision, injured employees could circumvent the statutory scheme by suing a coem-ployee based on simple negligence. This would result in "shiftfing] tort liability from employer to fellow employee in a manner never intended by the workers’ compensation system.” Jay Y. Benanav, Workers’ Compensation Amendments of the 1979 Minnesota Legislature, 6 Wm. Mitchell L.Rev. 743, 764 (1980) (quoting Minnesota Workers' Compensation Study Commission, A Report to the Minnesota Legislature and Governor, Recommendation 40 at 41 (1979)).


author: KLAPHAKE, Judge.

text:
    In re the WELFARE OF B.K.P., a minor child. Julie Neu, n/k/a Julie Glaraton, petitioner, Appellant, v. Brian D. Pollard, Respondent.
    No. CX-02-2119.
    Court of Appeals of Minnesota.
    June 17, 2003.

      John T. Lund, Schmidt & Lund, St. Cloud, MN, for appellant.
    Andrew D. Hultgren, Neils, Franz & Chirhart, St. Cloud, MN, for respondent.
    Considered and decided by STONEBURNER, Presiding Judge, TOUSSAINT, Chief Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Julie Glaraton brought this motion for unsupervised parenting time with her daughter. Respondent Brian Pollard, the child’s father and custodial parent, opposed the motion. The district court determined that because the motion was brought less than three months after an amended judgment was entered that changed custody and parenting time, it was precluded by Minn.Stat. § 518.18(b) (2002) (precluding motion for modification of custody order or parenting plan that is filed within two years after disposition of prior modification motion).

Because appellant’s motion requests a change in parenting time and because the time constraints of Minn.Stat. § 518.18(b) apply only to modifications of custody and certain aspects of parenting plans, the district court' erred in dismissing the motion without considering the child’s best interests under Minn.Stat. § 518.175, subd. 1(a) (2002). We therefore reverse and remand.

FACTS

The parties are the parents of a daughter born in 1990. Appellant had physical custody of the child until January 2002, when custody was temporarily transferred to respondent.

In July 2002, the parties entered into a stipulation in which they agreed to transfer custody of the child to respondent and to establish a “parenting contact time” schedule for appellant. This stipulation was incorporated into an amended judgment entered by the court on July 18, 2002. The provisions setting out appellant’s “parenting contact time” require that the child have no contact with appellant’s husband, who is a registered level III sex offender, and that the child’s contact with appellant is supervised by third parties.

On September 30, 2002, less than three months after entry of the amended judgment, appellant moved to change the “existing Parenting Time/visitation Order to allow unsupervised parenting time.” (Emphasis in original.) Appellant attached letters from a licensed psychologist who recommended that she be allowed unsupervised visitation with her daughter.

The district court denied appellant’s motion, concluding that it was precluded by MinmStat. § 518.18(b) (2002), because it was brought within two years of the amended judgment. This appeal followed.

ISSUE

Did the district court err in concluding that appellant’s motion for unsupervised parenting time is precluded by Minn.Stat. § 518.18(b) (2002)?

ANALYSIS

Statutory interpretation and application are legal questions reviewed by this court de novo. Rutz v. Rutz, 644 N.W.2d 489, 492 (Minn.App.2002). “When the language of a statute is plain and unambiguous, it * * * must be given effect.” Burkstrand v. Burkstrand, 632 N.W.2d 206, 210 (Minn.2001).

The district court determined that appellant’s motion, which was brought less than three months after entry of the amended judgment, was precluded by Minn.Stat. § 518.18 (2002). This statute deals with modification of a “custody order or parenting plan” and provides in pertinent part:

(b) If a motion for modification [of a custody order or parenting plan] has been heard, whether or not it was granted, unless agreed to in writing by the parties no subsequent motion may be filed within two years after disposition of the prior motion on its merits, except in accordance with paragraph (c).
(c) The time limitations prescribed in paragraph[](b) shall not prohibit a motion to modify a custody order or parenting plan if the courts finds that there is persistent and willful denial or interference with parenting time, or has reason to believe that the child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development.

Minn.Stat. § 518.18.

Appellant argues that this statute does not apply to her current motion to change her parenting time from supervised to unsupervised. She is correct. Under its plain language, Minn.Stat. § 518.18 expressly governs modifications of a “custody order or parenting plan.” Appellant’s motion does not involve a custody order, which includes provisions regarding a child’s legal custody, physical custody and residence, and support. Minn.Stat. § 518.17, subd. 3 (2002). Nor have appellant and respondent entered into a parenting plan, as defined in Minn.Stat. § 518.1705 (2002). Rather, appellant’s motion seeks to remove restrictions that the parties agreed to place on appellant’s parenting time. The district court therefore erred when it denied appellant’s motion solely because it was brought within two years of the amended judgment. See 1 Minn. Family Law Pract. Manual § 6.07 (3d ed. LexisNexis 2003) (“Unless a motion is for a modification of a custody order, there is no time limit on when a motion for modification of parenting time can be brought.”)

In reaching this decision, we note that parenting time, or visitation, is distinct from a parenting plan. The concept of “parenting time” is narrower than the concept of “parenting plan,” and is governed by the best interests of the child. Minn.Stat. § 518.175, subd. 5 (2002). A parenting plan, on the other hand, may be entered “in lieu of an order for child custody and parenting time,” and thus covers much broader areas of custodial rights and duties. Minn.Stat. § 518.1705, subd. 3. In particular, a parenting plan includes a custody designation, as well as a schedule of time each parent spends with the child, a designation of decision-making responsibilities regarding the child, and a method of dispute resolution. Minn.Stat. § 518.1705, subds. 2, 4; Rutz, 644 N.W.2d at 492 (absent inclusion of dispute-resolution mechanism, dissolution judgment did not create parenting plan). Thus, the time limitations of Minn.Stat. § 518.18 do not apply to modifications of parenting time, even if the parenting time schedule was originally part of a broader parenting plan.

On remand, the district court must consider the child’s best interests and must specifically consider the child’s age and relationship with the noncustodial parent. See Minn.Stat. § 518.175, subds. 1(a), 5 (2002) (“If modification would serve the best interests of the child, the court shall modify the decision-making provisions of a parenting plan or an order granting or denying parenting time.”). An evidentiary hearing is required when the modification is substantial, which appears to include the placement or removal of restrictions on parenting time. See, e.g., Matson v. Matson, 638 N.W.2d 462, 468 (Minn.App.2002); Braith v. Fischer, 632 N.W.2d 716, 721 (Minn.App.2001), review denied (Minn. Oct. 24, 2001); Anderson v. Archer, 510 N.W.2d 1, 4 (Minn.App.1993).

When a child’s emotional or physical health is in danger, a court may place restrictions on parenting time. Minn.Stat. § 518.175, subd. 5; Heinlein v. Heinlein, 407 N.W.2d 138, 140 (Minn.App.1987); see Simonson v. Simonson, 292 N.W.2d 12, 13 (Minn.1980) (when parent is cohabiting with person who has record of criminal sexual conduct, supreme court reversed custody award and ordered that any visitation must take place away from person with criminal record). Those restrictions may limit the time, place, duration, or supervision of parenting time, or may deny parenting time entirely. Minn.Stat. § 518.175, subd. 1(a).

DECISION

We reverse the district court’s order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . In 2000, legislation was passed replacing the term "visitation” with "parenting time” and allowing parties to create "parenting plans.” 2000 Minn. Laws ch. 444, art. 1, §§ 1-8. Minnesota statutes now refer to parenting time, not visitation. Parenting plans must include a number of elements, one of which is a schedule of the time each parent spends with a child. Minn.Stat. § 518.1705 (2002).


author: HALBROOKS, Judge. FORSBERG, Judge

text:
    David M. PIETSCH, D.C., et al., Relators, v. MINNESOTA BOARD OF CHIROPRACTIC EXAMINERS, Respondent.
    No. C6-02-2117.
    Court of Appeals of Minnesota.
    June 17, 2003.

      John B. Wolfe, Jr., Wolfe & Associates, St. Paul, and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, for relators David M. Pietsch, D.C. and Pietsch Chiropractic Clinic.
    Mike Hatch, Attorney General, Rosellen Condon, Assistant Attorney General, St. Paul, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge, HARTEN, Judge, and FORSBERG, Judge.

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

   OPINION

HALBROOKS, Judge.

Relator David Pietsch challenges the Minnesota Board of Chiropractic Examiners’ conclusions that he engaged in unlawful fee splitting in violation of Minn.Stat. § 148.10, subd. 1(a)(16) (2002), and unprofessional conduct in violation of Minn.Stat. § 148.10, subd. 1(a)(11), (e) (2002). Relator moves to strike portions of respondent’s brief and asserts that the board’s conclusions are not supported by substantial evidence. We conclude that the board’s determination that relator engaged in unprofessional conduct is supported by substantial evidence, but that the board’s holding that relator engaged in unlawful fee splitting is not supported by substantial evidence. We, therefore, affirm in part and reverse in part. Because section IV of respondent’s brief addresses an issue that was not raised by relator, we grant relator’s motion to strike in part.

FACTS

Relator David Pietsch is a licensed chiropractic doctor who owns, operates, and provides chiropractic services through Pietsch Chiropractic Clinic, Inc. Relator’s chiropractic practice focuses primarily -on providing treatment to persons who have been involved in automobile accidents where no-fault insurance claims can be submitted to insurance companies. A large percentage of relator’s patients are persons from the Hmong community who have been involved in automobile accidents.

In 1999, relator contracted with Hue Xiong and Cha Xiong of Xiong Translation & Transportation Company to market his chiropractic services to the Hmong community. Xiongs’ practice was to obtain publicly available accident reports from local police departments each morning. Using these reports, Hue Xiong and Cha Xiong identified accident victims by ethnic group so that one of relator’s agents from the same ethnic group could contact them to determine if they had been injured, advise them of their rights under the no-fault insurance laws, and solicit them to become patients at the Pietsch Chiropractic Clinic. In exchange for the services of Hue Xiong and Cha Xiong, Pietsch Chiropractic Clinic paid Xiong Translation & Transportation Company $71,000 in 1999 and $95,000 in 2000.

On March 1, 2001, relator was summoned to appear before the Complaint Panel of the Minnesota Board of Chiropractic Examiners in order to respond to allegations of fee splitting based on complaints that relator was paying two men to solicit business for him. After hearing testimony from relator, the panel concluded that there was insufficient evidence to pursue the matter further at that time.

Following the March 2001 meeting, the board received additional evidence that relator was engaging in fee splitting. As a result, on March 22, 2002, the board, through its complaint panel, served relator with a notice of and order for prehearing conference and hearing. The notice alleged that relator had engaged in fee splitting in violation of Minn.Stat. § 148.10, subd. 1(a)(16) (2002), by using “runners” or “cappers” to solicit people involved in automobile accidents and had engaged in unprofessional conduct in violation of Minn. Stat. § 148.10, subd. 1(a)(11), (e), by instructing chiropractic interns how to defraud insurance carriers by falsifying treatment bills and examination reports.

The complaint panel moved for summary disposition on the issue of fee splitting and relator’s use of “runners” to solicit patients. Following a hearing, the administrative law judge (ALJ) recommended that the Minnesota Board of Chiropractic Examiners grant the complaint panel’s motion for summary disposition as to .the fee splitting issue. The ALJ found that there were issues of fact as to whether relator’s conduct constituted unprofessional conduct per se, and recommended further proceedings regarding this issue.

After considering the ALJ’s recommendations, the board concluded that relator’s use of “runners” constituted both fee splitting, in violation of Minn.Stat. § 148.10, subd. 1(a)(16), and unprofessional conduct, in violation of Minn.Stat. § 148.10, subd. 1(a)(11), (e). The board suspended relator’s chiropractic license for three years, assessed a civil penalty of $30,000, and imposed other sanctions. This certiorari appeal follows.

ISSUES

1. Is the board’s conclusion that relator engaged in fee splitting in violation of Minn.Stat. § 148.10, subd. 1(a)(16) (2002), supported by substantial evidence?

2. Is the board’s conclusion that relator engaged in unprofessional conduct in violation of Minn.Stat. § 148.10, subd. 1(a)(11), (e) (2002), supported by substantial evidence?

3. Is relator entitled to relief on his motion to strike portions of respondent’s brief?

ANALYSIS

Relator contends that the Minnesota Board of Chiropractic Examiners’ conclusions that he engaged in unlawful fee splitting and unprofessional conduct under Minn.Stat. § 148.10, subds. 1(a)(16) and 1(a)(11), (e) (2002), are not supported by substantial evidence.

In a judicial review [of a contested case hearing], the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary and capricious.

Minn.Stat. § 14.69 (2002). When an agency acts in a quasi-judicial capacity, an appellate court applies the substantial-evidence test on review. In re Petition of N. States Power, 416 N.W.2d 719, 723 (Minn.1987). Substantial evidence is defined as:

1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
2. More than a scintilla of evidence;
3. More than some evidence;
4. More than any evidence; and
5. Evidence considered in its entirety.

Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984) (quotation omitted).

I.

Relator first argues that the board’s conclusion that he engaged in fee splitting in violation of Minn.Stat. § 148.10, subd. 1(a)(16) (2002), is not supported by substantial evidence. The statute provides that

(a) The state board of chiropractic examiners may refuse to grant, or may revoke, suspend, condition, limit, restrict or qualify a license to practice chiropractic, or may cause the name of a person licensed to be removed from the records in the office of the court administrator of the district court for:
⅜ ⅜ ⅜ ⅜
(16) Splitting fees, or promising to pay a portion of a fee or a commission, or accepting a rebate.

Minn.Stat. § 148.10, subd. 1(a)(16).

There is no Minnesota caselaw applying or interpreting Minn.Stat. § 148.10, subd. l(a)(16). Looking to the common and approved usage of the words and phrases of the statute, “splitting fees” generally means “dividing a professional fee with another person, professional or nonprofessional, for the referral of patients.” See Practice Mgmt. Assocs., Inc. v. Gulley, 618 So.2d 259, 260 (Fla.Dist.Ct.App.1993) (interpreting and applying Minnesota law); see also Minn.Stat. § 645.08 (2002) (stating that statutory words and phrases should be construed according to rules of grammar and according to the common and approved usage, unless to do so would be inconsistent with the intent of the legislature).

There is no evidence in the record that relator divided fees with Hue Xiong and Cha Xiong on a per-patient referral basis. Instead, the Xiongs were relator’s salaried employees. The obvious question arises as to whether this is a distinction without a difference. The board concluded that to find that relator’s conduct did not constitute fee splitting would permit chiropractors to disguise prohibited fee-splitting arrangements. While that argument is somewhat attractive and while we in no way condone relator’s conduct, based on this record and the statutory language, we conclude that the board’s holding that relator engaged in unlawful fee splitting is not supported by substantial evidence.

Minn.Stat. § 148.10, subd. 1(a)(16), does not prohibit chiropractors from paying individuals to solicit accident victims or using runners. It only prohibits fee splitting. If the board or legislature believes that conduct such as relator engaged in is improper, it should pass a rule or law prohibiting such conduct. The board erred in interpreting the fee-splitting statute to prohibit conduct that the plain language of the statute does not prohibit.

Respondent asserts that the board’s decision is supported by the Minnesota Supreme Court’s decision in Reyburn v. Minn. State Bd. of Optometry, 247 Minn. 520, 78 N.W.2d 351 (1956). In Reyburn, licensed optometrists had an agreement with an optical company under which the optical company made referrals to the optometrists, and in exchange the optical company received a portion of the income attributable to the referrals. Id. at 521-22, 78 N.W.2d at 353. The supreme court held that the

apportionment of income attributable to the referrals is in itself “unprofessional conduct” as defined by Minn.Stat. § 148.57, subd. 3, as including “splitting or dividing a fee with any person.”

Id. at 528, 78 N.W.2d at 357.

Respondent relies on Reybum in support of the proposition that fee splitting includes any payment out of a professional licensee’s income for the referral of patients. We disagree. In Reybum, the court found that the optometrists had engaged in fee splitting because they had an agreement with an optical company to apportion to the company income attributable to referrals the company made. Id. In this case, there is no evidence that relator agreed to apportion any income to Hue Xiong and Cha Xiong that was directly attributable to referrals they made. The only evidence is that Xiong Transportation was paid $71,000 in 1999 and $95,000 in 2000. Because the facts in Reybum are distinguishable from the facts in this case, respondent’s reliance on Reybum is misplaced.

Respondent also argues that the board’s finding of fee splitting is supported by the New Jersey Supreme Court’s decision in In re Pajerowski, 156 N.J. 509, 721 A.2d 992 (1998). In Pajerowski, an attorney used a runner to contact automobile accident victims to attempt to persuade them to retain the attorney’s services. Id. at 995. In addition to his solicitation responsibilities, the runner also performed office-management duties. Id. at 996. The runner was paid $62,400 in 1992, and $182,000 in 1994. The New Jersey Supreme Court noted that a salary of $182,000 was far in excess of the reasonable value of the runner’s services. Id. In addition, the attorney stipulated that by giving the runner

such a substantial salary he was “compensating him or giving him something of value to recommend or secure [the attorney’s] employment by clients, or as an award for having made recommendations resulting in [the attorney’s] employment by clients.”

Id. The supreme court concluded that the attorney’s conduct constituted numerous violations of the New Jersey Rules of Professional Conduct, including the rule prohibiting fee splitting with a non-lawyer. Id.

The facts in Pajerowski are distinguishable from the facts in this case. Here, we have no finding by the board that the payment received by Hue Xiong and Cha Xiong was in excess of the value of their services. Further, the Pajerowski court had the attorney’s stipulation that the payment to the runner that was in excess of the reasonable value of his services was an award for recommendations that resulted in new business for the attorney. Id. Here, the board did not find that the payments made to Hue Xiong and Cha Xiong were an award for increasing the number of relator’s patients. Based on this record, we conclude that the board’s conclusion that relator engaged in fee splitting in violation of Minn.Stat. § 148.10, subd. 1(a)(16), is not supported by substantial evidence.

II.

The second issue before us is whether the board’s conclusion that relator engaged in unprofessional conduct in violation of Minn.Stat. § 148.10, subd. 1(a)(11), (e), is supported by substantial evidence. The statute provides that

(a) The state board of chiropractic examiners may refuse to grant, or may revoke, suspend, condition, limit, restrict or qualify a license to practice chiropractic, or may cause the name of a person licensed to be removed from the records in the office of the court administrator of the district court for:
* * ⅜ *
(11) Unprofessional conduct.

Minn.Stat. § 148.10, subd. 1(a)(11). The statute provides further that

unprofessional conduct means any unethical, deceptive or deleterious conduct or practice harmful to the public, any departure from or the failure to conform to the minimal standards of acceptable chiropractic practice, or a willful or careless disregard for the health, welfare or safety of patients, in any of which cases proof of actual injury need not be established.

Minn.Stat. § 148.10, subd. 1(e). The statute lists eight acts that constitute unprofessional conduct and states that the board may by rule define other acts that constitute unprofessional conduct. Minn.Stat. § 148.10, subd. 1(e)(1) — (9).

The board concluded that relator’s violation of Minn.Stat. § 148.10, subd. 1(a)(16), constituted unprofessional conduct in violation of Minn.Stat. § 148.10, subd. 1(a)(11), (e). The board determined that relator engaged in unprofessional conduct by paying runners to solicit accident victims, regardless of whether relator’s conduct constituted unlawful fee splitting. Relator asserts that his conduct in employing runners cannot be found to be “unprofessional” because it is not specifically prohibited or defined as unprofessional conduct in the statute.

In defining unprofessional conduct in Minn.Stat. § 148.10, subd. 1(e)(1) — (8), the legislature did not include any reference to the use of runners or the payment of runners to solicit accident victims as acts that constitute unprofessional conduct. In reaching its conclusion that the use of runners to solicit accident victims constituted unprofessional conduct under Minn. Stat. § 148.10, subd. 1(e), because such conduct negatively affects the profession and is unethical, deceptive, and harmful to the public, the board relied on the Minnesota Supreme Court’s decision in Reyburn, 247 Minn. 520, 78 N.W.2d 351.

In Reyburn, the supreme court stated that “ ‘unprofessional conduct’ is of itself, without amplification, a sufficiently definite ground upon which [a] board may revoke or suspend a license.” Id. at 525, 78 N.W.2d at 356. The court stated further that

[i]t is in fact recognized that when, as here (§ 148.53), the legislature empowers the administrative board to adopt such rules and regulations as it may deem necessary or expedient, and does not require the board to do so, the antecedent adoption by the board of rules and regulations defining what constitutes “unprofessional conduct” is not a prerequisite to the suspension or revocation of a practitioner’s license for “unprofessional conduct.”

Id. at 527, 78 N.W.2d at 356-57. Based on the supreme court’s decision in Reybum, we conclude that the Board of Chiropractic Examiners has the discretion to make a case-by-case judgment as to whether a licensed chiropractor’s conduct constitutes unprofessional conduct under Minn.Stat. § 148.10, subd. 1(a)(11), (e).

The accident victims relator solicited were predominantly from the Hmong community and were contacted almost immediately after their accidents. Relator’s agents, who speak the accident victims’ native language, personally solicited them to receive chiropractic treatment at relator’s clinic. The accident victims were often injured, vulnerable, and likely not in a position to make informed decisions concerning health care providers or their need for treatment. On this record, we conclude that the board’s conclusion that appellant’s actions constituted unprofessional conduct because they were unethical, deceptive, and harmful to the public and to the chiropractic profession is supported by substantial evidence.

III.

In relator’s reply brief, he requests that the portions of respondent’s brief that accuse relator of lying, knowingly withholding information from the board, misleading the board by denying that he had solicited patients, or having exhibited a lack of candor be stricken from respondent’s brief and not considered on appeal. The appellate court record consists of “[t]he papers filed with the trial court, the exhibits, and the transcript of the proceedings, if any.” Minn. R. Civ.App. P. 110.01. This court “will strike documents included in a party’s brief that are not part of the appellate record.” Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992) (citation omitted), aff'd, 504 N.W.2d 758 (Minn.1993). The statements in respondent’s brief that relator is seeking to strike largely stem from relator’s interaction with the board complaint panel in March 2001 and a letter relator sent to the complaint panel on August 16, 2001. Because the August 16, 2001 letter is in the record, and a review of the letter indicates that it is arguable whether relator was fully forthcoming regarding his solicitation activities, we deny relator’s motion to strike these statements.

Relator also requests that section IV of respondent’s brief addressing the board’s discretion to select a sanction be stricken. Because relator did not challenge the sanction imposed by the board, we grant relator’s motion to strike section IV of respondent’s brief.

DECISION

The Minnesota Board of Chiropractic Examiners’ holding that relator engaged in fee splitting under Minn.Stat. § 148.10, subd. 1(a)(16) (2002), is not supported by substantial evidence. But the board’s holding that relator engaged in unprofessional conduct under MinmStat. § 148.10, subd. 1(a)(11), (e) (2002), is supported by substantial evidence and we affirm on that basis. Relator’s motion to strike portions of respondent’s brief is granted in part.

Affirmed in part, reversed in part; motion granted in part.

FORSBERG, Judge, files a dissenting opinion.

FORSBERG, Judge

(dissenting).

I respectfully dissent. I concur with the majority that under Reyburn v. Minn. State Bd. of Optometry, 247 Minn. 520, 78 N.W.2d 351 (1956), the Board of Chiropractic Examiners has the discretion to make a judgment as to whether relator’s conduct constituted unprofessional conduct per se under Minn.Stat. § 148.10, subd. 1(a)(11), (e) (2002). But I believe the board’s discretion is not without limitation. Unlike the majority, I believe that Minn. Stat. § 148.10, subd. 1(a)(11), (e), is unconstitutionally vague as applied to relator in this case because the statute failed to provide him with sufficient notice that he was engaging in prohibited conduct. I would, therefore, like the majority, reverse the board’s holding that relator engaged in fee splitting, but also reverse the board’s holding that relator engaged in unprofessional conduct.

A statute is unconstitutionally vague and violates the Due Process Clause if its prohibitions are not clearly defined. State v. Century Camera, Inc., 309 N.W.2d 735, 744 (Minn.1981) (stating that statute is unconstitutionally vague if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he or she can act accordingly). Many courts have found that statutes prohibiting unprofessional conduct are unconstitutionally vague as applied because they fail to provide sufficient notice and warning of what conduct is prohibited. See, e.g., H & V Eng’g, Inc. v. Idaho State Bd. of Prof'l Eng’rs and Land Surveyors, 113 Idaho 646, 747 P.2d 55, 59 (1987) (finding that statute prohibiting unprofessional conduct did not provide sufficient warning to group of engineers that their acts would subject them to discipline); Tuma v. Bd. of Nursing, 100 Idaho 74, 593 P.2d 711, 717 (1979) (finding that statute prohibiting unprofessional conduct did not adequately warn nurse that she was engaging in prohibited conduct); Lester v. Dep’t of Prof'l & Occupational Regulations, 348 So.2d 923, 925-26 (Fla.Dist.Ct.App.1977) (finding that statute prohibiting unprofessional conduct did not adequately warn doctor that he was engaging in prohibited conduct).

In Tumo, a nurse appealed the decision of the Idaho Board of Nursing suspending her for six months for interfering with the physician-patient relationship by discussing alternative treatments with a leukemia patient. 593 P.2d at 712-14. The relevant statute prohibited “[ijmmoral, unprofessional, or dishonorable conduct,” and the statute provided a non-exclusive list of acts that constituted “unprofessional conduct.” Id. at 714-15. Interference with the physician-patient relationship was not specified as one of the prohibited acts. Id. The Idaho Supreme Court concluded that the statute did not adequately warn the nurse that her conduct was prohibited. Id. at 717. The court explained:

The legislature has obviously recognized that the nurses who comprise the Board can, “from their personal knowledge and experience,” determine the standards of the profession. And accordingly opportunity was afforded the Board to expand upon the statutory definition of “unprofessional conduct.” But, says the Board, it is enough that the Board will hear evidence of a licensee’s conduct, and with its expertise then reach a conclusion whether such was or was not unprofessional. We cannot agree. Such a procedure would be an intolerable state of affairs, and not in compliance with requirements of due process.

Id. at 718.

Here, the board did not find that relator engaged in one of the acts the legislature defined as constituting unprofessional conduct. Instead, the board found that relator’s conduct was unethical, deceptive, and harmful to the public, and that relator engaged in unprofessional conduct generally. The record shows, and the majority does not appear to dispute, that relator had no notice or warning that paying runners a flat salary to solicit patients for his chiropractic clinic constituted unprofessional conduct and would subject him to serious sanctions. On this record, I would hold that the board’s application of Minn. Stat. § 148.10. subd. 1(a)(11), (e), to relator is unconstitutionally vague as applied to him and a violation of his due process rights because he did not have sufficient notice or warning that his actions constituted unprofessional conduct under the statute. While, like the majority, I in no way condone relator’s conduct and find it quite disturbing, it is when we find an individual’s conduct most disturbing that we must be most vigilant in our protection of an individual’s fundamental constitutional rights. Thus, like the majority, I would reverse the board’s holding that relator engaged in fee splitting, but I would also reverse the board’s holding that relator engaged in unprofessional conduct.

      . We note that both parties, in their briefs, and the board, in its decision, state that the ALJ concluded that relator’s conduct was not unprofessional conduct per se. But the record shows that the ALJ found that there were issues of fact as to whether relator’s conduct constituted unprofessional conduct per se, and that the ALJ recommended that a hearing be held on this issue. The ALJ did not conclude that relator's conduct was not unprofessional conduct per se.

      . In 2002, the Minnesota Legislature passed Minn.Stat. § 609.612 (2002), which prohibits the use of runners by healthcare providers when the provider's purpose is to fraudulently perform or obtain services or benefits under or relating to a contract of motor vehicle insurance.

      . In Megdal v. Oregon State Bd. of Dental Exam'rs, the Oregon Supreme Court stated that
      when a licensing statute contains both a broad standard of "unprofessional conduct” that is not fully defined in the statute itself and also authority to make rules for the conduct of the regulated occupation, the legislative purpose is to provide for the further specification of the standard by rules, unless a different understanding is shown.

        Megdal v. Oregon State Bd. of Dental Exam’rs, 288 Or. 293, 605 P.2d 273, 283 (1980). In Minn.Stat. § 148.10, subd. 1(e)(9), the Minnesota legislature specifically provided the board with the authority to define by rule other acts that constitute unprofessional conduct. While I agree with the majority that the board has the authority to determine on a case-by-case basis what conduct constitutes unprofessional conduct, it would be much more efficient, effective, and fair for the board to use its rulemaking power, and I would encourage it to take advantage of that power in the future.

      . There is also evidence in the record that some chiropractors have been advised in continuing education classes that they can avoid fee-splitting violations by paying their runners a salary, which is the precise conduct that the board held constituted unprofessional conduct. This raises the prospect that relator will be the only one penalized for a practice that may be wide spread in the chiropractic community.