author: ANDERSON, G. BARRY, Justice.

text:
    In the Matter of the WELFARE OF the CHILD OF T.P. and P.P., Parents In the Matter of the Welfare of the Child of T.P. and D.W., Parents.
    No. A07-16.
    Supreme Court of Minnesota.
    April 17, 2008.

      Reid Wheeler Brandborg, Fergus Falls, MN, for appellant.
    Kurt Alan Mortenson, Asst. Otter Tail County Atty., Schan E. Sorkness, Helen Ward McPherson, Fergus Falls, for respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

In this appeal, appellant T.P. (“Mother”) challenges an order of the Otter Tail County District Court terminating her parental rights under Minn.Stat. § 260C.301, subd. 1(b)(6) (2006), arguing that the district court erred in concluding that there was clear and convincing evidence that the statutory criteria for termination of her parental rights were met. Mother appealed the termination of her parental rights to the court of appeals, which affirmed the district court. We granted review to consider whether the statutory grounds for termination were satisfied, and we affirm the decision of the court of appeals in part, reverse in part, and remand to the district court.

K.L.P., born prematurely on January 23, 2006, is the daughter of Mother and P.P. (“Father”). Before being placed in foster care, both K.L.P. and A.R.W., Mother’s child from a previous relationship, resided with Mother and Father at the family’s home in Fergus Falls. In April 2006, after K.L.P. began attending daycare, Mother noticed several small bruises on K.L.P.’s arms and legs. Mother and Father discussed the bruises, and Father reportedly raised the issue with the daycare facility at a parent conference.

On May 8, 2006, Mother noticed a small red mark on the left side of K.L.P.’s face after Father took K.L.P. into another room to change her diaper. Father told Mother that K.L.P. had kicked herself into the side of the changing table. The head morning teacher at the daycare facility K.L.P. attended also observed on May 8 that K.L.P. had bruises on the left side of her face. Father, who brought K.L.P. to the daycare facility that day, told the teacher that K.L.P. had fallen off a changing table. The teacher documented the injuries she observed and Father’s explanation of how they occurred.

On the morning of Saturday, June 3, 2006, Father brought K.L.P. to his mother’s home. Father’s mother, a retired registered nurse, noticed a bruise on the left side of KL.P.’s face, as well as bruising around the eye and marks on her forehead. Father first told his mother that K.L.P. had fallen off a bed, and when Father’s mother questioned how K.L.P. could have been bruised so badly simply by falling on the floor, Father explained that there was a set of keys on the floor with a pair of his pants. Father’s mother examined KL.P.’s injuries and monitored the child’s behavior through the morning and into the afternoon. She observed that KL.P. seemed alert, that she had no blood in the whites of her eyes, and that her eyes “tracked.” Father’s mother did not report KL.P.’s injuries to the authorities. Mother was at work when K.L.P. sustained these bruises, but later that day Father explained to Mother that K.L.P. had fallen off the bed.

The bruises on KL.P.’s face were still visible when Father brought K.L.P. to daycare on Monday, June 5. Father explained to the head morning teacher that K.L.P. had fallen off a bed and hit a dresser, and the teacher documented KL.P.’s injuries. Theresa Melmer of the Otter Tail County Department of Human Services (“Otter Tail DHS”) received a report that K.L.P. had bruises on her face. Melmer, in turn, contacted Detective Carol Schmaltz of the Fergus Falls Police Department. Melmer and Schmaltz met at the daycare facility, where Melmer photographed the bruises on K.L.P.’s face and forehead.

Melmer and Schmaltz met with Mother and Father when the parents came to the daycare facility to pick up K.L.P. Father again explained that K.L.P. had rolled off the bed on the previous Saturday. Mel-mer and Schmaltz then went to the parents’ apartment, where Father demonstrated with a stuffed animal where he had placed K.L.P. on the bed and where he found her on the floor. Melmer testified that the dresser was approximately 17 inches from the bed. Schmaltz told Father that his explanation was not consistent with K.L.P.’s injuries. In the meantime, Melmer arranged for the photographs of HL.P.’s bruises to be shown to a local pediatrician. Based on those photographs and the explanation offered by Father for K.L.P.’s injuries, the pediatrician recommended that K.L.P. be held for further examination. K.L.P. and A.R.W. were both placed in emergency foster care.

The pediatrician examined K.L.P. on the following day, June 6. He noted three linear bruises on the left side of K.L.P.’s forehead, a more recent bruise under K.L.P.’s left eye, and other bruises on the right side of her forehead and in front of her ears. The pediatrician recommended that X-rays be taken of KL.P.’s long bones, ribs, and skull. An initial review of KL.P.’s X-rays showed no fractures, but a second review revealed that K.L.P. had suffered “classic metaphyseal fractures” to her left wrist and right ankle. There were signs of healing in the ankle fracture that usually do not appear until between 4 days and 10 days after the injury, and the absence of such signs of healing near the wrist fracture indicated that it most likely occurred after the ankle fracture.

Otter Tail DHS contacted a medical director of the Red River Children’s Advocacy Center who is also a pediatrician to request an evaluation of K.L.P. At the medical director’s recommendation, K.L.P. was admitted to the hospital for further testing. Those tests showed no signs of bruising or bleeding in the brain and indicated that K.L.P. did not have a blood disorder that would have caused the bruises on her face.

Otter Tail DHS filed Child in Need of Protection or Services (CHIPS) petitions for K.L.P. and A.R.W. In July 2006, Otter Tail DHS filed petitions to terminate the parental rights of Mother and Father to K.L.P. and a petition to terminate the parental rights of Mother to A.R.W. The petitions to terminate parental rights alleged that “a child has experienced egregious harm while in the parent(s)’ care.” The district court subsequently ordered, pursuant to Minn.Stat. § 260.012(a)(1) (2006), that reasonable efforts to prevent placement and for rehabilitation and reunification were not required because the petitions established a prima facie case of egregious harm. The CHIPS petitions and the petitions to terminate parental rights were consolidated for trial.

At trial, the physicians who examined KL.P.’s injuries testified regarding the likely cause of KL.P.’s facial bruising and wrist and ankle fractures. The medical director of the Red River Children’s Advocacy Center stated that the bruising on KL.P.’s face was likely not caused by a fall from a bed or by striking a set of keys, which was how Father accounted for the injuries, and explained that the parallel bruising pattern on KL.P.’s face instead correlated to a handprint or finger markings. The medical director also testified that the fractures suffered by K.L.P. are not typically caused by short falls in children with healthy bones but are “highly specific for nonaccidental trauma.” Indeed, the testimony of the medical director, the pediatrician who initially examined K.L.P., and the diagnostic radiologist who noticed the fractures on KL.P.’s X-rays indicated that these types of fractures are most often caused by shaking, twisting, or bending of the limbs. The medical director clarified, however, that he would not expect Mother to have noticed tenderness around the fractures.

The district court found that each of the physicians provided reliable and credible opinions and conclusions about the nature and likely cause of K.L.P.’s bruising and fractures, and the court adopted their opinions as findings of fact. The court concluded that K.L.P. “experienced egregious harm in her parents’ care” and that it was contrary to A.R.W.’s best interests to be in the care of Mother in light of the harm experienced by K.L.P. The court also concluded as follows:

[Father] admitted to numerous individuals that [K.L.P.] was in his care when the injuries observed on May 8, 2006, and on June 5, 2006, occurred. Additionally, [Mother] acknowledged that she and [Father] were [A.R.W.’s and K.L.P.’s] primary caretakers before the children were removed from the home. As such, the Court finds clear and convincing evidence to believe that the injuries to [K.L.P.’s] head occurred on June 3, 2006, and at a time when she was in the direct physical care of [Father]. Moreover, the Court finds clear and convincing evidence to believe that [KL.P.’s] fractures occurred at a time when she was in the care of [Father and Mother] either jointly or individually. The egregious harm [K.L.P.] suffered does not have to have been sustained at [Mother’s] hand, but merely while [K.L.P.] was in her care and custody.

Concluding that it was in the best interests of the children, the court ordered the termination of Mother’s parental rights to K.L.P. and A.R.W. and the termination of Father’s parental rights to K.L.P.

Mother appealed, arguing that there was no clear and convincing evidence that the children suffered egregious harm while in her care, that the termination of her parental rights was not in the best interests of the children, and that she was denied effective assistance of counsel. In an unpublished opinion, the court of appeals held that the district court “did not clearly err in finding that clear and convincing evidence exists to show that K.L.P. suffered egregious harm while in [Mother’s] care.” In re Welfare of Child of T.P. & P.P., No. A07-16, 2007 WL 2178052, at *5 (Minn.App. July 31, 2007). The court of appeals rejected Mother’s argument “that there was insufficient evidence that she ‘knew or should have known that abuse was taking place’ ” because the explanation for K.L.P.’s injuries offered by Father was inconsistent with K.L.P.’s mobility. Id. at *3-4. The court of appeals also determined that the record supported the finding that K.L.P. experienced egregious harm in Mother’s care because (1) Mother and Father were the primary caretakers of K.L.P., (2) Father provided explanations for KL.P.’s injuries that were inconsistent with KL.P.’s physical abilities, and (3) Mother must have noticed the bruising because it was noticed by daycare providers. Id. at *4. Finally, the court of appeals held that the record supported the finding that termination of Mother’s parental rights was in the best interests of the children. Id. at *6. We granted review on the issue of whether the requirements of Minn.Stat. § 260C.301, subd. 1(b)(6), were satisfied in this case.

I.

Minnesota Statutes § 260C.301, subd. 1 (2006), sets forth the statutory grounds for the termination of parental rights. The district court terminated Mother’s parental rights pursuant to Minn. Stat. § 260C.301, subd. 1(b)(6) (“the egregious harm provision”), under which a court may terminate the rights of a parent to a child if it finds the following:

that a child has experienced egregious harm in the parent’s care which is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent’s care.

“Egregious harm” is defined as “the infliction of bodily harm to a child or neglect of a child which demonstrates a grossly inadequate ability to provide minimally adequate parental care.” Minn.Stat. § 260C.007, subd. 14 (2006). The definition also includes a non-exclusive list of specific conduct towards a child that constitutes egregious harm. Id. That K.L.P. suffered egregious harm is not disputed here.

The principal question presented in this appeal is the meaning of the phrase “in the parent’s care” found in the egregious harm provision, a phrase that is undefined in the child protection statutes. Statutory interpretation is a question of law that we review de novo. In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn.1998).

The undefined and unexplained phrase “in the parent’s care” has a range of possible meanings. At one extreme, it could be interpreted strictly to require that the injury to the child occur in the physical presence of, if not at the hands of, the parent. Alternatively, the phrase “in the parent’s care” could be a reference simply to legal or physical custody of a child. When a statute is open to more than one interpretation, we “adopt the most logical and practical definition” after determining the probable intent of the legislature. Nelson’s Office Supply Stores, Inc. v. Comm’r of Revenue, 508 N.W.2d 776, 778 (Minn.1993). But we also “read and construe a statute as a whole,” and we “ ‘interpret each section in light of the surrounding sections to avoid conflicting interpretations.’ ” Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 12 (Minn.2002) (quoting Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000)); see also Wong v. Am. Family Mut. Ins. Co., 576 N.W.2d 742, 745 (Minn.1998) (“We have stated that the ‘meaning of doubtful words in a legislative act may be determined by reference to their association with other associated words and phrases.’ ” (quoting State v. Suess, 236 Minn. 174, 182, 52 N.W.2d 409, 415 (1952))). Therefore, we turn first to other provisions of section 260C.301 for guidance.

Section 260C.301 uses the term “care” in several other provisions providing grounds for termination. For example, subdivision 1(b)(2) permits termination of the rights of a parent who has failed “to provid[e] the child with necessary food, clothing, shelter, education, and other care and control necessary for the child’s physical, mental, or emotional health and development.” Minn.Stat. § 260C.301, subd. 1(b)(2) (emphasis added). Similarly, subdivision 1(b)(4) permits termination of the rights of a parent deemed “palpably unfit” to be a party to the parent-child relationship because the parent is unable “to care appropriately for the ongoing physical, mental, or emotional needs of the child.” Id,., subd. 1(b)(4) (emphasis added). Though none of these provisions exactly repeats the phrase “in the parent’s care” from the egregious harm provision, these provisions indicate a legislative intent that the use of the term “care” is properly understood in the broader sense of the parent and child relationship, including providing for the well-being of a child in ways that do not require a parent to be physically present with the child.

Thus, we agree with the court of appeals that “in the parent’s care” should not be limited to the physical presence of a parent at the time egregious harm occurs. See In re Welfare of Child of T.P. & P.P., 2007 WL 2178052, at *3-5. But for purposes of this opinion, it is not necessary for us to determine whether, at the other extreme, “in the parent’s care” requires nothing more than legal or physical custody. Here, K.L.P.’s fractures and facial bruising occurred at a time when Mother’s relationship with Father was intact, K.L.P. resided with both parents, and Mother acknowledged that she and Father were the primary caretakers for K.L.P. We further conclude that, under these circumstances, the record supports the district court’s finding that Mother’s relationship with K.L.P. satisfied the requirement of the egregious harm provision that a child has experienced egregious harm while “in the parent’s care,” and we affirm the court of appeals on this point as well.

II.

Termination of parental rights under the egregious harm provision requires more than a child experiencing egregious harm “in the parent’s care.” Minn.Stat. § 260C.301, subd. 1(b)(6). It also requires a finding that the egregious harm “is of a nature, duration, or chronicity that indicates a lack of regard for the child’s well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parent’s care.” Id. We now address Mother’s argument that, under the egregious harm provision, the rights of a parent who has not inflicted egregious harm may not be terminated unless that parent either knew or should have known that egregious harm occurred.

Where a parent has not personally inflicted egregious harm on the child, it is difficult to conceive how the “nature, duration, or chronicity” of that harm could indicate that parent’s lack of regard for the well-being of the child unless that parent were somehow aware of the harm and its cause. Stated differently, the mere fact that a child experienced egregious harm does not indicate a lack of regard for the well-being of the child on the part of a parent who did not personally inflict the egregious harm, did not actually know about the harm, and could not have been expected to know about the harm. Interpreting the egregious harm provision to permit termination where a parent did not know and could not have been expected to know that a child experienced egregious harm would contradict the statutory requirement that the “nature, duration, or chronicity [of the egregious harm] indicates a lack of regard for the child’s well-being.” Minn.Stat. § 260C.301, subd. 1(b)(6). The language of the egregious harm provision, taken as a whole, does not support termination of parental rights where a parent neither knew nor should have known that a child experienced egregious harm.

Therefore, we hold that to terminate the rights of a parent who has not personally inflicted egregious harm on a child, a court must find that the parent either knew or should have known that the child had experienced egregious harm. As with findings addressing other statutory criteria in termination cases, the court must find that the non-perpetrating parent knew or should have known that egregious harm occurred by clear and convincing evidence. See Minn.Stat. § 260C.163, subd. 1(a) (2006) (“To be proved at trial, allegations of a petition alleging a child to be in need of protection or services must be proved by clear and convincing evidence.”); In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn.2005) (“In reviewing a decision to terminate parental rights, the appellate court determines whether there is clear and convincing evidence to support at least one statutory ground for termination ⅜ ⅜ ⅜

The district court made several findings and conclusions related to Mother’s lack of regard for K.L.P.’s well-being as a result of the nature, duration, or chronicity of the egregious harm K.L.P. experienced. The court of appeals rejected Mother’s argument that the evidence against her was not clear and convincing as to her culpability, relying on the district court’s finding that the harm to K.L.P. occurred while K.L.P. was in the parents’ care “either jointly or individually.” In re Welfare of Child of T.P. & P.P., 2007 WL 2178052, at *4. But none of the district court’s findings or conclusions specifically addresses the “knew or should have known” standard we announce here. As a result, we are unable to determine from the record whether Mother knew or should have known that K.L.P. experienced egregious harm. Therefore, we reverse the decision of the court of appeals affirming the termination of Mother’s parental rights and remand to the district court to address whether there is clear and convincing evidence that Mother knew or should have known that the bruising and the fractures K.L.P. sustained occurred as a result of some conduct satisfying the “egregious harm” definition.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

        . The district court’s decision to terminate the parental rights of Father to K.L.P. is not a part of this appeal.

      . The head morning teacher testified that although K.L.P. "was not rolling over at that time” and did not "scoot around,” she could “wiggle her legs a little bit.” Mother testified that on May 8 K.L.P. was "[n]ot rolling over” but "was scooting around on her back.”

      . “Care” is defined as "[wjatchful oversight” or "charge or supervision,” as in "left the child in the care of a neighbor." The American Heritage Dictionary of the English Lan

        guage 281 (4th ed.2000). This common understanding of the word “care” also does little to clarify the specific issue before us.

      . It is appropriate to clarify here that, where a parent who has not inflicted egregious harm but who either knew or should have known that a child experienced egregious harm, the “nature, duration, or chronicity” of the egregious harm may not necessarily "indicate! 1 a lack of regard [by that parent] for the child’s well-being.” Minn.Stat. § 260C.301, subd. 1(b)(6). That such a parent either knew or should have known that a child experienced egregious harm is necessary, but not sufficient, to satisfy that statutory requirement. Other factors will be relevant to whether that requirement is met in a given case. Because it is unnecessary to our decision in this case, however, we express no opinion on this matter here.


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    In re the Marriage of John Allen CLIFFORD, Petitioner, Respondent, v. Shelley Lynn BUNDY, Appellant.
    No. A07-2300.
    Court of Appeals of Minnesota.
    April 8, 2008.

      Paul A. Banker, Christine M. Middleton, Jessica L. Meyer, Lindquist & Vennum, P.L.L.P., Minneapolis, MN, for respondent.
    Brian L. Sobol, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; MINGE, Judge; and CONNOLLY, Judge.
   SPECIAL TERM OPINION

TOUSSAINT, Chief Judge.

FACTS

This appeal was filed by mail on December 6, 2007. Appellant Shelley Lynn Bun-dy seeks review of a judgment and decree of dissolution entered on June 25, 2007, and of an order filed on October 29, 2007, denying her motion for amended findings or for a new trial.

The district court’s memorandum to the October 29, 2007 order states that appellant’s motion is “proeedurally flawed” because the motion was not filed with the court by “the deadline set forth.” The memorandum states that the motion still had not been filed with the court at that time. The memorandum indicates that a courtesy copy of the motion was received in chambers and that the court considered the motion on its merits.

Respondent John Allen Clifford moves to dismiss the appeal on the ground that because appellant’s motion was not timely filed, the district court lacked jurisdiction to consider the motion, and the motion did not extend the time to appeal the underlying June 25, 2007 judgment under Minn. R. Civ.App. P. 104.01, subd. 2. Appellant opposes the motion to dismiss.

DECISION

"Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry, and from an appealable order within 60 days after service by any party of written notice of its filing.” Minn. R. Civ.App. P. 104.01, subd. 1. Unless otherwise provided by law, if any party “serves and files” a proper and timely postdecision motion of a type specified in the rule, the time for appeal of the order or judgment that is the subject of the motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding. Id., subd. 2. Motions to amend or make findings of fact under Minn. R. Civ. P. 52.02 or for a new trial under Minn. R. Civ. P. 59 are included in the list of tolling motions. Id., subd. 2(b), (c), (d).

A motion for amended findings must be “served and heard not later than the times allowed for a motion for new trial pursuant to Rule 59.03.” Minn. R. Civ. P. 52.02. A notice of motion for a new trial “shall be served within 30 days after a general verdict or service of notice by a party of the filing of the decision or order.” Minn. R. Civ. P. 59.03 (emphasis added). The motion shall be heard within 60 days after such general verdict or notice of filing, unless the time for hearing is extended by the court within the 60-day period for good cause shown. Id.

Respondent served notice of filing of the June 25, 2007 judgment on July 17, 2007. On August 10, 2007, appellant served a motion for amended findings or a new trial on respondent’s counsel by facsimile transmission. The rules of civil procedure allow for service by facsimile transmission. Minn. R. Civ. P. 5.02. The parties agree that appellant’s motion for amended findings or a new trial was timely served.

Appellant’s counsel states that on August 10, 2007, counsel mailed the motion for amended findings or a new trial directly to the district court judge. Appellant did not file the motion with the district court administrator at this time. On August 24, 2007, respondent filed with the district court administrator a responsive motion to strike appellant’s affidavit in support of her motion for amended findings or a new trial. On September 4, 2007, appellant filed with the district court administrator a reply memorandum of law and a responsive notice of motion and motion to respondent’s motion to strike. Appellant’s counsel states that on September 4, 2007, counsel provided to the district court judge courtesy copies of the motion for amended findings or a new trial and appellant’s reply memorandum and responsive notice of motion and motion to respondent’s motion to strike.

On October 29, 2007, the district court issued its order stating that appellant’s postdecision motion had not been filed but denying the motion on the merits. On or about November 5, 2007, appellant filed the motion for amended findings or a new trial with the district court administrator and paid the $55 motion fee. See Minn. Stat. § 357.021, subd. 2(4) (2006) (requiring the court administrator to collect a $55 filing fee for filing a motion or a response to a motion in civil, family (excluding child support), and guardianship cases).

Generally, all papers after the complaint required to be served upon a party, together with a certificate of service, shall be filed with the court within a “reasonable time after service.” Minn. R. Civ. P. 5.04. The administrator shall not refuse to accept a paper for filing solely because it is not presented in proper form as required by any court rule or practice. Id.

The Minnesota Rules of Civil Procedure do not define how filing is accomplished. The part of Minn. R. Civ. P. 5.04 prohibiting the district court administrator from refusing to accept for filing a paper on the sole ground that it is not presented in proper form shows an expectation that the papers will be presented to the court administrator for filing. Generally, a document is filed with the district court when it is delivered to or received by the office where it is required to be filed, even though the document may not be stamped “filed” until sometime later. Cederberg v. City of Inver Grove Heights, 686 N.W.2d 853, 856-57 (Minn.App.2004). Cederberg cites the Black’s Law Dictionary definition that a document is “filed” when it is delivered to the court clerk or record custodian for placement into the official record. Id. at 856 (citing Black’s Law Dictionary 642 (7th ed. 1999)).

Appellant argues that because Minn. R. Civ. P. 5 does not specify how a document is filed with the court, submission of the document to the district court judge assigned to hear the matter also constitutes filing, in accordance with Fed.R.CivJP. 5(e). Appellant cites the federal rule in effect at the time this matter was pending in district court. The rule stated that the filing of papers with the court shall be made by filing them with the clerk of court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note the filing date on the papers and transmit them to the office of the clerk. Id.

Appellant states that the district court judge’s law clerk advised counsel of the judge’s instructions that the attorneys were to agree to a briefing schedule and submit the motions and written arguments to the judge for a ruling without a hearing. Appellant contends that the motion for amended findings or a new trial in effect was filed when the motion papers were delivered to the district court judge on August 10, 2007, and again on September 4, 2007.

The federal rule states that the judge may “permit” the papers to be filed with the judge. Fed.R.Civ.P. 5(e). The language of Fed.R.Civ.P. 5(e) that the court “may permit the papers to be filed” with it rather than the clerk suggests that such filing is proper only when the court’s “discretion has been invoked by one of the parties for good cause.” Int’l Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 46 (2nd Cir.1975).

Appellant did not file a motion requesting the district court judge to accept the motion for amended findings or a new trial for filing, nor has appellant shown that the district court judge directed the parties to file their motion papers with the judge directly, instead of filing them with the court administrator. Moreover, appellant did not pay the $55 fee to file the motion for a new trial or amended findings until on or about November 5, 2007. All court administrator fees, except in criminal proceedings, shall be paid in advance of or prior to the time of the performance of any service requiring payment of such fees, and the court administrator shall not proceed in any matter requiring the payment of fees until the full amount is paid. Minn. Stat. § 357.021, subd. 3 (2006).

Ultimately, the district court ruled on the merits of appellant’s motion for a new trial or amended findings based on a courtesy copy of the motion that the court had obtained. But the district court did not permit appellant to file the motion papers directly with the judge, rather than filing the motion with the court administrator and paying the required fee. Therefore, appellant’s submission of courtesy copies of the motion for amended findings or a new trial to the district court judge on August 10, 2007, and September 4, 2007, did not constitute “filing” of the motion under Fed.R.Civ.P. 5(e) and Minn. R. Civ. P. 5.04.

Because Minn. R. Civ. P. 59.03 only requires service of a motion for a new trial within the 30-day period, appellant was not required to file the motion with the court by the expiration of that period. Appellant was required to file the motion with the court within a “reasonable time after service.” Minn. R. Civ. P. 5.04. Although rule 5.04 does not give any guidance as to what is “reasonable,” this period “should normally be measured in days or weeks, not months or years.” 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 5.6 (4th ed. 2002).

If a postdecision tolling motion is “timely served and filed,” the motion extends the time to appeal the underlying judgment or order under Minn. R. Civ. App. P. 104.01, subd. 2, even if a hearing on the motion was not held within the 60-day period under Minn. R. Civ. P. 59.03. Rubey v. Vannett, 714 N.W.2d 417, 422 (Minn.2006). A postdecision motion to amend a prejudgment order is not timely if it is filed after expiration of the 60-day period to appeal from the judgment, and because such a motion is not timely, it does not toll the period for appeal from the order or judgment. Mingen v. Mingen, 679 N.W.2d 724, 728 (Minn.2004).

Unless tolled by a proper and timely postdecision motion, the time to appeal the June 25, 2007 judgment expired on August 24, 2007, which was 60 days after judgment was entered. See Minn. R. CivApp. P. 104.01, subd. 1. Appellant did not file the tolling motion for amended findings or a new trial until on or about November 5, 2007, more than two months after the 60-day period to appeal the June 25, 2007 judgment expired. Because appellant’s motion for amended findings or a new trial was not filed with the court administrator until after the 60-day period to appeal the June 25, 2007 judgment expired, the motion was not timely filed. Therefore, appellant s motion did not extend the time to appeal the June 25, 2007 judgment.

This appeal was filed after the expiration of the time to appeal the June 25, 2007 judgment. Therefore, we must dismiss this appeal as untimely. See Minn. R. Civ.App. P. 126.02 (prohibiting appellate court from extending time to file notice of appeal); Twp. of Honner v. Redwood County, 518 N.W.2d 639, 641 (Minn.App.1994) (holding that court of appeals lacks jurisdiction to consider untimely appeal), review denied (Minn. Sept. 16, 1994).

An appeal may be taken from an order denying a motion for a new trial. Minn. R. CivApp. P. 103.03(d). But because appellant’s motion for a new trial was not filed timely, the district court lacked jurisdiction to rule on the motion and this court lacks jurisdiction to consider the October 29, 2007 order denying the motion on the merits. See Ring v. McPeek, 423 N.W.2d 711, 712 (Minn.App.1988) (holding that court of appeals has no jurisdiction to consider order ruling on untimely motion for amended findings or new trial).

Appeal dismissed.

      . Effective December 7, 2007, Fed.R.Civ.P. 5(e) was renumbered as Fed.R.Civ.P. 5(d)(2). One of the methods of filing under the rule is by delivery of a paper "to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk." Id., (d)(2)(B). The changes to rule 5 were intended to be stylistic only. Fed.R.Civ.P. 5 2007 advisory comm, notes.


author: SCHELLHAS, Judge. KLAPHAKE, Judge

text:
    Richard A. CARLSON, Relator, v. DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT, Respondent.
    No. A07-28.
    Court of Appeals of Minnesota.
    April 15, 2008.

      Richard A. Carlson, Bloomington, MN, pro se relator.
    Lee B. Nelson, Katrina I. Gulstad, Minnesota Department of Employment and Economic Development, St. Paul, MN, for respondent.

      Considered and decided by KLAPHAKE, Presiding Judge; HALBROOKS, Judge; and SCHELLHAS, Judge.
   OPINION

SCHELLHAS, Judge.

In this certiorari appeal from an unemployment-law judge’s decision of ineligibility for unemployment benefits, relator argues he was eligible for benefits while he served his felony DWI sentence in a correctional facility and while on electronic home monitoring (EHM). Despite the provision of Minn.Stat. § 268.085, subd. 2(3) (2006), that one who is incarcerated is not eligible for unemployment benefits, relator contends that he was eligible because he was available for work and was looking for work during his incarceration and while he served part of his sentence on EHM.

FACTS

Relator Richard A. Carlson became unemployed in September 2005. On November 4, 2005, he was charged with his fifth alcohol-related driving offense, a felony DWI. Effective November 11, 2005, he established an unemployment-benefits account. On April 7, 2006, after pleading guilty to a felony DWI, relator, who was still unemployed, was sentenced to one year and one day of incarceration to be served at the Hennepin County correctional facility.

When he was released from the correctional facility, relator was required to serve the balance of his sentence under house arrest, subject to EHM. Relator could leave his home only for activities approved by the sentencing judge. Relator had approval to work up to six days per week, if he could obtain employment. To obtain permission to attend an interview, relator would call his attorney, who would then contact the sentencing judge. If permission was granted, the judge would give written notice to the correctional facility by facsimile transmission. Obtaining permission took 24-48 hours. About one month after his release from the correctional facility, relator was hired by a mortgage company. He began his new employment on July 30, 2006.

Throughout the time that relator was incarcerated at the correctional facility and then on EHM, relator reported to respondent that he was not employed, he was seeking work, and he was available for work. Relator sought and obtained unemployment benefits for both periods. Respondent later determined that relator was not eligible for unemployment benefits because he was incarcerated, basing that determination on Minn.Stat. § 268.085, subd. 2(3) (2006). Relator appealed that determination, arguing that because he was available for work and was eligible for work-release privileges, he was entitled to benefits, even while incarcerated. The unemployment-law judge affirmed the determination that relator was ineligible. Relator’s request for reconsideration was denied and this appeal followed.

ISSUE

Is an applicant for unemployment benefits, who is eligible for work-release privileges while serving a statutory minimum sentence of at least one year of incarceration, “incarcerated” and ineligible for benefits while serving time in a local correctional facility and while subject to electronic home monitoring?

ANALYSIS

This court may affirm, remand, reverse, or modify the decision of an unemployment-law judge (ULJ), if the substantial rights of the relator may have been prejudiced because the findings, conclusion, or decision are, among other things, affected by an error of law or unsupported by substantial evidence. Minn.Stat. § 268.105, subd. 7(d)(4), (5) (Supp.2007).

Questions of law are reviewed de novo; findings of fact are upheld if they are supported by substantial evidence. Ywswf v. Teleplan Wireless Servs., Inc., 726 N.W.2d 525, 529 (Minn.App.2007). Whether the decision was proper is a question of law reviewed de novo. Jenkins v. Am. Express Fin. Corp., 721 N.W.2d 286, 289 (Minn.2006) (citing Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 528 (Minn.1989)).

Unemployment insurance and benefits are governed by Minn.Stat. §§ 268.001-.23 (2006). The section at issue in this case is 268.085 (2006). That section establishes “eligibility conditions,” for those seeking unemployment benefits. Minn.Stat. § 268.085, subd. 1. Among other requirements, an applicant must be “able to work,” be “available for suitable employment,” and be “actively seeking suitable employment.” Id., subd. 1(4). The next subdivision describes those who are “not eligible” for benefits. Id., subd. 2. Included in this subdivision are those who are “incarcerated or performing court ordered community service.” Id., subd. 2(3). If an applicant is “unable to work or is unavailable,” or if the applicant “is incarcerated,” weekly benefits are reduced by one-fifth for each day that the applicant is not eligible for benefits. Id., subds. 1(4), 2(3).

The critical issue is whether relator was “incarcerated” during the periods in question, within the meaning of Minn.Stat. § 268.085, subd. 2(3). Statutory interpretation is a question of law, which we review de novo. Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). We must ascertain and give effect to legislative intent and, if possible, construe the statute “to give effect to all its provisions.” Minn.Stat. § 645.16 (2006).

Words and phrases in a statute are to be construed according to their plain and ordinary meaning. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000). ‘Where the legislature’s intent is clearly discernable from plain and unambiguous language, statutory construction is neither necessary nor permitted and we apply the statute’s plain meaning.” Hans Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 539 (Minn.2007); see also Minn.Stat. § 645.16 (providing that when the language of a statute is “clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”). A statute is ambiguous only if its language is subject to more than one reasonable interpretation. Am. Family Ins. Group, 616 N.W.2d at 277. The threshold question is whether the statutory reference to an applicant who is “incarcerated” is unambiguous.

The term is not defined within chapter 268. Various other Minnesota statutes refer to “incarceration” and “incarcerated” persons, but none provides an explicit definition for these terms. Minn.Stat. § 609.135, subd. 1(b) (2006), defines “intermediate sanctions” to imprisonment, including incarceration in a local facility, “home detention, electronic monitoring, intensive probation, sentencing to service,” community work service, and other alternatives. The statute under which relator was sentenced requires “a minimum of one year of incarceration, at least 60 days of which must be served consecutively in a local correctional facility.” MinmStat. § 169A.275, subd. 4(a)(1) (2006). It does not specify where the balance of the “one year of incarceration” is to be served.

Dictionary definitions may be helpful, especially if they are consistent. Cf. Houston, 645 N.W.2d at 150 (comparing similar dictionary definitions and interpreting unemployment statute on disqualification from benefits, due to misconduct). Black’s Law Dictionary defines “incarceration” as “[t]he act or process of confining someone,” and “confinement” as “the state of being imprisoned or restrained.” Black’s Law Dictionary 775, 318 (8th ed.2004). Under these definitions, incarceration is dependent on restraint and confinement, but not on the nature of the facility in which that restraint occurs. Black’s defines “house arrest” as the “confinement of a person ... to his or her home, usually by attaching an electronically monitored bracelet.” Id. 756. Because both incarceration and house arrest are characterized by confinement, it would be logical to infer that incarceration includes house arrest. But other dictionaries define “incarcerate” in a manner that does not necessarily include house arrest: “to put in jail, to shut in; [to] confine.” The American Heritage College Dictionary 700 (4th ed.2007). Accordingly, we conclude that the term “incarcerated” is ambiguous.

When the language of a statute is ambiguous or “not explicit,” we must ascertain legislative intent, considering the purpose of the law, its legislative history, and any existing legislative or administrative interpretations. Minn.Stat. § 645.16. Statutory provisions governing unemployment benefits are to be liberally construed in favor of those unemployed through no fault of their own, and disqualification provisions are to be narrowly construed. Jenkins, 721 N.W.2d at 289; see also Minn. Stat. § 268.03, subd. 1 (2006) (declaring public purpose of unemployment insurance). Courts may “accord substantial consideration” to administrative interpretations by the responsible agency, especially when the statutory language is highly technical. J.C. Penney Co. v. Comm’r of Econ. Sec., 353 N.W.2d 243, 246 (Minn.App.1984) (quotation omitted). An administrative determination is entitled to greater weight if it is of longstanding duration. In re Claim by Meuleners, 725 N.W.2d 121, 123 (Minn.App.2006). Respondent’s interpretation of “incarcerated” to include those serving time at a local correctional facility is well established, but the record does not establish the existence of a longstanding policy of treating applicants subject to EHM, but eligible for work-release privileges, as “incarcerated.”

For three reasons, we conclude that relator was “incarcerated” and ineligible for benefits during the time that he was in a local correctional facility and while he was subject to EHM.

First, the statute under which relator was sentenced requires “a minimum of one year of incarceration.” Minn.Stat. § 169A.275, subd. 4(a). It is undisputed that relator was subject to that sentence during the entire period for which he sought benefits. When a term is not defined in the statute being interpreted, it is appropriate to “consider other statutes relating to the same subject matter as far as they shed light on the question.” Hahn v. City of Ortonville, 238 Minn. 428, 436, 57 N.W.2d 254, 261 (1953) (considering the use of “person” in other statutes, to determine whether it included municipal corporations). It is clear that the sentencing statute includes time spent in a local correctional facility and time after release from that facility in its reference to the one-year minimum period of incarceration. Interpreting the same term in the unemployment statute to include the entire duration of the applicant’s sentence ensures consistency.

Second, we must interpret the term “incarceration” in context, as it relates to whether the applicant was “available for suitable employment.” See Minn. Stat. § 268.085, subd. 1(4) (requiring that applicant be “available” as a condition of eligibility for benefits). Availability for suitable employment requires both the applicant’s willingness to accept work in the labor market and that there “be no other restrictions, either self-imposed or created by circumstances, temporary or permanent, that prevent [the applicant from] accepting employment.” Minn.Stat. § 268.085, subd. 15(a) (emphasis added). While incarcerated at the correctional facility, relator was subject to multiple restrictions, including the inability to attend interviews without obtaining written permission, the requirement that he plan interviews at least one week in advance (because the approval process took that long), the inability to receive incoming telephone calls, and the inability to apply for work in person. Once he was on EHM, relator was still required to obtain written approval to attend interviews or to leave his home, he could not work more than six days per week, and he was required to wear an electronic monitoring bracelet. Thus, relator was subject to numerous restrictions that affected his availability for work. Although those restrictions were temporary, and relator eventually obtained new employment, the statute specifically requires that there be “no ... restrictions,” including “temporary” ones. See id. Because relator’s availability for suitable work was subject to numerous restrictions, we conclude that he was both “incarcerated” and “unavailable” for work throughout the period in dispute.

Third, it is clear that the legislature intended to link the concepts of availability for work and incarceration. In 1997, the statute was amended to provide that applicants who are incarcerated are “not eligible” for unemployment benefits. 1997 Minn. Laws ch. 66, § 37. In 1999, the statute was amended to provide that applicants who are performing court-ordered community service also are “not eligible” for benefits. 1999 Minn. Laws ch. 107, § 42. (The statute has since been renumbered, and these provisions now appear in Minn.Stat. § 268.085, subd. 2(3).) At the time, an administrative rule provided that an incarcerated applicant who was “unable to accept employment under a work release program is not available for work.” Minn. R. 3305.0500, subp. 7 (1997). Arguably, the reverse inference that might be drawn from the rule is that an incarcerated applicant for benefits who is eligible for a work-release program might qualify as “available” for employment, although there are no reported cases establishing that the rule was applied in that manner. In 1999, the legislature repealed that rule. 1999 Minn. Laws ch. 107, § 67. At the same time, the legislature rewrote section 268.085, so that it now “addresses many of the subjects [formerly] addressed by chapter 3305 [of the Minnesota Rules].” Mueller v. Comm’r of Econ. Sec., 633 N.W.2d 91, 93 (Minn.App.2001). But the legislature did not choose to include in the revised statute all of the exceptions that had been set forth in the administrative rules. See id. (noting failure to incorporate into the revised statute a provision that an applicant whose physical or mental condition restricts availability to do full-time work may, nonetheless, be eligible for benefits). For this court to construe section 268.085 to include an exception previously set forth in an administrative rule would in effect modify the statute. And that is unauthorized. See State v. Fleck, 281 Minn. 247, 252, 161 N.W.2d 309, 312 (1968) (concluding that it must be assumed that, had the legislature desired to expand upon a statutory section, it would have effectuated this desire by amending that section).

There is a general presumption that the legislature is aware of existing laws on the same subject and that it enacts new statutes in light of that knowledge. Minneapolis E. Ry. v. City of Minneapolis, 247 Minn. 413, 418, 77 N.W.2d 425, 428 (1956). But we need not rely on a presumption in this instance, because the legislature specifically identified the rules that it was repealing, and it did so in the very same chapter of the session laws in which it rewrote the statute, to address many of the same subjects. See 1999 Minn. Laws ch. 107, §§ 42, 67. Because the rule creating an exception for incarcerated applicants who are eligible for work-release has been repealed, relator — like the applicant for benefits in Mueller — was required to establish that he was available for work and there were “no other restrictions” that limited his ability to accept suitable employment. See Mueller, 633 N.W.2d at 94. As discussed above, relator’s availability for employment was subject to restrictions, and he failed to satisfy that requirement.

Although there is no controlling caselaw directly on point, our conclusion that an applicant who is serving time in a local correctional facility or on EHM with the potential to obtain court approval to leave home to work is “incarcerated” and not “available” for employment without restrictions is consistent with cases that have addressed incarceration in other employment-related contexts. In Grushus v. Minn. Mining & Mfg. Co., 257 Minn. 171, 100 N.W.2d 516 (1960), the Minnesota Supreme Court concluded that an applicant who was “unable to accept” an offer of employment “because of his incarceration” was ineligible for and disqualified from receiving benefits because he had failed to accept suitable employment for reasons attributable solely to him. Id. at 175-76, 100 N.W.2d at 520. The court declined to adopt a rule applicable to all situations, recognizing that illegal detention of an applicant or an eventual determination of innocence might potentially preclude a finding that a particular applicant was at fault for failing to accept an offer of employment made during a period of incarceration. Id. at 176, 100 N.W.2d at 520. The applicant in Grushus was incarcerated as a result of his “plea of guilty,” id. at 172, 100 N.W.2d at 517, which is also true of the relator in this case. Although “fault” is not the applicable test in this case, the basis of relator’s unavailability for employment is clearly his own conduct and his guilty plea, which resulted in his criminal sentence.

The cases addressing whether incarceration constitutes “misconduct” when it results in an applicant’s inability to appear for work as scheduled are consistent with our conclusion today and with the stated public purpose of providing unemployment benefits to those “who are unemployed through no fault of their own.” See Minn.Stat. § 268.03, subd. 1. When an employee fails to appear for work, due to an unanticipated period of incarceration, that failure is likely to result in disqualification from benefits, even if the employee “obviously did not intend” that result and returned to work as soon as he was able to do so. Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 45 (Minn.App.1984). But if an employee has made arrangements to maintain existing employment while on work release and the employer’s failure to cooperate results in the incarcerated employee being unable to appear for work as scheduled, those facts may preclude a finding of disqualifying misconduct, if the employee establishes “that she could have come to work despite her incarceration.” Jenkins, 721 N.W.2d at 292. Although “misconduct” is not the applicable test in this case, relator was not already employed, he identified no fault of any employer that resulted in his inability to accept employment while he was incarcerated and on EHM, and his inability to obtain and accept employment was solely attributable to his conduct.

DECISION

The unemployment-law judge correctly determined that relator was not eligible for unemployment benefits while serving a sentence in a correctional facility or while on EHM, despite the availability of work-release privileges because, during both periods, relator was incarcerated within the meaning of Minn.Stat. § 268.085, subd. 2(3) (2006).

Affirmed.

KLAPHAKE, Judge

(dissenting).

I respectfully dissent. Although I agree that relator is ineligible for unemployment benefits during the time he was physically incarcerated in the Hennepin County Corrections Facility, from April 28, 2006, through June 26, 2006, this period of ineligibility should have ended upon his release to his home with an electronic monitoring device.

MinmStat. § 268.085, subd. 2(3) (2006), states that an applicant is ineligible for unemployment benefits while incarcerated or performing court-ordered community service. I agree with the majority that this statute is ambiguous as applied here. The statute supplies no definition for “incarcerated,” and, as the majority points out, the rule that formerly provided some instruction was repealed. See Minn. R. 3305.0500 (1997), repealed 1999 Minn. Laws eh. 107, § 67.

But we must determine and give effect to legislative intent in construing the statute, and must construe it, if possible, to give effect to all its provisions. Minn.Stat. § 645.16 (2006). The majority argues that Minn.Stat. § 268.085, subd. 2(3), creates ineligibility beyond the factors of availability for work listed in subdivision 1. The plain language of MinmStat. § 268.085, subd. 2(3), describes availability, however, not blanket ineligibility: “The applicant’s weekly unemployment benefit amount shall be reduced by one-fifth for each day the applicant is incarcerated!.]” Thus, the statute contemplates that an applicant can continue to collect weekly benefits, presumably when available for work, so long as those benefits are reduced by one-fifth for each day that the applicant is incarcerated, or presumably unavailable for work. Notably, the legislature included as ineligible a person performing community service. This again shows legislative concern for availability and not blanket ineligibility. Once relator was released and put on electronic monitoring, he was available for all approved activities, which included employment of up to six days per week. We can reconcile the provisions of this statute by balancing ineligibility and availability.

The majority relies on Mueller v. Comm’r of Econ. Sec., 633 N.W.2d 91 (Minn.App.2001), to argue that relator is unavailable for employment because of significant restrictions on his availability. But in Mueller, the employee had serious physical limitations from an injury and surgery that prevented her from working the hours that are “normal for the applicant’s usual occupation or employment.” Id. at 93. Relator was available for employment up to six days per week, more than a normal work week, and for the usual hours of his chosen occupation.

We also are assisted in ascertaining legislative intent by examining other laws on the same or similar subjects. Minn.Stat. § 645.16(5). Although chapter 268 fails to include a definition of incarceration, the criminal code provides insight on what the legislature considers to be included within the meaning of “incarceration.” Minn. Stat. § 609.135, subd. 1(a) (2006), refers to different levels of sanctions: imprisonment, probation, and intermediate sanctions. “Intermediate sanctions” are further defined to include

incarceration in a local jail or workhouse, home detention, electronic monitoring, intensive probation, sentencing to service, reporting to a day reporting center, chemical dependency or mental health treatment or counseling, restitution, fines, day-fines, community work service, work service in a restorative justice program, work in lieu of or to work off fines and, with the victim’s consent, work in lieu of or to work off restitution.

Id. at subd. 1(b). Thus, the legislature clearly makes a distinction between incarceration and electronic monitoring.

Further, Minn.Stat. § 609.135, subd. 4 (2006), permits a court to order as a condition of probation incarceration in a county jail, regional jail, work farm, workhouse, or other local correctional facility. Subdivision 6 urges a court “staying imposition or execution of a sentence that does not include a term of incarceration as a condition of the stay” to use intermediate sanctions. Again, the legislature provides guidance for interpretation of the term “incarcerated” by not extending its meaning to include the lesser sanction of electronic monitoring. Had the legislature intended to include intermediate sanctions, such as electronic monitoring, in the list of circumstances which renders relator ineligible for benefits, it would have done so.

In my view, the majority’s reliance on Smith v. Am. Indian Chem. Dep. Diversion Project, 343 N.W.2d 43, 44 (Minn.App.1984) and Jenkins v. Am. Exp. Fin. Corp., 721 N.W.2d 286, 288-89 (Minn.2006) is not helpful. In Smith, the employee lost his job because he failed to appear at work while incarcerated. Relator was unemployed and had established an account with the department before his incarceration; he did not lose his job because of the incarceration. In Jenkins, the Minnesota Supreme Court discussed whether the incarceration of an employee who was eligible for work release, but whose employer refused to cooperate with the details of obtaining work release, constituted misconduct for purposes of a denial of eligibility. Again, that is not the situation confronting us here.

The purpose of the unemployment compensation program is to protect workers who are unemployed through no fault of their own. Minn.Stat. § 268.03, subd. 1 (2006). The statute is deemed to be remedial in nature; as such, this court should narrowly construe disqualification provisions. See Jenkins, 721 N.W.2d at 289. Relator was unemployed, and available for and actively seeking employment. I would reverse the ULJ’s decision finding relator ineligible for benefits solely because he was on electronic monitoring.


author: KLAPHAKE, Judge.

text:
    Michael MARCHIO, Trustee for the Next of Kin of Ida Marchio, Appellant, v. WESTERN NATIONAL MUTUAL INSURANCE COMPANY, Respondent.
    No. A07-0477.
    Court of Appeals of Minnesota.
    April 15, 2008.

      Sharon L. Van Dyck, Paul J. Gatto, Van Dyck Law Firm, PLLC, Minneapolis, MN, for appellant.
    Timothy R. Murphy, O’Neill & Murphy, LLP, St. Paul, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; HALBROOKS, Judge; and SCHELLHAS, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Michael Marchio appeals from the district court’s decision granting summary judgment to respondent Western National Mutual Insurance Company on his claim seeking uninsured motorist (UM) benefits. Because the insurance policy’s duplicate payments exclusion, as applied, violates Minn.Stat. § 65B.49, subd. 3a (2006), we reverse and remand.

FACTS

Decedent Ida Marchio was a passenger in a car driven by her husband, Michele Marchio. A hit-and-run driver struck the Marchio car. Michele Marchio tried to stop his car, but pressed the accelerator rather than the brake. The car continued on for approximately one-half mile before it struck a tree. Ida Marchio died as a result of the accident. The Marchios were insured by Western National under an automobile policy that provided liability coverage, with limits of $100,000 per person and $300,000 per accident, and UM coverage, with limits of $100,000 per person and $300,000 per accident.

Appellant Michael Marchio, the son of Michele and Ira Marchio and the trustee for the next of kin of Ida Marchio, settled the potential wrongful death claim against his father, executed a Pierringer release, and received the full $100,000 policy limit for liability coverage. Because the hit- and-run driver was never identified, appellant brought this action for UM benefits based on the fault of the hit-and-run driver.

In its motion for summary judgment, Western National argued that the policy duplicate payments exclusion precludes payment under the UM coverage of its policy if the insured receives payment for the same “element of loss” under the liability coverage. Part A of the policy, governing liability coverage, contains a section titled Limits of Liability that reads in part as follows:

No one will be entitled to receive duplicate payments for the same elements of loss under this coverage and:
1. Part B [Medical Payments] or Part C [UM Coverage] of this policy; or
2. Any Underinsured Motorists Coverage provided by this policy.

(Emphasis added.)

Part C, governing UM coverage, contains the same provision prohibiting duplicate payments under UM coverage for any element of loss for which payment has been made under another coverage provision. The district court held that under the terms of the policy, the insured could not receive duplicate coverage for the same element of loss. The district court ruled “[a]s Plaintiff has already received the limits of coverage under Part A of the policy for the wrongful death of Ida Marchio, ... the policy bars him from receiving duplicate coverage for the same element of loss” under Part C for the negligence of an uninsured driver.

Western National also argued that it was entitled to summary judgment as a matter of law because there was no fact issue regarding causation, asserting that Ida Marchio’s injuries were caused only by the negligence of her husband and not by the hit-and-run driver. The district court did not directly rule on this second argument.

Appellant challenges the district court’s decision on interpretation of the contract. Western National, without filing a notice of review pursuant to Minn. R. Civ.App. P. 106, asks this court to rule it is entitled to summary judgment as a matter of law because there are no genuine issues of material fact regarding causation.

ISSUES

1. Did the district court err in determining that the duplicate payment exclusion precludes UM coverage if payments have been made under the policy’s liability coverage for the same element of loss?

2. Does the duplicate payments exclusion, as applied, violate Minn.Stat. § 65B.49, subd. 3a (2006)?

3. Has Western National properly raised on appeal the issue of whether it is entitled to summary judgment as a matter of law?

ANALYSIS

On appeal from summary judgment, this court must determine whether genuine issues of material fact remain for trial and whether the district court erred in applying the law. Hickman v. SAFECO Ins. Co., 695 N.W.2d 365, 369 (Minn.2005); Minn. R. Civ. P. 56.03. The application and interpretation of an insurance policy is subject to de novo review. Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn.2003). If the facts are undisputed, an appellate court need only review how the district court applied the law in interpreting the policy language. Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82, 84-85 (Minn.1988). For purposes of contract interpretation, we view the facts in the light most favorable to the non-moving party. Hickman, 695 N.W.2d at 369.

Duplicate Payments Exclusion

Appellant claims that the terms “duplicate payments” and “elements of loss” are ambiguous and should be interpreted in favor of the insured. The interpretation of insurance contracts is governed by general principles of contract law. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn.2002). If an insurance policy is unambiguous, “the language used must be given its usual and accepted meaning.” Stewart v. Illinois Farmers Ins. Co., 727 N.W.2d 679, 684 (Minn.App.2007) (quotation omitted). Courts should “guard against invitations to find ambiguity where none exists.” Metro. Prop. & Cas. Ins. Co. v. Jablonske, 722 N.W.2d 319, 324 (Minn.App.2006) (quotation omitted). An insurance policy must be construed as a whole, and unambiguous language must be given its plain and ordinary meaning. Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn.1986). If the language of an insurance policy is reasonably susceptible to more than one interpretation, it is ambiguous. Illinois Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 799 (Minn.2004). If policy language is ambiguous, “the ambiguity must be resolved in the insured’s favor.” Soo Line R. Co. v. Brown’s Crew Car of Wyoming, 694 N.W.2d 109, 113 (Minn.App.2005).

Here, the policy language referring to “duplicate payments” and “elements of loss” is not reasonably susceptible to multiple interpretations. While neither phrase is defined in the policy, the plain language of the exclusion states that any UM coverage is precluded for an element of loss covered under the liability section of the policy. We will not strain to find ambiguity when the meaning is clear.

Even though as a matter of contract interpretation we conclude that the duplicate payments provision limits the insurers exposure for double coverage, we must also determine whether the exclusion violates Minn.Stat. § 65B.49, subd. 3a (2006).

Duplicate Payments Exclusion and Minn.Stat. § 65B49, subd. 3a.

Appellant argues that Western National’s policy violates Minn.Stat. § 65B.49, subd. 3a(l), because the duplicate payments exclusion operates to eliminate UM coverage. We agree.

An insurer’s liability is governed by the contract between the parties only to the extent that coverage required by law is not omitted and policy provisions do not contravene the No-Fault Automobile Insurance Act. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 278 (Minn.2000). “[Exclusions in a policy ... are as much a part of the contract as other parts thereof and must be given the same consideration in determining what is the coverage.” Stewart, 727 N.W.2d at 684 (quotation omitted). Thus, we will enforce an exclusion if the policy language does not omit coverage required by law or violate an applicable statute. Application of a statute to the undisputed facts of a case involves a question of law and is subject to de novo review. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

The No-Fault Act requires every vehicle owner to carry, and every insurance policy to provide, certain first-party benefits, including UM coverage with liability limits of at least $25,000 per person and $50,000 per accident. Minn. Stat. § 65B.49, subd. 3a(l). Minn.Stat. § 65B.42 (2006) instructs that the purpose of no-fault insurance is to “relieve the severe economic distress of uncompensated victims of automobile accidents.” The purpose behind UM coverage in particular is to pay, subject to its policy limits, benefits that an insured would otherwise have collected from an uninsured motorist. McIn tosh v. State Farm Mut. Auto. Ins. Co., 488 N.W.2d 476, 479 (Minn.1992). Thus, any exclusion that eliminates statutorily required UM coverage is invalid. See Stewart, 727 N.W.2d at 683 (stating that policy terms “that conflict with the No-Fault Act will be held invalid”).

This court recently considered on similar facts an insurer’s denial of underin-sured motorist (UIM) coverage pursuant to an exclusion that reduced UIM benefits by the amounts paid for liability coverage. Mitsch v. American Nat’l Prop. & Cas. Co., 736 N.W.2d 356 (Minn.App.2007), review denied (Minn. Oct 24, 2007). In Mitsch, Theresa Mitsch was injured while a passenger on her husband’s motorcycle when it collided with a truck. Id. at 356. Mitsch, who was an insured under her husband’s policy, settled her claims with her insurer for the full value of liability coverage ($250,000), and also settled with the third-party truck driver for his policy limits of $30,000. Id. at 357. Because her damages exceeded these payments, she sought UIM coverage from her insurer based on the fault of the underinsured truck driver — not the fault of her husband. Id. The insurer, having paid out the full $250,000 limit of its liability policy based on the negligence of Mitsch’s husband, attempted to invoke a reducing clause that reduced UIM coverage by the amount of liability coverage paid; in essence, this acted to eliminate UIM coverage. Id. This court concluded that a clause that seeks to reduce the amount payable for UIM benefits requested due to the liability of another at-fault underinsured driver was unenforceable because it violated MinmStat. § 65B.49, subd. 4a (2006). Mitsch, 736 N.W.2d at 363.

Although the insurance policy at issue in Mitsch did not involve the same policy language, this court’s analysis applies equally here. The duplicate payments exclusion operates in the same manner as the reducing clause in Mitsch, by deducting any payment made by the insurer under its liability coverage from the UM benefits that the insurer is required to pay. This defeats the purpose of the statutorily mandated UM coverage and denies coverage to which an insured is entitled. See id., 736 N.W.2d at 363 (stating that the purpose of UM or UIM coverage is “to protect the named insured ... from suffering an inadequately compensated injury caused by an accident with an inadequately insured [or uninsured] automobile”).

Notably, this is not a conversion case. Western National mistakenly argues that appellant could not recover under both the liability coverage and the UM coverage, because such duplicate coverage is in violation of the anti-conversion rule set forth in Jensen v. United Fire and Cas. Co., 524 N.W.2d 536, 539 (Minn.App.1994) (holding that insured cannot convert first-party un-derinsured coverage to third-party liability coverage under the same policy), review denied (Minn. Feb. 3, 1995). But Jensen is not applicable to the facts of this case. Here, appellant seeks coverage based on the liability of another at-fault uninsured driver, not the fault of the insured husband. Thus, like Mitsch, this case does not involve an attempt to convert first-party UIM coverage to third-party liability coverage. Mitsch, 736 N.W.2d at 363.

Western National seeks to use liability payments made because of the negligence of its insured to reduce or eliminate UM benefits based on the negligence of another. Such attempts by insurance carriers to contractually reduce or eliminate mandated UM coverage violate the no-fault statute and are invalid. Mitsch, 736 N.W.2d at 362-63. We conclude that the duplicate payments exclusion violates Minn.Stat. § 65B.49, subd. 3a(l), and is therefore unenforceable.

Causation

Western National also asks this court to conclusively decide the causation issue of the accident. It argues that based on witness and expert testimony, the hit- and-run driver was not a proximate cause of Ida Marchio’s injuries and that her husband was solely at fault. Western National did not file a notice of review. Generally, this court will not consider challenges to issues decided adversely to a respondent when the respondent on appeal has not filed a notice of review. In re Glaxo SmithKline PLC, 699 N.W.2d 749, 757 (Minn.2005) (acknowledging power to consider issue not raised in notice of review, but declining to do so when issue not fully developed and opposing party would be prejudiced); Kolby v. Nw. Produce Co., 505 N.W.2d 648, 653 (Minn.App.1993). In this case, the district court either rejected or failed to rule on Western National’s causation argument. See Hoyt Inv. Co. v. Bloomington Commerce & Trade Ctr. Assocs., 418 N.W.2d 173, 175 (Minn.1988) (stating that an undecided question is not usually amenable to appellate review). Thus, we decline to consider this issue on appeal.

DECISION

Because Western National’s duplicate payments clause contravenes Minn.Stat. § 65B.49, subd 3a(l) (2006), by seeking to reduce or eliminate coverage mandated by the No-Fault Act, the trial court erred in granting summary judgment in favor of Western National. We therefore reverse and remand for further proceedings.

Reversed and remanded.