author: GORDON W. SHUMAKER, Judge.

text:
    In re APPEAL OF Sharon O’BOYLE.
    No. C1-02-601.
    Court of Appeals of Minnesota.
    Dec. 24, 2002.

      Marlene S. Garvis, Jardine, Logan & O’Brien, PLLP, Lake Elmo, for appellant Sharon O’Boyle.
    Mike Hatch, Attorney General, Theresa Meinholz-Gray, Assistant Attorney General, St. Paul, for respondent Commissioner, Minnesota Department of Human Services.
    Douglas H. Johnson, Washington County Attorney, Nancy Nelson, Assistant Washington County Attorney, Stillwater, for respondent Washington County Community Services.
    Considered and decided by SHUMAKER, Presiding Judge, and SCHUMACHER, Judge, and HUDSON, Judge.
   OPINION

GORDON W. SHUMAKER, Judge.

This is an appeal from a district court order affirming a decision of the Commissioner of the Minnesota Department of Human Services (DHS), which affirmed the Washington County Community Services’ finding that appellant neglected her mother, a vulnerable adult. The DHS determined that appellant’s mother was a vulnerable adult and that appellant, as her mother’s caregiver, committed maltreatment through neglect by failing to obtain medical services for her mother’s injuries.

Although substantial evidence supports the DHS’s determinations that appellant’s mother is a vulnerable adult and that the alleged omission prima facie fits the statutory definition of neglect, the DHS failed to make any factual findings as to whether or not appellant was a “caregiver” and failed to make any factual findings or draw any conclusions as to exceptions in the neglect statute for therapeutic conduct. Because such findings and conclusions are essential, the matter must be remanded. Accordingly, we reverse the ultimate conclusion of maltreatment; affirm the determinations that appellant’s mother was a vulnerable adult and that appellant’s omission prima facie fits the definition of “neglect”; and remand for further proceedings and determinations.

FACTS

The DHS affirmed the Washington County Community Services’ determination that appellant Sharon O’Boyle neglected Elsie O’Boyle, a vulnerable adult. The DHS determined that 78-year-old Elsie is a vulnerable adult who had been neglected on March 27 and 28, 2000, by Sharon, her adult daughter and caregiver. The district court affirmed the DHS’s determinations.

The DHS found that Elsie lives with Sharon. In addition to some physical diseases, Elsie has early stage Alzheimer’s disease and some mild dementia.

According to the DHS findings, Elsie slipped and fell outside her home on March 27, 2000, and suffered three broken bones in her foot and a head abrasion. Despite Elsie’s complaint of pain, neither she nor Sharon contacted a physician. On March 28, 2000, Elsie’s sister and another of Elsie’s daughters visited Elsie and observed that Elsie had dried blood on her head, complained of foot pain, was in a weak condition, and was wearing filthy clothing. The sister and daughter took Elsie to a hospital emergency room.

The DHS found that the attending physician diagnosed Elsie “as suffering from elderly neglect”; noted that Elsie had a head abrasion, three broken bones in her foot, and bruises; and that she was malnourished and dehydrated. The physician concluded that Elsie was “not medically competent” and ordered a 72-hour hold. The DHS also found that Elsie’s primary-care physician stated that Elsie “was not capable of making good decisions about her own care and that there was clear evidence of neglect.”

In a hearing before a DHS referee, Sharon O’Boyle testified that she was not at home when Elsie fell but was talking on the telephone with her at that time. From Sharon’s conversation, it did not appear that Elsie sustained a serious injury. Elsie testified that she did not complain of pain to Sharon until March 28 and that she was able to walk on that day. Sharon inspected Elsie’s head abrasion and her ankle, but, concluding that Elsie’s ankle was sprained, Sharon did not remove Elsie’s sock. Sharon testified that neither she nor Elsie felt it necessary to call a doctor.

On appeal, Sharon O’Boyle challenges the DHS’s finding of neglect and raises issues as to whether she was Elsie’s “caregiver,” whether her actions were “therapeutic conduct,” and whether she made a “single mistake.”

ISSUE

Is a determination by the DHS that a caregiver has neglected a vulnerable adult, and therefore committed maltreatment, supported by substantial evidence when there are no factual findings showing that the person charged with neglect was a caregiver and there are neither factual findings nor conclusions as to the applicability of exceptions in the neglect statute?

ANALYSIS

Minn.Stat. § 256.045, subd. 7 (2000), governs all judicial review of the DHS commissioner’s decisions. Our scope of review is governed by Minn.Stat. § 14.69 (2000). We need not give any deference to the district court’s decision, so we independently review the commissioner’s decision. Zahler v. Minn. Dep’t of Human Servs., 624 N.W.2d 297, 301 (Minn.App.2001). Under Minn.Stat. § 14.69, we can reverse the commissioner’s decision if its decision is, among other things, “Unsupported by substantial evidence in view of the entire record as submitted.” Id.

The supreme court has found that “decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977).

The commissioner’s factual findings are reviewed under the substantial evidence test, meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Zahler, 624 N.W.2d at 301 (quoting Dep’t of Human Servs. v. Muriel Humphrey Residences, 436 N.W.2d 110, 114 (Minn. App.1989))), review denied (Minn. Apr. 26, 1989). Substantial evidence has also been defined as:

1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) more than a scintilla of evidence; 3) more than ‘some evidence’; 4) more than ‘any evidence’; and 5) evidence considered in its entirety-

Reserve Mining Co., 256 N.W.2d at 825.

A “vulnerable adult” is a person who has an infirmity or dysfunction that impairs the person’s ability to care for herself without assistance and to protect herself from maltreatment. Minn.Stat. § 626.5572, subd. 21(4)(i)-(ii) (1998). There is substantial evidence to support the DHS’s findings that Elsie O’Boyle had physical and mental infirmities on March 27 and 28, 2000, of such a nature as to classify her as a vulnerable adult.

If a “caregiver” neglects a vulnerable adult, the caregiver ostensibly has committed “maltreatment” of the vulnerable adult. Minn.Stat. § 626.5572, subd. 15 (1998). A “caregiver” is

an individual or facility who has responsibility for the care of a vulnerable adult as a result of a family relationship, or who has assumed responsibility for all or a portion of the care of a vulnerable adult voluntarily, by contract, or by agreement.

Minn.Stat. § 626.5572, subd. 4 (1998). Sharon O’Boyle argues that she was not a “caregiver” on the relevant dates. The DHS concluded, without any factual findings, that Sharon was a caregiver for Elsie. There is no substantial evidence to support this conclusion.

A caregiver “neglects” a vulnerable adult by failing to provide care or services that are reasonable and necessary “to obtain or maintain the vulnerable adult’s physical or mental health, or safety * ⅜ Minn.Stat. § 626.5572, subd. 17(a)(1) (1998). The DHS found that the failure to obtain medical attention for Elsie on March 27 and 28 constitutes neglect. Considering the nature of Elsie’s foot injury, which Elsie complained to Sharon about at least on March 28, the reasonable and necessary course of conduct would be to notify a physician. Even if the ankle might only have been sprained, at the very least a telephone call to a doctor would have been reasonable and necessary. The DHS’s finding that there occurred neglect within the statutory definition is supported by substantial evidence.

If a caregiver’s failure or omission to supply requisite care to a vulnerable adult is the “result of an accident or therapeutic conduct,” the failure or omission is not neglect. Minn.Stat. § 626.5572, subd. 17(a)(2) (1998). “Therapeutic conduct” is a caregiver’s good-faith provision of services in the vulnerable adult’s interests. Minn. Stat. § 626.5572, subd. 20 (1998). Furthermore, there is no neglect under the statute if the sole basis for the alleged neglect is

a single mistake in the provision of therapeutic conduct * * * which does not result in injury or harm which reasonably requires the care of a physician.

Minn.Stat. § 626.5572, subd. 17(c)(4)® (1998).

Sharon O’Boyle contends that even if she is found to have been Elsie’s caregiver on March 27 and 28, she is entitled to the therapeutic-conduct exceptions to the “neglect” rules. The DHS did not make any findings on the statutory exceptions.

The vulnerable-adult-neglect statute applies to the conduct of “caregivers.” Minn.Stat. § 626.5572, subd. 17. It follows that before there can be a proper determination that maltreatment has occurred, there must be threshold factual findings that reasonably support a conclusion that the person charged with maltreatment was a caregiver. The DHS erred in failing to make any findings as to whether or not Sharon O’Boyle was Elsie’s caregiver on March 27 and 28, 2000.

If a caregiver ostensibly “neglects” a vulnerable adult, there is no statutory neglect, and hence no maltreatment, if a therapeutic-conduct exception applies. Because Sharon O’Boyle raised the issue of therapeutic-conduct exceptions, the DHS was obligated to make findings and draw conclusions as to the applicability of the alleged exceptions. The DHS erred by failing to do so.

Because the DHS failed to make essential findings and to draw essential conclusions, we remand for further evidentiary proceedings. On remand, the DHS need not again address the issues of whether Elsie O’Boyle was a vulnerable adult and whether Sharon’s conduct on the two days at issue was prima facie “neglect” as defined in Minn.Stat. § 626.5572, subd. 17(a)(1), because those determinations are supported by substantial evidence.

Finally, the allegations of maltreatment pertain to alleged failures and omissions on March 27 and March 28, 2000. It is for only those two days that findings and conclusions should be made on the dispositive issue of neglect. It is appropriate, however, to consider background and historical facts that are reasonably relevant to the DHS’s determinations.

Affirmed in part, reversed in part, and remanded.

      . We recognize that Minn.Stat. § 626.5572 has been amended since 1998. But we must apply the 1998 statute to Sharon’s case since her neglectful acts occurred on March 27 and 28, 2000, at which time the 1998 statute was in effect.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge. RANDALL, Judge

license: Public Domain

text:
    Craig MATTICE, Jr., Respondent, Homecomings Financial Network, Inc., Respondent, v. MINNESOTA PROPERTY INSURANCE PLACEMENT, Relator, Department of Commerce, Respondent.
    No. C8-02-854.
    Court of Appeals of Minnesota.
    Dec. 24, 2002.

      Craig Mattice, Jr., Plymouth, MN, pro se respondent.
    Harold A. Frederick, Fryberger, Buchanan, Smith Frederick, P.A., Duluth, MN; and Mary K. Powers, Director and Associate Counsel, GMAC-RFC, Minneapolis, MN, for respondent HomeComings Financial.
    Bradley J. Ayers, Wendy M. Canaday, Flynn, Gaskins Bennett, L.L.P., Minneapolis, MN, for relator.
    Mike Hatch, Attorney General, Jennifer S. Kenney, Assistant Attorney General, St. Paul, MN, for respondent Department of Commerce.
    Considered and decided by SCHUMACHER, Presiding Judge, RANDALL, Judge, and HUDSON, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Relator Minnesota Property Insurance Placement, an insurance provider, challenges an order of the Commissioner of Commerce that it honor a damages claim filed by respondent HomeComings Financial Network, Inc. for losses sustained in a fire involving property insured by Minnesota Property and mortgaged to HomeComings. Minnesota Property argues that because the fire insurance policy naming HomeComings as mortgagee was fraudulently obtained without the named insured’s knowledge, it was void as to all named parties, including HomeComings. We affirm.

FACTS

In January 1999, Howard Gangestad purchased a residential property in Minneapolis for $25,000. Seven months later, respondent Craig Mattice purchased the property from Gangestad with a $54,000 mortgage from HomeComings and $6,000 cash.

Immediately after closing, Mattice signed a quitclaim deed transferring the property back to Gangestad. In exchange, Gangestad paid Mattice $6,000 cash and assumed the mortgage payments, which he guaranteed by making Mattice a beneficiary of his life insurance policy. Although Gangestad became the property’s titleholder after the quitclaim transaction, he intentionally failed to record the deed in order to circumvent a mortgage provision authorizing HomeComings to call the entire mortgage due in case of a sale. Mattice’s name remained on the title and on the mortgage, but he had no further financial involvement with the property. The transaction enabled Gangestad to use Mattice’s credit to get a loan, in the form of a mortgage, from HomeComings.

In September 2000, Gangestad instructed his insurance agent to submit to Minnesota Property an application for insurance coverage for the property. Minnesota Property is an organization of insurers charged by statute with implementing the Minnesota Fair Plan Act, pursuant to which all Minnesota insurers share responsibility for insuring high-risk property. See Minn.Stat. § 65A.31-.42 (2002). Minnesota Property is administered by a board of directors authorized to take appeals from Minnesota Property’s coverage decisions. The board’s determinations can in turn be appealed to the Commissioner of Commerce. Minn.Stat. § 65A.39.

The insurance agent completed the application in Mattice’s name and named Mattice as the owner of the property and HomeComings as mortgagee. The agent forged Mattice’s signature to falsely certify Mattice’s insurable interest in the property and the truth of the information contained in the application. There is no evidence in the record that Mattice had any knowledge of the application.

In September 2000, Minnesota Property issued a one-year $60,000 policy on the property naming Mattice as the insured and HomeComings as the mortgagee. The policy contained a standard mortgage clause providing that denial of a claim to the policy’s insured “will not apply to a valid claim of the [policy’s named] mortgagee.”

In October 2000, the property was destroyed by arson. Mattice filed a property-damage claim with Minnesota Property and submitted a sworn statement in proof of loss indicating that he was the “fee owner” of the property. Minnesota Property denied Mattice’s claim after its investigation revealed that the insurance application and policy were fraudulently obtained. Minnesota Property rescinded the policy and refunded the premiums. HomeComings filed a claim under the policy’s standard mortgage clause. Minnesota Property denied HomeComings’s claim, again reasoning that because the policy had been fraudulently obtained, it was null and void as to all covered parties, including mortgagee HomeComings.

Both Mattice and HomeComings appealed Minnesota Property’s denial of their claims to its board of directors, which upheld the denials. The parties then appealed to the Commissioner, who consolidated the appeals and issued findings of fact, conclusions of law, and an order in April, 2002.

The Commissioner reversed Minnesota Property’s decision to rescind the policy as to both Mattice and HomeComings. The Commissioner found that there was a fraudulent misrepresentation in the policy application: the statement that Mattice had an insurable interest in the property. The Commissioner nonetheless concluded that Minnesota Property could not rescind the policy as to either Mattice or HomeComings because the policy’s fraud provision and Minn.Stat. § 60A.08, subd. 9 (2002) authorize recission only if the misrepresentation is committed by or on behalf of the insured, and here, Mattice had no knowledge of the application.

The Commissioner affirmed the denial of Mattice’s claim on the grounds that Mattice had intentionally defrauded Minnesota Property by claiming on the sworn statement in proof of loss filed after the fire to be the property’s “fee owner.” The Commissioner reversed Minnesota Property’s denial of HomeComings’ claim, reasoning that (1) the policy was not void under its own fraud provision or Minn. Stat. § 60A.08, subd. 9, because Mattice himself committed no fraud in the application, and (2) the Minnesota Standard Fire Insurance Policy, Minn.Stat. § 65A.01, subd. 8(c) (2002), precludes rescinding or voiding a policy as to a mortgagee because of a third party’s fraud committed “before or during the term of [the] policy.” The Commissioner remanded the case to Minnesota Property to determine and pay HomeComings’s claim.

ISSUES

1. Was the fraudulently obtained insurance policy void as to HomeComings?

2. Was HomeComings’s recovery barred by its acquiescence in the policy’s fraudulent procurement?

ANALYSIS

We may reverse a decision by the Commissioner of Commerce if the decision violates the constitution, exceeds the agency’s statutory authority or jurisdiction, is based on an erroneous theory of law, is not supported by substantial evidence, or is arbitrary and capricious. Minn.Stat. § 14.69(a), (b), (e), (f) (2002); Markwardt v. State, Water Resources Bd., 254 N.W.2d 371, 374 (Minn.1977). Although we defer to the Commissioner’s findings of fact if they are reasonably supported by the evidence in the record, Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989), the interpretation of statutes and their application to undisputed facts present questions of law that we review de novo. Brookfield Trade Ctr., Inc., v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). We note that “judicial deference * * * is extended to an agency decision-maker in the interpretation of statutes that the agency is charged with administering and enforcing.” In re Excess Surplus Status of Blue Cross and Blue Shield of Minnesota, 624 N.W.2d 264, 278 (Minn.2001) (citations and quotations omitted).

The party seeking review on appeal has the burden of proving that the agency decision meets one or more of the above-listed statutory criteria. Markwardt, 254 N.W.2d at 374. Minnesota Property contends the Commissioner’s decision was based upon an erroneous-theory of law and not supported by substantial evidence.

1. Minnesota Property argues the insurance contract between itself and respondent HomeComings was void ab initio because it was fraudulently obtained by Howard Gangestad’s insurance agent. HomeComings argues -the policy’s standard mortgage clause gives it a separate and enforceable insurance contract with Minnesota Property that is unaffected by the agent’s fraud.

A standard mortgage clause specifies that the insurance with respect to the mortgagee shall not be invalidated by the insured mortgagor’s intentional acts or neglect. American Nat. Bank and Trust Co. v. Young, 329 N.W.2d 805, 810 n. 1 (Minn.1983). It is undisputed that the policy here contains a standard mortgage clause providing that “[i]f a mortgagee is named in this policy,” denial of a claim made by the named insured “will not apply to a valid claim of the mortgagee * * *.” The effect of a standard mortgage clause

is to make a new and separate contract between the mortgagee and the insurance company, and to effect a separate insurance of the interest of the mortgagee, dependent for its validity solely upon the course of action of the insurance company and the mortgagee, and unaffected by any act or neglect of the mortgagor, of which the mortgagee is ignorant, whether such act or neglect was done or permitted prior or subsequent to the issue of the mortgage clause.

Id. at 810 (quoting Allen v. St. Paul Fire and Marine Ins. Co., 167 Minn. 146, 150, 208 N.W. 816, 818 (1926) (citation omitted) (emphasis omitted)). The contract between the mortgagee and the insurer “begins and proceeds” when the contract between the insured and the insurer “fails, or if it never attaches.” Allen, 167 Minn, at 150, 208 N.W. at 818 (quotation omitted) (emphasis added). See H.F. Shepherdson Co. v. Cent. Fire Ins. Co., 220 Minn. 401, 19 N.W.2d 772 (1945) (holding that arson by mortgagor cannot invalidate mortgagee’s coverage under standard mortgage clause).

In Minnesota, both the inclusion and the terms of a standard mortgage clause in a fire insurance policy are mandated by statute. See Minn.Stat. § 65A.01, subd. 1 (2002) (the Minnesota Standard Fire Insurance Policy). When, as is the case here, an insurance policy’s standard mortgage is inconsistent with the statutory policy provision, the statutory provision is substituted for the policy provision. Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 689 (Minn.1997).

The statute requires that fire insurance policies provide:

Notwithstanding any other provisions of this policy, if this policy shall be made payable to a mortgagee * * * of the covered real estate, no act or default of any person other than such mortgagee * * *, whether the same occurs before or during the term of this policy, shall render this policy void as to such mortgagee * * *.

Minn.Stat. § 65A.01, subd. 3 (2002). We note that the statute provides the innocent mortgagee coverage regardless of the wrongdoer’s identity, and not, as was previously the case, only in case of an act or default of the mortgagor. See American National, 329 N.W.2d at 810 (holding that contract between “the insurance company and the mortgagee [is] unaffected by any act or neglect of the mortgagor” (emphasis added) (quotation omitted)).

Minnesota Property contends that the standard mortgage clause has no effect here because the fraudulent application precluded the policy from ever becoming a valid contract, and the policy was therefore void as to all named parties. The question of whether Minn.Stat. § 65A.01, subd. 3, provides a mortgagee coverage when the insurance contract was obtained through the fraud of a third party, and without the mortgagor’s knowledge, is an issue of first impression in Minnesota.

The object of statutory interpretation is to ascertain and effectuate legislative intent. See Minn.Stat. § 645.16 (2002). Generally, if statutory language is plain and unambiguous, we look to its plain meaning to determine the legislation’s purpose. Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993). The Minnesota Standard Fire Insurance Policy plainly provides that

no act or default of any person other than such mortgagee ⅝ * *, whether the same occurs before or during the term of this policy, shall render this policy void as to such mortgagee * ⅜ ⅜.

Minn.Stat. § 65A.01, subd. 3. The statute makes no exceptions for fraudulent applications or third party acts or defaults. Here, the policy was obtained through the fraud of a person other than HomeComings before the term of the policy, and is therefore not void as to HomeComings. Had the legislature intended to bar mortgagee recovery under the facts before us, J it presumably would have drafted the statute accordingly. But as the statute is written, HomeComings is entitled to recover.

Minnesota Property urges us to look beyond the plain meaning of the statute to general principles of contract law, which, Minnesota Property argues, compel the conclusion that the policy was void as to all named parties because there was no meeting of the minds between Mattice and Minnesota Property on the essential terms of the agreement. We note that the validity or existence of the contract between Mattice and Minnesota Property has no bearing on the validity of the separate contract between HomeComings and Minnesota Property, which “begins and proceeds” when the contract between the insured and the insurer “fails, or if it never attaches.” Allen, 167 Minn, at 150, 208 N.W. at 818. We also note that our role is simply to interpret the statutory language, not to look beyond the statute’s plain meaning in order to

in effect rewrite a statute so as to accomplish a result which might be desirable and at the same time conflict with the expressed will of the legislature.

McNeice v. City of Minneapolis, 250 Minn. 142, 147, 84 N.W.2d 232, 237 (1957); see also State ex rel. Coduti v. Hauser, 219 Minn. 297, 301-03, 17 N.W.2d 504, 507-08 (1945) (stating both that legislature may ignore logic and perpetrate injustice as long as it does not violate constitution and that, absent ambiguity, any remedy for suspect statute must be by amendment and not construction).

Minnesota Property also argues that the fraudulent application violated the policy’s Concealment and Fraud provision as well as Minn.Stat. § 60A.08, subd. 9 (2002), both of which authorize voiding or .rescinding an insurance policy when the insured party makes a material misrepresentation related to the insurance. Because we have concluded that Minn.Stat. § 65A.01, subd. 3, authorizes HomeComings to recover despite the fraudulent application, we need not address this argument. We note, however, that the record contains no evidence that Mattice, the insured party, participated in submitting the fraudulent application to Minnesota Property or had any knowledge of the policy’s various misrepresentations. Therefore, neither the Concealment and Fraud provision of the policy nor Minn.Stat. § 60A.08, subd. 9, would bar coverage or authorize voiding or rescinding the policy for fraud.

2. Minnesota Property argues that HomeComings cannot recover under the insurance policy because it knew and acquiesced in the fraudulent quitclaim transaction between Gangestad and Mattice, thereby breaching its duty to inform Minnesota Property about the fraud. We disagree.

There is no evidence in the record that the quitclaim transaction between Gangestad and Mattice was fraudulent or otherwise illegal; Mattice, the titleholder, quitclaimed the property to Gangestad, as was his right. Nor is there evidence that HomeComings was aware of the quitclaim transaction, which Gangestad intentionally failed to record precisely to prevent HomeComings from learning about the transfer. The record contains no evidence that HomeComings had any knowledge of the Gangestad-Mattice quitclaim transaction.

DECISION

We affirm the Commissioner’s order concluding that Minn.Stat. § 65A.01 (2002) permits HomeComings to recover under the policy issued by Minnesota Property to Mattice.

Affirmed.

RANDALL, Judge

(dissenting).

I respectfully dissent.

This is a single-issue case. The majority rests its decision on the “innocent mortgagee” protection feature of Minn.Stat. § 65A.01, subd. 3 (2002). The majority sets out the statute correctly and cites to the line of cases indicating that innocent (noncomplicit) third-party lenders cannot have their security interests, meaning their rights under a standard mortgage clause in a standard fire insurance policy, invalidated by any act or default of any person (other than, of course, that mortgagee), even when the act or default by the mortgagor/insured bars him from any recovery.

The classic case is arson by the policyholder, meaning the insured that has an insurable interest in the property. The arsonist is barred from any recovery under his fire insurance policy, but the third-party lender/mortgagee is entitled to collect from the fire insurance company. This is Minnesota’s longstanding view, and is so in virtually all other states. But this case, on these facts, does not come under Minn.Stat. § 65A.01, subd. 3 and the cases interpreting that provision. Here is why. First, the majority concedes that the facts in this case present an issue of first impression in Minnesota. The majority states:

The question of whether Minn.Stat. § 65A.01, subd. 3 provides a mortgagee coverage when the insurance contract was obtained through the fraud of a third party, and without the mortgagor’s knowledge, is an issue of first impression in Minnesota.

Despite this, the majority then assumes that the fact situations in the prior cases upholding the right of innocent third-party lenders to collect controls here. However, as counsel for respondent HomeComings Financial Network, Inc. (HCFN), the third-party lender, conceded, every single case he briefed and brought to our attention involved a case where the insured under the fire insurance policy was the person procuring the coverage, and then “before, during, or after” obtaining coverage, some fraud or other act occurred barring the policyholder from recovering, but not barring the lender. You do not have that connection between the insured, Mat-tice, and the fire insurance company, Minnesota Property Insurance Placement (MP) in this case. You do not have any connection between Mattiee and MP in this case.

The record facts are that Gangestad, a party who ultimately wanted to benefit from the fraud, worked with an insurance agent, Sorenson, and Sorenson forged Mattice’s signature to both certify Mat-tice’s insurable interest in the property and the truth of the information contained in the application for fire insurance coverage. The majority agrees, and states that the record “contains no evidence” that Mattiee, the insured party, participated in submitting the fraudulent application to MP. The majority agrees that Mattiee had (obviously, since he did not participate in the application) no knowledge of the various misrepresentations made in the application for insurance. With this unique fact situation firmly in place, basic common sense and contract law should prevail.

Mattiee can have absolutely no recognizable interest in any fire insurance policy contract with MP because (a) he never applied for insurance with MP; (b) he had no knowledge (and no complicity) that anyone else also applied for fire insurance with MP in his name; and (c) his signature was forged on the application by a third party he had no connection with, no complicity, and absolutely no idea that any such application under his forged name was ever submitted.

Respondent, Minnesota Department of Commerce (Commerce) came to the right result in denying Mattiee any fire insurance coverage for the loss, but for the wrong reason. It found that MP could properly deny Mattice’s claim because of his fraudulent misrepresentations made after the loss when he did, in fact, submit a claim to MP after the fire for monetary loss. At this point in time, Mattiee tried to take advantage of the fraud of Gangestad and Sorenson and, thus, was denied any right to recovery. But I submit that Commerce erred when it found that Mattiee had an “insured interest” in the property through MP and that any concealment or fraud provision in the policy did not initially apply to bar coverage under the policy for Mattiee, finding that “the fraud was not committed by or on Mattice’s behalf.” Of course, the fraud was not committed by or on Mattice’s behalf! It is agreed that he had nothing to do with the forgery, had no knowledge of it, and it was always for Gangestad, not for him. The fact that Mattiee did not commit the fraud does not support the quantum leap that, therefore, he “must have coverage” and could collect under the exception for his later fraudulent act. Before you even get to the issue of when and under what circumstances he can or cannot collect under a contract of a fire insurance policy, there has to be a policy contracted for by Mattice. That hasn’t happened yet. There never was any contract between Mattice and MP.

As stated above, Commerce did find against Mattice on other grounds, namely, his after-the-fact fraudulent application for fire insurance proceeds, when the property had been destroyed by fire. By finding inappropriately that Mattice had an insured interest in the property with MP and could have collected from MP except for his later participation in fraud, respondent Commerce erred. That error, finding that Mattice had an insured interest and valid fire insurance policy with MP covering the destroyed property, is the only basis on which HCFN can recover under any circumstances. The parties agree HCFN has no direct rights, no fire insurance policy themselves, with MP. Rather, all their rights against MP are derivative through Mattice. The commissioner found that MP could not deny HCFN’s claim because they were the innocent third-party lender/mortgagee and cited Minn.Stat. § 65A.01, subd. 3(c) (2002), which protects an innocent lender from third-party fraud. The majority affirms the commissioner’s decision to require MP to pay HCFN. The simple and isolated problem with the commissioner’s and the respondent HCFN’s analysis is that the statute and the cases, as mentioned above, all are premised “on their being a valid insurance policy in place.” It is elementary insurance law that an insurance policy is a contract.

Insurance policies are similar to other contracts; they are matters of agreement by the parties and the function of a court is to determine what the agreement was and enforce it.

Fillmore v. Iowa Nat. Mut. Ins. Co., 344 N.W.2d 875, 877 (Minn.App.1984). The basic elements of a contract have to be present to have a contract. The basic elements of a contract are offer, acceptance, and consideration. S O Designs USA, Inc. v. Rollerblade, Inc., 620 N.W.2d 48, 53 (Minn.App.2002), review denied (Minn. Feb. 21, 2001). As well, to be valid, the parties must have a meeting of the minds regarding essential contract elements. Minneapolis Cablesystems v. City of Minneapolis, 299 N.W.2d 121, 122 (Minn.1980).

I can find no contract de jure, de facto, express or implied, between Mattice and MP. As stated above, the application for the policy happened in a total void as to Mattice. His signature was forged, and the majority agrees that the forgery was totally without his knowledge and/or complicity. Giving Mattice any contractual rights with MP violates decades of elementary contract law. To have a contract you need the basics, offer, acceptance, a matter capable of being contracted for, consideration, mutual assent, and a meeting of the minds. Mattice and MP did not have one single element of a contract, let alone all of them between them. Mattice and MP are like two strangers, living 10,000 miles apart on two different continents, who have never met, much less negotiated a binding contract between themselves. Assume that on one of those two continents, two swindlers, totally unknown to Mattice, forged his signature on a contract with another party. What possible rights does Mattice get out of this forgery!? What possible rights do the two swindlers, a continent away, confer on Mattice as against the person, here MP, being swindled? Now, respondents, the commissioner, and the majority concede that HCFN’s rights do not appear out of thin air. HCFN’s rights can only be derivative of Mattice, meaning his “insured interest” in the property destroyed by fire and his “interest” in the fire insurance policy running between MP and “Mattice.” The commissioner could only find “rights” in HCFN by finding that Mattice had an insured interest in the contract, and that although the insured interest was lost to Mattice (by his after-the-fact participation in the fraud), that “insured interest” of Mattice’s was not lost to HCFN.

To me, you cannot just manufacture a “contract.” You cannot create a “fire insurance contract” out of thin air and then willy-nilly use it to confer rights on various entities. To me, when you look at the origin of this “fire insurance contract,” there was never any such contract. Put another way, an indispensable party to any contract between Mattice and MP is Mat-tice. As to the alleged fire insurance contract at issue, Mattice never existed.

This set of facts is what sets this case apart from all the older cases interpreting claims by lenders/mortgages under Minnesota’s standard clause and Minn.Stat. § 65A.01, subd. 3(c) (2002). If any nod is given to elementary contract law, there is no contract in any way, shape, or form in this case for anyone, innocent or not, to claim an insured interest and vested contract rights through Mattice. It is true that HCFN was swindled by Gangestad and Sorenson. It is equally true that MP was swindled by Gangestad and Sorenson. Between the two, where does the loss fall? I suggest it has to fall on HCFN, not because they are not innocent, but because no loss can fall on MP, a company that sells fire insurance policies, which are fire insurance contracts, unless there is a “fire insurance contract.”

The end result is simple. HCFN has a perfectly good cause of action against Gan-gestad and/or Sorenson, and can sue those parties and any other parties that they can show contributed to their loss. What HCFN wants to do is collect from MP and assign to MP the burden of chasing around the pool of defendants for monetary reimbursement. I submit that they cannot collect from MP and assign the burden to sue the individuals responsible for the fraud to MP. They have to shoulder that burden themselves. When you have total strangers to a “contract” in which all the contractual documents were forged, chasing down the forgers for indemnification for their loss properly falls here on HCFN because they dealt with Gangestad and Mattice. MP never did.

The best analogy and the best precedent out there is Minnesota’s longstanding homestead rule. There can be no valid sale of a homestead, nor can any mortgage validly attach to a homestead unless the document contains the signature of both husband and wife. As to homesteads, the Minnesota Supreme Court stated that void contracts cannot vest rights in the parties. A contract for the sale of a homestead lacking one of the required signatures “must be held void for all purposes and not constitute the basis of any action against the obligor.” Marr v. Bradley, 239 Minn. 503, 507, 59 N.W.2d 331, 334 (1953) (emphasis added). This has long been the rule. See Barton v. Drake, 21 Minn. 299, 305 (1875) (stating “ * * * the contract and decree being alike void, the defendant acquired by them no title to, or estate in, or lien upon, such homestead”).

It is simple. You have two prongs when analyzing a purported sale of a homestead or the claims of a purported mortgagee. The first prong is to find out if both the husband and the wife signed. If they did not, you do not move to the second prong and analyze such questions as to “whether the consideration was adequate” or “whether the purchase was a bona fide purchaser for value.” That second prong is irrelevant if you don’t have the first. In this case, Commerce blithely assumed that there was a valid fire insurance contract in place, the first prong, and then went on to discuss under what circumstances Mattice could or could not recover under the policy and finally, under what circumstances HCFN could or could not recover. Commerce carefully spent a considerable amount of time analyzing the whys and the wherefores, and ultimately concluded that Mattice could not recover under the contract, but that HCFN could. The problem is, they had no reason to go on to the second prong, meaning recovery for whom, and for how much. They never analyzed the first prong, was there even a valid fire insurance contract in place. They “assumed” it and moved on. If a husband or a wife attempts on their own to sell the homestead, and some duped buyer “buys” it and actually pays some or all of the money to one spouse, the duped buyer may well have a common-law cause of action for theft by swindle against that spouse. But that cause of action does not affect the other spouse, and does not attach to the homestead. Here, the purported swindlers are Gangestad and Sorenson, the duped buyer is HCFN, and the homestead, meaning the money, the source of value, is the proceeds from MP’s fire insurance policy. HCFN does not get to “the homestead,” 'the fire insurance policy, but, rather, is left to its-cause of action directly against the party or parties who defrauded them.

On our facts, there never was a first prong. There never was any valid fire insurance policy/contract in existence between Mattice and MP. HCFN conceded at oral argument that all of the cases they cited as precedent contained a real insured with a real insurable interest in the property who “before, during, or after” the formation of the policy contract, committed some type of fraud. Clearly, those sets of facts leave the innocent lender, pursuant to the above cited statutes and caselaw, free to proceed against the fire insurance policy for enough proceeds to cover the outstanding mortgage. But that is not this case.

I disagree with HCFN’s argument that ruling against them and for MP will upset decades of established Minnesota law and will “chill” the interests of lenders to lend money to people to buy homes and businesses. That will not happen. It is stipulated this is a case of first impression. Lenders always have the innocent lender protection of the standard mortgage clause and the controlling statute when, as has happened every single time in the past, the fraud and/or arson was committed by the insured who had an insurable interest and negotiated a fire insurance policy with evil thoughts dancing in his head either before, during, or after the acquisition of the fire insurance policy. HCFN, and all lenders subsequent to this case, can protect themselves from this unique set of facts by asking the “insured” (in this case Mattice) one question. “Do you have a fire insurance policy in place on this property on which you wish to borrow money from us, using the property as collateral?” The insured will have to answer “yes” or “no.” If the insured answers, “yes,” the lender simply gets verification and then the benefit of the standard mortgage clause. If Mattice had been an actual insured here that participated in the fraud to obtain the policy, and then you had the fire, HCFN would have had the full protection of the standard mortgage clause. On the other hand, if Mattice had answered, “no, I don’t,” the lender simply says, “well, you will have to get fire insurance in place before we can make the loan.” If HCFN had said to Mattice, “well, there is a fire insurance application/policy in place from MP,” Mattice is going to say, “I don’t know anything about that. I never applied for any fire insurance.” If shown the application with his signature, Mattice would say he never signed the application and someone else must have written in his signature. We know that is what he will say because we know from the record that he had no idea about the fraud/forgery committed to get the fire insurance policy. So when Mattice answers that he does not know about any such policy, and never signed any such application, the lender, here HCFN, is put on full notice of a red flag that they will logically investigate to protect themselves by making sure the insured has a valid fire insurance policy before committing to the loan.

In sum, by reversing in favor of MP, I see no harm whatsoever to the ability of mortgage lenders to protect themselves by valid assignments, meaning the standard mortgage clause in the standard fire insurance policy. On the other hand, by requiring MP to pay policy proceeds to HCFN, I see a total breakdown, and denial, of the essentials of elementary contract law when HCFN is allowed to recover using so-called derivative rights through Mattice’s “insured interest in the property” and Mattice’s “fire insurance policy/contract.”

I respectfully dissent, and would reverse Commerce’s decision and enter judgment for MP.

      . The opening paragraph from the facts set out by the majority: "In January 1999, Howard Gangestad purchased a residential property in Minneapolis for $25,000. Seven months later, respondent Craig Mattice purchased the property from Gangestad with a $54,000 mortgage from HomeComings and $6,000 cash.”


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Respondent, v. Eric NMN SMITH, Appellant.
    No. C3-02-96.
    Court of Appeals of Minnesota.
    Jan. 7, 2003.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by ANDERSON, Presiding Judge, STONEBURNER, Judge, and WRIGHT, Judge.
   OPINION

STONEBURNER, Judge.

Appellant Eric Smith challenges his conviction of motor vehicle theft, arguing that the prosecutor committed misconduct and that the district court erred by failing to remove a juror for cause; abused its discretion by failing to suppress evidence for a discovery violation; abused its discretion by failing to instruct on a lesser-included offense; and erred by diluting the reasonable-doubt standard in jury instructions. Smith also alleges that the district court abused its discretion by sentencing him as a career offender. Because we agree that the jury instruction on reasonable doubt diluted the standard, we reverse and remand.

FACTS

Two Minneapolis police officers on patrol observed a vehicle with license plate numbers that matched the numbers of a stolen vehicle. The officers followed the vehicle, which made a right turn, pulled over, and stopped on the right side of the street. The officers testified that they never lost sight of the vehicle and that they observed the driver get out of the vehicle, walk around the front of the vehicle and approach the squad car, which by that time had stopped with lights activated, behind the stolen vehicle. No one else got out of the vehicle. The driver was later identified as appellant Eric Smith.

Appellant testified that he had been sitting on his aunt’s porch and saw a vehicle stop in front of the house. Appellant testified that two men jumped out of the vehicle and ran in different directions. Appellant testified that he then walked to the vehicle, leaned over, looked into the vehi-ele, and saw evidence of a crime, just as the police were coming down the block, so he walked up to the officers to talk to them.

Appellant was arrested and charged with theft of a motor vehicle under Minn. Stat. § 609.52, subd. 2(17) (2000). The complaint was later amended to include a count of receiving stolen property under Minn.Stat. § 609.53, subd. 1 (2000).

Three days before trial, the state informed appellant’s attorney that a pawn ticket belonging to appellant and two checkbooks not in appellant’s name had been found in the stolen vehicle. The district court precluded mention of these items during opening statements but denied appellant’s motion to suppress the pawn ticket as a sanction for late discovery. During voir dire, the district court denied appellant’s motion to excuse a juror for cause. The district court denied appellant’s motion to instruct the jury that receiving stolen property is a lesser-included crime. In instructing the jury on reasonable doubt at the beginning and end of the trial, the district court told the jury, “You do not have a reasonable doubt if your doubts are based upon speculation or irrelevant details.”

Appellant was convicted and sentenced as a career offender. Appellant’s motion for a new trial was denied. This appeal followed.

ISSUES

I. Did' the jury instruction on reasonable doubt dilute the beyond-a-reasonable-doubt standard, constituting a violation of due process?

II. Did the district court err by failing to instruct on a lesser-included offense?

III. Did the district court abuse its discretion by failing to exclude evidence as a sanction for a discovery violation?

IV. Did the district court err by denying defense counsel’s motion to remove a juror for cause?

V. Did the district court abuse its discretion by sentencing appellant as a career offender?

ANALYSIS

I. Instructing the jury that a reasonable doubt cannot be based on speculation dilutes the beyond-a-reasonable-doubt standard.

In general, a party who fails to object to jury instructions at trial waives the right to raise the issue on appeal. State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983). But jury instructions regarding the burden of proof concern a fundamental principle of law and may be raised on appeal even if an objection was not made at trial. State v. Smith, 448 N.W.2d 550, 554 (Minn.App.1989), review denied (Minn. Dec. 29, 1989).

Appellant argues that the district court’s instruction on reasonable doubt diluted the beyond-a-reasonable-doubt standard. District courts are allowed considerable latitude in selecting the language in jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990). The decision to give a particular jury instruction lies within the district court’s discretion “and no error results if no abuse of discretion is shown.” State v. Cole, 542 N.W.2d 43, 50 (Minn.1996) (citation omitted). Appellant is entitled to a new trial, however, if the beyond-a-reasonable-doubt standard is diluted, because the standard triggers constitutional due-process rights. State v. Tibbetts, 281 N.W.2d 499, 500 (Minn.1979).

The standard beyond-a-reasonable-doubt instruction provides:

Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.

10 Minnesota Practice, CRIMJIG 3.03 (1999). A court generally can be secure that the standard articulated is appropriate if it uses CRIMJIG 3.03. State v. Sap, 408 N.W.2d 638, 641 (Minn.App.1987). Nonetheless, a court is not required to define reasonable doubt, or articulate the standard, with any specific language, so long as, taken as a whole, the instruction correctly conveys the concept. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994).

In this case, the district court instructed the jury at the beginning of the trial and at the close of evidence:

The law requires the State to prove its case beyond a reasonable doubt. It does not require the case to be proved beyond all possibility of doubt, nor does it require that the case be proved to a mathematical certainty.
Proof beyond a reasonable doubt is simply that amount of proof that ordinary men and women rely upon in making their own most important decisions. You have a reasonable doubt if your doubts are based upon reason and common sense. You do not have a reasonable doubt if your doubts are based upon speculation or irrelevant details.

Smith argues that the term simply, and the phrase you do not have a reasonable doubt if your doubts are based upon speculation * * ⅜ diluted the beyond-a-reasonable-doubt standard.

We reject appellant’s argument that the word simply, as used in the instruction, implies that the state’s burden is easily met. The word is used to make clear- how the definition of doubt is narrowed by the term reasonable. Considering the instruction in its entirety, simply indicates that the court is giving a specific definition. The district court did not dilute the beyond-a-reasonable-doubt standard by its use of the word simply in this context.

The record reflects that the district court chose to use speculation to replace fanciful and capricious because it believed that speculation is a term more commonly used and understood than fanciful and capricious. But speculation can be reasonable. In a criminal trial, the state has the burden of proving the defendant’s guilt beyond a reasonable doubt. A defendant is not required to prove innocence. To return a verdict of not guilty, the jury is not required to know that a defendant is not guilty, only to determine that the state has not met its burden based on the evidence presented. Our criminal justice system permits the jury to make this determination based on reasonable speculation, garnered from the evidence, or lack of evidence, presented. We recognize the district court’s laudable intent to clarify the beyond-a-reasonable-doubt standard for the jury by replacing a little-used word with something more common, but the instruction given required the jury to disregard reasonable speculation, thereby changing the standard and making it easier to convict. Although there is no requirement that a jury instruction be directly synonymous with the standard instructions, speculation has a definition that is markedly different from the definitions of fanciful and capricious.

The American Heritage Dictionary (2d Col. Ed.) defines to speculate as “to meditate on a given subject, reflect,” and defines speculation as, “a. [t]he act of speculating. b. [cjontemplation of a profound nature, c. [a] conclusion, opinion, or theory reached by speculating.” The American Heritage Dictionary defines the word fanciful as “created in the fancy; unreal; tending to indulge in fancy; showing invention or whimsy in design; imaginative,” and defines capricious as, “[cjharacterized by or subject to whim; impulsive and unpredictable; fickle.”

The threshold of the beyond-a-reasonable-doubt standard is whether the uncertainty about what occurred in the case is reasonable, based on the evidence presented. The standard must be defined in a manner that makes clear both that a doubt must not be fanciful or capricious and that the doubt itself need not be supported to the extent of a proven fact. Substitution of speculation for fanciful and capricious does not accomplish this task and could lead the jury to reject a doubt based on reasonable speculation as not meeting the standard. For example, if a juror in this case expressed a doubt based on his conclusion that appellant’s version of the incident seemed more likely to be true than the officers’ versions, another juror might have responded “but that doubt is based on speculation, so it’s not a reasonable doubt.” We conclude that the use of the word speculation diluted the beyond-a-reasonable-doubt standard and was error.

An erroneous jury instruction does not always require a new trial, but proof beyond a reasonable doubt is constitutionally required to convict. In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). Conviction of a defendant under a less stringent standard is a violation of due process. Id. at 364. If the district court dilutes or obscures the reasonable doubt standard, appellant is entitled to a new trial. Tibbetts, 281 N.W.2d at 500.

II. Failure to instruct on lesser-included offense was not error.

Appellant also argues that the district court abused its discretion by refusing to give an instruction on lesser-included offenses. The court should submit an instruction on a lesser charge when the offense in question is an “included” offense and a rational basis exists for the jury to convict appellant of the lesser offense and acquit him of the greater crime. State v. Buntrock, 560 N.W.2d 383, 386 (Minn.1997).

The district court stated that there were no facts in evidence in this case which would make appellant not guilty of the greater crime, but guilty of the lesser. The record supports this determination and the district court did not abuse its discretion by denying the requested instruction.

III. Denial of motion to suppress evidence as a discovery sanction was not abuse of discretion.

Appellant contends that the district court abused its discretion by not sanctioning the prosecution’s discovery violation by suppressing the pawn slip, and did not provide an adequate remedy for the late disclosure of the existence of the checkbooks, which were potentially exculpatory evidence, corroborating appellant’s version of the facts. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (holding that the due process clause is violated if the prosecution fails to disclose material evidence that is favorable to a criminal defendant).

The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court.

State v. Lindsey, 284 N.W.2d 368, 373 (Minn.1979) (citation omitted). Such a determination will not be overturned absent an abuse of discretion. Id. By exercising its discretion in sanctioning a discovery violation, the district court judge should take into account

(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.

Lindsey, 284 N.W.2d at 373 (citation omitted). Reviewing courts should analyze the court’s decision, under an abuse of discretion standard, with these considerations in mind. Id.

The rules of criminal procedure require the prosecution to disclose to the defense all exculpatory evidence and all relevant documents. Minn. R.Crim. P. 9.01, subd. 1(3)(6). The prosecution has the duty to learn of any evidence known to others acting on the government’s behalf, including police, and to disclose this information to the defense. State v. Williams, 593 N.W.2d 227, 235 (Minn.1999). Failure to disclose is not excused because the prosecutor herself was unaware of the information. Id. Such a failure constitutes a discovery violation. Id.

Appellant was made aware of the pawn slip three days before trial and had access to the evidence before testimony regarding the slip was presented. Although he moved to suppress the pawn slip, appellant did not request a continuance or any additional time for investigation beyond the long lunch hour and overnight recess that the district court stated would be adequate. The district court did not allow mention of the pawn slip in opening statements and required that the state keep its witnesses available for recall by appellant after the overnight recess. The district court did not abuse its discretion by failing to suppress the pawn slip as a sanction for a discovery violation.

In order to establish a Brady violation for late disclosure of the checkbooks found in the stolen vehicle, appellant must demonstrate that (1) the evidence at issue was favorable to him; (2) the evidence was willfully or inadvertently suppressed by the prosecution; and (3) he was prejudiced as a result. Woodruff v. State, 608 N.W.2d 881, 886 (Minn.2000).

Appellant had knowledge of the checkbooks three days before the trial began and did not request a continuance to investigate further. At appellant’s request, the district court required the state to run a criminal history check on the persons named on the checkbooks. Appellant used the existence of the checkbooks to corroborate his version of the facts. He did not request additional time to investigate and has not alleged that additional relevant information exists that could have been discovered with additional time. See Woodruff 608 N.W.2d at 886 (indicating that' exculpatory information disclosed late in trial may not be prejudicial if defendant had opportunity to fully examine witnesses with the evidence and could not show that court’s remedy for the violation had been inadequate). Appellant has failed to establish a Brady violation with regard to late disclosure of the checkbooks.

IY. Failure to dismiss juror for cause was not error.

Appellant argues that the district court improperly denied his request to remove a juror for cause who had previously been an assistant attorney general.

The exclusive grounds on which a juror can be challenged for implied bias are provided in Minn. R.Crim. P. 26.02, subd. 5. State v. Alladin, 408 N.W.2d 642, 649 (Minn.App.1987), review denied (Minn. Aug. 12, 1987). In order to make a successful claim of juror bias, an appellant must show that (1) the juror was subject to challenge for cause; (2) actual prejudice resulted from the failure to dismiss the juror; and (3) the challenging party made an appropriate objection. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn.1983). Appellant contends that the juror should have been removed under Minn. R.Crim. P. 26.02, subd. 5(1), providing that the district court may remove a juror for good cause if there exists:

a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.

Minn. R.Crim. P. 26.02, subd. 5(1).

Appellant made a motion to challenge the juror for cause, as required under the Stufflebean test. But appellant has failed to show that the court improperly determined that the juror could be impartial. See State v. Logan, 535 N.W.2d 320, 324 (Minn.1995).

As a general rule, the trial court’s resolution of the question whether the prospective juror’s protestation of impartiality is believable is entitled to “special deference” because “the determination is essentially one of credibility and therefore largely one of demeanor.”

Logan, 535 N.W.2d at 323 (quotations omitted)

At all times during voir dire, the juror maintained she could remain neutral. The juror made no statements at any time indicating that she was biased against appellant. The district court allowed considerable time for appellant to discover any reasons for dismissal for cause. The district court did not abuse its discretion by denying appellant’s motion to dismiss the juror for cause.

Appellant also alleges that the cumulative effect of errors that occurred at trial, including claims that the district court improperly admitted a burglary conviction for impeachment and improperly excluded admission of a prior consistent statement and claims of prosecutorial misconduct. Because we are reversing and remanding for a new trial, we do not reach these issues in detail, but note that our careful review of the record leads us to conclude that these claims are without merit.

Y. Sentencing as career offender was not abuse of discretion.

This court will not disturb a district court’s departure from a presumptive sentence absent a clear abuse of discretion. State v. Flemino, 529 N.W.2d 501, 503 (Minn.App.1995), review denied (Minn. May 31, 1995). Minnesota law allows a sentencing court to impose an aggravated durational departure from the presumptive sentence if the felony defendant has a minimum of five prior felony convictions and the felony at issue was a part of a pattern of criminal conduct. Minn.Stat. § 609.1095 (2000). Appellant argues that his prior felonies do not constitute a “pattern of criminal conduct” and that the district court abused its discretion by sentencing him as a career offender.

A pattern is the organizing principle or relationship binding certain things, in this case incidents of criminal conduct, together. Such a “pattern of criminal conduct” may be demonstrated by proof of criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.

State v. Gorman, 546 N.W.2d 5, 9 (Minn.1996). A pattern of property crimes can satisfy the statute and there is no time limit for which convictions may be used to show a pattern of criminal conduct. State v. Worthy, 583 N.W.2d 270, 280 (Minn.1998) (holding that a defendant with prior felony convictions including possession of a dangerous weapon, possession of a controlled substance, receiving stolen property and attempted burglary was properly sentenced as a career offender). Appellant’s current conviction is for auto theft. His prior adult felony convictions include (1) theft from a person; (2) auto theft; (3) forgery; (4) attempted second-degree burglary; and (5) three fifth-degree controlled substance crimes. The district court did not abuse its discretion by sentencing appellant as a career offender given his pattern of committing property crimes.

DECISION

Instructing the jury that “you do not have a reasonable doubt if your doubt is based upon speculation * * * ” diluted the standard of proof beyond a reasonable doubt, violating appellant’s right to due process, and requiring a new trial.

Reversed and remanded.

      . Appellant testified that he saw “chips on the floor. I know what that kind of crime was * * The reference is to pieces of the steering column that had been broken to facilitate starting the car without a key.

      . The district court appropriately recognized that appellant could only be convicted of one of the crimes charged because the facts used to prove each crime were identical. See State v. Banks, 358 N.W.2d 133, 135 (Minn.App. 1984) (holding that a conviction for receiving stolen property based on possession must be vacated because it involved the same act constituting theft based on retaining property).


author: HALBROOKS, Judge.

text:
    HEALTHPARTNERS, INC., Relator, v. James C. BERNSTEIN, in his capacity as Commissioner of the Minnesota Department of Commerce, Minnesota Comprehensive Health Association, Respondents.
    No. C6-02-870.
    Court of Appeals of Minnesota.
    Jan. 14, 2003.
    Gregory R. Merz, Gray, Plant, Mooty, Mooty & Bennett, P.A, Minneapolis, MN, for relator.
    Mike Hatch, Attorney General, Steven B. Liss, Assistant Attorney General, St. Paul, MN, for respondent commissioner.
    Douglas L. Elsass, Fruth, Jamison & Elsass, P.A., Minneapolis, MN, for respondent MCHA.
    Considered and decided by SCHUMACHER, Presiding Judge, HALBROOKS, Judge, and HUDSON, Judge.
   OPINION

HALBROOKS, Judge.

Relator HealthPartners, Inc. challenges the decision of the Commissioner of the Minnesota Department of Commerce denying its appeal of its MCHA assessments for the years 1997, 1998, and 1999. HealthPartners argues that the payments it received pursuant to Medicare cost contracts were not payments received “for coverage” under Minn.Stat. § 62E.02, subd. 23 (2002). As a result, HealthPart-ners contends, the payments are not in-cludable in its “total accident and health insurance premium[s]” under Minn.Stat. § 62E.11, subd. 5 (2002), for purposes of determining its annual MCHA assessment. Because we conclude that the payments received by HealthPartners under Medicare cost contracts are payments received “for coverage” that are includable in HealthPartners’ “total accident and health insurance premiums[s]” for purposes of determining HealthPartners’ MCHA assessments, we affirm.

FACTS

In 1976, the Minnesota legislature established the MCHA, a nonprofit corporation created to provide health-insurance coverage to Minnesota residents who are unable to obtain insurance in the private, market. Minn.Stat. § 62E.10 (2002). Membership in the MCHA is a mandatory condition of doing business in Minnesota in the fields of accident and health insurance, self-insurance, health-maintenance organization (HMO), or as a community integrated service network. Minn.Stat. § 62E.10, subd. 3. MCHA membership includes insurers, self-insurers, fraternal organizations, HMOs, and other insurance-related organizations. Minn.Stat. § 62E.10, subd. 1. HealthPartners is an HMO operating in Minnesota and a contributing member of the MCHA.

The cost of the MCHA’s plan is paid in part by annual assessments that the MCHA levies on its members. Members are liable for claims expenses that exceed premium payments allocated to the payment of benefits. Minn.Stat. § 62E.11, subd. 5 (2002). Each contributing member shares in the expenses of the comprehensive health-care plan in an amount equal to the ratio of the contributing member’s total accident- and health-insurance premiums received from Minnesota residents, divided by the total accident- and health-insurance premiums received by all contributing members from or on behalf of Minnesota residents. Id. For purposes of determining a member’s assessment, the phrase “accident and health insurance premiums” is defined as “payments received from or on behalf of Minnesota residents for coverage by a health maintenance organization.” Minn.Stat. § 62E.02, subd. 23 (2002).

Subchapter XVIII of the Social Security Act, commonly known as Medicare, established a program under which the federal government provides health insurance to eligible individuals. See 42 U.S.C. §§ 1395-1395ggg (2000). Medicare has two categories of benefits: Part A and Part B. Part A provides coverage for inpatient hospital services, and Part B provides supplemental medical-insurance coverage. See id. §§ 1395c-1395i-5, 1395j-1395w-4. To provide benefits under Part B, the Health Care Finance Administration (HCFA), the federal agency responsible for administering Medicare, may contract with third parties, such as HMOs, to furnish covered health-care services to Medicare enrollees. Third parties who contract with HCFA to furnish services to Medicare enrollees may be compensated by HCFA in one of two ways — on a “risk basis” pursuant to a Medicare risk contract or on a “reasonable cost basis” pursuant to a Medicare cost contract known as a Health Care Prepayment Plan.

The HCFA compensates a party providing health-care services under a Medicare risk contract at a predetermined fixed rate that does not increase or decrease if the amount of service actually provided is greater or less than anticipated. Under a 'Medicare risk contract, the party providing service bears the risk that the value of the service actually provided will exceed the amount paid for that service.

Under a Medicare cost contract, such is at issue here, the HCFA pays a party its actual cost of providing service. If the amount of service increases or decreases, the amount of payment to the health-care service provider also increases and decreases. The party providing the service under a Medicare cost contract bears no risk.

Each year, contributing members of the MCHA submit a Minnesota Premium Plan/Plan Cost Report form to the MCHA. The form requires each contributing member to identify the amount of accident- and health-insurance premiums it received that year as well as any payments it received that fall under certain statutory exclusions. The MCHA uses the data to determine the amount of accident- and health-insurance premiums received by each contributing member and the total amount of premiums received by all members. The composite information is then used to calculate each contributing member’s MCHA assessment.

HealthPartners and other contributing members have included their payments from Medicare cost contracts in their MCHA assessment ratio since the early 1990s. In 1998, for the first time, instead of including 1997 payments received from the HCFA under Medicare cost contracts as accident- and health-insurance premiums, HealthPartners identified these payments as an exclusion. By treating the cost-contract payments as an exclusion, HealthPartners reduced its 1997 payment total by $29,477,626, thereby reducing its proportionate share of the MCHA assessment. HealthPartners’ cost-contract revenue in 1998 was $32,458,104 and $42,485,974 in 1999.

In June 1998, the MCHA advised HealthPartners that cost-contract payments were not a proper exclusion. HealthPartners notified MCHA of its intent to appeal to the Member Appeal Committee of the MCHA, on the ground that the 1997 cost-contract payments are not accident- and health-insurance premiums subject to assessment. HealthPart-ners subsequently appealed its 1998 and 1999 assessments as well. The Member Appeal Committee denied HealthPartners’ appeal. HealthPartners appealed the Member Appeal Committee’s decision to the MCHA Board of Directors, which upheld the Member Appeal Committee’s decision. .Pursuant to Minn.Stat. § 62E.10, subd. 2a, HealthPartners appealed the Board of Directors’ decision to the Minnesota Commissioner of Commerce. The commissioner ordered a hearing before an administrative law judge, and both parties moved for summary disposition. The commissioner ultimately adopted the administrative law judge’s recommendation and granted MCHA’s motion for summary disposition and denied HealthPartners’ motion. This appeal follows.

ISSUE

Are payments made by the HCFA to contributing members for health-care services under Medicare cost-contracts payments received “for coverage,” such that the payments are includable in a contributing member’s “total accident and health insurance premium[s]” for purposes of determining a “contributing member’s” MCHA assessment?

ANALYSIS

The decision of an administrative agency will be affirmed on appeal unless there is an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by the evidence. In re N. State Power Co. For Approval of Its 1998 Resource Plan, 604 N.W.2d 386, 389 (Minn.App.2000), review denied (Minn. Mar. 28, 2000). The scope of this court’s review of administrative decisions is provided in Minn.Stat. § 14.69 (2002):

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

When reviewing agency decisions,

we “adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.”

In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977)). We extend judicial deference, rooted in the separation-of-powers doctrine, to agency decision-makers in the interpretation of statutes that the agency is charged with administering. Id.

The objective of all statutory interpretation is to ascertain and effectuate the intent of the legislature. Minn.Stat. § 645.16 (2002). Pursuant to canons of statutory construction, words and phrases should be construed according to rules of grammar and according to their common and approved usage, unless it would be inconsistent with the intent of the legislature. Minn.Stat. § 645.08(1) (2002). Every statute should be construed, if possible, to give effect to all of its provisions. Minn.Stat. § 645.16. Additionally, if possible, no word, phrase, or sentence should be deemed superfluous, void, or insignificant. Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999).

The amount of the assessment levied on each contributing member of the MCHA depends on the amount of “accident and health insurance premium[s]” received by each member. Minn.Stat. § 62E.11, subd. 5 (2002). Minnesota law states:

Contributing members shall share in the claims expense of the state plan and operating and administrative expenses of the association in an amount equal to the ratio of the contributing member’s total accident and health insurance 'premium, received from or on behalf of Minnesota residents as divided by the total accident and health insurance premium, received by all contributing members from or on behalf of Minnesota residents, as determined by the commissioner.

Id. (emphasis added). Chapter 62E defines accident and health insurance premiums as the following:

For the purposes of determining liability of contributing members pursuant to section 62E.11 payments received from or on behalf of Minnesota residents for coverage by a health maintenance organization or community integrated service network shall be considered to be accident and health insurance premiums.

Minn.Stat. § 62E.02, subd. 23 (2002) (emphasis added).

The term “coverage” is not defined in Minn.Stat. § 62E.02, subd. 23. Health-Partners asserts that the phrase “for coverage” is defined as payments received in exchange for some assumption of risk, as occurs with an insurance premium. Because there is no risk to a provider under a cost contract with the HCFA, HealthPart-ners takes the position that those premiums are excluded from the assessment calculation. In support of its position, HealthPartners relies on the definition of “coverage” in Black’s Law Dictionary, the use of the term “coverage” in other sections of the statute, cases from other jurisdictions, and a statement in the HCFA Medicare Managed Care/Plus Choice Manual that HCFA payments to a cost contractor for covered services rendered to Medicare enrollees do not constitute premiums. HealthPartners contends that the commissioner’s interpretation is flawed because it reads the limiting language “for coverage” out of the statute, making all payments received by contributing members subject to assessment, regardless of the purpose of those payments.

The commissioner rejected HealthPart-ners’ definition of “coverage,” finding the American Heritage Dictionary definition of “coverage” to reflect its common, ordinary meaning:

1. The extent or degree to which something is observed, analyzed, and reported: complete news coverage of the election. 2a. Inclusion in an insurance policy or protective plan. b. The extent of protection afforded by an insurance policy. 3. The amount of funds reserved to meet liabilities. 4. The percentage of persons reached by a medium of communication, such as television or a newspaper.

American Heritage Dictionary 421 (4th ed.2000) (emphasis in original).

The commissioner agreed with the ALJ’s conclusion, based on the American Heritage Dictionary, that the commonly understood meaning of “coverage” is “whether an insurance plan will assume the cost for the ailment or treatment in question.” The commissioner stated that there is no indication that the legislature intended the terms “for coverage” and “for insurance” to be synonymous, thereby limiting an HMO’s assessment calculation to risk-based contracts. To put this issue in context, the commissioner looked to Minn. Stat. §§ 62Q.01, subd. 6, 62A.31, subd. 3(q) (2002), both of which define and/or reference “Medicare-related coverage” as including payments to HMOs providing services to Medicare enrollees through risk-based and cost-contract bases.

The commissioner noted that Minn.Stat. ch. 62Q (2002), which governs health plans and health-plan companies in Minnesota, provides guidance in interpreting the phrase “for coverage.” Minn.Stat. § 62Q.01, subd. 6, states:

“Medicare-related coverage” means a policy, contract, or certificate issued as a supplement to Medicare, regulated under section 62A.31 to 62A.44, including Medicare select coverage; policies, contracts, or certificates that supplement Medicare issued by health maintenance organizations; or policies, contracts, or certificates governed, by section 1833 (known as “cost” or “HCPP” contracts) or 1876 (known as “TEFRA” or “risk” contracts) of the federal Social Security Act, United States Code, title 42, section 1395, et seq., as amended; or Section 4001 of the Balanced Budget Act of 1997(BBA) (Public Law Number 105-33), Sections 1851 to 1859 of the Social Security Act establishing Part C of the Medicare program, known as the “Medicare + Choice program.”

(Emphasis added.)

In addition, the commissioner relied on other legislative indicators in support of its decision, including Minn.Stat. § 62E.11, subd. 5 (2002), which excludes certain payments from a member’s premiums for assessment calculation. The specific payments excluded are those (1) made by the state to a contributing member for medical assistance, (2) MinnesotaCare, or (3) general-assistance medical-care services under Minnesota Statutes chapters 256, 256B, and 256D (2002). The commissioner noted that the fact that Medicare cost contracts are not specifically excluded is consistent with - the legislative intent to spread the cost of the state health plan as widely as possible, as indicated in Minn.Stat. § 62E.11 (2002).

Focusing on our standard of review, it cannot be said that the commissioner’s decision is arbitrary or capricious or that the findings are unsupported by the evidence in this matter. The ruling that Medicare cost-contract payments should be included in a member’s annual MCHA assessment is supported by the statute and longstanding practice.

DECISION

The Commissioner of the Minnesota Department of Commerce properly found that payments made by the HCFA to relator under Medicare cost contracts are payments received by relator “for coverage” under MinmStat. § 62E.02, subd. 23 (2002), such that the payments are includa-ble in relator’s “total accident and health insurance premium[s]” under Minn.Stat. § 62E.11, subd. 5 (2002), for purposes of determining relator’s MCHA assessment.

Affirmed.

      . HCFA has changed its name to the Center for Medicare and Medicaid Services.

      . HealthPartners has since paid its assessments based on the inclusion of payments received under Medicare cost contracts for 1997, 1998, and 1999.

      . MCHA appeal committee members are appointed by the chairman of the MCHA board of directors and subject to approval by the board. Each appeal committee must consist of at least three members, who are not enroll-ees, but who may, but need not, be members of the board of directors. One committee member is designated by the chairman of the board to be the chairman of the committee.

      .The MCHA board of directors is made up of nine directors. Five directors are selected by contributing members, subject to approval by the Commissioner of Commerce, and four public directors are selected by the Commissioner of Commerce, at least two of whom must be plan enrollees. Minn.Stat. § 62E.10, subd. 2.

      . Defining "coverage” as "[¡Inclusion of a risk under an insurance policy; the risks within the scope of an insurance policy.” Black’s Law Dictionary 372 (7th ed.1999).

      . HealthPartners cites to cases from other jurisdictions involving the interpretation of insurance policies and bonds where the term "coverage” was defined as the extent of risk assumed. See King v. Employers Nat’l Ins. Co., 928 F.2d 1438, 1445 (5th Cir.1991); In re Joint E. & S. Dist. Asbestos Litig., 993 F.2d 313, 314 (2d Cir.1993); Traders State Bank v. Continental Ins. Co., 448 F.2d 280, 283 (10th Cir.1971); Guaranty Nat’l Ins. Co. v. Bayside Resort, Inc., 635 F.Supp. 1456, 1458 (D.Vi.1986).

      .HealthPartners concedes that the manual is not binding authority in this matter.


author: MARING, Justice.

text:
    2003 ND 4
    Scott KONDRAD, a minor, by and through Shari McPHAIL as next friend, Plaintiff and Appellant, v. BISMARCK PARK DISTRICT, Defendant and Appellee.
    No. 20020196.
    Supreme Court of North Dakota.
    Jan. 17, 2003.

      Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.
    Randall J. Bakke, Smith Bakke Oppe-gard Porsborg Wolf, Bismarck, N .D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Scott Kondrad, a minor, by and through his mother, Shari McPhail, as next friend, appealed from a summary judgment dismissing his action for damages against the Bismarck Park District for injuries suffered in a bicycle accident. We hold a waiver and release signed by McPhail exonerates the Park District for its alleged negligence in this case, and we affirm.

I

[¶ 2] The bicycle accident occurred on September 9, 1999, at the Pioneer Elementary School while Kondrad was participating in BLAST, an after-school care program operated by the Park District. Kondrad fell on the school grounds while riding a bicycle owned by a child who was not part of the BLAST program. Kon-drad injured his arm in the fall, and McPhail subsequently sued the Park District for damages on Kondrad’s behalf, asserting Kondrad’s injuries were the result of the Park District’s negligent supervision of the children in the BLAST program. The Park District moved for a summary judgment, claiming McPhail had released the Park District from liability for the accident. The district court construed the waiver and release signed by McPhail, determined it exonerated the Park District from liability, and granted the Park District’s motion for dismissal of the case.

II

[¶ 3] On appeal, Kondrad asserts the district court erred in granting the summary judgment dismissal and in concluding that the waiver and release signed by McPhail exonerated the Park District from liability for its alleged negligence.

[¶ 4] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Jose v. Norwest Bank, 1999 ND 175, ¶ 7, 599 N.W.2d 293. Whether the district court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, ¶ 6, 615 N.W.2d 160. On appeal, we review the evidence in the light most favorable to the party opposing the motion for summary judgment, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 9, 643 N.W.2d 29.

[¶ 5] Resolution of this appeal requires us to interpret the “Parent Agreement” signed by McPhail when she enrolled Kondrad in the BLAST program, which included the following waiver and release language:

I recognize and acknowledge that, there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ ward on account of my participation of my child/ward in this program.

Kondrad argues this language must be interpreted as exonerating the Park District from liability for damages only as to injuries sustained during “activities associated with” the BLAST program. The Park District has conceded that riding a bicycle was not an activity associated with the program. Kondrad asserts the release does not, therefore, exonerate the Park District from liability if its negligence resulted in Kondrad incurring injuries while riding the bicycle. The Park District asserts the waiver is unambiguous and released the Park District from liability for any and all injuries sustained by Kondrad while participating in the BLAST program. The Park District argues the waiver and release exonerated it from liability for negligence resulting in injury or damages to Kondrad while participating in the program irrespective of whether, at the time of the injury, Kondrad was involved in a planned activity associated with the program.

[¶ 6] Generally, the law does not favor contracts exonerating parties from liability for their conduct. Reed v. Univ. of North Dakota, 1999 ND 25, ¶ 22, 589 N.W.2d 880. However, the parties are bound by clear and unambiguous language evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party. Id. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel. State, 2002 ND 128, ¶ 7, 649 N.W.2d 532. The construction of a written contract to determine its legal effect is a question of law for the court to decide, and, on appeal, this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation of it. Egeland v. Continental Res., Inc., 2000 ND 169, ¶ 10, 616 N.W.2d 861. The issue whether a contract is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc., 2001 ND 187, ¶ 14, 636 N.W.2d 189. An unambiguous contract is particularly amenable to summary judgment. Meide, 2002 ND 128, ¶ 7, 649 N.W.2d 532.

[¶ 7] We conclude the language of waiver and release under the agreement signed by McPhail is clear and unambiguous. We construe all provisions of a contract together to give meaning to every sentence, phrase, and word. U.S. Bank Nat’l Ass’n v. Koenig, 2002 ND 137, ¶ 9, 650 N.W.2d 820. The assumption of risk and waiver clauses are separate and distinct. Each contains a‘clearly expressed meaning and consequence. Under the assumption of risk clause, McPhail agreed to assume the full risk of injury and damages resulting from Kondrad participating in any activities associated with the BLAST program. In addition, under the waiver and release clause, McPhail waived and relinquished all claims against the Park District for injuries or damages incurred on account of Kondrad’s participation in the BLAST program. The language of waiver and release is not limited to only those injuries incurred while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.

[¶ 8] It is undisputed that Kondrad’s bicycle accident occurred on the school grounds while Kondrad was participating in the BLAST program. This is the very type of situation for which the Park District, under the release language, insulated itself from liability for alleged negligence while operating the after-school care program. Under the unambiguous language of the agreement, McPhail exonerated the Park District from liability for injury and damages incurred by Kondrad while participating in the program and caused by the alleged negligence of the Park District.

Ill

[¶ 9] We hold the Parent Agreement signed by McPhail clearly and unambiguously exonerates the Park District for injuries sustained by Kondrad while participating in the BLAST program and which were allegedly caused by the negligent conduct of the Park District. We further hold, therefore, the district court did not err in granting summary judgment dismissing Kondrad’s action against the Park District, and we affirm.

[¶ 10] GERALD W. VANDE WALLE C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur.

      . Under N.D.C.C. § 9-08-02 a party is precluded from contractually exonerating itself from liability for willful acts. See Reed v. Univ. of North Dakota, 1999 ND 25, ¶ 22 n. 4, 589 N.W.2d 880. The release in this case is not specifically limited to exonerating the Park District from liability for only negligent conduct. However, Kondrad’s claim against the Park District is based on negligence, and he has not argued the release is invalid because it purports to exonerate the Park District from liability for intentional or willful ■acts. We do not, therefore, address that issue in this opinion.


author: NEUMANN, Justice.

text:
    2003 ND 8
    Daniel WILSON, Plaintiff and Appellant, v. FARMERS INSURANCE GROUP, Defendant and Appellee.
    No. 20020209.
    Supreme Court of North Dakota.
    Jan. 17, 2003.

      Michael Ward of Eaton, Van de Streek <& Ward, Minot, N.D., for plaintiff and appellant.
    Jason R. Vendsel of McGee, Hankla, Backes <& Dobrovolny, Minot, N.D., for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Daniel Wilson appeals from the trial court’s June 4, 2002, summary judgment in favor of Farmers Insurance Group. We reverse and remand.

[¶ 2] In October of 2000, Daniel Wilson fully insured his 1972 Ford Ranchero with Farmers Insurance Group. On or about November 8, 2000, he filed a claim with Farmers Insurance to recover for an alleged theft of parts from the vehicle. Farmers Insurance denied the claim because Wilson refused to produce certain records Farmers Insurance had requested. On September 10, 2001, Wilson filed an action in small claims court against Farmers Insurance. Farmers Insurance removed the action to district court, denied all allegations, and affirmatively asserted Wilson had not cooperated in its investigation. On February 15, 2002, Farmers Insurance moved for summary judgment, arguing Wilson did not cooperate in its investigation, violating the cooperation clause of the policy and thereby precluding coverage of his claims. The trial court granted the motion for sum•mary judgment, ruling Wilson did not fully comply with the policy provision requiring his cooperation. Wilson appeals.

[¶ 3] A grant of summary judgment is appropriate when no genuine issue of material fact exists. Tuhy v. Schlabsz, 1998 ND 31, ¶ 4, 574 N.W.2d 823. The party moving for summary judgment has the burden of showing no material facts are disputed. Id. We review the evidence in a light most favorable to the non-movant and then determine if summary judgment was properly granted as a matter of law. Id. at ¶ 5.

[¶ 4] Wilson’s policy states he must “cooperate” with Farmers Insurance and assist in any matter concerning a claim or suit. The policy also requires him to authorize Farmers Insurance to obtain medical and other records, and to submit to an examination under oath. Generally, a breach of a cooperation clause by an insured will operate to relieve the insurer of liability under a policy. 8 Appleman, Insurance Law and Practice § 4772, at 215 (1981). A cooperation clause in an insurance policy is generally regarded as a condition precedent, so that no rights accrue under a policy until the condition is satisfied. Id. § 4771, at 214-15. To result in the breach of a policy condition, an insured’s lack of cooperation “must be substantial and material.” Id. § 4773, at 222. The standard for compliance with a cooperation provision of a policy is “substantial compliance.” See Patel v. Allstate Ins. Co., 211 Ill.App.3d 324, 155 Ill.Dec. 844, 570 N.E.2d 357, 361 (1991).

[¶ 5] Wilson argues summary judgment was inappropriate because a genuine issue of material fact exists as to whether he substantially complied with the cooperation clause of the policy he purchased from Farmers Insurance. We have not previously written regarding compliance with cooperation provisions. However, other jurisdictions have addressed that issue. “Generally, the question of whether the insured has violated his insurance policy by failing to cooperate with the insurer is a question of fact for the trial court.” Hansen v. Barmore, 779 P.2d 1360, 1364 (Colo.App.1989); see also Patel 155 Ill.Dec. 844, 570 N.E.2d at 360 (stating “[w]hether an insured has substantially complied with the provisions of an insurance policy is a question of fact precluding summary judgment”). “Only when the evidence is such that reasoning minds could draw but one conclusion does the fact question become a question of law for which summary judgment may be appropriate.” Schmidt v. First Nat’l Bank and Trust Co., 453 N.W.2d 602, 605 (N.D.1990).

[¶ 6] In the present case, a question of fact exists as to whether Wilson substantially cooperated with Farmers Insurance. While it appears from the record Wilson did not happily jump through the hoops of the investigation, a review of the evidence, in a light most favorable to Wilson, shows he attempted to cooperate, to an extent. He sat for a recorded statement with a Farmers Insurance special claims representative, but the representative’s tape recorder malfunctioned. Although he walked out of an initial session because of its long length and his frustration with the examiner, Wilson did complete an examination under oath as required. During its investigation, Farmers Insurance repeatedly requested tax returns, Social Security records, and other financial records. The record shows Wilson provided an explanation regarding the tax returns, provided the Social Security records, and provided some financial records. While Wilson may not have been fully cooperative with Farmers Insurance and Farmers Insurance may not have been satisfied with the contents of Wilson’s records, we cannot say, as a matter of law, that he has not substantially complied with the cooperation clause.

[¶ 7] We conclude the facts in this case could not lead reasoning minds to but one possible conclusion. Summary judgment, therefore, was improper. Accordingly, we reverse the trial court’s summary judgment and remand for further proceedings.

[¶ 8] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.