author: SCHUMACHER, Judge.

text:
    David PAJUNEN, et al., Appellants, v. MONSON TRUCKING, INC., defendant and third-party plaintiff, Respondent, v. Cutler-Magner Company, Third-party Defendant.
    No. C0-99-1579.
    Court of Appeals of Minnesota.
    June 20, 2000.
    Review Denied Aug. 15, 2000.

      Gordon C. Pineo, Deal and Pineo, Virginia; and Paul D. Cerkvenik, J. Carver Richards, The Trenti Law Firm, Virginia, for appellants.
    Mark M. Suby, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul; and John M. Colosimo, Colosimo, Patchin, Ar-onson & Kearney, Virginia, for respondent.
    Considered and decided by ANDERSON, Presiding Judge, SCHUMACHER, Judge, and PETERSON, Judge.
   OPINION

SCHUMACHER, Judge.

David and Marian Pajunen appeal the district court’s handling of a Schwartz hearing into possible juror misconduct and its decision denying them a new trial. We affirm.

FACTS

This case involves litigation stemming from an accident involving three 18-wheel-er trucks on Ontario Highway 502. Two truck drivers, both driving trucks owned by respondent Monson Trucking, Inc., decided to pull off the road because of icy conditions. The first truck, travelling north, pulled off the road at the bottom of a hill, blocking part of the northbound lane. The other truck, traveling south, pulled off the road before it reached the hill, blocking part of the southbound lane about 300 feet north of the first truck. A third truck, driven by David Pajunen, came northbound over the hill and tried to steer its way between the trucks. After steering around the truck in the northbound lane, Pajunen was unable to steer his truck back into the northbound lane and struck the truck parked in the southbound lane.

The jury in a first trial found Pajunen 35% at fault and the Monson drivers together 65% at fault. Monson appealed, and this court granted a new trial on the ground that the trial court erred by aggregating the fault of the two Monson drivers. Pajunen v. Monson Trucking, Inc., No. C5-97-2223, 1998 WL 404992 (Minn.App. July 21, 1998), review denied (Minn. Sept. 22, 1998).

In a second trial, the jury returned a defense verdict, finding Pajunen 100% at fault for the accident. The jury verdict was a 5/6ths verdict. That same afternoon, upset about the jury deliberations the jury foreperson' — the lone dissenting juror — called Pajunen’s attorney. According to the foreperson, another juror stated during deliberations that he had experience as a truck driver, and based on that experience his view of the law in Minnesota was that whenever a moving vehicle is involved in an accident with a stopped vehicle, the moving vehicle is always at fault. Although the foreperson immediately pointed out that the judge’s legal instructions contained no such rule, the juror did' not retract or correct his statement.

Based on this information, Pajunen moved for a Schwartz hearing to investigate possible juror misconduct. A Schwartz hearing is a posttrial hearing in which jurors are examined under oath to address concerns of juror misconduct. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). The district court granted the motion. When the district court conducted the Schwartz hearing, however, it did not ask any questions specifically directed at the incident the foreperson reported. Instead, the district court asked each of the jurors the following two questions:

1. In reaching your verdict, did you follow the law as given by the Court and disregard any statement of the law that you may have heard or seen from any other source?
2. Did you in any way base your verdict upon any understanding of the law that you may harbor that is not in accordance with [the law given by the Court]?

The court did not allow the parties’ attorneys to ask the jurors any questions.

Pajunen’s attorneys objected, contending that the two general questions would be ineffective in discovering any prejudice that may have resulted from the juror’s statement. Nonetheless, the district court conducted the Schwartz hearing by asking each juror only those two questions. Each juror answered yes to the first question and no to the second. Based on those answers, the court concluded that no juror misconduct had occurred and denied Paju-nen’s subsequent motion for a new trial.

ISSUES

1. Did the district court abuse its discretion in conducting the Schwartz hearing?

2. Did the district court abuse its discretion by denying Pajunen a new trial?

ANALYSIS

The purpose of a Schwartz hearing is to investigate potential juror misconduct and prevent the practice of attorneys contacting and questioning jurors after a verdict has been rendered. Arney v. Helbig, 383 N.W.2d 4, 6 (Minn.App.1986). Such a hearing also allows the losing party to establish a record that might indicate jury misconduct. Zimmerman v. Witte Transp. Co., 259 N.W.2d 260, 262-63 (Minn.1977). A trial court has the discretion to grant a new trial based on evidence of juror misconduct. State v. Kelley, 517 N.W.2d 905, 910 (Minn.1994). At a Schwartz hearing, the movant bears the burden of demonstrating actual misconduct and prejudice. Id.

There is very little law regarding how a Schwartz hearing should be conducted. We do know that “the manner in which a Schwartz hearing is conducted rests within the sound discretion of the trial court.” State v. Olkon, 299 N.W.2d 89, 109 (Minn.1980). Our rules of evidence also offer some guidance about the proper conduct of a Schwartz hearing. In recognition of the importance of privacy in jury deliberations, the rules of evidence prohibit inquiry into a juror’s “mental processes” related to the verdict:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Minn. R. Evid. 606(b).

But inquiring into the jurors’ “mental processes” is exactly what Pajunen wanted the district court to do. Questions about the “effect [the juror’s statements] had on jurors,” and “whether any jurors’ decisions were influenced by the statements” are questions that implicate the jurors’ “mind[s] or emotions as influencing the juror[s] to assent to or dissent from the verdict or indictment” and the jurors’ “mental processes.” Minn. R. Evid. 606(b). As such, Rule 606(b) would appear to prevent the district court from asking such questions.

At least one Minnesota Supreme Court decision, however, has specifically rejected a district court’s refusal to probe jurors’ mental processes. Schrupp v. Hanson, 306 Minn. 151, 151-54, 235 N.W.2d 822, 822-24 (1975); see also Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672, 687 (Minn.1977) (“The trial court asked each juror whether the headline had any effect on its resolution of the ease, and each answered that it had not.”) (decided May 20, 1977). The Minnesota Rules of Evidence, however, were not effective until July 1, 1977, almost two years after Schrupp was decided. As a result, its continuing authority is open to doubt.

But post -Schrupp cases evince the same confusion. In Olkon, the supreme court observed without comment that the “juror who had had the contact with his employer testified that the contact had not influenced his decision-making.” 299 N.W.2d at 109. On that same page of the opinion, however, the Court rejected the defendant’s contention that the district court should have inquired into the possible predisposition of one of the jurors to convict. Quoting Rule 606(b), the Court held that “under the rule, the thought processes of a juror are protected from later inquiry.” Id. Olkon thus does not stand for the proposition that a district court may investigate juror misconduct by inquiring into the mental processes of the jurors.

In dicta, the Minnesota Supreme Court has reemphasized that investigating possible juror misconduct using questions about a juror’s mental processes is not proper:

Of particular concern are * * ⅞ the questions directed to the threatened juror as to whether the conduct has affected his verdict. Because the standard for the presence of jury misconduct turns on the existence of overt acts, questions as to mental processes are not proper.

Kelley, 517 N.W.2d at 910; see also State v. Lehman, 511 N.W.2d 1, 3 n. 1 (Minn.1994) (questions to jurors “about their thought processes in concluding the defendant was guilty” are “forbidden at a Schwartz hearing”).

The information Pajunen sought to discover in the Schwartz hearing — whether any juror based his or her verdict in part on the juror’s mistaken statement of the law — is shielded from inquiry by Rule 606(b). Pajunen’s argument that Rule 606(b) allows inquiry into jurors’ mental processes in reaching a verdict is based on cases decided before the rules of evidence were adopted and on cases that do not squarely consider and decide the issue whether such inquiry is permitted. As a result, the court did not abuse its discretion by refusing to ask or permit questions directed to those issues.

Nor did the trial court abuse its discretion in refusing to ask questions about exactly what the jurors said. Absent any serious dispute between the parties about what was said, or any allegations in the affidavit requesting the Schwartz hearing suggesting the presence of additional possible overt acts, the trial court was within its discretion to refuse to inquire further.

We will not reverse a trial court’s decision to deny a motion for a new trial on the basis of jury misconduct absent an abuse of discretion. State v. Kyles, 257 N.W.2d 378, 381 (Minn.1977). Because the Schwartz hearing did not disclose evidence of overt acts constituting juror misconduct, the district court did not abuse its discretion by denying Pajunen’s motion for a new trial.

DECISION

The district court did not abuse its discretion in conducting the Schwartz hearing or in denying Pajunen’s motion for a new trial.

Affirmed.


source: Caselaw Access Project

author: PETERSON, Judge

license: Public Domain

text:
    GUN LAKE ASSOCIATION, et al., Relators, v. COUNTY OF AITKIN, individually and by and through its planning commission and board of commissioners, Respondent, George Shetka, et al., Respondents.
    No. C7-99-1630.
    Court of Appeals of Minnesota.
    June 20, 2000.

      Thomas A. Streitz, .Minneapolis, MN, John Erickson, Erickson & Pearson Law Offices, Brainerd, for relators.
    Jack Y. Perry, Tamika R. Nordstrom, Briggs & Morgan, P.A., Minneapolis, for respondent George Shetka and Charles Hawkinson.
    Michael J. Ford, Quinlivan & Hughes, P.A., St. Cloud, and Bradley Rhodes, Ait-kin County Attorney, James P. Ratz, Assistant County Attorney, Aitkin, for respondent Aitkin County.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, SCHUMACHER, Judge, and PETERSON, Judge.
   OPINION

PETERSON, Judge

Respondents applied to Aitkin County for a conditional use permit (CUP) to operate a hot-mix, asphalt plant on property in Fleming Township. When the county planning commission initially considered the CUP application, it stated it was conditionally granting the application and that specific conditions for the operation of the hot-mix plant would be imposed later. The planning commission later approved certain conditions and relators appealed the planning commission’s decision to the Aitkin County Board of Commissioners, which denied the appeal. On appeal to this court from the county board’s denial of the appeal from the planning commission, relators challenge the grant of the CUP and the process used to create the later-imposed conditions. Because the county board’s decision to deny the portion of the appeal challenging the grant of the CUP is consistent with Minn.Stat. § 15.99, subd. 2 (1998), and because relators have not shown that the process used to create the conditions was defective, we affirm.

FACTS

Respondent George Shetka owns property in Fleming Township in Aitkin County. Respondent Charles Hawkinson manages that property. In May 1998, Hawkinson applied to Aitkin County for a CUP allowing part of the Shetka property to be used as a “permanent/ongoing site for the use of temporary/portable hot mix plants.”

The Gun Lake Resident’s Association and Robert Carlson, among others, opposed the application. The Fleming Township Board of Supervisors sent the county planning commission a letter expressing the board’s opposition to allowing a hot-mix facility on Shetka’s land. In July 1998, the township board sent the planning commission another letter stating that the township wanted to present its case for adopting a list of conditions for any CUP the county might grant.

At some point in July 1998, the township board, residents’ associations, Hawkinson, Shetka, and a representative of an environmental group met. They discussed, and at least tentatively agreed upon, conditions for the operation of the proposed hot-mix plant. On July 20, 1998, the county planning commission met to address the CUP application. At that meeting: (a) the proposed conditions were presented to the planning commission; (b) a township representative stated that the township board believed the proposed conditions were “solid,” would protect the surrounding environment, and that the township board was in favor of granting the CUP with those conditions; (c) the planning commission noted that two other sets of proposed conditions had been introduced; (d) Shetka’s attorney argued that if the legal requirements for a CUP were satisfied, the commission lacked discretion to deny the application; (e) questions were raised about whether there were other possible sites for a hot-mix plant in the county; and (f) the planning commission stated that it was conditionally approving the CUP application but that the question of conditions for the CUP would be referred to an ad hoc environmental responsibility team made up of two members of the planning commission, the county attorney, and staff from the zoning office.

On July 20,1998, the county zoning ordinance required that an appeal of a planning commission decision be taken to the county board within 30 days. No appeal of the planning commission’s July 20 decision was taken. On July 29, 1998, the environmental responsibility team met to create a list of proposed conditions for the CUP. A representative from the township and counsel for Carlson were allowed to be “non-verbal observers” at the meeting.

An August 14, 1998, letter from the Minnesota Environmental Quality Board to the planning commission stated that an Environmental Assessment Worksheet (EAW) had been requested for the proposed hot-mix plant and that the county was the proper authority to ask the CUP applicant to complete the worksheet. Effective August 25, 1998, the county zoning ordinance was amended to require that an appeal of a planning commission decision be by writ of certiorari to the Minnesota Court of Appeals. An EAW was filed in February 1999. Comments on the EAW were filed through early March. Comments from the Minnesota Pollution Control Agency stated that while the odor associated with the hot-mix plant would not be easy to address, the other aspects of the EAW were not a major concern.

A March 22, 1999, memorandum from the county planning commission to the county board stated that the environmental responsibility team did not recommend continuing the environmental review process by requiring an Environmental Impact Statement (EIS) for the proposed facility. The next day, the county issued its decision against requiring a full EIS, stating that the identified environmental impacts were minor and/or temporary, the plan did not include environmental effects that could not be addressed, and the project lacks a potential for significant environmental effects.

On April 19, 1999, the full planning commission met to consider the list of proposed CUP conditions that had been developed by the environmental responsibility team. Relators’ counsel argued that the process for developing the conditions had been flawed because his attempt to put information in the record (apparently at the July 29 meeting that started the process for drafting the conditions) had been ignored. The chair of the commission replied that the only thing at issue at the meeting was the propriety of the eondi-tions for the CUP. After some alterations, the commission approved the proposed conditions. Counsel for Carlson asked how to appeal the planning commission’s decision and the county attorney told him to appeal to the county board.

On May 15, Carlson’s counsel sent the county board a letter stating that Carlson was appealing the “April 19, 1999 granting of a [CUP.]” On August 10, the county board heard the appeal. On August 31, the board voted 3-2 to deny the appeal. This appeal followed. During the pen-dency of the appeal, Fleming Township was dismissed as a party to the appeal.

ISSUES

1. Did the county board act arbitrarily, or otherwise improperly, in denying the portion of relators’ appeal challenging the grant of the CUP application?

2. Did relators show defects in the process used to create the conditions imposed on the conditional use permit?

ANALYSIS

I.

“[A]n agency must approve or deny within 60 days a written request relating to zoning” and “[fjailure of an agency to deny a request within 60 days is approval of the request.” Minn.Stat. § 15.99, subd. 2 (1998). “Agency” includes a county. Minn.Stat. § 15.99, subd. 1 (1998). Rela-tors allege that the CUP application was made on May 20, 1998. Shetka alleges that the application was made on May 18, 1998. Although some of the documents supporting the CUP application are dated May 18, the application is dated May 20. For purposes of this appeal, we assume that the application was made on May 20, 1998.

Sixty days from May 20, 1998, was Sunday, July 19,1998. Therefore, the last day for the county to approve or deny the application was Monday, July 20, 1998. See Minn.Stat. § 645.15 (1998) (stating, if last day of relevant period is Saturday, Sunday or legal holiday, period continues to next day that is not Saturday, Sunday or legal holiday). On July 20, 1998, the county planning commission stated that it was “conditionally approving” the CUP application and that the conditions for the approval would be addressed later.

It is not clear from the record whether the planning commission intended to actually grant the CUP application on July 20, 1998. The record of the July 20, 1998, hearing includes statements by the chairman of the planning commission indicating that the commission was “[c]onditionally approving; we are not approving [the application]. It will not be approved or disapproved until the next meeting, based on what the conditions are with the committee — [.]” Similarly, the minutes of the April 19, 1999, planning commission meeting indicate that the chair of the planning commission “stated that if [the conditions proposed by the environmental responsibility team] make this permit acceptable and there are successful findings of fact, the commission will approve the [CUP.]”

Although it is not clear whether the planning commission intended to grant the CUP application on July 20, 1998, it is clear that the commission did not deny the application. Therefore, either the application was approved by an affirmative act of the planning commission on July 20, or the application was approved as a matter of law under Minn.Stat. § 15.99, subd. 2, because the planning commission failed to deny the application within 60 days. See Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278, 281 (Minn.App.2000) (holding that, under Minn.Stat. § 15.99, subd. 2, an agency’s rejection of a resolution to grant a permit application was not equivalent to denying the application and therefore, the permit was granted as a matter of law), pet. for rev. filed (Minn. May 26, 2000).

As of July 1998, section 11.05 of the Aitkin County zoning ordinance stated that “any decision of the Planning Commission” regarding a CUP application could be appealed to the county board within 30 days. Aitkin County, Minn., Zoning Ordinance § 11.05 (1996) (emphasis added). For purposes of this appeal, we assume that the ordinance’s use of “any decision” refers to “any final decision” and that therefore, the planning commission’s July 20, 1998, statement that it would rule on the conditions for the CUP application at a later date rendered the July 20 grant of the CUP (be it a grant by the planning commission, a conditional grant by the planning commission, or a grant by operation of law under Minn. Stat. § 15.99, subd. 2) non-fínal and hence not appealable to the county board until the planning commission made its decision on conditions for the CUP.

On appeal of a county’s denial of a CUP application, we review whether the decision was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law or without evidentiary support. Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 181 (Minn.App.1997). Relators allege that the grant of the CUP application is defective because the county failed to abide by relevant statutes and ordinances, failed to make adequate findings of fact, and made findings that were not supported by the record. But the result reached by the county board, which, in effect, affirmed the grant of the CUP, is not only allowed, but compelled, by statute due to the county’s failure to deny the CUP application within the period set out by Minn.Stat. § 15.99, subd. 2. We cannot hold that the county acted in an arbitrary, or otherwise improper, fashion when the result it reached was compelled by statute.

II.

Effective on August 25, 1998, section 11.05 of the Aitkin County zoning ordinance was amended to require that appeals from planning commission decisions relative to a conditional use permit be taken to the Minnesota Court of Appeals by writ of certiorari. Respondents argue that relators improperly appealed the April 19, 1999, planning commission decision to the county board under the old appeal procedure rather than to this court under the amended procedure.

Relators appealed the planning commission’s decision pursuant to advice from the Aitkin County Attorney that the old appeal process continued to apply to applications initiated before the effective date of the ordinance amendment. It is not apparent from the record what authority the county attorney relied on to conclude that the old appeal process applied. We have found nothing that indicates one way or the other whether the ordinance amendment was to be applied to applications that were pending when the amendment became effective. Therefore, because the record does not permit meaningful analysis of this question, and because we conclude that a decision on this issue will not change the effect that our ultimate decision will have on the parties, we decline to determine which appeal process applies. We assume that an appeal to the county board under the old-appeal process was proper.

Relators allege that the planning commission’s process for developing the conditions for the CUP deprived them of due process of law and violated the open meeting law. To support their argument, relators cite the 14th Amendment to the United States Constitution, Article I, Section 7, of the Minnesota Constitution, and the Minnesota Open Meeting Law, Minn. Stat. § 471.705 (1998). But relators do not explain how the constitutional and statutory provisions they cite were violated; they simply argue in a conelusory fashion that the provisions were violated. Absent an attempt to apply the law that they cite, relators failed to carry their appellate burden to show error and prejudice. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).

Furthermore, quasi-judicial proceedings, such as considering a CUP application, do not generally invoke “the full panoply of procedures required in regular judicial proeeedings[;]” the applicable rights of due process are “reasonable notice of hearing and a reasonable opportunity to be heard.” Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn.1978).

Relators allege that they were precluded from meaningful participation in the environmental review team’s construction of the list of conditions for the CUP. But although relators were not able to actively participate in drafting some of the conditions proposed for the CUP, they had substantial input in at least one of the preliminary lists of proposed conditions considered by the environmental review team. Relators also participated in both the April 19, 1999, hearing at which the planning commission considered the conditions proposed by the environmental review team and in the appeal of that decision to the county board. Thus, while relators may not have been allowed to participate in an early stage of the drafting of proposed CUP conditions, they were allowed to address the reasonableness of the conditions at least twice.

Relators also object to the planning commission’s “apparent rejection” of the “settlement agreement” approved by the parties in July 1998. Relators, however, cite no authority that requires a governmental body responsible for zoning decisions to accept the terms of an agreement among third parties. Absent any authority indicating that relators’ opportunities to be heard were inadequate, we cannot say that relators have shown that they were denied the limited due process to which they were entitled in the quasi-judicial proceeding.

DECISION

Because the county planning commission stated that it was conditionally granting the CUP application and did not deny that application within 60 days after it was submitted, the CUP application was either granted by affirmative act of the planning commission or by operation of law under Minn.Stat. § 15.99, subd. 2 (1998), on July 20, 1998. Because the county board’s af-firmance of the grant of the CUP was consistent with the result mandated by Minn.Stat. § 15.99, subd. 2, the county board did not act in an arbitrary or otherwise improper fashion in affirming that grant. Also, relators have not shown that their opportunity to be heard in the process used to create conditions imposed on the CUP was inadequate. Relator’s request for attorney fees is denied.

Affirmed.

      . Shetka and relators dispute whether the failure to state in the appeal letter that the Gun Lake Association was challenging the planning commission’s decision means Gun Lake is not a proper party to the appeal to this court. Whether Gun Lake is a proper party in this court will not affect the scope of the arguments presented for decision because it is undisputed that (a) Carlson did appeal to the county board; (b) Carlson and Gun Lake have the same attorney; and (c) that attorney filed a single brief in this court. Thus, this opinion refers to Carlson and Gun Lake as "relators.”

      . Relators argue that whether the CUP application was approved as a matter of law is not properly before this court because respondents did not file a notice of review raising that issue. But appellate courts have the obligation to decide cases consistent with the law. See State v. Hannuksela, 452 N.W.2d 668, 673 n. 7 (Minn.1990) ("it is the responsibility of appellate courts to decide cases in accordance with law and that responsibility is not to be 'diluted by counsel's oversights, lack of research, failure to specify issues or to cite relevant authorities’ ”) (citation omitted); Greenbush State Bank v. Stephens, 463 N.W.2d 303, 306 n. 1 (Minn.App.1990) (applying Hannuksela in a civil case), review denied (Minn. Feb. 4.1991). Our decision simply recognizes that under Minn.Stat. § 15.99, subd. 2, the planning commission’s failure to deny the CUP application within 60 days after it was submitted is an approval of the application. The approval occurred without any further action by respondents to invoke their rights under the statute, and the respondents did not lose their rights under the statute by failing to file a notice of review.

      . After oral argument to this court, the county was directed by order of this court to file copies of the county's zoning ordinance in effect on May 18, 1998, and all later amendments. In addition to the requested documents, this court received numerous other post-oral-argument submissions from the parties. The unsolicited submissions were improper and were not considered in the resolution of this appeal. See Minn. R. Civ.App. P. 128.02, subd. 4 (stating that no brief beyond those identified in the rules may be filed without leave of the court).

      . Our construction of the ordinance is consistent with the amended version of the ordinance that became effective in August 1998 and allows appeal of "any decision of the Planning Commission relative to a conditional use permit” to this court by writ of certio-rari. (emphasis added). See In re Application by City of Rochester for Adjustment of Serv. Area Boundaries With Peoples Coop. Power Ass'n. Inc., 524 N.W.2d 540, 541 (Minn.App.1994) (stating certiorari ordinarily available only when ruling sought to be reviewed is final, rather than interlocutory, determination). If the ordinance in effect in July 1998 did not require a final decision for appeal to the county board, the planning commission’s failure to immediately rule on the conditions for the CUP did not render the July 20, 1998, grant of the CUP (be it a grant by the planning commission, a conditional grant by the planning commission, or a grant by operation of law under Minn.Stat. § 15.99, subd. 2) unappealable. Under this analysis, relators’ May 1999 attempt to appeal the July 1998 grant was untimely, the grant of the CUP application was not properly before the county board and is not properly before this court.

      . The parties’ arguments on this issue assume that conditions can be imposed on a CUP after the date on which the CUP would otherwise have been granted under Minn.Stat. § 15.99, subd. 2. We express nó opinion on this question.


text:
    Sheung KWONG, Appellant, v. DEPOSITORS INSURANCE COMPANY, Respondent.
    No. C5-00-242.
    Court of Appeals of Minnesota.
    June 27, 2000.

      Paul F. McEllistrem, Hauer, Fargione & Love, P.A., Minneapolis, MN (for appellant).
    Timothy P. Jung, Peterson & Hektner, Ltd., Minneapolis, MN (for respondent).
    Considered and decided by HARTEN, Presiding Judge, SCHUMACHER, Judge, and SHUMAKER, Judge.
   OPINION

SCHUMACHER, Judge.

Appellant Sheung Kwong challenges the denial of his motion for summary judgment. The district court certified to this court as important and doubtful the question of whether an insurer may enforce a policy clause for uninsured motorist benefits that requires the insured to obtain the insurers consent before a judgment arising out of a suit between its insured and an uninsured motorist will be binding on the insurer. We answer the certified question in the affirmative.

FACTS

On February 29, 1996, Kwong suffered bodily injury in a collision between his vehicle and an uninsured vehicle, triggered by the actions of a third vehicle that was insured. Kwong notified his insurance carrier, respondent Depositors Insurance Company, and filed an uninsured motorist claim. Depositors Insurance denied the claim, determining that because the insured motorist was primarily at fault uninsured motorist coverage was not available.

Kwong then sued both the driver of the uninsured vehicle and its owner (uninsured motorists), as well as the driver of the insured vehicle and its owner (insured motorists). He notified Depositors Insurance of the lawsuit and forwarded to it a copy of the summons and complaint. Depositors Insurance did not intervene. The uninsured motorists did not answer the complaint.

After discovery was completed, Kwong and the insured motorists proceeded to non-binding arbitration pursuant to court order. There is no indication that the uninsured motorists and Depositors Insurance were notified. Before the arbitration hearing, Kwong settled with the insured motorists for $6,500 pursuant to a Pier-ringer release. Kwong then proceeded against the uninsured motorists in the arbitration proceeding, and the arbitrator awarded him $30,000 by default. Because there was no motion for a trial de novo, Kwong obtained a final judgment of $30,653.58 against the uninsured motorists.

Kwong then demanded payment of uninsured motorist benefits under his policy. He provided Depositors Insurance with a copy of the judgment. Depositors Insurance cited an exclusionary clause in the policy that provided it was not bound by a judgment between its insured and an uninsured motorist unless it consented. Because it had not consented, it denied the claim.

Kwong then sued Depositors Insurance for breach of contract based on its failure to pay him uninsured motorist benefits pursuant to his insurance contract. He moved for summary judgment, contending the insurance company was bound by the default judgment he had obtained against the uninsured motorists. The district court denied the motion but certified the question of whether Depositors Insurance’s exclusion is valid.

ISSUE

Is Depositors Insurance’s exclusion valid under Minnesota law?

ANALYSIS

When a certified question arises from the denial of summary judgment, an appellate court will review the record to determine whether there are any genuine issues of material fact and whether the district court erred as a matter of law. Employers Mut. Cas. Co. v. A.C.C.T., Inc., 580 N.W.2d 490, 493 (Minn.1998). The interpretation of insurance contracts and the construction of statutes governing them present questions of law * * *. American Natl. Property Cas. Co. v. Loren, 597 N.W.2d 291, 292 (Minn.1999). The contract between the parties governs the insurer’s liability, so long as it includes coverage required by law and does not contravene applicable statutes. Id. An insurer may not provide less coverage than that required by the [No-Fault] Act. Id. (footnote omitted).

Under an uninsured motorist policy, the insurers obligation is to pay, subject to its policy limits, benefits which [the insured] would otherwise have collected in tort damages from the uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Galloway, 373 N.W.2d 301, 305 (Minn.1985). It is in effect a substitute for insurance that the tortfeasor should have had. Van Tassel v. Horace Mann Mut. Ins. Co., 296 Minn. 181, 189, 207 N.W.2d 348, 353 (1973). Uninsured motorist coverage provides

[1] coverage for the protection of persons insured under that coverage [2] who are legally entitled to recover damages for bodily injury [3] from owners or operators of uninsured motor vehicles

Minn.Stat. 65B.43, subd. 18 (1994).

When there are multiple tortfea-sors, including both insured and uninsured parties, the plaintiff may proceed in one of three ways. Galloway, 373 N.W.2d at 304. First, the plaintiff may sue the tortfeasors and then seek uninsured motorist benefits through arbitration if not fully compensated. Id. Second, the plaintiff may collect uninsured motorist benefits up to the limits of coverage and then pursue a court action against the insured tortfeasors if the policy limits do not provide full compensation for the damages. Id. The uninsured motorist insurer would then have a perfected subrogation interest against both the insured and uninsured tortfeasors. Id. Third, the plaintiff can settle with the insured tortfeasors and then, if not fully compensated, seek uninsured motorist benefits through arbitration. Id.

Kwong did not proceed in any of these three ways. Instead, he sued the insured and uninsured tortfeasors, then settled with the former and obtained a default judgment against the latter. Kwong is now seeking a determination that his uninsured motorist insurer, Depositors Insurance, is bound by the judgment he obtained against the uninsured tortfeasor. He contends that he proceeded properly under Malmin v. Minnesota Mut. Fire Cas. Co., 552 N.W.2d 723, 728 (Minn.1996), which held that a consent to sue clause in an underinsured motorist policy violated the no-fault act. If Malmin applies, there is no dispute that Kwong followed the notice requirements and procedure set out therein.

To decide this issue, we must consider the differences between uninsured motorist and underinsured motorist coverage. Underinsured motorist coverage is considered excess coverage, to be used after the tortfeasors liability has been determined. Employers Mut. Cos. v. Nordstrom, 495 N.W.2d 855, 856 (Minn.1993). Consequently, a claim for underinsurance benefits does not mature until after the plaintiff recovers from the tortfeasors insurer. Id. at 857. Claimants seeking underinsured motorist benefits may sue their insurance companies under only two circumstances. Washington v. Milbank Ins. Co., 562 N.W.2d 801, 805 (Minn.1997). First, if the insured had sued the insured tortfeasor and obtained a judgment exceeding the limits of the tortfeasor’s liability coverage, the insured can then pursue a claim for under-insured motorist benefits. Id. Second, the insured can settle the tort claim for the best settlement, give a Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983) notice to the underinsured motorist carrier, and then bring a claim for underinsured motorist benefits. Id.

In contrast, the claimant for uninsured motorist benefits does not have to recover from the tortfeasor before the uninsured motorist claim matures; instead, the condition precedent is that the tortfeasor was uninsured. While the insured may not bind the uninsured motorist insurer through a settlement with the uninsured tortfeasor, the insureds decision to sue the uninsured tortfeasor does not result in a forfeiture of the insureds uninsured motorist claims. Ruddy v. State Farm Mut. Auto. Ins. Co., 596 N.W.2d 679, 685 (Minn.App.1999), review denied (Minn. Sept. 28, 1999). Depositors Insurance acknowledged on the record that Kwong could have sued the insurance company directly or joined it in his lawsuit against the tortfeasors. See id. at 684-85. He also could have proceeded against Depositors Insurance by arbitration as provided in his insurance policy.

Kwong contends that it would be unfair to require him to relitigate the issues that were addressed in obtaining the judgment against the uninsured motorist. First, we note that because the uninsured motorists were unrepresented and in default, liability was not vigorously litigated. Second, the supreme court has expressed concern that a claimant could gain an unfair advantage by settling with the uninsured motorist. Galloway, 373 N.W.2d at 306-07. Although Depositors Insurance is not bound by the judgment against the uninsured tortfeasors to which it did not consent, Kwong is free to proceed on his breach of contract claim against his insurer to obtain uninsured benefits to which he believes he is entitled under his policy.

DECISION

The district court properly denied summary judgment in ruling that Depositors Insurance may enforce its exclusionary clause so that it is not bound by Kwong’s judgment against the uninsured motorist.

Certified question answered in the affirmative.


author: LANSING, Judge

text:
    Joseph WHITENER, Jr., Michael Lee Bower, Jerome Lee Whitener, and Thomas Jacob Whitener, minors, by their guardian ad litem, Lee Miller, Respondents, v. Ronald DAHL, d/b/a Flowing Well Supper Club, defendant and third-party plaintiff, Appellant, v. Mahnomen Implement, Inc., et al., third-party defendants.
    No. C7-99-2177.
    Court of Appeals of Minnesota.
    June 27, 2000.
    Review Granted Aug. 22, 2000.

      Paul F. McEllistrem, Hauer, Fargione & Love, P.A., Minneapolis, for respondents Joseph, Jerome and Thomas Whitener, Michael Bower, and guardian ad litem.
    Peter E. Lind, Steven D. Pattee, Wal-deck & Lind, P.A., Minneapolis, for appellant.
    James M. Mahoney, Mahoney, Dougherty & Mahoney, Minneapolis, for respondents Mahnomen Implement, et al.
    Considered and decided by LANSING, Presiding Judge, WILLIS, Judge, and PORITSKY, Judge.

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

   OPINION

LANSING, Judge

Sandra Bower died in a car accident after she consumed alcoholic beverages at Ronald Dahl’s supper club. More than two years after the accident, the guardian for Bower’s four minor children brought a. civil-damages action against Dahl. Dahl moved for summary judgment, asserting that the action was barred by the civil damages act’s two-year limitations period. The district court denied summary judgment, but certified as important and doubtful whether Minn.Stat. § 541.15(a)(1) (1994) applies to civil-damages actions. Settled common-law doctrine and principles of statutory interpretation compel us to conclude that the minority-tolling provisions do not apply to civil-damages actions; accordingly, we reverse.

FACTS

The district court submitted the following facts for certification purposes. Sandra Bower consumed alcohol at the Flowing Well Supper Club and left sometime between the late hours of December 5, 1995, and the early morning hours of December 6. At 7:16 a.m. on December 6, Bower was involved in a fatal collision with a vehicle driven by Shawn Paul Kologi and owned by Mahnomen Implement, Inc.

On March 9, 1999, the district court appointed Lee Miller guardian ad litem for Bower’s four minor children. Miller, as guardian ad litem, brought a civil-damages action under Minn.Stat. § ’340A.801 (1994) against Ronald Dahl, who owns and operates the Flowing Well Supper Club. Miller served Dahl with a summons and complaint in this action on April 1, 1999. When Bower died and when Dahl was served with process, Bower’s four children were minors.

ISSUE

Do the minority-tolling provisions of Minn.Stat. § 541.15(a)(1) (1994) apply to actions brought under the Minnesota Civil Damages Act, Minn.Stat. §§ 340A.801-.802 (1994)?

ANALYSIS

On appeal from summary judgment, we review the record to determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Schulte v. Corner Club Bar, 544 N.W.2d 486, 488 (Minn.1996). When, as in this case, the district court applies statutory language to undisputed facts, its conclusion is one of law, which this court reviews de novo. Id.

Chapter 541 of the Minnesota Statutes generally governs the limitation of actions in Minnesota. Actions must be commenced within the time periods provided in chapter 541 “except where a different limitation is prescribed by the uniform commercial code or, in special cases, by other statute.” Minn.Stat. § 541.01 (1994). Section 541.15(a)(1) (1994) provides for tolling of statutes of limitation on most minors’ claims until the minors reach 19 years of age. But medical-malpractice claims may in no case be tolled more than seven years. Minn.Stat. § 541.15(b) (1994).

The civil damages act creates a right of action by a person injured by the intoxication of another against the person who caused the intoxication by illegally selling alcoholic beverages. Minn.Stat. § 340A.801, subd. 1 (1994). The act contains a special statute of limitations providing that “[n]o action may be maintained under' section 340A.801 unless commenced within two years after the injury.” Minn. Stat. § 340A.802, subd. 2 (1994). The sole issue raised in this appeal is whether the minority-tolling provisions of section 541.15(a)(1) apply to toll the limitations period of the civil damages act.

The remedy the civil damages act provides is purely a statutory creation. Beck v. Groe, 245 Minn. 28, 33-34, 70 N.W.2d 886, 891 (1955). Generally, causes of action created by statute in derogation of the common law are strictly construed. Id. at 44, 70 N.W.2d at 897; Bonhiver v. Fugelso, Porter, Simich & Whiteman, Inc., 355 N.W.2d 138, 141 (Minn.1984). Applying strict-construction principles, the supreme court has held that compliance with the notice provisions of the civil damages act is a condition precedent to bringing a civil-damages action. Schulte, 544 N.W.2d at 488.

Neither the supreme court nor this court has addressed the civil damages act’s limitations period, but the supreme court has held that compliance with the wrongful death act’s limitations period is a condition precedent to maintaining a wrongful-death action. See Ortiz v. Gavenda, 590 N.W.2d 119, 122 (Minn.1999); Rugland v. Anderson, 30 Minn. 386, 386, 15 N.W. 676, 676 (1883). The court also has held that the tolling provisions of the general limitations statute do not apply to toll the wrongful-death limitations period. Cashman v. Hedberg, 215 Minn. 463, 467, 10 N.W.2d 388, 391 (1943); Rugland, 30 Minn. at 386, 15 N.W. at 676. Like the civil damages act, the wrongful death act is a statutory creation in derogation of the common law and includes a special limitations statute. See Minn.Stat. § 573.02 (1994); Cashman, 215 Minn. at 466, 10 N.W.2d at 390.

In construing the wrongful-death limitations period, the court has relied on conditional-rights analysis, which provides that when the legislature creates a right of action that did not exist at common law, it may concurrently limit that right of action. Ortiz, 590 N.W.2d at 122 (wrongful-death statute of limitations “ ‘conditions the right’ ”) (quoting Berghuis v. Korthuis, 228 Minn. 534, 536, 37 N.W.2d 809, 810 (1949)); Cashman, 215 Minn. at 467, 10 N.W.2d at 391 (wrongful-death action created by statute that is “condition affecting the right rather than the remedy”). In Cashman, the court also based its holding on other factors indicative of legislative intent, including the location and time of enactment of the wrongful death act as compared with the general statute of limitations as well as the legislative history and previous judicial construction of the two sections. Id. at 470-72, 10 N.W.2d at 392-93.

The supreme court’s analysis of the wrongful-death limitations period in Cash-man and cases following Cashman rely on principles that form the foundation for the civil-damages limitations period. Applying those principles, we conclude that, based on its purely statutory nature, the act’s legislative history, and previous judicial construction of similar statutes, the civil damages act limitations period is not subject to the minority-tolling provisions of Minn.Stat. § 541.15(a)(1).

We note initially that the limitations period in a statutorily created cause of action conditions the right, rather than the remedy. Cashman, 215 Minn. at 467, 10 N.W.2d at 391. That fact alone does not, however, compel the conclusion that special statutes of limitation may not be subject to general tolling provisions.' Conditional-rights analysis grew out of a choice-of-law context, in which the restrictive interpretation was necessary to prevent foreign jurisdictions from extending their own statutes of limitation to causes of action based on another state's law. Lambert v. Calhoun, 394 Mich. 179, 229 N.W.2d 332, 334-35 (1975). Addressing a case similar to this one, the Michigan Supreme Court reasoned that the “absolutist intent” that conditional-rights analysis imputes to foreign legislatures need not be applied when a court is applying its own state’s statutes. Id. at 337. Rather, the ultimate issue is that of legislative intent. Id. The Michigan Supreme Court concluded that no evidence supported the claim that the legislature intended special statutes of limitation to be excluded from the general tolling provisions of its statutes. Id.

While we acknowledge that conditional-rights analysis alone does not mandate exclusion of the civil-damages limitations period from the minority-tolling provisions of section 541.15(a)(1), we conclude that other factors indicative of legislative intent require that result. First, the minority-tolling provisions existed long before the civil damages act. The legislature, therefore, could not possibly have intended that the tolling provisions in the limitations statute should affect the civil damages act, an act not yet in existence. See Cashman, 215 Minn. at 471, 10 N.W.2d at 393 (stating in parallel circumstances that legislature “could not possibly have had in mind that tolling provisions in the limitation statute should affect the [wrongful] death statute, not yet in being”). And when the legislature did pass the civil-damages limitations period in 1969, it placed it in a separate chapter and made no reference to the minority-tolling provisions. See id. at 472, 10 N.W.2d at 393 (noting that wrongful death act was placed in separate chapter from general tolling provisions). We conclude that the separate, passage and placement of the two statutes evidences a legislative intent that the minority-tolling provisions not apply to the civil-damages limitations period.

The lack of legislative reaction to the supreme court’s construction of the wrongful-death limitations period further supports our conclusion. The supreme court first held that the general tolling provisions do not apply to the wrongful-death limitations period in 1883. Rugland, 30 Minn. at 386, 15 N.W. at 676. Reaffirming that holding in 1943, the court reasoned that the legislature’s failure to add a saving clause to the wrongful death act after the court’s construction in Rugland “evinces a clear legislative intent that the specific limitation appearing in the death statute was not to be extended by the tolling provisions of the limitation[s] statute.” Cashman, 215 Minn. at 472, 10 N.W.2d at 393. Because of the similarities between the wrongful 'death act and the civil damages act, the legislature’s failure to amend the wrongful death act supports our conclusion that the tolling provisions do not apply to civil-damages actions either.

Bower’s children argue that cases addressing the wrongful death act limitations period are distinguishable because a wrongful-death action may be brought only by a trustee, while the children may bring civil-damages actions in their own names. But this distinction does not undercut our holding. Because the right to bring a wrongful-death action resides only in an appointed trustee, the minority status of any heirs will not toll the statute of limitations. See Beverage v. Harvey, 602 F.2d 657, 658-59 (4th Cir.1979); Hull v. Watzke, 119 Mich.App. 451, 326 N.W.2d 540, 541 (1982) (“[s]ince minor children are not entitled- to bring wrongful death actions, the period of limitations is not tolled by their infancy”). The argument demonstrates, however, that the minority-tolling provisions do not apply to wrongful-death actions for reasons independent of conditional-rights and legislative-intent analysis. It does not render any less significant the supreme court’s holdings that other general tolling provisions do not apply to wrongful-death actions.

For these reasons, we are compelled to conclude that the minority-tolling provisions of Minn.Stat. § 541.15(a)(1) do not apply to actions brought under the civil damages act. As the supreme court stated in Cashman more than 50 years ago, we are “doubtful of the wisdom and fairness of the present status of the law,” but “it is not for us to encroach upon the legislative function by a construction of a statute which does violence to the plain intention of the lawmaking body.” 215 Minn. at 473, 10 N.W.2d at 393-94.

DECISION

Because the minority-tolling provisions of Minn.Stat. § 541.15(a)(1) (1994) do not apply to toll the limitations period of the Minnesota Civil Damages Act, Minn.Stat. § 340A.802, subd. 2 (1994), the district court erred by denying summary judgment to Dahl. Accordingly, we reverse and remand for entry of judgment.

Reversed and remanded.

      . The Civil Damages Act itself dates back to 1911, see 1911 Minn. Laws ch. 175, § 1, but the special limitations period was not added until 1969. 1969 Minn. Laws ch. 952, § 1.


author: DANIEL F. FOLEY, Judge

text:
    In the Matter of the WELFARE OF U.S., Child.
    No. C1-99-1820.
    Court of Appeals of Minnesota.
    June 27, 2000.

      John M. Stuart, State Public Defender, Charlann Elizabeth Winking, Assistant State Public Defender, Minneapolis, for appellant U.S.
    Mike Hatch, Attorney General, St. Paul, Boyd Beccue, Kandiyohi County Attorney, Nancy Kay Grussing, Assistant County Attorney, Willmar, for respondent county.
    Considered and decided by KALITOWSKI, Presiding Judge, KLAPHAKE, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

U.S. appeals the district court’s order certifying him to stand trial as an adult, claiming that there was insufficient evidence in the record to support adult certification. Because the evidence in the record supports the district court’s conclusion that public safety would not be served by keeping U.S. within the juvenile system, we affirm.

FACTS

During the early morning hours of July 2, 1999, U.S., Brian Thunstedt, and Billy Jo Fischer asked B.F. for a ride back to Fischer’s house from a party. When they arrived at Fischer’s house, Thunstedt, who was sitting in the front passenger seat, left the car and acted as if he was going to shake B.F.’s hand but instead punched B.F. There was no provocation by B.F. and no justification for the assault. All three then proceeded to attack and beat B.F. Robert Mattson, a neighbor, told the police that he heard one of the assailants say, “I’m going to get my 9mm and kill you.” According to U.S., Fischer ran away and Thunstedt kept kicking B.F. U.S. claims that he was a passive participant and tried to stop Thunstedt when it looked like B.F. was seriously injured. B.F.’s car and wallet were stolen. Thun-stedt and U.S. then took B.F., who was seriously injured, back to the party.

When B.F. returned to his apartment he was taken to the hospital where he was diagnosed as suffering contusions and abrasions, a concussion, and a broken facial bone. In addition, his eyes and ears were swollen shut, and the doctor concluded that he was one blow away from a cranial hemorrhage or skull fracture. In his victim impact statement, B.F. stated that he lost his ability to work that summer and that he and his family live in fear.

U.S. was charged with assault in the second degree, pursuant to Minn.Stat. § 609.222, subd. 2 (1998), assault in the third degree, pursuant to Minn.Stat. § 609.223, subd. 1 (1998), terroristic threats, pursuant to Minn.Stat. § 609.713, subd. 1 (1998), and aggravated robbery in the first degree, pursuant to Minn.Stat. §§ 609.245, 609.05 (1998). The state sought certification of U.S. to adult court for these offenses.

Dr. Edmund Nadolny, a forensic psychologist, ran two psychological tests on U.S., which placed him

at the seventh step of the nine-step risk assessment instrument. His score places him at the 93rd percentile, indicating that only seven percent of the reference sample (618 violent offenders) scored higher than he did. Thus, from a strictly actuarial standpoint, [U.S.] has a high score and is at considerably greater risk even in relation to other violent offenders. Base rate of violent offending for the reference sample was 31 percent within seven years. [U.S.j’s score would predict violent reoffending at 55 percent within seven years.

The second test showed that “although [U.S.] is a member of a high risk group, social conditions and substance abuse appear to be the primary person-specific markers.” Dr. Nadolny further believes that although U.S. has been treated for substance abuse in the past, there has not been sufficient behavioral rehabilitation, which might address the social conditions and destabilizing influences in his life, such as negative peer influences and the substance abuse. As a result, Dr. Nadolny recommended against certification and in favor of extended juvenile jurisdiction (EJJ), believing that “juvenile options for management and rehabilitation have [not] been exhausted.”

Dr. Nadolny recommended that U.S. enter the Prepare Program at Red Wing under EJJ, keeping him in the system until he is 21, while giving him the needed chemical dependency and behavioral rehabilitation needed. Dr. Nadolny also stated in his report that “[i]t is not clear that the weightier sentence of an adult conviction would serve either rehabilitation or public safety in this case.” However, Dr. Nadol-ny acknowledged that with regard to public safety, U.S.’s risk of violent recidivism is high, with a 55 percent likelihood of violence within seven years and 64 percent risk within ten years.

Pat Boros, a probation officer who conducted the certification study, recommended certification. Boros contacted a larger group of people, including U.S.’s parents, the victim, his family, and various counselors of programs in which he has participated. Boros’s report indicated that U.S.’s delinquency record consists of 11 incidents, including two felonies and two involving a firearm. U.S.’s first delinquent act took place in 1995, when he was 13. U.S. has violated his probation two times and, while he has participated in prior programming 13 different times, at least five of them were unsuccessful because he has either run away, been discharged for threatening his peers, or assaulted staff members. Boros based his decision that U.S. should be certified to stand trial as an adult on several factors, including: (1) the severe beating of B.F.; (2) U.S. has not responded positively to prior programming; (3) U.S. has a high risk of reoffend-ing; and (4) no clear and convincing evidence exists to show that retaining him in the juvenile system will serve public safety. Accordingly, the district court certified U.S. to adult court and he appealed.

ISSUE

Did the district court abuse its discretion in ordering certification to adult court?

ANALYSIS

The district court has “considerable discretion” in determining whether a juvenile should be certified for adult prosecution. In re Welfare of K.M., 544 N.W.2d 781, 784 (Minn.App.1996). A reviewing court will only reverse a juvenile certification if the district court’s findings are clearly erroneous so as to constitute an abuse of discretion. In re Welfare of S.J.G., 547 N.W.2d 456, 459 (Minn.App.1996).

It is presumed that a proceeding involving an offense committed by a child will be certified if:
(1) the child was 16 or 17 years old at the time of the offense; and
(2) the delinquency petition alleges that the child committed an offense that would result in a presumptive commitment to prison under the sentencing guidelines and applicable statutes,

Minn.Stat. § 260.125, subd. 2a (1998). Because respondent was 17 at the time of the offenses, and two of the offenses with which he is charged would carry a presumptive prison sentence if U.S. were tried as an adult, his certification was presumptive. In order to rebut the presumption, U.S. had the burden of establishing, through clear and convincing evidence, that retaining the proceeding in the juvenile court serves public safety. Id.

The district court found that U.S. had not met his burden of proving that public safety would be served if he remained in the juvenile system, and therefore certified him to stand trial as an adult. U.S. claims that because the evidence in the record does not support this decision, the district court abused its discretion and this court should reverse.

In determining whether public safety is served by adult certification, the district court must consider the following statutory factors:

(1)the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm, and the impact on any victim;
(2) the culpability of the child in committing the alleged offense, including the level of the child’s participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the sentencing guidelines;
(3) the child’s prior record of delinquency;
(4) the child’s programming history, including the child’s past -willingness to participate meaningfully in available programming;
(5) the adequacy of the punishment or programming available in the juvenile justice system; and
(6) the dispositional options available for the child.

Minn.Stat. § 260.125, subd. 2b (1998). In considering these factors, greater weight must be given to the seriousness of the offense and the prior record of delinquency. Id.; State v. Mitchell, 577 N.W.2d 481, 489 (Minn.1998). For purposes of certification, the juvenile is presumed guilty of the alleged offenses. K.M., 544 N.W.2d at 784.

Seriousness of the Offense

One factor the district court considers in determining the seriousness of the offense is whether there were any aggravating factors. Minn.Stat. § 260.125, subd. 2b(l) (1998). While U.S. acknowledges that the crimes charged were serious, he claims that the district court did not find any aggravating factors. We disagree. The district court found that the victim was treated with particular cruelty, which is an aggravating factor under the sentencing guidelines. Minn. Sent. Guidelines II. D.2.b.(2). The district court’s findings provide that the attack was “vicious and unprovoked,” and the victim was continually beaten even after he was on the ground and unable to move. In addition, the district court found that three individuals assaulted the victim, which is also an aggravating factor. Minn. Sent. Guidelines II. D.2.b.(8). While the district court might not have specifically labeled them “aggravating factors,” that does not lessen their impact when considering the seriousness of the offense.

When determining the seriousness of the crime, the district court also considers the impact on the victim. Minn.Stat. § 260.125, subd. 2b(l). The record shows that the physical and mental impact on the victim was severe. According to Dr. Peterson, B.F.’s physician, B.F. suffered a facial bone fracture, contusions and abrasions, a concussion, and “was within one blow or strike from sustaining a skull fracture or cranial hemorrhage.” B.F.’s eyes and ears were swollen shut, and to this day he has numbing around his mouth and three teeth. He was unable to go to work for four days and now is distrustful of others.

This evidence indicates that the crime was severe, and this factor, which must be given greater weight under the statute, favors certification. Minn.Stat. § 260.125, subd. 2b; Mitchell, 577 N.W.2d at 489.

Culpability

U.S. claims that this factor does ' not favor certification because he was a passive participant in the beating and tried to stop Thunstedt from kicking B.F. U.S. claims this lessens his culpability. Minn. Sent. Guidelines II.D.2.a.(2). The district court found that U.S. readily joined in the attack and all three co-defendants were actively involved in the assault. While U.S. claims he tried to stop the beating, he did not do so until after he believed that B.F. was seriously injured. Because there is no evidence in the record to show these findings were clearly erroneous, this evidence indicates that U.S. was culpable and favors certification. S.J.G., 547 N.W.2d at 459 (district court’s decision to certify juvenile to adult court will not be reversed unless findings clearly erroneous).

Prior Record of Delinquency

The district court also found that U.S. had a “significant record” of prior delinquencies. U.S.’s record dates back to March 1995 and includes nine misdemeanors, two of which involved firearms. In addition, he has two felonies — theft and receipt of stolen goods. The district court did not abuse its discretion when it concluded that U.S. had a “significant record” of prior delinquencies. In light of this evidence, U.S.’s record of delinquency, which must be given greater weight, favors certification. Minn.Stat. § 260.125, subd. 2b; Mitchell, 577 N.W.2d at 489

Prior Programming History

U.S.’s programming history is extensive. According to the certification study, since August 1995, U.S. has participated in programs 13 separate times. While most of his programming has been for chemical dependency, some dealt with behavioral problems. Of the 13 programs, five were not successfully completed because: (1) U.S. was discharged from the Summit Oaks Center after assaulting a staff member; (2) he ran away from the Kandiyohi County Boy’s Group Home and was arrested in Michigan for possessing a firearm; (3) he was discharged from Cardinal Recovery Relapse Program after failing to complete the 12-week program; (4) he was discharged to the Wright County Sheriffs Department from the Maple Lake Recovery Center for smoking marijuana and threatening to kill a peer if he reported him; and (5) he was discharged from On-Belay Halfway House for deteriorating behavior and lack of progress. Throughout this extensive prior programming, there is little evidence of meaningful participation. Rejection of prior treatment efforts indicates a juvenile’s unwillingness to submit to programming in a meaningful way. See In re Welfare of I.Q.S., 309 Minn. 78, 91, 244 N.W.2d 30, 40 (1976) (stating public safety served when juvenile certified to adult court after rejecting treatment). Therefore, U.S.’s programming history favors certification.

Programming Available & Dispositional Options

There are several dispositional options available for U.S. within the juvenile system. Dr. Nadolny strongly believes that EJJ would be appropriate because U.S.’s problems are triggered primarily by “des-tabilizers” in his environment. Dr. Nadol-ny recommended the Prepare Program in Red Wing, which provides both chemical dependency and behavioral rehabilitation programs. In addition, it offers a transition into the community. However, if committed to this program, U.S. would be confined for only 12 months, which could be reduced to nine months for good behavior. Afterwards, he would be placed in a residential facility for 90 days and would be on probation until he turns 21.

The certification study discussed other programs that might be available to U.S. The Prairies Lakes Detention Center would hold U.S. for 12 months, but the optimum time frame would be six months. Because there are few programs in Minnesota, treatment facilities in nearby states, such as Woodfield Academy and Chamberlain Academy in South Dakota, and Grehill Academy in Iowa, were also considered during the certification study.

Woodfield Academy is an unlocked facility, which treats juveniles until they are 18, unless they obtain a waiver from the state. Chamberlain Academy is a minimum security facility, whose programs usually run six to nine months, but can last as long as six years. However, it too only houses students until they turn 18 unless they obtain a waiver from the state. Finally, Grehill Academy is a secured facility that would hold U.S. for two years or until he turns 19. Grehill operates chemical dependency programs, family programs, and on-site school or G.E.D. programming. Under this program, U.S. would be physically confined, at best, until he is 19, unless he obtains a waiver from the state.

While there are several potential programming options for U.S., the district court found the severity and violence of the offenses, as well as his emotional, behavioral, and chemical dependency difficulties, warrant a significant period of correctional detention. The district court concluded there was not enough time or adequate juvenile correctional and rehabilitative programs to rehabilitate U.S. in the time available in the facilities considered. Insufficient time for rehabilitation under the juvenile system is an appropriate consideration when deciding whether to refer the juvenile to adult court. In re Welfare of R.D.W., 407 N.W.2d 113, 117 (Minn.App.1987), review denied (Minn. July 15, 1987). Moreover, because there is no evidence in the record indicating that these findings are clearly erroneous, they will not be reversed and the district court did not abuse its discretion in concluding that the dispositions available were inadequate. See S.J.G., 547 N.W.2d at 459 (district court’s decision to certify juvenile to adult court will not be reversed unless findings clearly erroneous).

DECISION

We affirm the district court’s conclusion that U.S. failed to rebut by clear and convincing evidence the presumption of certification. Considering all the evidence supporting certification, we find the district court did not abuse its discretion in certifying U.S. to adult court.

Affirmed.

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


author: VANDE WALLE, Chief Justice.

text:
    2000 ND 123
    Thomas HOFFNER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and North Central Construction, Inc., Respondent.
    No. 990366.
    Supreme Court of North Dakota.
    June 14, 2000.

      Tami L. Norgard (argued) and Kermit E. Bye, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for claimant and appellant.
    Leo F.J. Wilking, Special Assistant Attorney General, Fargo, for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Thomas Hoffner appealed from the North Dakota Workers Compensation Bureau’s order denying his claim for benefits and from a judgment of the district court which affirmed the Bureau’s decision. We affirm.

[¶ 2] In early Spring 1998, Hoffner, who lived in Fargo, approached one of his past supervisors, Wade Wolf, about getting a construction job with North Central Construction Company, Inc. (“North Central”). Wolf was the steel erection superintendent for North Central. Wolf and Hoffner were from the same town and Wolf had employed Hoffner on at least two prior occasions. North Central hired Hoffner as a worker/helper on three construction sites in East Grand Forks, Minnesota, where North Central had steel erection contracts for the repair of three separate school buildings that had been extensively damaged in the April 1997 flood.

[¶ 3] Because Hoffner did not have a driver’s license, he rode from Fargo to East Grand Forks with either Wolf or with his roommate Corey Olson, who was already working for North Central in East Grand Forks. Hoffner, whose shifts ran from 7 a.m. to 5:30 p.m., began working at the East Grand Forks job site on April 10. On his eleventh day on the job, April 20, 1998, Hoffner was injured in an accident on the way to work. Shortly after 7 a.m., Olson’s pickup, in which Hoffner was a passenger, collided with another vehicle at the intersection of U.S. Highway 2 and Columbia Road in Grand Forks, North Dakota.

[¶ 4] Hoffner and the two other North Central employees involved in the crash arrived at the job site at approximately 8:00 a.m. Hoffner worked at the job site for a few hours, but sometime around noon, he decided to seek medical attention because he was not feeling well. Hoffner went to the Emergency room and after being examined for the injuries he sustained, was released that evening. Hoff-ner did not work for North Central thereafter.

[¶ 5] Hoffner applied for Workers Compensation benefits. The Administrative Law Judge (“ALJ”) concluded Hoffner’s injuries were not compensable, because the injuries arose out of travel to work. The Bureau adopted the ALJ’s order and the district court affirmed.

I

[¶ 6] On appeal, this Court reviews the Bureau’s decision, not the district court’s decision. Loberg v. N.D. Workers Comp. Bur., 1998 ND 64, ¶ 5, 575 N.W.2d 221. We affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the appellant’s constitutional rights, or the Bureau’s rules or procedures deprived the appellant of a fair hearing. E.g., Geek v. N.D. Workers Comp. Bur., 1998 ND 158, ¶ 5, 583 N.W.2d 621.

II

[¶ 7] Hoffner argues North Dakota law dictates his injury is compensable. The general rule in North Dakota is that injuries sustained while traveling to and from work are not compensable. Diegel v. N.D. Workers Comp. Bur., 469 N.W.2d 151, 152 (N.D.1991). There are several exceptions to this general rule. Id. One exception is when travel is an integral part of the service for which the worker is employed. Id. Larson’s treatise on workers compensation describes this exception as follows:

The rule excluding off-premises injuries during the journey to and from work does not apply if the making of that journey, or the special degree of inconvenience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed.

1 Arthur Larson & Lex K Larson, Larson’s Workers’ Compensation Law § 14 (1999).

A

[¶ 8] The North Dakota Legislature codified a version of this exception in N.D.C.C. § 65-01-02(11). See Diegel, 469 N.W.2d at 153 (stating “[cjompensability under this well-recognized exception is recognized in our Workers Compensation statute enacted subsequent to our decision in Cody [v. N.D. Workmen’s Comp. Bur., 413 N.W.2d 316 (N.D.1987) ]”). Section 65-01-02(11) provides in relevant part:

11. ‘Compensable injury’ means an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings.
a. The term includes: ...
(4) Injuries arising out of employer-required or supplied travel to and from a remote jobsite or activities performed at the direction or under the control of the employer.

Hoffner asserts his travel to East Grand Forks was employer-required, and alternatively, employer-supplied travel, to a remote job site.

[¶ 9] In arguing his travel to East Grand Forks was employer-supplied, Hoffner cites the fact Wolf knew Hoffner did not have a license when he was hired. Hoff-ner asserts Wolf either transported Hoff-ner to the job site or directed someone else to transport him. Thus, Hoffner argues, his transportation was essentially employer-supplied. The ALJ concluded,

Although Wolf knew that Hoffner did not have a driver’s license and therefore would require transportation to the East Grand Forks project job site, there being no evidence to show, or from which it may be reasonably inferred, that Hoff-ner and Wolf intended that Hoffner’s transportation to the East Grand Forks project job site would be provided or otherwise in any way facilitated by Wolf acting on behalf of North Central, there is no basis to imply any agreement that North Central would supply transportation for Hoffner to the job site as a condition of his employment.

The ALJ’s conclusion is supported by the testimony. The following exchange took place when Hoffner testified:

Q. But my question was did you just fall into going to work with Corey; that is, you did what Corey did to go to work on that job?

A. I did.

Q. Because he was already working there?

A. Yeah. If he is riding with Wade I’d ride with Wade. If he’s driving I’d ride with him.

Q. You and Corey didn’t have any discussions about how you were going to get to work?

A. No.

Q. You got up and you and Corey went to work?

A. Actually, we kind of had discussions. Because I told Corey I’d rather drive. He’s like — he’s like “No.” He goes, “Why build up miles on your vehicle or anything. We’ll just ride with Wade.” And Wade had said that even when I first talked to him, you know. He’s like, “You guys can ride with me. Save yourself money on gas or whatever.”

[¶ 10] Wolf testified, “Well if I wouldn’t want to give him a ride I wouldn’t really have to. I’m just doing him a favor. He doesn’t have a driver’s license. So he said he was going to ride with Corey, because those two are buddies and stuff. So if he called me and Corey, whenever we left or whatever, called me and asked me if he could ride with me and I said, Tes.’ ” Wolf also stated flatly, “You’re on your own as far as getting to any project. You have to drive your own or catch a ride with somebody or somehow get down there by yourself.”

[¶ 11] Hoffner was not riding in a company vehicle on the day of the accident, but was riding with his roommate from Fargo. Testimony from both sides demonstrates Hoffner’s travel to East Grand Forks was not controlled by Wolf. Thus, the ALJ’s conclusion Hoffner’s travel to East Grand Forks on April 20, 1998, was not employer supplied is supported by the evidence.

[¶ 12] Hoffner argues the travel to East Grand Forks was employer-required because the travel was incident to Hoffner’s employment at East Grand Forks. The ALJ concluded Hoffner’s travel to East Grand Forks was not employer-required because Wolf did not control Hoffner’s transportation to the job site, “either by providing transportation to Hoffner or by facilitating, supervising, or managing Hoff-ner’s transportation.”

[¶ 13] Section 65-01-02, N.D.C.C., was meant to codify existing law. See Diegel, 469 N.W.2d at 153. Thus, this provision does not alter the rule that generally injuries arising out of commutes to work are not compensable. There is a legally significant difference between an employer requiring one of its employees to temporarily travel to a remote site and an employee simply choosing to accept a job involving a commute of considerable distance to work.

[¶ 14] If an employee having fixed hours and place of work is not compensated for travel to the place of work, there is a strong presumption the travel to the place of work is not employer required. See 1 Larson, supra § 13 (stating “[a]s to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable, but if the injury occurs off the premises, it is not compensa-ble, subject to several exceptions”); Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 689 N.E.2d 917, 920 (1998) (stating “[a]s a general rule, an employee with a fixed place of employment who is injured while traveling to or from his place of employment is not entitled to participate in the Workers’ Compensation Fund because the requisite causal connection between injury and the employment does not exist”) (quoting MTD Products, Inc. v. Robatin, 61 Ohio St.3d 66, 572 N.E.2d 661, 663 (1991)).

[¶ 15] Here, Hoffner’s work was centered in one place, East Grand Forks, and he was injured on the daily commute to East Grand Forks. The employer did not require Hoffner make the trip for any special purpose. It was the same place Hoffner worked every day. Nothing else distinguishes this case from normal commuting to and from work. Thus, we agree with the ALJ’s conclusion Hoffner’s commute with Corey Olson on April 20, 1998 was not employer-required travel

B

[¶ 16] Hoffner contends our holding in Diegel requires reversal of this case. In Diegel, Troy Diegel resided in North Fargo, approximately three miles from the job site in Moorhead. Each morning, he drove from his residence to West Fargo to pick up two co-employees. The three then proceeded to the company’s West Fargo shop where Diegel exchanged his personal vehicle for a company vehicle, which the men would then drive to the job site in Moorhead. Diegel was injured in an accident on his way to pick up his co-employees in West Fargo.

[¶ 17] We reversed the Department’s decision denying Diegel’s claim for benefits. We pointed out it was undisupted Diegel’s boss “chewed him out” on one occasion when Diegel failed to drive the company vehicle to the job site and Diegel testified his boss told him if he could not get the company vehicle to the job-site each morning he “might as well not even come.” Id. at 153. The Bureau countered that another employee could have driven the company vehicle from West Fargo each day. We said “the availability of alternative arrangements, however does not diminish the integral nature of the journey itself.” Id. Because of the special degree of inconvenience under, which the journey was made, the evidence of the employer’s expectations of Diegel, and the benefits derived by the employer, we concluded the daily journey to West Fargo was an integral part of the service for which the worker is employed.

[¶ 18] Hoffner asserts this case is analogous to Diegel because Wolf testified he had Olson transport some empty gas cans to the East Grand Forks job site on the day of the accident. Hoffner also relies on his testimony that Wolf would give the workers instructions on the ride to work and on the day of the collision Wolf instructed the workers on what they were to do that day before they left for the work site. Wolf agreed they might talk about the work to be done that day before the trip or during the trip, but said it was “just idle talk” and the “real instructions would come when we got there.” The ALJ found:

Considering that Wolf was the superintendent for the steel erection and that Hoffner and' other iron workers worked under the supervision of a foreman, that Hoffner and his fellow passengers were but three of the workers on the project, and that they were not paid for the time for their travel to East Grand Forks except for the five or ten minutes they might be late in arriving, there is no ■basis to conclude that Wolfs comments about the work to be done that day, even if taken as instructions, were such as to make their travel part of their job.

We agree. The evidence indicates the early-morning ' rendezvous between Wolf and two or three of the workers on the day of the eollison was more about carpooling than getting instructions for the day’s work.

[¶ 19] Further, Hoffner did not transport the empty gas cans to the work site. Olson did. At most, Hoffner helped Olson transfer the empty gas cans from Wolfs vehicle to Olson’s vehicle and helped remove the gas cans.from Olson’s vehicle at the work site. Loading and unloading empty gas cans does not turn a ride to work into travel integral to the service of the employer.

[¶ 20] Unlike Diegel, Hoffner went through no special degree of inconvenience for the employer. ■ Moreover, while the employer may have gained some benefit in having the gas cans transferred to East Grand Forks and may have even expected the cans to be, transported, it was Olson who transported, the cans, not Hoffner. Diegel is .distinguishable from this case and the analysis above demonstrates Hoff-ner’s ride to East Grand Forks on April 20, 1998, was not an integral part of the service for which he was employed,

C

[¶ 21] Hoffner also makes two arguments regarding his compensation. First, Hoffner points out he was paid $12.88 per hour for the East Grand Forks project due to the féderal Davis Bacon Act, more than the usual $11 per hour he would receive at other jobs for North Central. Hoffner argues he was not paid a per diem because of the higher wage he was getting while 'working 'at the East Grand Forks site and, thus the extra wages were essentially compensation for travel.

[¶ 22] If an employee is paid compensation for travel by an employer, it can be an important factor in finding an injury arising out of the travel to be compensable. See e.g., 1 Larson, supra § 14.06[1] (stating “[w]hen the employee is paid an identifiable amount as compensation for time spent in a going or coming trip, the trip is within the course of employment”). The ALJ found “There is no evidence that the greater wage paid for work on the East Grand Forks project in accordance with the requirement of the Davis Bacon Act was in consideration for any travel to and from the job site.” Furthermore, even if Hoffner was not paid a per diem because of the higher wage he was receiving, the uncontradicted testimony was that the per diem was for food and lodging, not travel. No part of Hoffner’s $12.88 per hour salary was paid to him for travel expenses.

[¶ 28] Second, Hoffner argues he was being compensated at the time of the accident. He asserts the workers were paid beginning at 7:00 a.m. each morning. Because the accident took place shortly after 7:00 a.m., Hoffner asserts the injury should be covered. Wolfs testimony contradicted Hoffner’s testimony that the workers were paid each day automatically beginning at 7:00 a.m. Wolf testified employees were not paid until they arrived at the work site. The ALJ concluded even if Hoffner and his coworkers were paid at 7:00 a.m., this did not make their travel to the job site an integral part of the service for which they were employed. We agree.

[¶ 24] Hoffner was not paid for travel to East Grand Forks, because the trip usually began from Fargo between 5:30 and 6:00 a.m. and Hoffner was never paid until 7:00 a.m. Furthermore, we will not endorse a rule that an injury is always compensa-ble as long as the employee is technically “on the clock,” since such a rule could make eligibility for benefits turn on whether someone was late for work. Hoffner was not paid to travel to East Grand Forks and the wage issues raised by Hoff-ner do not demonstrate his travel to East Grand Forks was an integral part of his service to his employer.

Ill

[¶ 25] Hoffner asserts the ALJ applied a “substantial evidence” standard to the findings of fact rather than the proper “preponderance of the evidence” standard. Hoffner points to two sentences in the Findings of Fact where the ALJ states, “There is no substantial evidence that it was other than Olson’s decision whether he would drive his vehicle to the job site and whether he would provide transportation to his fellow employees. There is no substantial evidence that Wolf either directly or indirectly influenced Olson’s decision whether he would drive his vehicle to the job site and take his fellow employees with him.”

[¶ 26] Substantial evidence is defined as less than a preponderance. See Hanson v. Industrial Comm’n. of North Dakota, 466 N.W.2d 587, 590 (N.D.1991) (defining “substantial evidence” as “something less than the weight of the evidence”) (quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131, 140-41 (1966)). Blacks Law Dictionary 580 (7th Ed.1999) (defining “substantial evidence” as “[e]vidence that a reasonable mind would accept as adequate to support a conclusion; evidence beyond a scintilla”). The language of the ALJ’s opinion demonstrates he is not stating “substantial evidence” is the standard by which the evidence should be weighed. Importantly, the ALJ cites the appropriate evidentiary standard in the order, where he refers to “[t]he greater weight of the evidence.” The ALJ’s analysis does not indicate he was using the wrong evidentiary standard and we conclude the proper evidentiary standard was applied.

IV

[¶ 27] Hoffner challenges two of the ALJ’s Findings of Fact, claiming they are not supported by a preponderance of the evidence. The first finding challenged by Hoffner states “There is no evidence to show, nor any evidence from which it may be reasonably inferred, that Hoffner and Wolf considered that Hoff-ner s transportation to the' East Grand 'Forks project job site would; be provided or. otherwise in any way facilitated by Wolf acting on behalf of North Central.” We accord great deference to administrative agency rulings, and we do not make independent findings of fact or substitute our judgment for that of the,agency, but we determine only whether a reasoning mind could have reasonably concluded the facts or conclusions were supported by. the weight of the evidence. Seela v. Moore, 1999 ND 243, ¶ 5, 603 N.W.2d 480.

[¶ 28] A key phrase in this finding over-' looked by Hoffner is “acting on behalf of North Central.” While there may have been some evidence from Hoffner that Wolf would help facilitate Hoffner’s travel to Eást Grand Forks, the ALJ found there was no evidence Wolf would facilitate Hoff-ner’s travel on behalf óf North Central. We conclude the ALJ’s finding is supported by the weight of the evidence.

[¶ 29] Hoffner also chállenges the following finding:

Although Hoffner testified that Wolf filled the gas tank of Olson’s vehicle a couple of times ... Wolf denied doing that ... .and regardless there is no evidence that Wolf was acting within the scope of his authority on behalf of North Central in doing so and that the gasoline was provided for Olson as consideration, or reimbursement of his expenses incurred, for transporting himself and fellow employees to the job site.

Hoffner asserts it is illogical for the ALJ to assume if Wolf provided gas to Olson, he provided it for something other than consideration for driving to work. We look to the testimony available to the ALJ. Wolf testified he never filled up Olson’s vehicle with gas. Hoffner testified, “I know for a fact Wade filled - him up a couple of times.” Hoffner, under further questioning said he did not know whether Wolf used his own money or not:

Q. Then I take it the company also in effect compensated Mr. Corey Olson to the extent that Wade.filled up Corey s pickup or truck with gas-on occasions?
A. No. And out of that Idon’t-
Q. Well, I heard something.
A. I know Wade did that. I’m not trying to get Wade in trouble. I’m not saying Wade-
Q. This has nothing to do with getting Wade in trouble
A. Wade did do that, but I don’t know if he used his own money or his own — I don’t know that.

After reviewing this testimony, we conclude the ALJ’s findings are supported by the preponderance of the evidence.

[¶ 30] We affirm.

[¶ 31] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., JAMES H. O’KEEFE, S.J., concur.

[¶ 32] JAMES H. O’KEEFE, S.J., sitting in place of KAPSNER, J., disqualified.-