author: GILBERT, Justice.

text:
    Dale R. BANKEN, Relator, v. LAC QUI PARLE COOP OIL and Farmland Mutual Insurance Company, Respondents, and Chandler Industries, and State Fund Mutual Insurance Company, Respondents, and Great Western Life Insurance Company, Abbott Northwestern Hospital, Blue Cross & Blue Shield of Minnesota, The Montevideo Clinic, P.A., Intervenors.
    No. A03-1119.
    Supreme Court of Minnesota.
    Dec. 4, 2003.

      Linda Schoep, Schoep & McCashin, Alexandria, for Relator, Dale R. Banken.
    Eugene Flick, Susan Tice, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, for Respondents, Lac Qui Parle Coop Oil/Farmland Mutual Ins. Co.
    Steven T. Scharfenberg, Minneapolis, for Respondents, Chandler Industries/State Fund Mutual Ins. Co.
    Jane McMahon, St. Paul, for Intervenor, Blue Cross & Blue Shield of Minnesota.
    The Montevideo Clinic, P.A., Montevideo, Intervenor.
   OPINION

GILBERT, Justice.

The sole issue for review on certiorari relates to an award of attorney fees pursuant to Minn.Stat. § 176.081, subd. 7 (2002), that the compensation judge had made on remand. The Workers’ Compensation Court of Appeals (WCCA) reversed the award of subdivision 7 attorney fees. We reverse and reinstate the compensation judge’s award.

Dale R. Banken sustained a compensa-ble injury on January 24, 1997 while employed by Lac Qui Parle Coop Oil. On the date of injury, Lac Qui Parle was insured for workers’ compensation liability by Farmland Mutual Insurance Company. On January 25, 2001, Banken sustained another compensable injury while employed by Chandler Industries, Inc. At that time, Chandler Industries was insured for workers’ compensation liability by State Fund Mutual Insurance Company. On March 23, 2001, Banken filed an amended claim petition, seeking workers’ compensation wage loss and medical benefits from Lac Qui Parle and Farmland Mutual Insurance Company. On May 14, 2001, Lac Qui Parle and Farmland Mutual petitioned for joinder of Chandler Industries and State Fund Mutual, seeking contribution and reimbursement. The petition was granted.

The matter came on for hearing on Banken’s claims for wage loss and medical benefits and Lac Qui Parle’s and Farmland Mutual’s claims for contribution and reimbursement. Before the hearing, the parties agreed that Banken’s claims would be paid by his employers and their respective insurers and that the remaining dispute was primarily one between the employers and their insurers as to contribution and reimbursement. The compensation judge apportioned liability for Banken’s benefits between the employers and their respective insurers and awarded reimbursements to intervenors, healthcare providers and a healthcare insurer. The compensation judge further found that Banken was entitled to attorney fees, payable by the employers and their respective insurers, and allocated responsibility for those fees as well.

Chandler Industries appealed to the WCCA, challenging the award of attorney fees and seeking modification of orders for reimbursements for medical expenses to conform to the compensation judge’s findings. The WCCA affirmed the determination that attorney fees, payable by the employers and insurers, were appropriate but remanded the matter for a determination of the amount of fees and for reconsideration of the apportionment of those fees. The WCCA also modified the orders for medical reimbursements to conform to the findings. Banken v. Lac Qui Parle, 2002 WL 31118067, at *3 (Minn. WCCA 2002) (Banken I).

Following a hearing on remand, the compensation judge found that the case was “relatively complex” and “hard fought” and awarded $21,073 in attorney fees. The compensation judge then allocated 60 percent of the responsibility for the payment of those fees to Lac Qui Parle and Farmland Mutual and 40 percent to Chandler Industries and State Fund Mutual. The compensation judge also ordered an additional award of attorney fees pursuant to Minn.Stat. § 176.081, subd. 7 (2002). On appeal, the WCCA reversed the award of subdivision 7 fees. Banken v. Lac Qui Parle, 2003 WL 21850630, at *3 (Minn. WCCA 2003) (Banken II).

Minnesota Statutes § 176.081 governs the calculation of attorney fees in workers’ compensation claims and provides for a contingent fee for the recovery of monetary benefits 25 percent of the first $4,000 and 20 percent of the next $60,000 of compensation awarded. Minn.Stat. § 176.081, subd. 1(a) (2002). The contingent fee is presumed adequate in cases involving concurrent disputes over medical and rehabilitation benefits or services. Minn.Stat. § 176.081, subd. 1(a)(1) (2002). In those cases in which there is a finding that contingent fees are inadequate in a medical or rehabilitation dispute, attorney fees may be assessed against the employer and insurer in accord with the 25/20 formula for contingency fees based upon the ascertainable dollar value of the medical or rehabilitation awarded. Minn.Stat. § 176.081, subd. 1(a)(1). Subdivision 7 of section 176.081 provides that if the employer or insurer unsuccessfully disputes a claim, an additional award may be assessed to the employer or insurer, an amount equal to 30 percent of that portion of the attorney fees which have been awarded that is in excess of $250.

In addition, pursuant to Minn.Stat. § 176.191, subd. 1 (2002), attorney fees may be assessed against the employer and insurer held liable for compensation when the dispute was “primarily” between the employers and/or their insurers. Sundquist v. Kaiser Eng’rs, Inc., 456 N.W.2d 86, 88 (Minn.1990); Patnode v. Lyon’s Food Products, Inc., 312 Minn. 570, 572, 251 N.W.2d 692, 693 (1977). Here, where there was no dispute that the employers and insurers were obligated to pay the employee’s attorney fees pursuant to Minn.Stat. § 176.191, the compensation judge awarded $21,073 in attorney fees. The compensation judge also determined that the employers and insurers were obligated to pay the additional award on their “respective attorney fee payments, pursuant to Minn.Stat. § 176.081, subd. 7.” (Citing Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 144 (Minn.1999) (“[Ujnder the plain language of the statute, a subdivision 7 award should be based on all attorney fees paid pursuant to Minn.Stat. § 176.081, including attorney fees based on medical expenses pursuant to MumStat. § 176.081, subd. 1(a).”)).

In reversing the award of subdivision 7 fees, the WCCA distinguished Irwin, noting that subdivision 7 fees there were based on all attorney fees paid pursuant to Minn.Stat. § 176.081, subd. 1(a). Banken II, 21850630, at *2. By contrast, the WCCA concluded, the attorney fees here were awarded under Minn.Stat. § 176.191 and not pursuant to Minn.Stat. § 176.081. Id. The WCCA reasoned that although there were initial denials of liability, the parties agreed by the hearing date that the only issue was contribution between the insurance companies and that there was no authority for a de facto reimbursement to Banken of some portion of the fees paid to his attorney when the dispute was primarily between insurers. Id. at *2-3. “The only provision for such a fee in the workers’ compensation statute is found in Minn.Stat. § 176.191, subd. 1, which is the authority under which attorney fees were awarded in this case.” Id. at *2.

Minnesota Statutes § 176.081, subdivision 1 provides the 25/20 formula for the calculation of contingency fees and states that “[a]ll fees, including fees for obtaining medical or rehabilitation benefits, must be calculated according to the formula under this subdivision, except as otherwise provided in clause (1) or (2).” Minn.Stat. § 176.081, subd. 1(a). Clause 1 provides for the calculation of attorney fees and assessment against the employer and insurer when contingent fees are inadequate; and clause 2 prescribes the maximum fee for disputed medical or rehabilitation claims when the dollar value is not readily ascertainable. Minn.Stat. § 176.081, subd. 1(a)(1) and 1(a)(2) (2002). While Minn.Stat. § 176.191 authorizes the assessment of fees against the party held liable in a dispute primarily between employers or insurers, Minn.Stat. § 176.081 governs the calculation of those fees. Accordingly, an assessment of fees under Minn.Stat. § 176.191 does not preclude an additional award of fees pursuant to Minn. Stat. § 176.081, subd. 7. Here, the compensation judge properly concluded that pursuant to Irwin, an award of subdivision 7 fees was appropriate. We therefore reverse the WCCA’s denial of subdivision 7 fees and reinstate the compensation judge’s award.

Reversed and compensation judge’s award reinstated.

Employee is awarded $1,200 in attorney fees.

      . Minnesota Statutes § 176.081, subd. 1(a) (2002) reads:
      A fee for legal services of 25 percent of the first $4,000 of compensation awarded to the employee and 20 percent of the next $60,000 of compensation awarded to the employee is the maximum permissible fee and does not require approval by the commissioner, compensation judge, or any other party. All fees, including fees for obtaining medical or rehabilitation benefits, must be calculated according to the formula under this subdivision, except as otherwise provided in clause (1) or (2).
      (1)The contingent attorney fee for recovery of monetary benefits according to the formula in this section is presumed to be adequate to cover recovery of medical and rehabilitation benefit[s] or services concurrently in dispute. Attorney fees for recovery of medical or rehabilitation benefits or services shall be assessed against the employer or insurer only if the attorney establishes that the contingent fee is inadequate to reasonably compensate the attorney for representing the employee in the medical or rehabilitation dispute. In cases where the contingent fee is inadequate the employer or insurer is liable for attorney fees based on the formula in this subdivision or in clause (2).
      For the purposes of applying the formula where the employer or insurer is liable for attorney fees, the amount of compensation awarded for obtaining disputed medical and rehabilitation benefits under sections 176.102, 176.135, and 176.136 shall be the dollar value of the medical or rehabilitation benefit awarded, where ascertainable.
      (2) The maximum attorney fee for obtaining a change of doctor or qualified rehabilitation consultant, or any other disputed medical or rehabilitation benefit for which a dollar value is not reasonably ascertainable, is the amount charged in hourly fees for the representation or $500, whichever is less, to be paid by the employer or insurer.
      (3) The fees for obtaining disputed medical or rehabilitation benefits are included in the $13,000 limit in paragraph (b). An attorney must concurrently file all outstanding disputed issues. An attorney is not entitled to attorney fees for representation in any issue which could reasonably have been addressed during the pendency of other issues for the same injury.
      Attorney fees in excess of the statutory limitations may be available if necessary to reasonably compensate an employee's attorney for services rendered. See Irwin v. Surdyk's Liquor, 599 N.W.2d 132, 142 (Minn.1999) (holding section 176.081 unconstitutional to the "extent that it impinges on our inherent power to oversee attorneys and attorney fees”).

      . Minnesota Statutes § 176.081, subd. 7 reads:
      If the employer or insurer files a denial of liability, notice of discontinuance, or fails to make payment of compensation or medical expenses within the statutory period after notice of injury or occupational disease, or otherwise unsuccessfully resists the payment of compensation or medical expenses, or unsuccessfully disputes the payment of rehabilitation benefits or other aspects of a rehabilitation plan, and the injured person has employed an attorney at law, who successfully procures payment on behalf of the employee or who enables the resolution of a dispute with respect to a rehabilitation plan, the compensation judge, commissioner, or the workers’ compensation court of appeals upon appeal, upon application, shall award to the employee against the insurer or self-insured employer or uninsured employer, in addition to the compensation benefits paid or awarded to the employee, an amount equal to 30 percent of that portion of the attorney's fee which has been awarded pursuant to this section that is in excess of $250.

      . Minnesota Statutes § 176.191, subd. 1 (2002) provides:
      Where compensation benefits are payable under this chapter, and a dispute exists between two or more employers or two or more insurers or the special compensation fund as to which is liable for payment, the commissioner, compensation judge, or court of appeals upon appeal shall direct that one or more of the employers or insurers or the special compensation fund make payment of the benefits pending a determination of which has liability. The special compensation fund may be ordered to make payment only if it has been made a party to the claim because the petitioner has alleged that one or more of the employers is uninsured for workers’ compensation under section 176.183. A temporary order may be issued under this subdivision whether or not the employers, insurers, or special compensation fund agree to pay under the order, and whether or not they agree that benefits are payable under this chapter. A temporary order shall be issued if the commissioner or compensation judge determines based on evidence submitted by the employee that benefits are payable under this chapter and if two or more employers, insurers, or the special compensation fund deny liability based on an assertion that another employer, insurer, or the special compensation fund is liable. A temporary order shall not be withheld where the denials of liability are frivolous as defined in section 176.225, subdivision 1, or nonspecific as defined in section 176.84, subdivision 1.
      If the parties do not agree to a temporary order, the commissioner or compensation judge shall summarily hear and determine the issues and issue an order without the need for a formal evidentiary hearing. At any time after a temporary order is issued, the paying party may request to discontinue payment of benefits based on new evidence that benefits are not payable under this chapter by following the procedures of section 176.238 or 176.239.
      At any time after a temporary order is issued, the paying party may also petition for a formal hearing before a compensation judge for a determination of liability among the parties. If the petition is filed within one year after a temporary order was issued, the hearing shall be held within 45 days after the petition was filed. Payments under a temporary order shall continue pending the determination of the compensation judge. The compensation judge shall have jurisdiction to resolve all issues properly raised, including equitable apportionment. The procedures and monetary thresholds contained in section 176.191, subdivisions la and 5, shall not apply to these proceedings. This subdivision applies to all dates of injury.

        When liability has been determined, the party held liable for the benefits shall be ordered to reimburse any other party for payments which the latter has made, including interest at the rate of 12 percent a year. The claimant shall also be awarded a reasonable attorney fee, to be paid by the party held liable for the benefits.
      An order directing payment of benefits pending a determination of liability may not be used as evidence before a compensation judge, the workers’ compensation court of appeals, or court in which the dispute is pending.


source: Caselaw Access Project

author: KLAPHAKE, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Paul Tracy DeYOUNG, Appellant.
    No. C6-02-2280.
    Court of Appeals of Minnesota.
    Dec. 9, 2003.

      Mike Hatch, Attorney General, St. Paul; Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, for respondent.
    John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, Minneapolis, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, STONEBURNER, Judge, and MINGE, Judge.
   OPINION

KLAPHAKE, Judge.

In this appeal from a conviction for first-degree criminal damage to property, appellant argues: (1) the district court abused its discretion by denying his motion to modify the standard Spreigl jury instruction to specify that evidence of two prior incidents in which he damaged property was admitted only to prove identity and motive; and (2) when the victim testified that she had paid exactly $500 for replacement parts to repair the damaged property and performed the labor herself, there was insufficient evidence to prove that the cost of repair and replacement exceeded $500, and, therefore, the conviction must be reduced to a gross misdemeanor. Because the district court erred by denying appellant’s motion to modify the standard Spreigl instruction but the error was harmless, and the evidence was sufficient to prove that the cost of repair and replacement exceeded $500, we affirm the conviction.

FACTS

On September 30, 2001, at 7:00 p.m., appellant Paul Tracy DeYoung began to place telephone calls to the victim threatening to damage her vehicles. The calls continued for approximately two hours. About ten minutes after the last call, the victim heard “the smash of the windshields and the pop of the tires.” She looked out her window and saw appellant step away from her two vehicles and leave in a white vehicle. The victim was positive that the man she saw was appellant. The victim had known appellant for 28 years, and the victim’s boyfriend is appellant’s brother.

The victim’s 1987 Escort sustained a smashed windshield and two flat tires, and her 1991 Corsica sustained a broken windshield and four punctured tires. The victim testified that she spent $500 to repair both vehicles. She obtained some used parts from junkyards and other parts from friends and relatives at no cost and performed the repair work herself.

The district court admitted Spreigl evidence about a 1999 incident in which appellant smashed the front and back windshields of another vehicle belonging to this same victim. The court also admitted evidence about other criminal damage to property committed by appellant in 2000. The district court denied appellant’s request to specifically instruct the jury that the Spreigl evidence could only be used to prove motive and identity.

A jury found appellant guilty of first-degree criminal damage to property under Minn.Stat. § 609.595, subd. 1(3) (2000). The district court sentenced appellant to a stayed term of 19 months in prison.

ISSUES

1. Did the district court err in denying appellant’s request to instruct the jury that the Spreigl evidence could only be admitted to prove identity and motive?

2. Is the evidence sufficient to prove that the cost of repairs to the victim’s vehicles exceeded $500?

ANALYSIS

1. Jury Instructions

The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn.1996). “Trial courts are allowed ‘considerable latitude’ in [the] selection of language” for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986)). “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.” State v. Flores, 418 N.W.2d 150, 155 (Minn.1988).

The district court here instructed the jury as follows:

The State introduced evidence of occurrences on October 22, 1999, in Columbia Heights and August 14, 2000, in Minneapolis. This evidence was received for the limited purpose of assisting you in determining whether [appellant] committed those acts with which [he] is charged in the complaint.
[Appellant] is not being tried for and may not be convicted of any offense other than the charged offense. You are not to convict [appellant] on the basis of any occurrences on October 22, 1999, and August 14, 2000, in Minneapolis. To do so might result in unjust double punishment.

Appellant argues that the district court erred in denying his request to specifically instruct the jury that the Spreigl evidence could only be admitted to prove motive and identity. The district court’s instructions, however, were in accord with the recommended instructions found in the jury instruction guides, 10 Minnesota Practice, CRIMJIG 2.01, 3.16 (1999).

In Sanderson v. State, 601 N.W.2d 219, 224 (Minn.App.1999), review granted (Minn. Jan. 18, 2000), and review denied (Minn. Mar. 28, 2000), the district court denied the defendant’s request for an instruction “that Spreigl evidence was to be used only for the purpose of determining intent or modus operandi.” The district court instructed the jury in accordance with the CRIMJIG’s and this court affirmed, stating only that “CRIMJIGs 2.01 and 3.16 are appropriate cautionary instructions on the use of Spreigl evidence.” Id. This court did not discuss or analyze the rationale behind the CRIMJIGs further.

In State v. Broulik, 606 N.W.2d 64, 71 (Minn.2000), the supreme court held that the district court did not abuse its discretion by failing to give an instruction limiting the specific purpose for which Spreigl evidence may be considered, where the defendant did not request such an instruction. The Broulik court emphasized the importance of a defendant requesting a limiting instruction, repeatedly stating that federal cases require such an instruction only “upon request,” “if requested,” or “when requested.” Id. at 69-70. The Broulik court further stated that “[significantly,” the defendant in Broulik did not request a limiting instruction. Id. at 68-69.

The Broulik court nevertheless found the lack of such a limiting instruction troublesome and discussed the issue in great detail:

The United States Supreme Court has recognized that Federal Rule of Evidence 105, which is identical to the parallel Minnesota Rule 105, provides protection against unfair prejudice from other crimes evidence admitted under Rule 404(b). Both the federal and state Rule 105 provide that “[w]hen evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Fed.R.Evid. 105; Minn. R. Evid. 105 (emphasis added). Thus, Rule 105 contemplates a specific instruction regarding the permissible use of Rule 404(b) evidence only upon request.... We have allowed the standard CRIM-JIG 2.01 and 3.16 instructions to be used for 20 years. Rule 105, which addresses the subject of limited purpose evidence ..., expressly requires such an instruction only “upon request.” In these circumstances we cannot conclude that the trial court abused its discretion in failing to instruct the jury that the Spreigl evidence was admitted for the limited purpose of establishing identity.
Appellant urges us to join the Second and Eighth Circuit Courts of Appeal and adopt pattern instructions that inform the jury of the specific limited purpose for which Rule 404(b) evidence has been received. We have reviewed the pattern instructions of the Second and Eighth as well as other circuits to see how other courts handle the task of instructing juries on the proper use - of Rule 404(b) evidence. The Second Circuit has endorsed an instruction regarding use of Rule 404(b) evidence that explains the limited purpose for which the evidence may be used. But consistent with Rule 105, the limited purpose instruction is only required if requested by the defendant.
Like the Second Circuit, the Eighth Circuit has adopted a model instruction for Rule 404(b) evidence that includes both what the evidence may and may not be used for.... We recognize that other federal circuit courts have endorsed similar pattern instructions to be given when requested....
The comments to CRIMJIGs 2.01 and 3.16 express the opinion of the Minnesota District Judges Association Committee on Criminal Jury Instruction Guides that “the instructions should not discuss possible inferences which may be drawn from particular evidence.... This should be left to the argument of the attorneys.... Accordingly this instruction is deliberately phrased in general language.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, Comment to CRIM-JIG 2.01 (4th ed. 1999). See id. Comment to CRIMJIG 3.16. We have not been made aware of an appellate decision that has echoed that concern. The federal appellate courts have taken a different approach by including the specific limited purpose for which Rule 404(b) evidence may be used in their pattern instructions.

Id. at 68-71 (citations omitted).

By questioning the rationale behind the CRIMJIGs and by endorsing the practice of the federal courts, which require a specific limiting instruction when requested, Broulik can be read to require that when a defendant requests a limiting instruction, the district court must give such an instruction. As Broulik suggests, when requested by a defendant, CRIMJIG 2.01 and 3.16 must be modified to explain the limited purpose for which Spreigl evidence was admitted. See Minn. R. Evid. 105 (requiring district court, “upon request, [to] restrict the evidence [of other crimes] to its proper scope and instruct the jury accordingly”); Minn. R. Evid. 404(b) (prohibiting admission of other crimes unless offered “for other purposes,” which may include “proof of motive [or] identity”). Accordingly, we hold that the district court committed error when it denied appellant’s request for a specific limiting instruction in this case.

Nevertheless, we further conclude that the court’s error was harmless. When faced with an erroneous refusal to give jury instructions, a reviewing court must “examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.” State v. Shoop, 441 N.W.2d 475, 481 (Minn.1989) (citation omitted). If the error might have prompted the jury “to reach a harsher verdict than it might otherwise have reached,” the defendant is entitled to a new trial.

While the district court here did not specifically instruct the jury that the Spreigl evidence could only be used to establish motive and identity, it did instruct the jury that the Spreigl evidence could only be considered for the limited purpose of determining whether appellant committed the charged offense and that he could not be convicted based on the previous occurrences. During closing arguments, the defense attorney and the prosecutor both explained that the Spreigl evidence could only be used to establish motive and identity. In addition, the evidence against appellant was strong: shortly before the offense occurred, the victim received repeated phone calls from someone threatening to damage her vehicles; the victim identified the caller as appellant; and when the victim heard the sound of windshields breaking and tires popping, she looked out her window and saw a man, whom she positively identified as appellant, stepping away from her vehicles. We therefore conclude that, beyond a reasonable doubt, the district court’s error in instructing the jury was harmless because it did not have a significant impact on the verdict. See id.

2. Sufficiency of Evidence

In considering a claim of insufficient evidence, this court’s review is limited to a “painstaking” analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they reached. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). This court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

A person who intentionally causes damage to another person’s physical property without the latter person’s consent is guilty of first-degree criminal damage to property if “the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement.” MinmStat. § 609.595, subd. 1(3) (2000).

Appellant argues that the evidence is insufficient to support his conviction because the victim only paid $500 to repair her vehicles. The victim was able to keep her repair costs down in part by doing the repair work herself. Adopting appellant’s position would make the defendant’s culpability depend upon the victim’s ability and inclination to repair damaged property, which would be contrary to the policy underlying the criminal-damage-to-property and theft statutes. See Minn. Stat. Ann. § 609.595, 1963 advisory comm, cmt. (West 2003) (stating “gravity of the crime [of criminal damage to property] should turn upon the extent of the property damaged”); Minn.Stat. § 609.52, subd. 1(3) (2000) (defining value for purposes of theft as “the retail market value at the time of the theft”). Therefore, we conclude that when the victim of criminal damage to property performs the work necessary to repair the property, the value of the victim’s labor can be considered in calculating the reduced value of the damaged property.

The victim spent $500 to repair both vehicles. This amount did not include any labor costs because the victim did the repair work herself. Because the parts alone cost $500, the total cost of repair and replacement was more than $500 if the victim’s labor had any value. The evidence was sufficient to prove that the victim’s labor had some value, and, therefore, that the damage to the victim’s vehicles reduced their value by more than $500 measured by the cost of repair and replacement. The evidence was sufficient to support appellant’s conviction for first-degree criminal damage to property.

DECISION

The evidence was sufficient to support appellant’s conviction for first-degree criminal damage to property. Although the district court erred in denying appellant’s request for a specific limiting instruction on the purpose for which the Spreigl evidence was admitted, because the error was harmless, we affirm the conviction.

Affirmed.


author: STONEBURNER, Judge.

text:
    In re ESTATE OF Viva Bertha HANDY, Decedent.
    No. A03-95.
    Court of Appeals of Minnesota.
    Dec. 9, 2003.

      Daniel A. Birkholz, Monica S. Rye, Birk-holz & Rye, St. James, MN, for appellants Raymond, David, and Matthew Handy.
    Mike Hatch, Attorney General, David A. Rowley, Assistant Attorney General, St. Paul, MN, for respondent State of Minnesota.
    Considered and decided by KALITOWSKI, Presiding Judge, HALBROOKS, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Appellants, the child and grandchildren of now deceased medical-assistance recipient Viva Bertha Handy, assert that the district court erred by granting summary judgment to respondent Department of Human Services on its claim against Viva Bertha Handy’s estate to recover medical-assistance payments for her nursing home care. Because the district court correctly determined that appellants did not continuously reside in Viva Bertha Handy’s home from the date of her institutionalization as required under Minn.Stat. § 256B.15, subd. 4 (2000), to limit the state’s recovery to nonhomestead assets, we affirm.

FACTS

In the spring of 1978, Raymond Handy, the only child of Viva Bertha Handy (Viva Handy), moved, with his wife and sons, Matthew and David, into a mobile home located next to Viva Handy’s farmhouse on her 89-acre homestead in Cottonwood County. Viva Handy was subsequently diagnosed with senility, likely due to the onset of Alzheimer’s disease. Viva Handy needed extensive assistance to remain in her home until she was institutionalized in September 1988. It is undisputed that appellants physically resided on the homestead and provided the care that permitted Viva Handy to remain at home rather than in an institution. After Viva Handy went to live in the nursing home, the farmhouse became uninhabitable beyond repair.

For economic reasons, Raymond Handy stopped farming the homestead in 1996, after which the farmland was rented. By 1997, Matthew and David Handy were no longer living on the homestead. David Handy has not physically resided on the homestead since 1993, when he enlisted in the armed services. He remains on active duty and lists the homestead as his permanent address.

Raymond Handy and his wife moved away from the homestead for the winter months in November 1997 because they could not afford to heat the farmhouse, which was necessary in order to provide the mobile home with water in the winter. In April 1998, they returned to the homestead. They moved to town again in December 1998 and returned to the homestead in May 1999. The water pump broke in the fall of 1999 and, for economic reasons, was not repaired. Raymond Handy and his wife moved to town for the winter of 1999 and did not return to live on the homestead.

Although Matthew Handy stayed at the mobile home on the homestead from August 2000 to February 2001, appellants admit that the mobile home was, at that time, and remains essentially uninhabitable and needs repairs that would cost $2,000 to $2,500 to make it habitable. Raymond Handy always intended to return to the homestead once he had saved enough money to repair the mobile home and water pump.

Raymond Handy maintains the homestead address on his driver’s license. He has paid the electric bill for the homestead and has kept the property insured. His personal checks list the homestead as his address. But Raymond Handy has used his town address on other documents, including pay stubs and benefit applications.

Viva Handy died on October 27, 2000. Her will bequeathed the homestead to Matthew and David Handy, subject to a life estate in Raymond Handy. Respondent paid medical assistance in the amount of $212,877.73 toward Viva Handy’s nursing-home care before her death. After Viva Handy’s death, respondent filed a priority claim against her estate to recover the medical-assistance payments. Appellants assert that under Minn.Stat. § 265B.15, subd. 4 (2000), respondent’s medical-assistance claim is limited to Viva Handy’s nonhomestead assets. The district court granted the county’s motion for summary judgment and this appeal followed.

ISSUES

1. Under Minn.Stat. § 256B.15, snbd. 4 (2000), must a child or grandchild have physically resided continuously at the medical-assistance recipient’s home from the date of the recipient’s institutionalization to limit the state’s recovery of medical-assistance payments to nonhomestead assets of the recipient?

2. Does the Soldiers’ and Sailors’ Civil Relief Act require a finding that David Handy has continuously resided in the homestead since the date of Viva Handy’s institutionalization, within the meaning of Minn.Stat. § 256B.15, subd. 4?

3. Are respondent’s claims barred by the doctrine of res judicata?

ANALYSIS

I.

On appeal from summary judgment, we ask whether there are any genuine issues of material fact and whether the district court erred in its application of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Appellants argue that the district court erred in interpreting Minn. Stat. § 256B.15, subd. 4 (2000), and therefore misapplied the law.

With some exceptions, the state may recover medical assistance payments made for a person’s care from the person’s estate. Minn.Stat. 256B.15, subd. la (2000). One of the exceptions limits the state’s recovery to the value of nonhomestead property:

If the decedent who was single, ... is survived by one of the following persons, a claim exists against the estate in an amount not to exceed the value of the nonhomestead property included in the estate:
(b) a son or daughter or a grandchild who resided in the decedent medical assistance recipient’s home for at least two years immediately before the parent’s or grandparent’s institutionalization and continuously since the date of institutionalization, and who establishes by a preponderance of the evidence having provided care to the parent or grandparent who received medical assistance, that the care was provided before institutionalization, and that the care permitted the parent or grandparent to reside at home rather than in an institution.

Minn.Stat. § 256B.15, subd. 4.

The parties do not dispute that appellants resided on Viva Handy’s property for the two years immediately before her institutionalization and the care they provided permitted Viva Handy to reside at home. But respondent alleges that appellants have not resided continuously on the property since the date of Viva Handy’s institutionalization because appellants stopped living on the homestead by at least the fall of 1999.

The district court granted the county’s motion for summary judgment, stating that in order to fulfill the statutory requirement, “one must, of course, keep the residence as their home throughout the required time period.” The district court held that “by not returning to the homestead, for whatever reason, Mr. Handy effectively broke the cycle of ‘continuous’ residence.’ ” The district court found that Raymond Handy .intended to keep the homestead as his permanent residence, but concluded that the statute’s residency requirement could only logically be met through physical presence.

When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters. Inc., 581 N.W.2d 855, 856 (Minn.1998). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted). The statute does not define “reside” and no prior Minnesota case has interpreted the meaning of “resided ... continuously since the date of institutionalization,” as used in Minn.Stat. § 256B.15, subd. 4.

Appellants argue that although Raymond Handy was not living on the homestead at the time of Viva Handy’s death in October 2000, Matthew Handy was living there and remained there until February 2001, thereby satisfying the “continuous residence” requirement under Minn.Stat. § 256B.15, subd. 4(b). But no one lived on the homestead from the winter of 1999 until Matthew Handy went to stay there in August 2000. The statute does not provide that various family members may combine their residencies to constitute continuous residence. And Matthew Handy did not live on the homestead from 1997 through July 2000. The district court did not err by rejecting this argument.

Appellants characterize Raymond Handy’s absences from the homestead as temporary and emphasize that he always intended the homestead to be his primary residence. Appellants argue that, just as temporary absence does not alter one’s domicile when the person’s intent to return to his permanent home remains unchanged, temporary absence should not be interpreted to interrupt Raymond Handy’s continuous residence at Viva Handy’s homestead when he intended to return, once he had the funds to repair the mobile home and pump. Appellants cite cases in which residence and domicile have been held to be synonymous. They rely on voting and election cases to argue that appellants' have maintained the homestead as their legal residence and in doing so meet the requirement of Minn.Stat. § 256B.15, subd. 4. We disagree.

Unlike the word “domicile,” the word “resident” has not gained a generally accepted meaning. It appears to us that the best rule for determining what the word ‘resident’ means in a given statuto.ry enactment is found in the case of Bechtel v. Bechtel, 101 Minn. 511, 514, 112 N.W. 883, 884, 12 L.R.A., N.S., 1100. The court there stated: “ * * * As employed in statutory enactments, its meaning, as interpreted by the courts [the meaning of the word ‘resident’], varies as the legislative intent appears, and in harmony with the subject-matter, object, and purpose of the statute.”

In re Kowalke’s Guardianship, 232 Minn. 292, 296, 46 N.W.2d 275, 279 (Minn.1950). It is from the statute and subject matter that we must determine the meaning of “reside” in this case.

The Minnesota Department of Human Services, through rules, has defined “residence,” as it applies to health care programs, as “the place a person uses, and intends to continue to use for the indefinite future, as his or her primary dwelling place.” Minn. R. 9505.0015, subp. 42 (2001). Respondent argues that the use of the singular “residence” means that a person who owns more than one home can only have one primary residence for public assistance program purposes. And Section 0014.12 of the Minnesota Department of Human Services’ policy manual contained in the record requires that a county look to a list of indicators of primary residence if a person has more than one residence. The provision instructs the county worker to “[s]top at the 1st circumstance that applies; do not consider the remaining situations.” The “circumstances” include, in order:

1. The residence where their spouse lives
2. The residence which is the only one where they incur shelter costs
3. The residence where they eat a majority of meals
4. The residence where they spend a majority of time
5. The residence which is the only one where another person would be part of the same unit (sibling, parent)
6. The residence they choose.

Although the policy manual and rule are not dispositive in this case, they give some guidance about how the term residence is defined in the subject area of qualification for benefits. Under these rules, the homestead was not Raymond Handy’s residence after the fall of 1999, and was not David or Matthew Handy’s residence continuously from the date of their grandmother’s institutionalization.

Minn.Stat. § 256B.15, subd. 4, uses the term “reside” twice: first to require that a child or grandchild “resided ... in the ... recipient’s home ... continuously since the date of institutionalization,” and second, to require that “the care permitted the parent or grandparent to reside at home rather than in an institution” (emphasis added). The second use can only refer to physical presence in the home, demonstrating that the legislature plainly used “reside” in this statute to mean physical presence. Because it is undisputed that no individual appellant continuously physically resided at the homestead from the date of Viva Handy’s institutionalization, the district court correctly concluded that respondent’s recovery of medical-assistance payments from Viva Handy’s estate is not limited to nonhomestead assets.

Appellants argue that a “strict” reading of the statute operates to deny them their family farm and is inconsistent with the purpose and intent of the statute. Although we are not unsympathetic to appellants’ situation, the plain language of the statute demonstrates intent to protect certain family members from losing their home, not intent to protect an expectation of an inheritance.

II.

Appellants argue that because David Handy is on active duty with the armed services, the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.A App. §§ 501-591 (1990 & Supp.2003), (SSCRA) protects his residency status during his military service thereby satisfying the “reside ... continuously” requirement of Minn.Stat. § 256B.15, subd. 4, as to David Handy. Respondents argue that appellants cannot raise this argument on appeal because they only raised the SSCRA in district court procedural!/, as requiring a continuance. We agree. This court generally will not consider issues not raised in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Appellants did not assert in the district court the substantive argument that David Handy continuously resided at the farm under Minn.Stat. § 256B.15, subd. 4(b), due to the application of the SSCRA. Therefore, we decline to consider the issue for the first time on appeal.

III.

Appellants also argue that the doctrine of res judicata prohibits respondent’s claim because the Viva Handy homestead was the subject of two prior administrative hearings during her lifetime in which it was determined that (1) the property was exempt from a state lien and (2) that the homestead should be considered an exempt asset for purposes of Viva Handy’s continued medical assistance eligibility determination.

The doctrine of res judicata encompasses both claim preclusion and issue preclusion. Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn.1978). In order for claim preclusion to apply, there must be: “(1) a final judgment on the merits; (2) a second suit involving the same cause of action; and (3) identical parties or parties in privity.” In re Trusts by Hormel, 543 N.W.2d 668, 671 (Minn.App.1996). Issue preclusion (collateral estoppel) requires: (1) that the issues be identical; (2) a final judgment on the merits; (3) the estopped party was a party or in privity with a party in the prior matter; and (4) the estopped party had a full and fair opportunity to be heard on the issue. Roseberg v. Steen, 363 N.W.2d 102, 106 (Minn.App.1985).

Appellant has not shown that either agency decision meets the requirements for application of either claim preclusion or issue preclusion. Neither of the agency decisions is relevant to determine this matter since both decisions were made while Viva Handy was still alive and neither decision involved Minn.Stat. § 256B.15, subd. 4.

The first agency decision involved the county’s authority to file a lien on Viva Handy’s land under Minn.Stat. § 514.981, subd. 2(d) (Supp.1995). The second agency decision involved a similar issue: whether the homestead should be excluded from Viva Handy’s eligibility for medical assistance determination because the homestead is used as a primary residence by a child “who resided in the home for at least two years immediately before the date of the person’s admission to the facility, and who provided care to the person that permitted the person to reside at home rather than in an institution” under Minn.Stat. § 256B.056, subd. (2)(e) (1996). In both instances, the Commissioner of Human Services found that, at the relevant time, Raymond Handy fulfilled the statutory requirements to exempt homestead for purposes of Viva Handy’s continued medical assistance eligibility determination.

Neither of the previous decisions dealt with the issue of whether a child or grandchild lived continuously on the land since the date of Viva Handy’s institutionalization. Because respondent’s current claim involves an issue different from those addressed in the previous agency decisions, the doctrine of res judicata is inapplicable.

DECISION

Limiting the state’s recovery for medical-assistance payments to the nonhome-stead assets of Viva Handy’s estate under Minn.Stat. § 256B.15, subd. 4, requires appellants to have continuously physically resided in Viva Handy’s home, as their primary home, from the date of her institutionalization. Because none of the appellants continuously physically resided in Viva Handy’s home from the date of her institutionalization, the district court did not err in granting summary judgment to respondent on its claim against Viva Handy’s estate for reimbursement of medical-assistance payments.

Affirmed.

      . For summary judgment purposes, respondents agree that appellants lived in Viva Handy’s home.


author: GORDON W. SHUMAKER, Judge.

text:
    Gary A. KNUDSEN, Appellant, v. TRANSPORT LEASING/CONTRACT, INC., Respondent.
    No. A03-282.
    Court of Appeals of Minnesota.
    Dec. 9, 2003.
    Jon C. Saunders, Anderson, Larson, Hanson & Saunders, P.L.L.P., Willmar, MN, for appellant.
    Peter G. Hill, Bale, Anderson, Polstein, Randall & Hill, Ltd., Minneapolis, MN, for respondent.

      Considered and decided by WILLIS, Presiding Judge; TOUSSAINT, Chief Judge; and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

Appellant leased truck drivers from respondent and deducted as business expenses on his personal income tax returns 100% of the per diem payments made to the drivers. Because the Internal Revenue Code allows only a 50% deduction for per diem payments, appellant incurred additional income tax liabilities. Appellant then claimed that respondent had agreed to indemnify him against tax losses relating to respondent’s employees. Ruling that the parties’ unambiguous agreement provided for indemnification that did not include the tax liabilities assessed against appellant, the district court granted respondent’s summary judgment motion. Appellant contends that the district court erroneously read and applied the indemnification agreement. Because a plain reading of the agreement does not require respondent to indemnify appellant against the tax losses incurred by appellant, we affirm.

FACTS

Appellant Gary Knudsen, an owner of over-the-road trucks, entered into an “Exclusive Lease Agreement” with respondent Transport Leasing/Contract, Inc. (TLC) under which TLC agreed “to lease its employees to [Knudsen] for truck and semi-tractor driving services.... ”

TLC paid drivers’ wages; collected, deposited, and reported state and federal employment taxes; provided workers’ compensation and unemployment insurance; and offered various other employee-related benefits.

Drivers who traveled away from home were allowed a “per diem” for meals, lodging, and incidental expenses. Knudsen advanced per diem expenses to TLC employees and reimbursed TLC for per diem expenses it paid. TLC annually reported to Knudsen the per diem amounts TLC paid to its drivers.

Knudsen deducted as a business expense on his income tax returns 100% of the fees he paid TLC. The Internal Revenue Service audited both TLC and Knudsen for 1995 and 1996; found that Knudsen deducted 100% of the per diem payments to the drivers but was permitted under the Internal Revenue Code, Section 274, to deduct only 50% of those payments; and assessed tax deficiencies against Knudsen. As a result of the audit, Knudsen’s taxable income for 1995 and 1996 increased and Knudsen incurred additional state and federal tax liabilities, as well as accountant’s fees.

Relying on Section Twelve of the lease agreement, Knudsen contended that TLC was obligated to indemnify him for his additional tax obligations. That section provides for lessor indemnification of certain financial obligations:

Lessor shall indemnify Lessee against all liability and loss in connection with and shall assume full responsibility for payment of all federal, state and local employee taxes or contributions imposed or required under Lessor’s employment insurance, social security and income tax laws with respect to Lessor’s employees engaged in the performance of the Agreement.

TLC argued that Section Twelve does not require it to indemnify Knudsen against personal income tax liabilities. Knudsen sued; both parties moved for summary judgment; and, ruling that Section Twelve does not cover the tax liabilities Knudsen incurred, the district court granted TLC’s motion. Knudsen appeals from the summary judgment.

ISSUE

The parties’ agreement required the lessor of truck drivers to indemnify the lessee against losses relating to employer legal obligations for employee tax withholding, social security, and unemployment compensation.

Does the agreement require indemnification of additional tax liabilities lessee incurred when he deducted drivers’ per diem payments as a business expense on his personal tax return at twice the amount allowed by tax laws?

ANALYSIS

On appeal from summary judgment, this court asks (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Summary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented. DLH Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). Because the facts are undisputed, this case only raises issues of contract interpretation, which are questions of law subject to de novo review. Garrick v. Northland Ins. Co., 469 N.W.2d 709, 711 (Minn.1991).

The parties agree, and the district court held, that Section Twelve of the “Exclusive Lease Agreement” is unambiguous and that, under Section 17, Indiana law controls. Knudsen argues that the court misread and misapplied Section Twelve and thus erred as a matter of law.

Generally, construction of a written contract is a question of law for the district court and therefore summary judgment is particularly appropriate. McCae Mgmt. Corp. v. Merchs. Nat’l Bank & Trust Co., 553 N.E.2d 884, 885 (Ind.Ct.App.1990), transfer denied (Ind. Oct. 2, 1990). Absent ambiguity, the terms of a contract will be given their plain and ordinary meaning and will not be considered ambiguous solely because the parties dispute the proper interpretation of the terms. Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc., 751 N.E.2d 702, 709 (Ind.App.2001). In addition, when a contract is unambiguous, a court gives effect to the parties’ intentions as expressed in the four corners of the instrument, and clear, plain, and unambiguous terms are conclusive of that intent. Hyperbaric Oxygen Therapy Sys., Inc. v. St. Joseph Med. Ctr., Inc., 683 N.E.2d 243, 247 (Ind.App.1997) (quotation omitted), transfer denied (Ind. Dec. 9,1997).

Section Twelve refers to employers’ typical legal obligations that flow from employee compensation, namely, income tax withholding, social security contributions, and unemployment benefits. The district court ruled that the personal income tax liabilities assessed against Knudsen are not within the scope of Section Twelve. We agree.

There is no claim that TLC failed to withhold employee income for tax purposes, failed to make social security payments, or failed to contribute to an unemployment insurance fund. Knudsen’s tax liabilities do not relate to any of these obligations but rather to his personal deduction of business expenses incurred as a result of paying per diem amounts to TLC’s employees. Section Twelve cannot reasonably be read so broadly as to apply to all tax-related obligations incurred by the lessee because of the use of TLC’s drivers. If we were to adopt Knudsen’s position, we would necessarily have to expand the scope of Section Twelve beyond the unambiguous and narrow meaning of the language to which the parties agreed. Courts may not construe clear and unambiguous provisions, nor may they add provisions upon which the parties have not agreed. Id. at 247-48.

Knudsen selects the phrase “income tax laws” to expand the scope of the indemnification provisions. His reading distorts the context of the paragraph. TLC must indemnify against particular enumerated losses arising under unemployment insurance, social security, and income tax laws. Knudsen’s additional tax liabilities surely arise under income tax laws but are not of the types enumerated in the indemnification agreement.

Knudsen focuses on the Internal Revenue Code and argues that the employer is “the party liable for the limitation upon the deduction of the per diem.” Perhaps Knudsen is correct under the tax code and thus has a meritorious position to present to the Internal Revenue Service. But the Exclusive Lease Agreement clearly imposes upon TLC no indemnification obligation against all tax losses. It is the agreement that controls the parties’ respective obligations.

DECISION

Because Section Twelve does not require TLC to indemnify Knudsen against additional personal income tax liabilities, the district court did not err in its application of the law and properly granted summary judgment in favor of TLC.

Affirmed.


text:
    Jeremy MEINSTMA, Respondent (A03-416, A03-425), Appellant (A03-861), v. LORAM MAINTENANCE OF WAY, INC., Respondent, Richard Lee Mendez, et al., Appellants (A03-416), Defendants (A03-861), James Valenta, Appellant (A03-425), and Loram Maintenance of Way, Inc., Cross-Claim Plaintiff, v. Dennis Darnell Ramsey, et al., Cross-Claim Defendants, and Loram Maintenance of Way, Inc., Third-Party Plaintiff, v. United Steelworkers of America, Local 2002, Third-Party Defendant.
    Nos. A03-416, A03-425, A03-861.
    Court of Appeals of Minnesota.
    Dec. 16, 2003.

      Michelle D. Christensen, Holly J. Tchi-da, Murnane, Conlin, White & Brandt, P.A., St. Paul, MN, for appellants Richard Mendez et al.
    Lawrence M. Rocheford, Jessica E. Schwie, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for appellant James Valenta.
    Marcia S. Rowland, Standke, Greene & Greenstein, Ltd., Minnetonka, MN, for Jeremy Meinstma.
    Joseph W. Hammell, Eric C. Sjoding, Dorsey & Whitney, LLP, Minneapolis, MN, for respondent Loram Maintenance of Way.
    Considered and decided by KALITOWSKI, Presiding Judge, HALBROOKS, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

Jeremy Meinstma sued his employer and five co-employees for injuries arising out of an on-the-job “birthday spanking” by the co-employees with a two-by-four fashioned into a long paddle. The employer and co-employees moved for summary judgment based on the exclusivity provisions of the workers’ compensation act (the WCA). The district court granted summary judgment to the employer but denied the co-employees’ motions for summary judgment, concluding that the intentional nature of battery triggered an exception to the exclusivity provisions of the WCA for injuries intentionally inflicted by co-employees. We affirm summary judgment granted to the employer, but reverse denial of the co-employees’ motions for summary judgment because there is no evidence in the record that the co-employees intended to injure Meinstma.

FACTS

Loram Maintenance of Way, Inc. (Lor-am) designs and manufactures railway maintenance equipment, and operates a manufacturing facility in Hamel, Minnesota, where many of its products are designed and built by a unionized workforce using heavy equipment.

Jeremy Meinstma and all of the involved co-employees, including Richard Lee Mendez, James Valenta, and Steven Wayne Bachler, were Loram employees and union members. Meinstma had no interaction with any of the involved co-employees outside of work and work-sponsored'events. Meinstma had no basis for believing that any of the involved co-employees disliked him or wanted to hurt him.

More than ten years ago, some union employees at Loram established a tradition of spanking fellow union employees on their birthdays. Typically, a small group of union employees would approach and surround the union employee celebrating a birthday, wrestle him to the ground, and hit him on the buttocks, sometimes using a long wooden paddle crafted from a two-by-four. The birthday spankings occurred on Loram property during working hours or immediately thereafter. Loram managers were aware of the birthday spankings and did nothing to stop them. A Loram manager even participated in one birthday spanking.

On a day near his birthday, Meinstma was working on a shift when the involved co-employees grabbed him, wrestled him to the ground, and spanked him with the wooden paddle. During the incident, Meinstma suffered injuries, including a cut on his arm. Following the incident,' the co-employees helped Meinstma to his feet and one helped him treat the cut on his arm.

Meinstma sued Loram and the five co-employees involved in the incident, alleging that he suffered back injuries, psychological injuries, and financial damages as a result of the incident. Loram and the co-employees moved for summary judgment, arguing that Meinstma’s injuries are covered by the WCA, which provides his exclusive remedy.

The district court granted Loram’s motion for summary judgment, concluding that Meinstma’s exclusive remedy against Loram is the WCA because his injuries (1) arose out of his employment; (2) do not come within the WCA’s “assault exception”; and (3) do not come within the W CA’s “intentional-injury-[by-employer] exception.”

The district court denied the co-employees’ motions for summary judgment, concluding that because Meinstma’s primary claim against the co-employees is for battery, an intentional tort, the exception to WCA exclusivity for injuries intentionally caused by co-employees applies.

By order, we have limited these consolidated appeals to the interpretation of the exclusive remedies provisions of the WCA and relevant exceptions. Meinstma challenges the final partial judgment dismissing his claims against Loram, arguing that (1) his injuries did not arise out of employment within the meaning of the WCA; (2) the assault was “personal,” taking his injuries out of the WCA definition of compen-sable injuries; and (3) Loram’s conduct comes under the intentional-act-by-employer exception to the WCA. Co-employees Valenta, Mendez and Bachler challenge the denial of their motion to dismiss Meinstma’s claims against them for lack of subject matter jurisdiction, arguing that the WCA provides the exclusive remedy, because- there is no evidence of intent to injure. Meinstma has also moved to strike portions of the appendix submitted by Mendez and Bachler.

ISSUES

I. Did the district court err in concluding that the Workers Compensation Act provides the exclusive remedy for Meinstma’s claims against his employer for injuries arising out of a workplace battery?

II. Did the district court err in concluding that it has jurisdiction over Meinstma’s claims against co-employees for injuries arising out of a workplace battery because the intentional nature of battery constitutes an exception to the exclusivity of the Workers Compensation Act?

ANALYSIS

I. Standard of review

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). On appeal, evidence is reviewed in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

II. Meinstma’s claim against Loram

The WCA ordinarily provides an employee’s exclusive remedy against an employer for personal injuries “arising out of and in the course of employment.” Minn.Stat. § 176.021 (2000). The workers’ compensation system in Minnesota is based on a policy of “mutual renunciation of common law rights and defenses by employers and employees alike.” Minn. Stat. § 176.001 (2000). The WCA was “designed to give workers immediate recovery for their injuries suffered while on the job, without regard to the common law’s ‘three evil sisters,’ contributory negligence, the fellow-servant rule, and assumption of risk.” Foley v. Honeywell, Inc., 488 N.W.2d 268, 271 (Minn.1992). The exclusive remedy provision of the WCA states that:

The liability of an employer prescribed by this chapter is exclusive and in the place of any other liability to such employee ... entitled to recover damages on account of such injury or death.

Minn.Stat. § 176.031 (2000). Every employer covered by the WCA is liable for compensation in every case of personal injury of an employee arising out of and in the course of employment without regard to the question of negligence. Minn.Stat. § 176.021, subd. 1.

a. Meinstma’s injuries arose out of and in the course of employment

In order for an injury to be compensable under the WCA, it must arise out of the employment and must be in the course of the employment. Foley, 488 N.W.2d at 271; see Minn.Stat. § 176.011, subd. 16 (2000).

For an injury to “arise out of’ the employment, there must be some causal connection between the injury and the employment. Gibberd v. Control Data Corp., 424 N.W.2d 776, 780 (Minn.1988). This causal connection does not mean that the employment has to be the proximate cause of the injury. Id. Simply, an injury arises out of employment when the employment is “a factor of source or contribution” to the injury. Foley, 488 N.W.2d at 271.

Because of the intervening wrongful act of third parties or some such extrinsic contribution, the employment may not be the proximate cause. But it may be nonetheless so much [the] source of the event that the latter in a very real and decisive sense arises out of the employment. ... So it is enough that injury follows “as a natural incident of the work ... as a result of the exposure occasioned by the nature of the employment.”

Id.

The district court concluded that there is no genuine issue of material fact as to whether Meinstma’s injuries arose out of his employment at Loram. We agree. Meinstma stated in his deposition that had he not been employed at Loram, the incident would not have occurred. It was Meinstma’s employment at Loram that “exposed him to a different and greater hazard of injury from assault than if he had been pursuing ordinary personal affairs.” Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 598, 297 N.W. 19, 21 (1941).

Meinstma cites Foley for the proposition that working at a location with assaultive co-employees does not meet the standard of “arising out of’ his employment, and therefore the WCA does not apply to this incident. But, contrary to Meinstma’s argument, Foley supports a very broad reading of “arising out of.” See Foley, 488 N.W.2d at 272 (holding that assault and murder of Honeywell employee in a public parking ramp arose out of her employment). The district court did not err by determining that, as a matter of law, Meinstma’s injuries arose out of his employment at Loram.

The requirement that an employee’s injury occur in the course of employment, means that the injury must occur within the time and space boundaries of employment. Id. The injury must occur on an employer’s premises and during the hours of service, including a reasonable time both before a person actually begins doing work on the premises and after the work day or shift is complete. Merrill v. J.C. Penney, 256 N.W.2d 518, 520 (Minn.1977) (defining “premises” as covering an area greater than the actual working place of the employee); Nelson v. City of St. Paul, 249 Minn. 53, 56-57, 81 N.W.2d 272, 276 (1957). The parties do not dispute that the incident occurred on Loram’s premises during the work shift of all the actors involved.

b. Meinstma’s injuries fall within the WCA’s definition of compen-sable personal injuries

The definition of “personal injury” in the WCA excludes injuries “caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of employment.” Minn.Stat. § 176.011, subd. 16; Foley, 488 N.W.2d at 273.

Meinstma argues that his injuries are excepted from the definition of compensa-ble personal injuries as defined by the WCA because his fellow employees intended to injure him for personal reasons and not because of his employment. But it is undisputed that Loram’s union employees followed what Meinstma himself described as “a tradition” of spanking fellow union employees on their birthdays, sometimes using a long wooden paddle. Meinstma’s injuries occurred because of his birthday, and there is no evidence of another motive for the incident. On these facts, the district court held that “as a matter of law, the acts of the individual defendants were directed against Meinstma as an employee,” therefore his injuries fall within the definition of compensable injuries under the WCA. We agree.

Meinstma argues that the incident was violent, and asserts that a violent act by a co-employee against a specific employee is always motivated by personal reasons, citing Yunker v. Honeywell, Inc., 496 N.W.2d 419, 424 (Minn.App.1993). But Meinstma is misstating Yunker, which involved a suit against the employer for the violent murder of an employee by a co-employee. The murder took place at the victim’s home. Id. This court held that the claim was not barred by the exclusive coverage provision of the WCA because it was clear that the incident did not satisfy the requirement that it occur “in the course of’ employment, because the incident did not occur within the time and space boundaries of employment. Id. This court went on to note:

Furthermore, a violent murder by a known assailant is almost certainly “intended to injure the employee because of personal reasons” within the assault exception of Minn.Stat. § 176.011, subd. 16 (1986).

Id. Yunker does not, as Meinstma asserts, stand for the proposition that an assault by a known assailant establishes, as a matter of law, intent to injure an employee because of personal reasons. Yunker was distinguishing cases in which an employee is assaulted by an unknown assailant, whose reasons and motives for the assault are not known. See Bear v. Honeywell, Inc., 468 N.W.2d 646, 547 (Minn.1991) (holding the WCA provided exclusive remedy for rape in employee parking ramp by unknown assailant). In Bear, the supreme court, quoting Hanson, 209 Minn. at 600, 297 N.W. at 21-22, noted:

Compensation cases arising from assault fall mostly into three groups. Noncompensable are cases where the assailant was motivated by personal animosity toward his victim, arising from circumstances wholly unconnected with the employment.
In contrast, and compensable are injuries resulting from assault where provocation or motivation arises solely out of the activity of the victim as an employee.
In a middle ground are cases * * * where the assault was directed against the victim, neither “as an employee” nor for “reasons personal to him.” Injuries so arising are ordinarily compensable.

Bear, 468 N.W.2d at 547.

The undisputed facts in this case demonstrate that the assault against Meinstma falls into the group of cases involving injuries resulting from an assault motivated solely out of activity as an employee. There is no evidence that personal animosity motivated the co-employees and no evidence of circumstances wholly unconnected with the employment that were a factor in the assault. Meinstma did not associate with any of the involved co-employees except through his employment at Loram. See McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 834 (Minn.1995) (holding that employee’s tort claim was barred by exclusive remedy provisions of the WCA in part because employee had no contact with assailant outside of her workplace). The incident arose out of a workplace tradition, during working hours, while Meinstma was performing the duties of his job. The district court did not err in holding, as a matter of law, that the incident was directed at Meinstma as an employee of Loram, and was not motivated by personal animosity, and that Meinst-ma’s injuries fall within the definition of compensable personal injuries under the WCA.

c. Loram’s acts do not constitute an intent to injure Meinstma

In Boek v. Wong Hing, the supreme court recognized as an exception to the exclusivity provision of the WCA, the “intentional tort exception,” by holding that an employer who intentionally and maliciously assaulted and beat an employee engaged in the employment, inflicting disabling injuries, could be sued at common law and could not interpose the exclusivity of the WCA as a defense. 180 Minn. 470, 471-72, 231 N.W. 233, 233-34 (1930).

The district court rejected Meinstma’s argument that Loram’s allowance of the spanking warrants a judicial determination that Loram intended Meinstma’s injuries. The district court reasoned that a corporate entity is inherently incapable of harboring a conscious and deliberate intent to inflict injury, relying on Parker v. Tharp, 409 N.W.2d 915, 918 (Minn.App.1987). Parker was assaulted by a co-employee, but asserted that her employer could be hable under the intentional act exception to the WCA. Id. at 916. The supreme court rejected this argument, stating that “[a] corporate entity is by its nature incapable of harboring” the type of intent required for the exception carved out in Boek. Id. at 918.

We note that the record does not contain evidence that any other employee has ever claimed to have been injured by the birthday spankings at Loram. Although we certainly do not condone Loram’s tolerance of this childish, unnecessary, and ultimately injurious behavior by its employees, the facts of this case do not, as a matter of law, give rise to an inference that Loram intended an injury to Meinst-ma, even if such intent could be imputed to a corporation. At most Loram was negligent, or grossly negligent, and the supreme court has held that “ ‘conscious and deliberate intent directed to the purpose of inflicting an injury" could not be inferred from mere negligence, even though that negligence might be gross.” Kaess v. Armstrong Cork Co., 403 N.W.2d 643, 644 (1987) (quotation omitted) (emphasis omitted). The district court did not err by rejecting Meinstma’s argument that the intentional injury exception applies, or by concluding that Meinstma’s claims against Loram are barred by the exclusivity provisions of the WCA. We affirm the district court’s grant of summary judgment to Loram.

III. The WCA is Meinstma’s exclusive remedy for his claims against the co-employees who participated in the incident

The district court determined that since the WCA is the exclusive remedy for Meinstma’s claims against Loram, it would also be his exclusive remedy against those actually responsible for the incident, unless the injury resulted from the gross negligence of the co-employees, or was intentionally inflicted by the co-employees. MinmStat. § 176.061, subd. 5(c) (2000) (stating that a co-employee is not hable for a personal injury incurred by another employee unless the injury resulted fi’om the gross negligence of the co-employee or was intentionally inflicted by the co-employee). In this case, Meinstma has not alleged that his injuries resulted from gross negligence, but he asserts that his injuries were intentionally inflicted by the co-employees.

The district court reasoned that because Meinstma’s principal claim against his co-employees is for battery, and because, by definition, battery is an “intentional tort or infliction of injury,” the WCA does not provide Meinstma’s exclusive remedy against the co-employees. At oral argument, counsel for Valenta, Bachler, and Mendez conceded that the acts alleged constitute a civil battery, but argued that intent to injure is not an element of civil battery, and because there is no evidence of intent to injure in the record, the exception in MinmStat. § 176.061, subd. 5(c), does not apply. We agree.

Intent to do an act is a central issue in an assault and battery action. However, proof of intent to injure is not required for a plaintiff to recover on an assault and battery theory.

Brown v. State Auto. Cas. Underwriters, 293 N.W.2d 822, 825 (Minn.1980) (citing W. Prosser, The Law of Torts § 9 (4th ed.1971)). The plain language of the statute requires a showing of specific intent to injure on the part of a co-employee before an injured employee will be permitted to maintain an action against the co-employee outside of the provisions of the WCA. Minn.Stat. § 176.061, subd. 5(c).

In this case, one of the unchallenged, undisputed facts relied on by the district court, is that Meinstma had “no basis for believing that any of the individual [co-employees] disliked him or wanted to hurt him.” Meinstma has failed to raise a genuine issue of material fact regarding the co-employees’ intent to injure. Minn.Stat. § 176.061, subd. 5(c), does not apply to the facts of this case. The district court erred by concluding that the WCA is not Meinst-ma’s exclusive remedy for his claims against the co-employees involved in this incident and erred by denying the summary judgment motions of Valenta, Ba-chler, and Mendez. We reverse the denial of those motions.

IV. Motion to strike

Meinstma has moved to strike an arbitration decision from the appendix submitted by Mendez and Bachler, as well as all references to that decision. Because this decision was filed with the district court as an exhibit to the motions for summary judgment by Mendez and Bachler it is part of the record on appeal. Minn. R. Civ. App. P. 110.01 (stating record on appeal consists of the papers filed in the trial court, the exhibits, and the transcripts of the proceedings). The motion to strike is denied.

DECISION

Because the WCA provides Meinstma’s exclusive remedy for injuries he sustained as a result of a workplace battery, we affirm the district court’s grant of summary judgment to employer Loram, reverse denial of the summary judgment motions of co-employees Valenta, Bachler, and Mendez.

Affirmed in part, reversed in part; motion denied.


author: CRIPPEN, Judge.*

text:
    In re Carol R. EVANS, Petitioner, Respondent, v. Charles B. EVANS, III, Appellant.
    No. A03-243.
    Court of Appeals of Minnesota.
    Dec. 16, 2003.

      Mitchell J. Ask, Plymouth, MN, for respondent.
    David C. Olson, Lanners & Olson, P.A., Plymouth, MN, for appellant.
    Considered and decided by WRIGHT, Presiding Judge, SHUMAKER, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.*

Appellant, a maintenance obligor, contends that the trial court erroneously upheld a divestiture-of-jurisdiction clause as the basis for denying his petition for relief from his obligation to pay permanent maintenance. Because state statutes do not preclude the court from divesting itself of jurisdiction when the parties have so stipulated and the requirements of Minn. Stat. § 518.552, subd. 5 (2002) are met, we affirm. We also conclude that appellant did not state other grounds for relief under either Minn.Stat. § 518.145, subd. 2 (2002) or the doctrine of inherent judicial powers.

FACTS

Appellant Charles B. Evans, III, seeks review of the trial court’s denial of post-petition relief concerning his obligation to pay maintenance to his former wife, respondent Carol Evans. In October 2001, the parties were divorced in a judgment adopting a stipulation requiring appellant, then 59, to pay permanent maintenance to respondent in a sum, which, after three years, would remain at a constant amount of $1,200 per month. The stipulated judgment also expressly provided that “[t]he Court is divested of jurisdiction to modify the spousal maintenance [award].” The judgment further contained a finding that the marital termination agreement was fair and equitable and supported by consideration, and that there had been full disclosure of the parties’ financial circumstances.

Approximately one year later, appellant moved to modify the judgment, premised on the tax consequences to him arising from the property settlement and his assertion that because of his health it would be difficult for him to continue his income from a part-time job. The record contains no evidence that the tax liability was unforeseeable at the time of the judgment. The trial court denied the motion, determining that the parties had expressly waived modification and that the court was divested of jurisdiction to modify the maintenance award. This appeal followed.

ISSUE

Did the trial court err in refusing post-judgment relief to override the parties’ stipulation for divestiture of its jurisdiction over permanent maintenance?

ANALYSIS

Appellant first contends that under Minn.Stat. § 518.145, subd. 2(4) (2002), the clause in the judgment divesting the court of jurisdiction to modify maintenance is void as a matter of law. He rests his contention on Minn.Stat. § 518.552, subd. 3 (2002), which states a standard of openness for the modification of permanent maintenance following a divorce judgment. But we observe, initially, that this declaration is confined to circumstances in which the court has determined that the need for permanent maintenance is uncertain, which is not the circumstance here. And the usual continuing jurisdiction of the court, stated in Minn.Stat. § 518.64, subd. 1 (2002), can be altered by a stipulation of the parties that is approved by the judgment court. See Minn.Stat. § 518.552, subd. 2 (2002) (granting trial court power to determine permanent award on basis of statutory factors); see also Karon v. Karon, 435 N.W.2d 501, 503 (Minn.1989) (affirming divestiture of jurisdiction clause when determined by an approved stipulation of parties).

Appellant cites Toughill v. Toughill, 609 N.W.2d 634 (Minn.App.2000) in support of his proposition that the judgment may be considered void. The court in Toughill did not determine that such a clause was void, but rather reversed a divestiture-of-jurisdiction clause as an abuse of discretion in the context of an appeal from the judgment. Id. at 641. Additionally, the decision in Toughill rests on facts not in evidence in this case, namely, the determination of a maintenance award when the financial circumstances of the parties were openly uncertain. Id. A determination of voidness would be especially inappropriate in the circumstances of this case. See Karon, 435 N.W.2d at 504 (noting that stipulations are “carefully drawn compromises which affect property distribution, real and personal, as well as future income”); see also Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn.1997) (cautioning that trial court is “to exercise its considerable discretion carefully and only reluctantly when it is faced with a request to alter the terms of an agreement which was negotiated by the parties”) (citations omitted).

We are mindful that the facts presented by this case do not make a strong case that the trial court abused its discretion in failing to modify the judgment. The record contains no evidence that appellant’s income has materially changed since the stipulated judgment was entered, and on this record, the tax liability he incurred must be viewed as anticipated at the time the parties negotiated their agreement.

Appellant also urges this court to apply Minn.Stat. § 518.145, subd. 2(5), which allows relief from a divorce judgment if it is no longer equitable that it be enforced. But we find no authority permitting us to conclude that this section imposes a less stringent standard than that for modification, and appellant has not made a convincing case for modification. We note that the circumstances in this case do not parallel those in Harding v. Harding, 620 N.W.2d 920, 924 (Minn.App.2001), review denied (Minn. Apr. 17, 2001), in which relief was granted to reflect a material change of circumstances substantially altering information on a topic previously addressed in the stipulated judgment. In this case, there is no evidence that the financial circumstances of the parties were not fully and fairly disclosed at the time of the stipulation.

Appellant further argues that this court should use its inherent authority to order a change in the judgment. Initially, we observe that his arguments on this point are not accompanied by citations to current authority and offer no convincing interpretation on the basis of statutory construction. Moreover, the supreme court has determined that the sole relief from a divorce judgment lies in meeting requirements of Minn.Stat. § 518.145, subd. 2, and that once stipulation merges into judgment, “finality becomes of central importance.” Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn.1997). And the circumstances of this case offer no showing of a gross injustice that would support appellant’s position.

Finally, appellant challenges the stipulation as lacking in consideration under Minn.Stat. § 518.552, subd. 5 (2002). But the trial court made express findings that the stipulation was fair and equitable and supported by consideration, with full disclosure of each party’s financial circumstances. Although appellant has posed this argument, he has made no attempt to evaluate the consideration that flowed in the stipulated agreement, which we observe to be generally ample in light of the considerable exchange of obligations between the parties.

DECISION

We conclude that the trial court properly upheld the divestiture-of-jurisdiction clause in the stipulated judgment. Statutes permitting modification of maintenance awards are inapplicable when there is an approved stipulation divesting the trial court of jurisdiction, and the trial court made proper findings under Minn. Stat. § 518.552, subd. 5 (2002). Finally, the trial court did not abuse its discretion in failing to modify based on a prospective inequitable application when the financial circumstances of the parties had been accurately disclosed at the time of judgment, and we conclude that appellant’s assertion of manifest injustice lacks legal factual support in this record.

Affirmed.

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

      . In addition, consistent with Karon v. Karon, 435 N.W.2d 501 (Minn.1989), the stipulation contained a contractual waiver of the statutory right to seek modification. See Loo v. Loo, 520 N.W.2d 740, 745 n. 5 (Minn. 1994).

      . Although appellant received an employment termination notice six days after the motion was filed, he acknowledges that he has since regained full-time employment.

      . Appellant does not contend and we do not conclude that Karon governs only a petition of an obligee for extension of maintenance benefits.