author: HANSON, Judge.

text:
    ILLINOIS FARMERS INSURANCE COMPANY, Appellant, v. Janet Dawn REED, et al., Respondents, Richard Peschong, et al., Respondents, First Health, Defendant.
    No. C2-02-123.
    Court of Appeals of Minnesota.
    July 23, 2002.

      Timothy P. Tobin, Matthew H. Morgan, Gislason & Hunter LLP, Minnetonka, for appellant.
    Michael A. Zimmer, Tewksbury, Kerfeld & Zimmer, P.A., Minneapolis, for respondents Reed.
    Sharon L. Van Dyck, Mark H. Gruesner, Schwebel, Goetz & Sieben, P.A., Minneapolis, for respondents Peschong.
    Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and HANSON, Judge.
   OPINION

HANSON, Judge.

Respondents sued their son’s daycare provider, who had been convicted of assault and malicious punishment of a child based on an incident in which the child suffered a severe brain injury. The daycare provider tendered the defense of respondents’ action to appellant insurer, under her homeowner’s policy. Appellant insurer filed a declaratory judgment action seeking a declaration that coverage for the occurrence was precluded by the .policy’s intentional-acts exclusion. Appellant insurer then moved for summary judgment, arguing that the daycare provider was collaterally estopped by her criminal conviction from denying that she intentionally injured the child. The district court denied the motion but certified as important and doubtful the question of whether Minnesota law permits criminal convictions to be used for collateral-estoppel purposes when the criminal defendant does not seek to profit from the crime in a subsequent civil proceeding. We answer the certified question in the affirmative, reverse the denial of summary judgment, and remand.

FACTS

J.P. was severely injured while at the home of Janet Reed, his daycare provider. Reed claimed that J.P. hurt himself when he fell headfirst on the kitchen floor while attempting to walk. She later admitted that she shook him. Reed was charged with first-degree assault, a violation of Minn.Stat. § 609.221 (1998), and malicious punishment of a child, a violation of Minn. Stat. § 609.377 (1998). At her criminal trial, Reed maintained that J.P’s injuries resulted from a fall and not from being shaken. She also argued that even if the shaking caused J.P.’s injuries, the state could not prove intent because she did not intend to injure him, only to revive him after he fell. The state presented testimony .from seven medical experts that eliminated a fall as the cause of J.P.’s injury and supported the conclusion that J.P.’s injuries were caused by shaken-baby syndrome.

The district court sitting without a jury found'Reed guilty of both charges. In its 100-page order, the court specifically rejected Reed’s claim that J.P. injured himself when he fell and found that his injuries were the result of being shaken. The court concluded beyond a reasonable doubt that Reed “caused [J.P.’s] injuries and did so by an intentional act.” (Emphasis omitted.) This court affirmed Reed’s convictions. State v. Reed, No. C4-00-779, 2001 WL 243248 (Minn.App. Mar.13, 2001), review denied (Minn. May 15, 2001).

After the conclusion of the criminal trial, respondents J.P. and his parents, Richard and Kimberly Peschong (the Peschongs), brought a negligence action against Reed to recover for J.P.’s injuries. Reed carried a homeowner’s policy with appellant Illinois Farmers Insurance Company (Illinois Farmers), and she tendered the defense of the Peschongs’ action to Illinois Farmers. Illinois Farmers filed a declaratory-judgment action naming the Reeds, the Pes-chongs and J.P.’s medical providers as defendants. Illinois Farmers then filed a motion for summary judgment.

Illinois Farmers argued that the judgment convicting Reed of first-degree assault and malicious punishment of a child should be used as collateral estoppel to conclusively establish the facts necessary to effectuate the policy’s intentional-acts exclusion, which excludes coverage for injury that is either

a. caused intentionally by or at the direction of an insured; or
b. results from any occurrence caused by an intentional act of any insured where the results are reasonably foreseeable.

The policy defines an “occurrence” as an “accident * * * which results * * * in bodily injury.” The policy does not define “accident.”

Relying on the supreme court’s opinion in Travelers Ins. Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289 (1968), the Peschongs countered that a criminal conviction cannot be used as collateral estop-pel in a subsequent civil case unless the criminal defendant is attempting to profit from his or her crime, and that the issue of intent must be litigated in a coverage trial.

The district court, after a-thorough discussion, denied Illinois Farmers’ motion for summary judgment. The court observed that although Thompson involved a situation in which the convicted party was attempting to profit from his crime, Thompson did not specifically limit its holding to such a situation. Yet, the court found no Minnesota cases applying collateral estoppel in other situations. To the contrary, the court assumed that the use of a criminal conviction as collateral estoppel had been narrowed, since Thompson, by the decision in Glens Falls Group Ins. Corp. v. Hoium, 294 Minn. 247, 252, 200 N.W.2d 189, 192 (1972) (holding that a judgment of conviction based on a plea of guilty had no collateral-estoppel effect in a civil action).

The district court certified as important and doubtful the question set forth as the first Issue below. After framing the certified question, the district court proceeded to also answer the question, “If collateral estoppel applies generally, does it apply in this case?” The court concluded that it would. This appeal followed.

ISSUE

1. The question certified by the district court is:

When interpreting 'an intentional-acts exclusion of a common liability policy, does Minnesota law permit criminal convictions to be used for collateral estoppel purposes in a subsequent civil case in situations other than those envisioned in Travelers Ins. Co. v. Thompson, 281 Minn. 547, 552-57,163 N.W.2d 289, 293-94 (1968) — namely, where the criminal defendant seeks to profit from the crime in a subsequent civil proceeding?

2. If we answer the certified question in the affirmative, do the undisputed facts supply all of the elements necessary for the application of collateral estoppel?

ANALYSIS

I

We first consider whether the certified question is properly before us. The denial of summary judgment ordinarily would not be appealable until the conclusion of the proceedings. Jostens, Inc. v. Federated Mut. Ins. Co., 612 N.W.2d 878, 883 (Minn.2000). This court may hear an appeal from a denial óf a motion for summary judgment only “if the [district] court certifies that the question presented is important and doubtful.” Minn. R. Civ.App. P. 103.03(h) (2000).

The Minnesota Supreme Court recently reiterated the proper criteria for review of a certified question under rule 103.03(h). Jostens, 612 N.W.2d at 883-85. When determining whether a question is important, the reviewing court must consider whether:

(1) it will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court is substantial.

Jostens, 612 N.W.2d at 884 (citation omitted). A question is properly, certified as doubtful if there is no controlling authority and “there is substantial ground for a difference of opinion.” Id. at 884-85 (citation omitted).

The district court concluded that the question was important, in part, because “there is a high probability of reversal,” stating:

This Court has denied summary judgment because the Thompson case has not expanded the exception to the general rule. However, nowhere in the Thompson decision does the Court limit the exception to the facts involved in that case. Furthermore, the stated reasons for the general rule do not apply in this case and the reasons for the exception apply to this case.

In concluding that the question was doubtful, the court stated:

Despite the findings in the criminal case, this trial judge doesn’t feel that he has the authority to grant summary judgment in favor of Illinois Farmers based on Thompson. Granting summary judgment is analogous to a trial judge creating a new cause of action where it doesn’t exist. This responsibility should be left to the Legislature or a higher Court.

The parties do not challenge the district court’s decision to certify the question. Furthermore, we agree with the district court’s determination that the question is important and doubtful.

II

We next review the rationale of the decision in Travelers Ins. Co. v. Thompson, 281 Minn. 547, 549, 163 N.W.2d 289, 291 (1968). Thompson purchased several life insurance policies, totaling $1,055,000, on his -wife’s life with himself named as beneficiary on each policy. Id. Thompson’s wife was killed and Thompson was convicted of her murder. Id. at 548, 163 N.W.2d at 290-91. After his conviction, Thompson sought to collect on the insurance policies. Id. at 548, 163 N.W.2d at 290. The insurers brought a declaration judgment action and moved for summary judgment, contending that Thompson’s conviction conclusively established the facts that disqualified him from being a beneficiary under Minn.Stat. § 525.87 (1967) (stating that “[n]o beneficiary of any policy of insurance * * * payable upon the death * * * of any person, who [feloniously] takes * * * the life upon which 'such policy * * * is issued, * * * shall take the proceeds of such policy.”).

The district court denied the insurer’s motion for summary judgment but certified as important and doubtful the question of whether Thompson’s murder conviction barred his claim as a beneficiary of the policies. Thompson, 281 Minn, at 548, 163 N.W.2d at 290. The question before the supreme court was

whether a criminal conviction may be considered in a subsequent civil proceeding for the purpose of establishing the truth of the facts upon which the conviction was based.

Id. at 550,163 N.W.2d at 291.

The supreme court agreed that the facts and issues in both the criminal and the civil case were identical. Id. at 550, 163 N.W.2d at 292. It recognized, however, that the then-current “general rule” precluded the use of a conviction as collateral estoppel, stating:

The general common-law rule has been that a criminal judgment is not admissible as evidence in a civil action to establish a fact determined in the criminal action nor does it constitute a bar to a subsequent civil action based upon the offense of which the party stands convicted and that the judgment of conviction is not admissible in evidence for that purpose.

Id. at 551, 163 N.W.2d at 292. The court explained that

[i]n addition to the absence of mutuality in the second suit, other considerations which have influenced courts in so holding are that the judgment may not be conclusive of issues which might have been litigated and determined in the initial action but which were not; failure or inadequacy of legal representation; the drawing of a wrong inference or misapplication of law which might give rise to an erroneous result; and the rule of evidence that the judgment in a criminal case is nothing more than the opinion of 12 jurors and, consequently, hearsay.

Id. at 552,163 N.W.2d at 292.

The supreme court noted that some courts had developed an exception to the general rule in cases where the defendant attempts to profit from the crime and stated that courts have done so

where the advantages to be derived from preventing relitigation would not be outweighed by the injustice that might result from foreclosing attack on the prior determination.

Id. at 552, 163 N.W.2d at 292-93. The supreme court observed that the

^justification for overlooking the element of mutuality in the subsequent civil case is most often found in the rationale that objections to the application of collateral estoppel are not valid because the criminal conviction necessarily establishes that the requirement of a greater degree of proof has been met and because the party bound by it had every opportunity and incentive to litigate the issue.

Id. at 552,163 N.W.2d at 293.

The Thompson decision did not specifically address the , question certified to us by the district court. It did not specifically state that the exception would be limited to circumstances-where the criminal defendant seeks to profit from the crime, nor did it specifically state that the exception could be applicable in other circumstances. Accordingly, we will examine the rationale followed by the supreme court in Thompson in the light of the evolution of the law of collateral estoppel during the 30 years that have passed since Thompson, to determine the present state of the law in Minnesota with respect to the collateral estoppel effect of criminal convictions in subsequent civil actions.

We are satisfied that this examination should not be influenced by the supreme court’s decision in Glens Falls Group Ins. Corp. v. Hoium, 294 Minn. 247, 200 N.W.2d 189 (1972), because the collateral-estoppel effect of a judgment of conviction based on a guilty plea is a completely separate question from the collateral estoppel effect of a judgment of conviction after trial. This is because a fundamental requirement of collateral es-toppel is that the issue sought to be precluded in the subsequent proceeding must have been “actually litigated” in the former proceeding, and a conviction based on a guilty plea can never satisfy that requirement. See Thompson, 281 Minn, at 551, 163 N.W.2d. at 292 (stating “[ujnlike the situation where a former judgment acts as an absolute bar, it is an indispensable prerequisite to collateral estoppel that the issue involved be actually litigated and determined in the former suit” (quotation omitted)); see also Restatement (Second) of Judgments §§27 and 85 cmt. b. (1980) (stating the general rule of issue preclusion and its inapplicability to guilty pleas, respectively).

III

We first observe that there have been considerable changes in the law of collateral estoppel since Thompson, all of them seemingly in the direction of expanding its application. In fact, what was viewed by Thompson as the “general rule,” precluding the use of a conviction as collateral estoppel, appears to have now become the minority rule, and the exception that was applied in Thompson has now become the general rule. In assessing the impact of these trends, we find it helpful to review the origins and characteristics of collateral estoppel to understand its ability to change with changing circumstances.

The doctrine of collateral estoppel originated in the English common law and was incorporated in the common law of the United States. See Cromwell v. County of Sac, 94 U.S. 351, 352-54, 24 L.Ed. 195, 197-98 (1876) (adopting the doctrine as part of the common law of the United States); Robert W. Millar, The Premises of the Judgment as Res Judicata in Continental and Anglo-American Law, 39 Mich. L.Rev. 238 (1940) (discussing background and application of doctrines of collateral estoppel and res judicata). As a common-law doctrine, it has continued to evolve over time. It is based on the judicial policy considerations of conservation of judicial resources, preservation of the courts’ integrity by preventing inconsistent results, promotion of final judgments, and protection of parties from relitigating the same issues. See Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979) (discussing that collateral estoppel protects adversaries from “expense and vexation * * *, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions”); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979) (stating that collateral estoppel conserves judicial resources and protects litigants).

Because of its deep common-law roots, the development of the doctrine of collateral estoppel has at' times been impeded by historical restrictions that reflected earlier limitations of the judicial system. For example, one historical objection to the collateral estoppel effect of a criminal conviction was the former evidentiary rule prohibiting an interested person from testifying in a civil case. Zelman Cowen, The Admissibility of Criminal Convictions in Subsequent Civil Proceedings, 40 Cal. L.Rev. 225, 228 (1952). Because of that rule, a conviction that was based on the victim’s testimony could not be used in a later civil action brought by the victim. While this evidentiary rule was abrogated with the adoption of the Evidence Act of 1843, the general rule against recognizing the collateral-estoppel effect of a criminal conviction continued long thereafter. Id. at 228-29.

Another historical objection to the collateral-estoppel effect of a criminal conviction was the theory of mutuality of estoppel, which originated in contract and property cases. See generally, Id. at 228-29. Under that theory, a judgment could operate as collateral estoppel only when all the parties to the civil proceeding were bound by the judgment; that is, a person could not be estopped by an earlier judgment unless that person could have used it as a protection had the judgment gone the other way. Id. If a judgment of acquittal could not be used by the criminal defendant in a subsequent civil action (because an acquittal is a finding that the fact was not proved beyond a reasonable doubt and the civil burden of proof requires only a fair preponderance of the evidence), mutuality also prevented a criminal defendant from being estopped by a judgment of conviction. Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314, 316 (1927); see also, e.g., Zdanok v. Glidden Co., Durkee Famous Foods Div., 327 F.2d 944, 954 (2d Cir.1964).

At the time Thompson was decided in 1969, the basis for the general rale that a criminal judgment of conviction could not be given collateral-estoppel effect in a subsequent civil action continued to be the theory of mutuality. 47 Am.Jur.2d Judgments § 644 (1995). And the jurisdictions that recognized an exception to that general rule typically based that exception on public-policy concerns, to prevent the criminal defendant from profiting from the crime. See, e.g., Conn. Fire Ins. Co. v. Ferrara, 277 F.2d 388, 392 (8th Cir.1960) (holding that the insured’s conviction of arson of insured premises could be considered for collateral-estoppel purposes where the criminal defendant brought a civil action to recover on the policy); Austin v. United States, 125 F.2d 816, 819 (7th Cir.1942) (stating that the beneficiary of an insurance policy was collaterally estopped by his conviction of murdering the insured); Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439, 441-42 (1962) (holding that corporations were collaterally es-topped from recovering insurance where their president was convicted of causing the loss); In re Greifer’s Estate, 333 Pa. 278, 5 A.2d 118, 118 (1939) (holding that a conviction of first-degree murder collaterally estopped the beneficiary from claiming benefits under a trust); Heller, 140 S.E. at 321 (1927) (stating that a criminal conviction for arson collaterally estopped the insured’s attempt to collect on the fire insurance policy).

Although the Minnesota Supreme Court has not revisited the precise issue since Thompson, it is clear from a survey of other jurisdictions that the former “general rule” has been replaced by what had previously been seen as the exception. See Breeland v. Sec. Ins. Co. of New Haven, Conn., 421 F.2d 918, 922 (5th Cir.1969) (applying Louisiana law and' noting that “[t]he number of jurisdictions holding that a criminal conviction precludes litigation of the same issue in a civil suit is ever increasing”); see also Wehling v. Columbia Broad. Sys., 721 F.2d 506, 508 (5th Cir.1983) (discussing Texas’ move away from this general rule); United States v. Frank, 494 F.2d 145, 160 (2d Cir.1974), (discussing application of collateral estoppel to criminal-civil context); May v. Oldfield, 698 F.Supp. 124, 125-26 (E.D.Ky. 1988) (noting federal and state cases addressing this issue); Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356, 1360 (1985) (noting jurisdictions that have done so); Hopps v. Utica Mut. Ins. Co., 127 N.H. 508, 506 A.2d 294, 297 (1985) (noting that “there is a stronger rationale for applying collateral estoppel against a former criminal defendant than for applying it against a party to a prior civil case, since the criminal defendant has had the benefit of the presumption of innocence and the State’s obligation to prove any fact essential to the conviction beyond a reasonable doubt.”); Seattle-First Nat’l Bank v. Cannon, 26 Wash.App. 922, 615 P.2d 1316, 1319 (1980) (same).

This change, whereby the exception has become the new general rule, resulted from a more critical analysis of the four historical objections to collateral estoppel that were noted in Thompson. 281 Minn, at 551-2, 163 N.W.2d at 292.

Mutuality of Estoppel

Most courts. that have considered the use of a criminal conviction as collateral estoppel in a subsequent civil suit have now abandoned the rule of mutuality. See, e.g., United States v. Jensen, 608 F.2d 1349, 1355 (10th Cir.1979) (noting that the application of non-mutual collateral estop-pel, when used offensively, lies within the district court’s discretion); County of Cook v. Lynch, 560 F.Supp. 136, 138 (N.D.Ill.1982) (noting that the doctrine of mutuality of estoppel has been eroded); Sec. Exch. Comm’n v. Everest Mgmt. Corp., 466 F.Supp. 167, 172 n. 6 (S.D.N.Y.1979) (noting that “mutuality of parties is no longer essential for the operation of an estoppel, as long as the party against whom the estoppel is asserted * * * was afforded a full and fair opportunity to litigate the identical issue in the prior proceeding” and citing Parklane Hosiery, 439 U.S. at 332, 99 S.Ct. at 651-52, and Zdanok, 327 F.2d at 954-56); Harris v. Jones, 471 N.W.2d 818, 820 (Iowa 1991) (noting that Iowa courts “have abandoned the strict doctrine of‘mutuality in both-offensive and defensive uses of issue preclusion”); Knoblauch v. Kenyon, 163 Mich.App. 712, 415 N.W.2d 286, 290 (1987) (stating that the mutuality requirement is inapplicable where “the issue presented has been decided and appealed and the plaintiff has had a full and fair opportunity to litigate the question in his prior case”).

Procedural Differences

Differences in procedures between criminal and civil proceedings present a objection to the use of a civil judgment in a subsequent criminal action. See, e.g., State v. Wagner, 637 N.W.2d 330, 338 (Minn.App.2001) (stating that the result in a civil proceeding cannot be used to bind a criminal defendant on any element of a crime). But such an objection does not apply to the use of a judgment of conviction as collateral estoppel in a civil case. Because there are greater procedural protections in a criminal case — the standard of proof is higher and the procedural safeguards are numerous and more stringent — the judgment of conviction necessarily meets all of the procedural requirements of a judgment in a civil 'case. See, e.g., United States v. Gramling, 180 F.2d 498, 501-02 (5th Cir.1950) (stating that possession in a criminal case is sufficient to show possession in a civil case); United States v. Dantzler Lumber & Exp. Co., 810 F.Supp. 1277, 1282 (Ct. Int’l Trade 1992) (stating that a criminal judgment is conclusive in a subsequent civil action because of the higher standard of proof); Everest Mgmt. Corp., 466 F.Supp. at 172 (discussing higher standard of proof and procedural safeguards in a criminal trial); Mueller v. J.C. Penney Co., 173 Cal.App.3d 713, 721, 219 Cal.Rptr. 272 (Cal.Ct.App.1985) (same); Hopps, 506 A.2d at 297 (noting criminal trial’s higher standard of proof and presumption of innocence); S.T. Grand, Inc. v. New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938, 298 N.E.2d 105, 107 (N.Y.1973) (discussing the various safeguards in a criminal ease); Crowall v. Heritage Mut. Ins. Co., 118 Wis.2d 120, 346 N.W.2d 327, 331 (Ct.App.1984) (noting higher standard of proof and other safeguards in a criminal case).

Hearsay or Opinion of the Criminal Jury

A third objection to the use of a criminal conviction as collateral estoppel was the concern that the criminal judgment is hearsay or merely the criminal jury’s opinion. Hearsay and opinion concerns, however, are only relevant to the issue of admissibility and have no application to the doctrines of res judicata or collateral estoppel. Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816, 823 (1976); see generally, Cowen, supra, at 239-40 (discussing and rejecting hearsay and opinion concerns). Were this a valid objection, it would eliminate the doctrine of collateral estoppel completely because every judgment is based on the opinion of another court or jury on the facts before them.

Stare Decisis

Some jurisdictions continued to follow the former general rule simply because they determined that stare decisis required them to do so. See, e.g., Schindler v. Royal Ins. Co., 258 N.Y. 310, 179 N.E. 711, 712 (1932) (declining to apply a criminal conviction as conclusive evidence of the defendant’s guilt, based on the doctrine that courts should not set aside “precedents * *' * even though they seem archaic” (citation omitted)). Stare decisis, however, “is not an inflexible rule of law but rather a policy of the law.” Johnson v. Chicago, Burlington & Quincy R.R. Co., 243 Minn. 58, 68, 66 N.W.2d 763, 770 (1954).

[Wjhen a rule, after. it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment.

Oanes, 617 N.W.2d at 406 (quoting Benjamin N. Cardozo, The Nature of the Judicial Process 150 (1921)). “‘[T]he mere fact that an error has been committed is no reason or even apology for repeating it, much less for perpetuating it.’ ” Oanes, 617 N.W.2d at 406 (emphasis and quotation omitted).

This evolution of the collateral-estoppel effect of a criminal conviction has paralleled to the expansion of the law of the collateral-estoppel effect of civil judgments. The United States Supreme Court eliminated the mutuality requirement for a civil judgment in Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 349-50, 91 S.Ct. 1434,1453, 28 L.Ed.2d 788 (1971). Subsequent cases substituted the requirement that collateral estoppel applied so long as the party against whom estoppel is asserted had a “full and fair opportunity” to litigate the issues. Parklane Hosiery Co., 439 U.S. at 327-28, 331-32, 99 S.Ct. at 650-52.

Most courts have also expanded collateral estoppel to allow both offensive and defensive use. See, e.g., Hunter v. City of Des Moines, 300 N.W.2d 121, 126 (Iowa 1981) (recognizing that offensive collateral estoppel may be used where the defendant was afforded a full and fair opportunity to litigate the issues in a prior action); Haran v. Bd. of Registration in Med., 398 Mass. 571, 500 N.E.2d 268, 272 (1986) (stating that offensive use of collateral estoppel is a generally accepted practice, and that “[flairness is the decisive consideration” (quotation omitted)); Local 2889 of Am. Fed’n of State, County and Mun. Employees v. Udall, 111 N.M. 432, 806 P.2d 572, 576-77 (1991) (applying doctrine of offensive collateral estoppel to bar party from raising “essentially the same defenses to essentially the same substantive contract provisions he raised at the district court level”).

This expansion of the collateral-estoppel effect of a civil judgment has been recognized in Minnesota. For example, in Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704-705 (Minn.1982), the supreme court rejected the concept of mutuality by determining that a judgment in favor of the landlord, which rejected a defense of racial discrimination, collaterally estopped the tenant’s charge of racial discrimination filed with the Minneapolis Commission of Civil Rights.

And in Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 651-52 (Minn.1990), the supreme court held that collateral es-toppel was appropriate so long as the party to be estopped was present in both proceedings and had a full and fair opportunity to litigate the identical issue. • The court stated

[although some jurisdictions require “mutuality” of parties in cases involving previously determined litigation as a predicate to the invocation ■ of collateral estoppel, Minnesota does not.

Id. at 650.

IV

In the context of these developments in the law of collateral estoppel, we conclude that the collateral-estoppel effect of á criminal conviction under Minnesota law is not limited to situations in which a criminal defendant seeks to profit from the crime. Instead, the collateral-estoppel effect of a criminal judgment should be determined in the same manner and under the same criteria as for any other judgment.

This precise issue was addressed in Wolfson v. Baker, 623 F.2d 1074, 1077-81 (5th Cir.1980). Wolfson was convicted after a trial for 'violating the Securities Act of 1933. Id. at 1075. Wolfson then filed a civil complaint against various brokerage firms for damages, claiming they fraudulently induced Wolfson to violate the securities laws. Id. at 1075-76. The district court held that the determinative issue of his complaint was whether he had knowledge that the security laws required him to file a registration statement before engaging in certain transactions and that non-mutual' collateral estoppel from the criminal conviction prevented him from denying in the civil action that he had such knowledge. Id. at 1076-77. The district court concluded:

Wolfson had a full and fair opportunity to litigate the issue of his knowledge, that the issue of his knowledge had been directly determined in the criminal trial, and that no injustice would result from the application of collateral estoppel in this case.

Id. at 1077. The court of appeals affirmed, specifically rejecting Wolfson’s assertion that a criminal conviction may only be used as collateral estoppel in a subsequent civil case when the party to be estopped is attempting to profit from the criminal actions. Id. at 1078 n. 2 (stating “it is clear from our examination of the cases cited above that, in this Circuit, the use of a prior conviction to collaterally estop a party in a subsequent action does not depend upon an attempt by that party to benefit from the crime”).

The Restatement likewise recognizes that the preclusive effect of a criminal judgment should not depend on the situation in which the criminal defendant seeks to profit from the criminal act. Restatement, Judgments (Second) § 85 cmt. e. The comment explains:

There are two basic patterns for applying issue preclusion in favor of a third party. The clearest situation is where the person who was convicted of an offense brings an action against the third party to assert a claim that rests on factual premises’ inconsistent with those established in the criminal, prosecution. * * * The other situation is where the person harmed by the conduct that was criminally prosecuted then brings an action for civil redress against the wrongdoer for the consequences of the conduct. * * * Although the courts were somewhat slower in coming to apply issue preclusion in the latter situation than in the former, it is now settled that preclusion should apply in both.

The statement of the new general rule can be found in Restatement, Judgments (Second), § 85 as follows:

With respect to issues determined in a criminal prosecution: * * * ⅜
(2) A judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action:
(a) Against the defendant in the criminal prosecution as stated in § 29 [repudiating the mutuality rule with respect to the effect of a civil judgment].

Comments to this Restatement Section explain as follows:

At an earlier period in the development of res judicata doctrine, the “mutuality” requirement was an obstacle to applying issue preclusion in favor of such a third party. That is, since the third party would not have been bound in his civil action if the prosecution had resulted in an acquittal, under the mutuality rule it would follow that the third party could not take advantage of the issue determined in a conviction. However, long before the mutuality rule was repudiated in civil cases, well-reasoned - decisions had extended the rule of preclusion to operate in favor of third persons where the first action is criminal and the second is civil.

Id. cmt. e.

Thus, the judgment convicting Reed should be examined under the same elements of collateral estoppel as are applied generally in Minnesota law. Accordingly, we answer the certified question in the affirmative.

y

Having answered the certified question by concluding that collateral es-toppel applies generally, we could end our review and remand the matter to the district court for a determination of whether collateral estoppel applies in this case. As noted earlier, the district court has already made that determination and concluded that all of the elements of collateral estop-pel are met in this case. Although the district court did not specifically certify the question.of whether collateral estoppel applies in this case, we conclude that we should review that question in the interest of justice. See Minn. R. CivApp. P. 103.04 (stating that an appellate court may review any matter “as the interest of justice may require”). The general policies that might otherwise persuade us to limit our review to the certified question (to avoid piecemeal litigation, to conserve judicial resources, and to expedite trial proceedings) would not be served by remanding the matter to the district court because the district court has already decided the remaining issues and the Peschongs would inevitably return the case to this court on appeal from the entry of summary judgment in favor of Illinois Farmers.

In Aufderhar, the supreme court stated the four elements generally required for collateral estoppel to apply:

(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the es-topped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

452 N.W.2d at 650 (citation omitted); see also, Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn.1996) (noting that collateral estoppel is not rigidly applied, and, “[a]s a flexible doctrine, the focus is on whether its application would work an injustice on the party against whom estop-pel is urged”(quotation omitted)).

The district court thoroughly analyzed each of the four elements of collateral estoppel. There is no dispute that the criminal judgment of conviction is final for collateral-estoppel purposes. The Pes-chongs challenge the district court’s conclusions with respect to the other three elements; that is, whether the issue presented by the intentional-acts exclusion is identical with the issue decided in the criminal case, whether the party to be estopped in this declaratory judgment action was a party or in privity with a party in the criminal case, and whether the party to be estopped was given a full and fair opportunity to be heard on the adjudicated issue in the criminal case.

Identity of Issues

The intentional-acts exclusion of Reed’s insurance, policy precludes a claim under the policy if J.P’s injury either (1) was “caused intentionally by ⅜ * * [Reed]” or (2) “resulted] from any occurrence caused by an intentional act of [Reed] where the results are reasonably foreseeable.” (Emphasis omitted.)

The Peschongs argue that the criminal judgment did not adjudicate either of those issues because it only determined that Reed intentionally shook J.P. and did not determine that Reed intentionally caused J.P.’s injuries. The Peschongs rely on the distinction made in Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 611 (Minn.2001), that comparable language in an intentional-acts exclusion required proof of a specific intent to injure, not just an intent to engage in conduct that caused an injury. The district court in the present case was cognizant of the distinction in Walser and examined the adjudication of guilt for assault in the first degree with that distinction in mind.

The district court first looked to the definition of assault as “[t]he intentional infliction of or attempt to inflict bodily harm upon another.” Minn.Stat. § 609.02, subd. 10(2) (1998). The court noted that, in the criminal adjudication, the elements that were “seriously in dispute were the elements of ‘intentionality’ and ‘causation’ ” and that the court in the criminal case stated

the issue in this case is whether the State has proved beyond a reasonable doubt whether defendant Reed intentionally inflicted bodily harm on [J.P.] and whether any of her intentional con duct was the cause of Ms great bodily harm.

The court in the criminal adjudication concluded that “[t]he State has proven beyond a reasonable doubt its proposition (allegation) that defendant Reed intentionally inflicted injuries on [J.P.] by vigorously shaking him” and explained

our finding that the State has proved beyond a reasonable doubt its basic allegation that [Reed] vigorously shook [J.P.] subsumes and includes proof beyond a reasonable doubt that [Reed] caused [J.P.’s] injuries and did so by an intentional act.

The court in the criminal.adjudication rejected Reed’s argument “that the State could not possibly prove [Reed’s] criminal intent or intentionality,” because that argument

lacks every one of the predicate facts: [J.P.] did not fall * * *; he did not need to be “revived” * * *; and [Reed] * * * was not trying to “revive” or “resuscitate” [J.P.].

Thus, based on its conclusion that Reed intentionally caused J.P.’s injuries, and did so by her intentional act of shaking him; the court in the. criminal adjudication found Reed guilty of first-degree assault.

Because a finding of intent to injure was necessary to the adjudication of Reed’s guilt for assault, and because the district court found that Reed did intend to injure J.P. when she shook him, we conclude that the issue determined by the judgment of conviction is identical with the issue presented by each of the alternative parts of Illinois Farmer’s intentional-acts exclusion. See, e.g., Green v. City of Coon Rapids, 485 N.W.2d 712, 718 (Minn.App.1992) (stating that the doctrine of collateral es-toppel is applicable only where the issue is actually litigated in the earlier adjudication and is essential to the resulting judgment), review denied (Minn. June 30,1992).

Parties and Privity

The Peschongs argue that application of collateral estoppel is .improper because they were not parties to the criminal proceeding and are not in privity with Reed. This argument is based on a misconception of who is the “estopped party” for collateral-estoppel purposes and of the status of the Peschongs in this action.

Illinois Farmers properly joined the Peschongs as defendants to this declaratory-judgment action because they were persons potentially affected by a declaratory action. See Minn.Stat. § 555.11 (2000) (providing that persons who have or claim an interest that would be affected by a declaration must be made parties); Walser, 628 N.W.2d at 606-07 (reviewing a declaratory judgment action in which the insurer likewise joined the injured minor and his parents as defendants); Milbank Ins. Co. v. B.L.G., 484 N.W.2d 52 (Minn.App.1992) (reviewing declaratory-judgment action where' insurer joined insured as a defendant), review denied (Minn. July 16, 1992). But despite their status as proper parties to this action, the Pes-chongs are not parties to the Illinois Farmers’ insurance policy and their interests in that policy derive exclusively from the' interests of Reed. Thus, the fact that Reed was a party in the criminal proceeding satisfies this element of collateral estoppel even though the Peschongs were not.

Full and Fair Opportunity to be Heard

The final element to be considered when determining whether collateral estoppel is applicable is whether the estopped party was given a full and fair opportunity to be heard in the prior proceeding. Aufderhar, 452 N.W.2d at 650. Having decided that this element focuses on Reed, as the criminal defendant, not on the Peschongs, we conclude that there can be no dispute that Reed had a full and fair opportunity to be heard.

When considering whether the person to be estopped had a full and fair opportunity to be heard, courts consider the seriousness of the offense on which the earlier judgment was based. See, e.g., State Farm Fire & Cas. Co. v. Miles, 730 F.Supp. 1462, 1466 (S.D.Ind.1990) (stating that, under the relevant statute, for a criminal conviction to apply as collateral estoppel, the conviction must have been for a felony); Aetna Cas. & Sur. Co. v. Jones, 220 Conn. 285, 596 A.2d 414, 425-26 (1991) (stating that the seriousness of "the charge is one factor to be considered in determining whether a defendant had a full and fair opportunity to litigate an issue in a criminal process); Folino v. Young, 523 Pa. 532, 568 A.2d 171, 172 (1990) (conviction of summary offense of driving at unsafe speed could be given preclusive effect in a later civil proceeding because the defendant had the incentive to litigate the charge as an operative fact in a related non-summary offense of vehicular manslaughter).

Here, the stakes in Reed’s criminal trial were extremely high, and she had.every opportunity and incentive to fully present and argue her case. Reed was represented . by counsel,. and her. counsel actively challenged the state’s evidence and offered evidence on her behalf. See Ellis, 319 N.W.2d at 704 (finding that the proceeding was not summary where the trial lasted four days, both parties were represented by counsel, and the respondent had the opportunity to present evidence in support of his defense); cf. Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn.1988) (finding that the determination of the driver’s comparative fault in an arbitration proceeding could not be used as collateral estoppel in a later wrongful-death action where the earlier proceeding afforded neither party to the later action a “full and fair” opportunity to litigate comparative fault).

DECISION

Because a criminal judgment of conviction may be used as collateral estoppel in a subsequent civil action even when the action is not one in which the criminal defendant seeks to profit from the crime, we answer the certified question affirmatively. Because the criminal judgment convicting Reed of first-degree assault adjudicated the identical issue presented by Illinois Farmers’ intentional-acts exclusion, that issue was actually litigated in the criminal proceeding, and Reed had a full and fair opportunity to be heard in the criminal proceeding, we conclude that the application of collateral estoppel in this case is appropriate and will not result in an injustice. Accordingly, we reverse the denial of Illinois Farmers’ motion for summary judgment and remand for the entry of judgment consistent with this opinion.

Certified question answered in the affirmative; reversed and remanded.

      . Rule 103.03 was-revised in 2001. Although this justification for appellate review is now found in paragraph (i), the language of this paragraph was not affected by the revision.

      . Cases from other jurisdictions recognizing this prerequisite as precluding the collateral-estoppel effect of a judgment based on a guilty plea include: USX Corp. v. Adriatic Ins. Co., 99 F.Supp.2d 593, 630 (W.D.Pa.2000) (stating that the insured’s guilty plea does not conclusively establish his intent or expectation to cause bodily harm for purposes of ⅞-n intentional-injury exclusion clause contained in a liability insurance policy); AID Ins. Co. (Mut.) v. Chrest, 336 N.W.2d 437, 440-41 (Iowa 1983) (stating that an injured third party may relitigate in a civil action an issue which was established in the criminal case by the insured’s guilty plea); Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842, 848 (1975) (noting an insured who pleads guilty to a criminal charge may later relitigate issues established by her admission of guilt); N.W. Nat. Cas. Co. v. Phalen, 182 Mont. 448, 597 P.2d 720, 727 (1979) (stating that the insured's guilty plea to criminal charges based on the same issue as the later civil action was not conclusive as to his policy coverage); Prudential Prop. & Cas. Ins. Co. v. Kollar, 243 N.J.Super. 150, 578 A.2d 1238, 1241 (Ct.App.Div.1990) (stating that a guilty plea may not be used for collateral estoppel in subsequent litigation because the plea agreement does not represent the full and fair litigation of the issues due to the many possible motives behind a plea agreement); Safeco Ins. Co. of Am. v. McGrath, 42 Wash.App. 58, 708 P.2d 657, 660 (1985) (stating that an insured who pleads guilty to a criminal charge is not later barred from relitigating those issues established by his admission of guilty); Peterson v. Maul, 32 Wis.2d 374, 145 N.W.2d 699, 704 (1966) (injured third party is not precluded from relitigating in a civil action an issue that was established by an insured's guilty plea pursuant to a plea agreement).

      . Defensive collateral estoppel prevents a plaintiff '‘from asserting a claim that the plaintiff has previously litigated and lost against another defendant.” Id. at 326 n. 4, 99 S.Ct. at 649 n. 4. Offensive collateral es-toppel “occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party.” Id. Illinois Farmers proposes only defensive collateral estoppel here.

      . Further, " '[ijntentionally' means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed * * * will cause that result[,]” and " '[w]ith intent to' or 'with intent that' means that the actor either has a purpose to do the thing or cause the result specified or believes that the act * * * will cause that result.” Minn.Stat. § 609.02, subd. 9(3), (4) (1998).


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2002 ND 117
    Eldora Hagen BRANDT, Plaintiff and Appellant, v. Aldon James MILBRATH, Defendant and Appellee.
    No. 20010294.
    Supreme Court of North Dakota.
    July 15, 2002.
    As modified Sept. 9, 2002.

      David S. Maring (argued), Maring Williams Law Office, Bismarck, and Matthew A. Biegert (on brief), Doar, Drill & Skow, S.C., New Richmond, WI, for plaintiff and appellant..
    Collin P. Dobrovolny, McGee, Hankla, Backes & Dobrovolny, 'Wells Fargo Bank Center, Minot, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Eldora Brandt appeals from a Northeast Judicial. District Court’s judgment and order denying her motion for a new trial on the grounds that the district court abused its discretion in excluding the testimony of one of Brandt’s witnesses and that the jury’s verdict was not supported by sufficient evidence. We affirm, concluding the district court did not abuse its discretion in refusing to allow one of Brandt’s witnesses to testify and there was sufficient evidence to support the jury’s verdict.

I

[*112] Eldora Brandt and Aldon Mil-brath were in. a traffic accident. Brandt was driving a pickup at the time of the accident, and Milbrath was driving a tractor pulling a cultivator. The parties’ vehicles collided when they met each other on a highway after dark. Brandt sued Mil-brath, alleging his negligence caused the accident. Brandt presented a variety of reasons why Milbrath was negligent, including: (1) his cultivator lacked the statutorily required reflectors, (2) the cultivator was over the center line at the time of the collision, and (3) the lights on Milbrath’s tractor were so bright they blinded oncoming traffic.

[¶ 3] Of the three alleged negligent acts, one was uncontested. Milbrath admitted his cultivator did not have the statutorily required amber reflectors.

[¶ 4] Testimony differed regarding the lights on Milbrath’s tractor. Brandt and the law enforcement officers at the scene all testified the light from Milbrath’s tractor was “bright.” One officer used the word “blinding” to describe the tractor’s lights in his written report. On cross-examination, Brandt admitted she knew the lights she saw might be from a tractor. Milbrath testified he was using the tractor’s “road lights” at the time of the collision. One of Milbrath’s expert witnesses testified the lights on the tractor appeared to be the factory-installed lights.

[¶ 5] A substantial portion of the testimony focused on whether either Brandt’s or Milbrath’s vehicle was over the center line at the time' of the collision. Because law enforcement officers asked Milbrath to move his tractor and cultivator before any photographs or measurements were taken at the scene of the accident, the location of the vehicles at the time of the collision had to be reconstructed from measurements of tire tracks. All the measurements were taken by a law enforcement officer. At trial, Brandt and Milbrath presented contrary evidence as to what two of the measurements represented.

[¶ 6] One measurement indicated a tire track 10 inches into the gravel on the side of the paved road where Milbrath was driving. Brandt argued this track was left by the inside tire of the left-hand side of the cultivator, and the law enforcement officer who took the measurements, Deputy Simon, identified this track as being made by the “inside cultivator tire.” Mil-brath argued this track was left by the pickup driven by his wife, and his expert witness identified this tire track as the type left by a pickup tire. If the jury credited Brandt’s explanation and found the tire track Was from the inside tire of the left-hand side of the cultivator, the outermost part of the cultivator would have been over the center line and in Brandt’s lane.

[¶ 7] The second measurement in dispute was a mark 5 feet 10 inches into the ditch on the side of the road where Mil-brath was driving. Milbrath argues this mark was the tire track of the outside tire on the right-hand side of the cultivator, and Deputy Simon testified this mark was from the outside tire of the right-hand side of the cultivator. Brandt argues this mark was not a tire track, and her expert witness testified this mark was bent grass or a shadow in a photo taken later. If the jury credited Milbrath’s explanation and found the mark in the ditch was from the right-hand side of the cultivator, the cultivator would not have been over the center line.

[¶ 8] In addition to the conflicting measurements regarding the location. of the cultivator, several witnesses testified as to its location. Milbrath, his wife, his two accident-reconstruction witnesses, and two law enforcement officers testified the cultivator was not over the center line. Brandt and her expert witness testified the cultivator was over the center line.

[¶ 9] Brandt also sought to enter the testimony of another witness. Milbrath objected, and the witness’s testimony was taken outside the presence of the jury. The witness testified that on the night of the accident she met a tractor and cultivator on the same road where the accident occurred and she had to swerve to avoid hitting the tractor and cultivator because the cultivator was in her lane of traffic. She was unable to identify the type or color of the tractor and cultivator, and she was not able to identify the driver. She also did not remember séeing an escort pickup leading or following the tractor and cultivator she met. The district court did not allow her to testify before the jury because the court was not satisfied the tractor and cultivator she met that night were Milbrath’s.

[¶ 10] The jury returned a verdict in favor of Milbrath, finding he was not negligent. Brandt moved for a new trial, arguing the district court erred in excluding the testimony of her witness and the jury did not have sufficient evidence to support its verdict. The district court denied Brandt’s motion for a new trial and stated:

1. Testimony of [Brandt’s witness]:
The lack of detail in [her] testimony makes it speculative that she in fact passed the Milbraths on Gardena Road. Furthermore, her testimony only would have addressed the issue of whether the tractor was moving at the time of the collision. The plaintiffs expert testified as to the cultivator’s location relative to the center line of the road at the time of the collision. There was ho testimony from any other source supporting the premise that the tractor was moving at the time of the collision.
2. Evidence supporting the verdict:
. There was sufficient evidence supporting the verdict. The defendant’s expert concluded that the cultivator did not cross the center line of the road. A violation of a statutory duty is evidence of negligence and not negligence per se under North Dakota law. Considering the evidence in favor of the defendant this court cannot say that the jury er-rored [sic] in finding no negligence on the part of the defendant.

Brandt appealed the district court’s denial of her motion for a new trial. _

[¶ 11] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 12] Brandt argues the district court erred by not allowing the testimony of her witness into evidence.

[¶ 13] “Relevant evidence means evidence that reasonably and actually tends to prove or disprove any fact that is of consequence to the determination of an action.” Wolf v. Estate of Seright, 1997 ND 240, ¶ 14, 573 N.W.2d 161. “Relevant evidence is generally admissible.” Williston Farm Equip., Inc. v. Steiger Tractor, Inc., 504 N.W.2d 545, 548 (N.D.1993). “Relevant evidence ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Id. at 549 (quoting N.D.R.Ev. 403). “A trial court has wide discretion in deciding whether proffered evidence is relevant, and we will not reverse a court’s decision to admit or exclude evidence on the ground of relevance unless the court abuses its discretion.” Wolf, at ¶ 14. “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner.” Id. This deferential standard is applied “to provide trial courts with greater control in the admissibility of evidence.” Schaefer v. Souris River Telecomms. Coop., 2000 ND 187, ¶ 10, 618 N.W.2d 175.

[¶ 14] Brandt relies, in part, on Wolf v. Estate of Seright to support her proposition that her witness’s testimony should have been admitted. See 1997 ND 240, 573 N.W.2d 161. In Wolf, a witness’s observations of Wolfs driving shortly before a traffic accident were admitted. Id. at ¶ 13. Wolf and Seright were in a traffic accident in which Wolf hit the rear end of Seright’s car. Id. at ¶ 2. Seright died as a result of the accident, and Wolf was seriously injured. Id. Wolf sued Seright’s estate, claiming her negligence caused the accident. Id. At the trial, a witness was allowed to testify that he observed a “Coca-Cola pickup make a ‘sudden swerve or a correction’ about five miles before the accident.” Id. at ¶ 13. Wolf was driving a Coca-Cola pickup. Id. at ¶ 2. The jury found in favor of Seright. Id. at ¶ 1. On appeal, Wolf argued the testimony was not relevant. Id. at ¶ 13: We concluded:

Wolfs driving behavior before the accident was probative of the negligence and comparative negligence issues in this action. Moreover, Wolf opened the door - for this evidence when counsel asked a previous witness about Wolfs driving behavior three miles before the accident. Under these circumstances, we conclude the trial court did not act arbitrarily, unreasonably, or unconscionably in admitting the [witness’s] testimony that a Coca-Cola pickup made a “sudden swerve or a correction” about five miles before the accident.

Id. at ¶ 15.

[¶ 15] Wolf is distinguishable from the current case. In WolfK not only were we affirming the district court’s exercise of discretion, neither party questioned whether the Coca-Cola pickup involved in the accident was the same Coca-Cola pickup the witness observed. Here, the identity of the tractor and cultivator' was questioned.

[¶ 16] Brandt also cites to case law from other jurisdictions and secondary sources to support her theory that her witness should have been allowed to testify. See, e.g., Hill v. Rolleri, 615 F.2d 886 (9th Cir.1980); Spencer v. Wandolowski, 264 Ill.App.3d 611, 201 Ill.Dec. 422, 636 N.E.2d 854 (1994); Huston v. Chicago Transit Authority, 35 Ill.App.3d 428, 342 N.E.2d 190 (1976); Briggs v. Burk, 174 Kan. 440, 257 P.2d 164 (1953); Atkinson v. Mock, 271 Minn. 393, 135 N.W.2d 892 (1965); Boyd v. Midland Co-ops., Inc., 364 P.2d 670 (1961); 8 Am.Jur.2d Automobiles and Highway Traffic § 1270 (1997); M.L. Cross, Annotation, Admissibility, in ac tion involving motor vehicle accident, of evidence as to manner in which participant was driving before reaching scene of accident, 46 A.L.R.2d 9, § 1 (1956). These eases are distinguishable because the identity of the vehicles was not in question. See Hill v. Rolleri, 615 F.2d 886, 891 (9th Cir.1980); Spencer v. Wandolowski 264 Ill.App.3d 611, 201 Ill.Dec. 422, 636 N.E.2d 854, 859-60 (1994); Huston v. Chicago Transit Authority, 35 Ill.App.3d 428, 342 N.E.2d 190, 195 (1976); Briggs v. Burk, 174 Kan. 440, 257 P.2d 164, 167 (1953); Atkinson v. Mock, 271 Minn. 393, 135 N.W.2d 892, 894 (1965); Boyd v. Midland Co-ops., Inc., 364 P.2d 670, 671-72 (Okla.1961) (description of the type and color of the vehicle, its occupants, the direction it was traveling, the date and time the vehicle was met, and testimony that “no other automobile of this description was; encountered” was sufficient identification to allow the witness to testify about the driver’s behavior).

[¶ 17] Even though prior driving behavior may be “probative of the negligence and comparative negligence issues,” it may still be excluded because of uncertainty as to identity. See Wolf, 1997 ND 240, ¶ 15, 573 N.W.2d 161.

Testimony as to the manner in which a motor vehicle was being driven at a remote point may be objectionable not-only because of remoteness but also because of an uncertainty (1) as to whether the vehicle observed was the one which was later involved in a collision.... In other words, there is often a serious doubt as to the identification of the vehicle and as to the identification of its driver. As a general rule the identification need not be positive; it may be circumstantial; but the evidence must be of such a nature as to remove it from the realm of mere speculation.
Nevertheless the indefiniteness of the identification of the vehicle or its driver, coupled with the remoteness of the incident itself, may justify the court in excluding the testimony as a. matter of discretion; and in extreme cases , a proper exercise of discretion requires the exclusion of the evidence.

46 A.L.R.2d 9, supra § 1.

[¶ 18] Here, the district court granted Milbrath’s request to have Brandt’s witness testify out of the presence of the jury. She testified that she met a tractor and' cultivator within forty minutes of the collision, and that she had to swerve to avoid being hit by the cultivator. On cross-examination, she was not able to identify the type or color of tractor and cultivator, and she Was not able to identify or describe the driver. She was also unable to remember seeing an escort pickup leading or following the tractor and cultivator or meeting any other tractors pulling cultivators that evening. The district court excluded her testimony, stating:

I’ll make my ruling. I’m not — with any certainty that this is the same vehicle.... [H]eck, we had a pickup that was either in front of the plow or — in front of the tractor or behind.the tractor with its flashers going on....
I’m not satisfied that there’s sufficient evidence in to support the proposition that this in fact was the same tractor and plow, so I’m not going to let it in. That’s my ruling.

The district court again explained its ruling when denying Brandt’s motion for a new trial.

The lack of detail in [her] testimony makes it speculative that she in fact passed the Milbraths on Gardena Road. Furthermore, her testimony only would have addressed the issue of whether the tractor was moving at the time of the collision. The plaintiffs expert testified as to the cultivator’s location relative to the center line of the road at the time of the collision. There was no testimony from any other source supporting the premise that the tractor was moving at the time of the collision.

[¶ 19] Before the testimony of Brandt’s witness could be considered relevant, there needed to be some indication her encounter was with Milbrath. See 46 A.L.R.2d 9, supra § 1 (“As a general rule the identification need not be positive; it may be circumstantial; but the evidence must be of such a nature as to remove it from the realm of. mere speculation.”). Although she testified she met a tractor and cultivator within forty minutes of the collision and had to swerve to avoid being hit by the cultivator, she was unable to provide any identifying characteristics of the tractor, cultivator, or driver. The district court noted the collision happened in a rural farming area during, the spring planting season, and because she was unable to identify the vehicle she met as Milbrath’s, the district court did not allow her .to testify.

[¶ 20] ■ District courts are given “wide discretion in deciding whether proffered evidence is relevant,” and unless there is an abuse of discretion, we will not reverse a district court’s decision to exclude evidence on the ground of relevance. See Wolf, 1997 ND 240, ¶ 14, 573 N.W.2d 161. The district court did not abuse its discretion by refusing to allow Brandt’s witness to testify.

Ill

[¶21] Brandt also argues the district court abused its discretion by denying her motion for a new trial, because the jury’s verdiet was not supported by sufficient evidence.

[¶ 22] In their brief to the district court, both parties stated the granting of a new trial is within the sound discretion of the district court. But Brandt also stated, “The standard for reviewing an order denying a motion for new trial is, after viewing the evidence in the light most favorable to the verdict, whether there is sufficient evidence to justify the verdict.” The standard recited by Brandt is the standard of review this Court uses on appeal, not the standard a district court should apply when considering a motion for a new trial.

[¶ 23] The standard a district court applies when faced with a motion for a new trial, under N.D.R.Civ.P. 59, and the standard this Court applies when reviewing the district court’s decision are distinct. See Perry v. Reinke, 1997 ND 213, ¶ 21, 570 N.W.2d 224.

A

[¶ 24] A new trial is permitted under N.D.R.Civ.P. 59(b) “when a jury verdict is .unsupported by sufficient evidence or contrary to law.” Braunberger v. Interstate Eng’g, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904. “A motion under Rule 59(b)(6) is addressed to the sound discretion Of the trial court.” Id. “A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner.” Id. “An abuse of discretion is never assumed; the burden is on the party seeking relief to affirmatively establish it.” id.

[¶ 25] When considering a motion for a new trial, under N.D.R.Civ.P. 59, the “district court may, ‘within limits, weigh the evidence and judge the credibility of witnesses.’ ” Perry, 1997 ND 213, ¶21, 570 N.W.2d 224 (quoting Okken v. Okken, 325 N.W.2d 264, 269 (N.D.1982)).

In particular, when a motion for a new trial is made and the reason given in support of the motion is that there was insufficient evidence to justify the verdict, the moving party is asking the trial court to decide whether or not the verdict is against the weight of the evidence. And in making this decision, the trial judge must weigh the evidence; he must consider that evidence which supports the verdict equally with that evidence which challenges the verdict. In short, when ruling on a motion for a new trial, the trial judge may consider all the evidence.

Okken, at 269 (citations omitted). While a district court is given great latitude to decide whether a motion for a new trial should be granted, its discretion is not without limits.

We do not mean ... that [the trial judge] is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and, when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him that it is wrong, that, whether from mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict, and remanding the question to another jury.

Cook v. Stenslie, 251 N.W.2d 393, 396 (N.D.1977) (citations omitted). “To set aside a jury verdict and grant a new trial, the trial court must find the verdict to be manifestly against the weight of the evidence.” Larson v. Kubisiak, 1997 ND 22, ¶ 6, 558 N.W.2d 852 (citations omitted).

[¶ 26] In its brief order denying Brandt’s motion for a new trial, the district court does not specify the standard it applied.

There was sufficient evidence supporting the verdict. The defendant’s expert concluded that the cultivator did not cross the center line of the road. A violation of a statutory duty is evidence of negligence and not negligence per se under North Dakota law. Considering the evidence in favor of the defendant this court cannot say that the jury er-rored [sic] in finding no negligence on the part of the defendant.

The district court’s reference to “the evidence in favor of the defendant” could be an indication it applied the incorrect standard and looked only to the evidence most favorable to the verdict. Yet, the district court did not indicate the verdict was unjust or against the manifest weight of the evidence.

[¶ 27] We will not infer from the district court’s lack of specificity that it applied the wrong standard. See First Nat’l Bank of Kenosha v. United States, 763 F.2d 891, 896 (7th Cir.1985) (The fact a district court did not expressly articulate the standard it applied does not necessarily mean that it applied an erroneous standard). In any event, to the extant that Brandt may have invited possible error by the district court in setting forth the appellate standard rather that the trial-court standard, we would not reverse the district court’s decision on that basis. See, e.g., State ex rel. Claver v. Broute, 197 N.W. 871, 874 (N.D. 1923) (on petition for rehearing).

[¶ 28] Accordingly, we proceed to our appellate review of the district court’s denial of Brandt’s motion for a new trial.

B

[¶ 29] On appeal, “[t]he standard for reviewing an order denying a motion for new trial is, after viewing the evidence in the light most favorable to the verdict, whether there is sufficient evidence to justify the verdict.” Braunberger, 2000 ND 45, ¶7, 607 N.W.2d 904. “When there is conflicting evidence, we are bound by the jury verdict.” Olson v. Griggs County, 491 N.W.2d 725, 732 (N.D.1992). “We should not substitute our view of the evidence for the verdict of the jury unless it is erroneous beyond any debate.” Hagstrom v. Brendel, 405 N.W.2d 299, 301 (N.D.1987).

[¶ 30] Brandt alleges three deficiencies in the jury’s verdict: (1) Milbrath admitted he was negligent because his cultivator lacked the statutorily required reflectors, (2) the evidence showed the cultivator was over the center line at the time of the collision, and (3) the lights on Mil-brath’s tractor were so bright they blinded oncoming traffic.

[¶31] First, Brandt argues, Milbrath admitted he was negligent because his cultivator lacked the statutorily required reflectors. The alleged violation of a statutory duty is evidence of negligence, not negligence per se under North Dakota law. See Praus v. Mack, 2001 ND 80, ¶ 35, 626 N.W.2d 239 (“the violation of a statutory or regulatory duty is evidence of negligence and not negligence per se”); Larson v. Kubisiak, 1997 ND 22, ¶ 8, 558 N.W.2d 852 (citations to North Dakota’s “well-established case law that the violation of a statutory duty is evidence of negligence and not negligence per se”). The jury was properly instructed that evidence of negligence may not result in negligence, and it was not erroneous for the jury to conclude that the lack of reflectors, although evidence of negligence, was not negligence.

[¶ 32] Second, Brandt argues the evidence showed the cultivator was over the center line at the time of the collision. An abundance of conflicting testimony was given on this issue. Both Brandt and Mil-brath produced witnesses who testified one of the parties’ vehicles was over the center line at the time of the collision. Both parties produced contrary explanations of what they believed the measurements taken at the scene represented. “When there is conflicting evidence, we are bound by the jury verdict.” Olson v. Griggs County, 491 N.W.2d 725, 732 (N.D.1992). It was not erroneous for the jury to find Mil-brath’s cultivator was not over the center line at the time of the collision.

[¶ 33] Third, Brandt argues the lights on Milbrath’s tractor were so bright they blinded oncoming traffic. Brandt and the law enforcement officers at the scene all testified the light from Milbrath’s tractor was “bright.” One officer used the word “blinding” in his report. Brandt admitted she knew the lights might be from a tractor. Milbrath testified he was using the tractor’s “road lights” at the time of the collision. One of Milbrath’s expert witnesses testified the lights on the tractor appeared to be the factory-installed lights. The jury instructions included the type of lighting a tractor must have. There was no evidence the lights on the tractor were in violation of the statutorily required lighting, and even if there had been, it only would have been evidence of negligence. See Praus v. Mack, 2001 ND 80, ¶ 35, 626 N.W.2d 239 (“the violation of a statutory or regulatory duty is evidence of negligence and not negligence per se”); Larson v. Kubisiak, 1997 ND 22, ¶ 8, 558 N.W.2d 852 (citations to North Dakota’s “well-established case law that the violation of a statutory duty is evidence of negligence and not negligence per se”). It was not erroneous for the jury to have found the brightness of the lights on Milbrath’s tractor did not amount to negligence.

[¶ 34] Although the jury was presented with conflicting evidence, it had sufficient evidence to find Milbrath was not negligent. The district court did not act in an arbitrary, unreasonable, or unconscionable manner in denying Brandt’s motion for a new trial. Accordingly, we conclude the district court did not abuse its discretion in denying Brandt’s motion for a new trial, based on the sufficiency of the evidence.

IV

[¶ 35] Because the district court did not abuse its discretion in refusing to allow Brandt’s witness to testify, and because there was sufficient evidence to support the jury’s verdict, we affirm the district court’s judgment and order denying Brandt’s motion for a new trial.

[¶ 36] GERALD W. VANDE WALLE, C.J., DONALD L. JORGENSEN, D.J., and DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ, concur.

CAROL RONNING KAPSNER, J., concurred in the result.

[¶ 37] The Honorable DONALD L. JORGENSEN, District Judge, sitting in place of MARING, J., disqualified.


text:
    2002 ND 118
    Rachel M. KAUTZMAN, n/k/a Rachel M. Dietz, Plaintiff and Appellee, v. Robert A. KAUTZMAN, Defendant and Appellant.
    No. 20010296.
    Supreme Court of North Dakota.
    July 16, 2002.
    Rehearing Denied Aug. 21, 2002.
    Steven A. Johnson (argued), Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for plaintiff and appellee.

      Jonathan T. Garaas (argued), Garaas Law Firm and Mark R. Fraase, Fraase, Johnson, Ramstad & Mottinger, Fargo, for defendant and appellant.
   SANDSTROM, Justice.

[¶ 1] Robert A. Kautzman (“Kautz-man”) has appealed contempt orders, a memorandum opinion denying his motion to amend or vacate a June 1, 2000, judgment for a past due property distribution payment with interest, the June 1, 2000, judgment, and a September 25, 2000, order denying his demand for change of judge. We affirm.

I

[¶ 2] This is Kautzman’s fifth appeal in his divorce from Rachel M. Kautzman, now known as Rachel M. Dietz (“Dietz”). Kautzman v. Kautzman, 2000 ND 190, 618 N.W.2d 500; Kautzman v. Kautzman, 2000 ND 116, 611 N.W.2d 883 (two appeals); Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561.

[¶ 3] Kautzman and Dietz began living together in 1978, married in 1988, separated in 1995, and divorced in 1997. The trial court ordered Kautzman to pay spousal support and property distribution payments to Dietz. On September 25, 2000, the court issued an order denying Kautz-man’s demand for change of judge. On March 7, 2001, the court issued an order finding Kautzman in contempt of court and ordering Kautzman “taken into custody for a period of thirty days, or until [Kautz-man] begins paying [Dietz] $4,000 a month in spousal support and an additional 10% of that amount to reduce the arrearage that has accrued.” A judgment entered June 1, 2001, awarded Dietz $48,359.18 for a property distribution payment due June 1, 2000, with interest. On October 22, 2001, the trial court issued an order ruling the March 7, 2001, contempt order “is not limited to a one-time payment, but does require [Kautzman] to make monthly payments ... to be absolved from the contempt citation.” On November 14, 2001, the trial court issued a memorandum opinion denying Kautzman’s motion to amend or vacate the June 1, 2001, judgment. Kautzman appealed the memorandum opinion, judgment, and orders.

[¶ 4] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and Ñ.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 5] Kautzman contends that after this Court affirmed an order confirming a sheriffs sale of some of his property for past-due property distribution payments in Kautzman v. Kautzman, 2000 ND 190, 618 N.W.2d 500, “the doctrine of extinguishment controls” and his “debt has been paid.” The argument is without merit. Kautzman’s reliance on Wells v. Ordway, 108 Iowa 86, 78 N.W. 806 (Iowa 1899); Pulsifer v. Paxton, 212 Minn. 68, 2 N.W.2d 427 (1942); Tri-County Bank & Trust Co. v. Watts, 234 Neb. 124, 449 N.W.2d 537 (1989); Sletten v. First Nat’l Bank, 37 N.D. 47, 163 N.W. 534 (1917); Harvison v. Griffin, 32 N.D. 188, 155 N.W. 655 (1915); and Wright v. Anderson, 62 S.D. 444, 253 N.W. 484 (1934), is misplaced, because those decisions involved the foreclosure of a junior mortgage when there was an outstanding senior mortgage or the foreclosure of a mortgage subject to a senior tax lien — situations not at issue in this appeal. Kautzman’s argument has hot persuaded us that a party in a divorce action who gets a judgment for unpaid property distribution payments, forecloses a judgment lien, and purchases the judgment debtor’s property at a sheriffs sale is precluded from seeking payment for any deficiency because the underlying debt was extinguished by the sheriffs sale.

HI

[¶ 6] By motion of September 13, 2000, Dietz sought an order holding Kautz-man “in contempt for his intentional failure to comply with the spousal support obligations of this Court[’]s judgment.” A hearing was held September 28, 2000. The trial court found Kautzman “has shown intentional disobedience of the orders of this Court which require the Defendant to make his monthly spousal support obligation,” and found Kautzman was in contempt of court.

[¶ 7] Kautzman contends “Rachel has failed to allege and prove contempt of court by Robert,” arguing, in part: (1) “In that no affidavits were served and filed simultaneously by Rachel, there could not exist any evidence of Robert’s ‘intentional failure to comply with the spousal support obligations of this Court[’]s judgment’ (2) Dietz’s attorney erred “by filing his own affidavit dated June 2, 2000, attaching the hearsay deposition of Kautzman Millwright, Inc., but failing to ever attach the correction sheets dated June 12, 2000 directly impacting subject areas relied upon by Judge Backes”; and (3) “While the records of the District Court do reflect the existence of a spousal support arrearage, such records cannot form the basis of ‘intentional failure to comply’ — it merely establishes a failure to comply with the spousal support award.”

[¶ 8] “The determination whether a contempt has been committed and remedial sanctions are warranted lies within the sound discretion of the trial court, and its decision will not be overturned on appeal unless there is a clear abuse of discretion.” Harger v. Harger, 2002 ND 76, ¶ 14, 644 N.W.2d 182. Section 27^-10-01.3(l)(a), N.D.C.C., provides, in part: “In a proceeding to impose a remedial sanction for failure to pay child or spousal support, an order to pay support is prima facie evidence the obligor has the ability to pay, and the burden of persuasion is upon the.obligor to prove inability to pay the support ordered.” , As we said in Harger, at ¶ 15 (citations omitted): “Although an inability to comply with an order is a defense to contempt proceedings based on a violation of that order, the burden rests with the contemnor to establish the defense and show an inability to comply.”

[¶ 9] Dietz supported her motion with deposition testimony of Valarie Torgerson, a secretary-bookkeeper at Kautzman Millwright, Inc., and girlfriend of Kautzman, who is employed by Kautzman Millwright, Inc. Torgerson testified Kautzman decides what his salary is; Kautzman Millwright, Inc., pays personal expenses for Kautzman, which Kautzman Millwright, Inc., calls loans; and Kautzman tells her “how much to pay and who to pay.” In her deposition, Torgerson was asked: “If Robert Kautzman told you to pay Rachel Dietz $4,000 per month, would you also pay that?” Torgerson answered: “Yes.” In correction sheets dated June 12, 2000, Torgerson replaced that answer with: “ Tes, assuming Kautzman Millwright, Inc. had the money, if he wanted to borrow $4,000 per month from Kautzman Millwright, Inc., to pay to Rachel Dietz, he could instruct me to do that.’ ” An exhibit showing Kautzman Millwright, Inc., paid over $10,000 per month for Kautzman’s personal expenses was included with Tor-gerson’s deposition.

[¶ 10] After Torgerson completed her deposition, she submitted a “correction sheet” consisting of several pages. Kautz-man contends the trial court “relied upon such deposition knowing there were un-filed corrections.” However, May 10, 2000, depositions of Valarie Torgerson and Marshall McCullough, and correction sheets dated June 12, 2000, were filed in the district court on September 19, 2000. Torgerson made a number of changes, some of which were quite substantial, which raises questions about permissible changes.

The courts are divided on the type and extent of changes permitted under Rule 30(e). Some courts have concluded that ... a deponent may make any changes in form and substance.... On the other hand, it has been held that Rule 30(e) cannot be used to substantially alter what was said under oath. These courts emphasize that the purpose of the rule is to fix simple substantive errors such as when the witness stated “yes,” but the court reporter transcribed “no” or to correct formal errors, such as a misspelled name. If substantial changes were permitted, the deponent could simply rewrite the responses after the fact to slant the testimony in his or her favor.

7 Moore’s Fed. Prac. § 30.60[3] (3d ed.2002). In any event, a deponent’s changed answers do not displace the original ones: “A deponent is not entitled to have the altered answers take the place of the original ones. The original answers remain part of the record. They constitute admissions of the party and can be read at trial.” Id. at § 30.60[4].

[¶ 11] Discovery devices serve “to narrow and clarify the basic issues between the parties.” Hickman v. Taylor; 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947). That purpose is frustrated in cases, like this one, in which a deponent submits substantial “corrections” to original deposition testimony, thereby adding an additional issue — determining whether the deponent’s original deposition testimony or the deponent’s “corrections” are true — -to those already existing between the parties. Therefore, we agree with the court in Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000), “that a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription.”

[¶ 12] Furthermore, the trial court was free to credit Torgerson’s original deposition testimony, rather than her “corrections.” We view the evidence in the light most favorable to a trial court’s findings and do not reweigh evidence or reassess credibility, if there is evidence supporting the trial court’s findings. Hentz v. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694. There was a presumption Kautzman had the ability to pay the spousal support ordered, and Dietz also produced evidence, through Tor-gerson’s deposition and deposition exhibit, tending to show Kautzman had the ability to pay. There was evidence to support the trial court’s finding Kautzman had the ability to pay the spousal support ordered, and we conclude the trial court did not abuse its discretion in finding Kautzman in contempt of court.

IV

[¶ 13] We conclude the other issues raised by Kautzman in this appeal are frivolous and no productive purpose would be served by addressing them.

V

[¶ 14] The orders and judgments are affirmed.

[¶ 15] GERALD W. VANDE WALLE, C.J., BENNY A. GRAFF, D.J., WILLIAM A. NEUMANN and MARY MUEHLEN MARING, JJ., concur.

[¶ 16] The Honorable BENNY A. GRAFF, D.J., sitting in place of KAPSNER, J., disqualified.