author: PAUL H. ANDERSON, Justice. STRINGER, Justice

text:
    Martin John KERSTEN, Respondent, v. The MINNESOTA MUTUAL LIFE INSURANCE COMPANY, Appellant.
    No. C6-98-2080.
    Supreme Court of Minnesota.
    April 13, 2000.

      Steven G. Mahon, Ryan, Mahon & Brown, P.A., St. Paul, for appellant.
    Robert E. Wilson, Matthew C. Bazzano, Robert Wilson & Assoc., Minneapolis, for respondent.
   OPINION

PAUL H. ANDERSON, Justice.

Minnesota Mutual Life Insurance Company issued a disability insurance policy to Martin John Kersten using a definition of sickness that limited coverage of pre-exist-ing conditions to those illnesses that first manifested themselves while the policy was in force. Minnesota Mutual then used this definition to discontinue paying Ker-sten disability benefits under the policy. Therefore, when Minnesota Mutual discontinued paying benefits under this policy, Kersten brought an action in Hennepin County District Court alleging that Minnesota Mutual breached its policy, asserting that Minn.Stat. § 62A.04, subd. 2(2)(b) (1998) precludes the use of Minnesota Mutual’s definition.

Minnesota Mutual moved for summary judgment. The district court granted the motion, finding that the policy provision defining sickness properly excluded Ker-sten’s current illness as having manifested itself prior to the effective date of the policy. The Minnesota Court of Appeals reversed and remanded, holding that Minnesota Mutual could not limit coverage to those disabilities that “first manifest” themselves after the policy is in force. The sole question presented to us on appeal is whether the statutorily required pre-existing condition provisions of Minn. Stat. § 62A.04, subd. 2(2)(b) (1998) preclude Minnesota Mutual from using this definition. We affirm the court of appeals.

On October 18, 1985, appellant Minnesota Mutual Life Insurance Company issued a disability insurance policy to respondent Martin John Kersten. The policy provided that if Kersten became disabled as defined in the policy as the result of an injury or sickness, he would be entitled to a monthly income benefit of $1,600 during his period of disability. The policy defined “sickness” as

A disease or illness which first manifests itself while this policy is in force. A disease or illness first manifests itself when symptoms exist that would cause an ordinarily prudent person to seek diagnosis, care or treatment, or when a physician recommends or provides medical advice or treatment.

It is undisputed that from October 1985 until September 1993, Kersten made all premium payments and made no claim for benefits.

In September 1993, Kersten was involved in a motor vehicle accident. Following the accident, he was unable to work due to injuries received in the accident. Kersten submitted a claim for disability benefits under his Minnesota Mutual policy and Minnesota Mutual began to pay disability benefits to him effective from September 1993.

While receiving disability benefits, Ker-sten also received no-fault insurance benefits from his automobile insurance carrier. In July 1994, after an independent medical examiner rendered an opinion that Kersten was no longer disabled from the injuries he received in the motor vehicle accident, Kersten’s automobile insurance carrier discontinued no-fault benefits. On May 22, 1995, an arbitrator denied Ker-sten’s claim for additional no-fault benefits. Following this decision, Kersten sought benefits under the uninsured motorist provisions of his automobile insurance policy. In November 1996, an arbitration panel concluded that Kersten was not entitled to benefits beyond the no-fault benefits already paid.

Meanwhile, after the arbitrator denied Kersten’s no-fault claims, Minnesota Mutual discontinued disability benefits on September 22, 1995, claiming that Kersten’s physical injuries no longer prevented him from returning to work. Kersten disputes the discontinuation of his disability benefits, asserting that his continuing disability was only partially due to the motor vehicle accident. He asserts that following the accident, he was unable to return to work and his employer replaced him. He maintains that the loss of his job and his continuing pain resulted in psychological disorders including probable somatofon pain disorder and major depression that prevent him from returning to work. Minnesota Mutual argues that any psychological illness Kersten may have is a pre-existing condition because Kersten was treated for depression and anxiety in 1974, over 10 years before his Minnesota Mutual policy was in effect.

In July 1997, Kersten brought a breach of contract action against Minnesota Mutual in district court claiming that because he remained disabled, Minnesota Mutual was obligated by its policy to continue disability benefits. Minnesota Mutual moved for summary judgment, claiming that Kersten was collaterally estopped from relitigating his disability because the findings of the no-fault arbitrator were conclusive and Kersten never appealed this decision. Minnesota Mutual also argued that Ker-sten could bring no new claims because the policy lapsed for nonpayment after his disability benefits were discontinued. Ker-sten responded, arguing that his continued disability resulted not only from the motor vehicle accident, but also from his psychological illness, which the no-fault arbitration decision did not address. Minnesota Mutual then argued that because Ker-sten’s psychological illness first manifested itself before the policy was in force, any claim based on a psychological illness was not covered by the policy. The court granted summary judgment for Minnesota Mutual, concluding that Kersten’s claims for injuries from the motor vehicle accident were collaterally estopped and that Minnesota Mutual’s policy language defim ing sickness properly excluded Kersten’s claims for his psychological illness. The court also found that because Kersten was no longer disabled under the terms of the policy, his failure to make premium payments after benefits were discontinued caused the policy to lapse.

Kersten appealed, arguing that the district court erred because there were material issues of fact about whether his disability continued due to his psychological illness. Kersten also claimed that Minnesota Mutual’s “first manifest” definition of sickness violated the coverage requirements of Minn.Stat. § 62A.04, subd. 2 and therefore could not constitute a basis to deny his disability benefits. The court of appeals agreed with Kersten, holding that there were material issues of fact relating to whether Kersten suffered a continuing disability and that these claims were not conclusively determined during arbitration. See Kersten v. Minnesota Mut. Life Ins. Co., 594 N.W.2d 263, 267 (Minn.App.1999). The court also held that Minnesota Mutual’s definition of sickness was inconsistent with the plain language of the pre-existing condition coverage requirements of Minn. Stat. § 62A.04, subd. 2. See id. at 266. Accordingly, the court reversed the district court’s grant of summary judgment. See id. at 267. Minnesota Mutual appealed and we granted review on the sole question of whether Minnesota Mutual’s definition of sickness is inconsistent with the plain language of Minn.Stat. § 62A.04, subd. 2.

This is a matter of first impression in Minnesota and involves the interpretation of both the requirements of a statute and the contractual provisions of an insurance policy. Both statutory and contractual interpretation present questions of law that we review de novo. See Housing & Redevelopment Auth. ex rel. City of Richfield v. Adelmann, 590 N.W.2d 327, 330 (Minn.1999); Metropolitan Prop erty & Cas. Ins. Co. & Affiliates v. Miller, 589 N.W.2d 297, 299 (Minn.1999). General contract principles govern the construction of insurance policies and insurance policies are interpreted to give effect to the intent of the parties. See Dairyland Ins. Co. v. Implement Dealers Ins. Co., 294 Minn. 236, 244-45, 199 N.W.2d 806, 811 (1972). Because most insurance policies are presented as preprinted forms, which a potential insured must usually accept or reject as a whole, ambiguities in a policy are generally resolved in favor of the insured. See Atwater Creamery Co. v. Western Nat’l Mut. Ins. Co., 366 N.W.2d 271, 277 (Minn.1985).

It is undisputed that Minnesota Mutual’s disability policy is subject to Minnesota Statutes Chapter 62A, which regulates various health and disability policies. See generally Minn.Stat. §§ 62A.011-62A.651 (1998). Section 62A.04 requires that certain provisions be included in any health or disability policy issued in this state. See Minn.Stat. § 62A.04. The provisions central to our analysis are found in the incontestability clauses of section 62A.04, subd. 2(2)(a) and (b), as well as section 62A.05, which provides guidance on the construction of chapter 62A.

A statutorily required provision in an insurance policy will not necessarily be construed against the insurer. See Laidlaw v. Commercial Ins. Co. of Newark, 255 N.W.2d 807, 811 (Minn.1977). Incontestability clauses, being in derogation of common law, are generally strictly construed. See 18 George J. Couch, Couch on Insurance § 72.9, at 289 (Ronald A. Anderson ed., 2d ed.1983); see also Chuz v. Columbian Nat’l Life Ins. Co., 10 N.J. Mise. 1145, 162 A. 395, 395 (N.J.Cir.Ct.1932). Further, we agree with those commentators who have noted that while incontestability clauses should be strictly construed, they also

should be given a common-sense construction, bearing in mind the nature and purpose of the contract, that is, the meaning which would be understood by a reasonably prudent person, not what the insurer intended or what meaning would be given by a language expert.

18 Couch, supra § 72.9, at 289 (citation omitted). This view is consistent with the previously stated principle that ambiguities in insurance contracts be generally construed in favor of the insured. See Atwater Creamery Co., 366 N.W.2d at 277.

In the context of this general background, we begin our analysis with a discussion of the workings of section 62A.04, subd. 2(2), which contains, two distinct clauses. A clear understanding of the distinct difference between these two clauses will be essential to our analysis. Clause (a) of this subdivision provides that after a policy has been in force for 2 years, and with an exception for fraud, an insurer may not avoid its obligations under a policy for inaccuracies and errors in statements contained in the policy application. See Minn.Stat. § 62A.04, subd. 2(2)(a) (1998). This clause further requires that the provisions mandated by this clause be captioned “INCONTESTABLE.” Id. Clause (b) of this subdivision provides that, after a policy has been in force for 2 years, claims may not be reduced or denied on the basis that a disease or physical condition existed before the policy was in force, unless such disease or physical condition has been excluded by name or specific description. See Minn.Stat. § 62A.04, subd. 2(2)(b).

Subdivision 2(2) also permits an insurer to substitute its own equivalent provisions for the required provisions, provided that the insurer obtains the approval of the Commissioner of Commerce and that the substituted provisions “are in each instance not less favorable in any respect to the insured or the beneficiary.” Minn. Stat. § 62A.04, subd. 2. Minnesota Mutual argues that the commissioner approved its policy and that we should therefore hold that the policy complies with the requirements of the statute. While not directly relevant to our analysis, this argument warrants some preliminary comment.

We first note that it was not conclusively resolved below whether the commissioner approved Minnesota Mutual’s definition of sickness. While the district court noted that the commissioner had approved the policy, it made no detailed finding. The court of appeals discussed but did not resolve the question. The court of appeals observed that the commissioner expressed some concerns over the language and that the commissioner had no record of the approval. On appeal to our court and for the first time, Minnesota Mutual submitted a letter indicating some type of approval by the commissioner. Kersten has properly objected to this evidence as being submitted for the first time on appeal.

In addition to being improperly before us, the letter submitted by Minnesota Mutual has minimal relevance to the issue before us on appeal. First, the letter does not indicate that the commissioner considered or reached a conclusion on the specific question before us. Minnesota Statutes § 62A.02, subd. 3(2) requires that the commissioner disapprove any policy that does not conform to Chapter 62A. See Minn. Stat. § 62A.02, subd. 3(2) (1998) (“[T]he commissioner shall, within 60 days after the filing of any form or rate, disapprove the form or rate: * * * (2) if it contains a provision or provisions which * * ⅜ [do] not comply with this chapter”). Second, while the commissioner’s opinions on matters of insurance may be helpful when interpreting insurance regulation, we are not bound by those interpretations. See Estate of Atkinson v. Minnesota Dep’t of Human Servs., 564 N.W.2d 209, 213 (Minn.1997). Third, the commissioner has offered no specific opinion on the question before us today. Finally, this case deals primarily with the interpretation of a statute, a duty we cannot shift to the commissioner. For all of the aforementioned reasons, Minnesota Mutual’s argument on this point is neither properly before us nor relevant to our analysis and we will not consider it, despite the dissent’s contention.

As previously noted, section 62A.04, subd. 2 permits an insurer to substitute its own language for the statutorily required language only if it does not make the policy any less favorable to the insured. Section 62A.05, subd. 1 contains a similar rule, which is also crucial to our analysis. This section gives guidance on the construction of Chapter 62A by providing that “[n]o policy provision which is not subject to section 62A.04 shall make a policy, or any portion thereof, less favorable in any respect to the insured or the beneficiary ” than do the requirements of sections 62A.01 to 62A.09. Minn.Stat. § 62A.05, subd. 1 (1998) (emphasis added). Section 62A.05 further provides that a policy is not void for failure to comply with requirements of sections 62A.01 to 62A.09, but remains in force; and the rights, duties, and obligations of the parties will be construed consistent with sections 62A.01 to 62A.09. See Minn.Stat. § 62A.05, subd. 2.

Minnesota Mutual’s disability policy contains a provision similar to section 62A.05, subd. 2. It states that if any of the policy’s provisions conflict with any law in the state where the insured resides, the policy “is hereby amended to conform to the minimum requirements of those statutes.” Because section 62A.05 requires that no other provision in the policy make any of the required provisions less favorable to the insured, we must determine whether Minnesota Mutual’s “first manifest” definition of sickness makes any coverage required by clause (b) of section 62A.04 less favorable to the insured. Therefore, we must now determine what coverage, if any, is required by clause (b).

The goal of statutory interpretation is to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (1998); see also Boutin v. La-Fleur, 591 N.W.2d 711, 715 (Minn.1999). When the language of the statute is plain and unambiguous, it manifests the legislative intent and we must give the statute its plain meaning. See In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn.1998). When a statute is ambiguous, the legislative intent may then be determined by examining other factors including the need for the law, the circumstances of its enactment, the purpose of the statute, and the consequences of a certain interpretation. See Minn.Stat. § 645.16.

We conclude that the plain language of clause (b) indicates a legislative intent that, 2 years after a policy is in force, preexisting conditions be covered by the policy, subject to specific exclusion by the insurer. Clause (b) states:

No claim for loss incurred or disability (as defined in the policy) commencing after two years from the date of issue of this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this policy.

Minn.Stat. § 62A.04, subd. 2(2)(b). In essence, clause (b) requires coverage for pre-existing diseases or physical conditions while granting the insurer the ability to exclude, by name or specific description, any pre-existing condition.

Clause (b) operates in conjunction with clause (a) of section 62A.04, subd. 2(2). An insured’s disclosures on a policy application should reveal any pre-existing conditions to the insurer. If the insurer does not wish to cover a particular pre-existing condition, it may then exclude that condition from the policy by name or specific description. If the insured intentionally withholds information about a known preexisting condition, then clause (a)’s fraud exception permits the insurer to void the policy. See MinmStat. § 62A.04, subd. 2(2)(a). This is consistent with general insurance law in Minnesota, which has permitted insurers to void policies for misstatements in the application if such misstatements are made “with intent to deceive and defraud, or unless the matter misrepresented increases the risk of loss.” MinmStat. § 60A.08, subd. 9 (1998). Clause (b) also provides the insurer a 2-year “safe-harbor.” If the insured is disabled, as defined in the policy, by a preexisting condition within the first 2 years the policy is in force, this section does not preclude the insurer from denying coverage. See MinmStat. § 62A.04, subd. 2(2)(b).

Minnesota Mutual and the dissent assert that because the language of clause (b) permits the insurer to define disability in the context of the policy, Minnesota Mutual’s “first manifest” definition of sickness is not expressly prohibited by the statute. They also assert that incontestability clauses such as the one at issue here only affect a policy’s validity and not its coverage. Quoting a Fifth Circuit decision, they argue that an “incontestable clause in a disability policy does not deprive the insurer from defending on the ground that the particular disability was never within the policy coverage.” Massachusetts Cas. Ins. Co. v. Forman, 516 F.2d 425, 428 (5th Cir.1975). Minnesota Mutual and the dissent then conclude that because Minnesota Mutual has defined “sickness” as those illnesses that first manifest themselves while the policy is in force, those illnesses that manifested themselves before are not “sicknesses” as defined in the policy and therefore were never within the policy coverage.

Minnesota Mutual’s and the dissent’s reliance on Forman is misplaced. The For-man court, Minnesota Mutual, and the dissent all rely on Metropolitan Life Ins. Co. v. Conway, 252 N.Y. 449, 169 N.E. 642 (1930), to assert that an incontestability clause does not expand a policy’s coverage; rather, it only limits the defenses available to the insurer. While this legal proposition may have been true in New York in 1930, it does not apply here. In Conway, Judge Benjamin Cardozo analyzed a clause with language similar to that contained in clause (a) of section 62A.04, but did not address a requirement akin to the preexisting conditions coverage requirement contained in clause (b). See Conway, 169 N.E. at 642. As previously noted, clause (a) and clause (b) contain distinctly different policy provisions: clause (a) deals with incontestability of the application, while clause (b) deals with pre-existing conditions coverage. The majority of the decisions cited by Minnesota Mutual to support its interpretation have been decided primarily under statutory or policy provisions similar to those in clause (a) and not under policy provisions similar to those in clause (b). See, e.g., Forman, 516 F.2d at 428; Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 644 A.2d 1098, 1104 (1994).

Additionally, the assertion that the language of clause (b) affects a policy’s validity but does not relate to coverage is contrary to a plain reading of the clause. As noted earlier, clause (b) requires that “no claim for loss incurred or disability (as defined in the policy) * * * shall be reduced or denied on the ground that a disease or physical condition * ⅜ ⅜ had existed prior to the effective date of coverage of this policy.” Minn.Stat. § 62A.04, subd. 2(2)(b). It is clear from this language that the legislature intended to require coverage for a “disease or physical condition” that existed prior to the policy’s effective date unless, at a minimum, the insurer has specifically excluded that condition prior to the loss.

Having determined that clause (b) involves coverage, we next must determine whether Minnesota Mutual’s “first manifest” definition of illness makes Kersten’s policy “less favorable in any respect to the insured.” Minn.Stat. § 62A.05. In making this determination, we agree with those courts which have analyzed this question under statutes containing language virtually identical to clause (b) and which have noted that the purpose of requiring a “preexisting conditions clause” is to avoid the very situation presented here. See, e.g., Equitable Life Assurance Soc’y of the U.S. v. Bell, 27 F.3d 1274, 1278-79 (7th Cir. 1994). The clause seeks to avoid an insurer challenging a long-existing disease or physical condition, not expressly excluded from the policy, as not being within the scope of coverage years after a policy has been in effect. See id. at 1278. The Seventh Circuit, when analyzing an almost identical clause, stated:

These clauses are now required by statute in most states because without them, insurers were apt to deny benefits on the grounds of a pre-existing condition years after a policy had been issued. This left beneficiaries * * * in the untenable position of having to do battle with powerful insurance carriers. The incontestability clause is thus in the nature of a statute of limitation and repose, obliging the insurer to investigate the insured’s medical history promptly else it become bound by the representations contained on the insured’s application.

Id. (quotations and citations omitted).

We conclude that clause (b) of section 62A.04, subd. 2(2), expresses a clear process to effect the purpose articulated by the Seventh Circuit in Bell. Two years after a policy is in force, an insurer may not deny or reduce coverage for a preexisting “disease or physical condition” unless the insurer specifically excludes that condition “by name or specific description.” Minn.Stat. § 62A.04, subd. 2(2)(b); see also Wischmeyer v. Paul Revere Life Ins. Co., 725 F.Supp. 995, 1004-05 (S.D.Ind.1989) (interpreting an Indiana statute nearly identical to Minn.Stat. § 62A.04, subd. 2(2)(b)).

Minnesota Mutual urges us to accept its position that a “first manifest” definition of sickness resolves uncertainty in coverage with respect to pre-existing conditions by providing a clear rule applicable in all cases regardless of the disclosures made in a policy application. See Forman, 516 F.2d at 429-30. However, accepting this approach would allow an insurer to define away all coverage for “diseases and physical conditions” that occurred in any way prior to the effective date of the policy. On this point we agree with the Wis-chmeyer court that such a result is clearly contrary to legislative intent. In Wis-chmeyer, the court observed that to permit an insurer to generally exclude pre-exist-ing conditions by a “first-manifest” definition of illness, in the face of a statute requiring them to do so specifically by “name or specific description,” would be to render the statutory provision “absurd.” 725 F.Supp. at 1005. The Wischmeyer court noted that then “all insurers would instantly place such a statement in their form policies, and thereafter no insurer would be precluded from denying claims based on pre-existing conditions.” Id.

We acknowledge that a “first manifest” definition does not necessarily eliminate coverage for all pre-existing conditions. But section 62A.05 prohibits any other provision in a policy not covered by section 62A.04 from making coverage “less favorable in any respect” to the insured. See Minn.Stat. § 62A.05. Minnesota Mutual’s “first manifest” definition of illness attempts to exclude from coverage those pre-existing conditions that manifested themselves prior to the effective coverage date. This would significantly reduce the number of pre-existing conditions that the policy covers. As such, Minnesota Mutual’s “first manifest” definition is in direct conflict with the provisions of section 62A.05.

It is relatively certain that an insurer would prefer not to specifically “by name or specific description” refuse coverage to a potential insured for a “disease or physical condition” for which the insured has a reasonable concern may cause a future disability. A specific refusal to cover the “disease or physical condition” may dissuade a potential insured from purchasing a policy. However, the legislature has required that in order to exclude a preexisting condition from coverage, the insurer must do so by “name or specific description.” This makes certain that the insured knows exactly what coverage he is purchasing and the insurer knows exactly for what it will and will not be asked to provide disability benefits. In fairness to the insurer, the legislature removed from clause (a) any incentive for the insured to conceal a known pre-existing “disease or physical condition” by permitting the insurer to void the policy on the grounds of fraud at any time. See Minn.Stat. § 62A.04, subd. 2(2)(a). Full disclosure by both parties is encouraged and protected by this scheme, and hence the freedom of both parties to enter the contract for which they bargained is assured.

Finally, Minnesota Mutual claims that its “first manifest” definition of sickness addresses the same issues of certainty of coverage as does subdivision 2(2), but we conclude that it does so in a manner that makes the required coverage “less favorable” to the insured. Clause (b) is clearly intended to apply to any “disease or physical condition” that “existed prior to the effective date” of the policy. Minnesota Mutual’s “first manifest” definition of sickness attempts to limit its policy coverage to only those illnesses that first manifest themselves after the policy is in force. Thus, this “first manifest” definition of sickness makes the coverage required by clause (b) “less favorable” to the insured.

We hold that because Minnesota Mutual’s “first manifest” definition of sickness makes the required coverage of clause (b) of Minn.Stat. § 62A.04, subd. 2(2) less favorable to the insured, it is not permitted under Minnesota law. Both Minn.Stat. § 62A.05 and Minnesota Mutual’s policy require us to interpret Kersten’s policy to comport to the requirements of Minn.Stat. § 62A.04. We hold that, after Kersten’s disability insurance policy with Minnesota Mutual was in force for 2 years, clause (b) required coverage for any pre-existing “disease or physical condition” not excluded from coverage “by name or specific description” prior to the date of loss. Accordingly, we affirm the court of appeals and remand this matter to the district court for further proceedings consistent with our holdings and the holdings of the court of appeals.

Affirmed.

STRINGER, Justice

(dissenting).

I respectfully dissent. The majority’s holding violates fundamental principles of insurance law relating to indemnification of a defined risk and misconstrues the statutory provisions that it relies upon to conclude that coverage is compelled.

The operative facts are that respondent was treated for depression and anxiety in 1974. Minnesota Mutual issued a disability insurance policy to respondent on October 18, 1985. The policy, which was approved by the Commissioner of Commerce, included coverage for “sickness,” defined as “[a] disease or illness which first manifests itself while this policy is in force.” (emphasis added). Respondent received disability benefits from Minnesota Mutual but the benefits were discontinued when Minnesota Mutual discovered that the cause of respondent’s disability had not first manifested itself during the policy period but rather more than ten years prior to the policy’s inception.

Respondent’s claim that he should nonetheless be entitled to disability benefits is inconsistent with the clear language of his disability policy and basic principles of insurance law. “The primary requisite essential to a contract of insurance is the assumption of a risk of loss and the undertaking to indemnify the insured against such loss.” 1 George J. Couch, Couch on Insurance § 1:8, at 6-7 (Ronald A. Anderson ed., 2d ed.1983). We have defined insurance as “any agreement whereby one party, for a consideration, undertakes to indemnify another to a specified amount against loss or damage from specified causes,” State v. Bean, 193 Minn. 113, 114-15, 258 N.W. 18, 18 (1934), and have held that the date the policy goes into effect is determined by the terms of the policy. See Oster v. Riley, 276 Minn. 274, 277, 150 N.W.2d 43, 46 (1967). Moreover, “it is customary for policies to bear a certain date and to insure against losses arising after that date. * * * [T]he insured may not recover for losses occurring prior to that date.” 1 John Appleman & Jean Appleman, Insurance Law and Practice § 102, at 330 (1981) (emphasis added). Minnesota case law reflects this bedrock principle-insurance covers losses occurring during, not before, the period of coverage. See, e.g., Kilborn v. Prudential Ins. Co., 99 Minn. 176, 179, 108 N.W. 861, 862 (1906).

The majority finds coverage for a loss resulting from a sickness that manifested itself years before the policy became effective based upon Minn.Stat. § 62A.04, subd. 2(2)(b), the incontestability provision required to be included in all accident and sickness insurance policies:

No claim for loss incurred or disability (as defined in the policy) commencing after two years from the date of issue of this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this policy.

Minn.Stat. § 62A.04, subd. 2(2)(b). The majority creates coverage where none existed before by denying Minnesota Mutual’s right to enforce the “first manifests itself’ policy provision. But creating coverage is not the purpose of the incontestability provision as it is not intended to preclude the insurer from denying coverage based on preexisting conditions. As noted in Couch on Insurance, an incontestability clause “does not bar the insurer from showing that the condition or disability is not covered by the policy because it originated or had its inception prior to the attachment of the risk.” 18 Couch, supra, § 72:61, at 329. Similarly, “[wjhere loss is claimed by reason of disability covered by the policy, it is necessary * * * that the cause of such disability arise within the policy terms and after the insurance has been effected. * * * The incontestable clause does not apply * * * and there can be no recovery unless the cause of disability arose within the time designated.” 1A Appleman & Appleman, supra, § 333, at 390. Importantly, the “Standard provisions” statute, Minn.Stat. § 62A.04, subd. 2, permits insurers to use words different from the statutory language in defining the standard provisions, but the provision must not be “less favorable in any respect to the insured” and must be approved by the Commissioner of Commerce. Here Minnesota Mutual’s policy requiring the disease or illness to “first manifest! ] itself while this policy is in force” was approved by the Commissioner, and the conclusion is therefore compelling that the “first manifests itself’ clause is not inconsistent with the mandatory incontestability provision.

The purpose of the incontestability provision, as noted in Appleman, is to give insurers an incentive to within a “reasonable period of time * ⅜ * check into and to ascertain the truth of the declarations made by the applicant and to take such action as will protect its rights. If it fails to do so, these defenses are barred.” 1A Appleman & Appleman, supra, § 333, at 385-86. We also held long ago that an incontestability clause is intended to “render all statements by the insured in the application for the insurance representations and not warranties [,] ” Sellwood v. Equitable Life Ins. Co. of Iowa, 230 Minn. 529, 536, 42 N.W.2d 346, 351 (1950) (emphasis added)-that is, to protect an insured from the harsh results of an inadvertent mistake in the policy application which might otherwise be grounds for re-cision. See, e.g., Schaedler v. New York Life Ins. Co., 201 Minn. 327, 333, 276 N.W. 235, 239 (1937) (stating that an incontestability clause permits the insurer a defense for false statements made in a policy but “[n]o oral or written misrepresentation made by the assured * * * in the negotiation of insurance, shall * * * defeat or avoid the policy, or prevent its attaching, unless made with intent to deceive and defraud”). In short, the incontestability provision prevents the insurer from denying the validity of a policy because of inadvertent misstatements made by the insured, but cannot create coverage for illnesses manifesting themselves prior to the policy’s inception when such illnesses have been explicitly excluded from coverage by the policy.

These principles are reflected in Metropolitan Life Ins. Co. v. Conway, where then Chief Judge Cardozo held:

The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage * * *. It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken.

252 N.Y. 449, 169 N.E. 642, 642 (1930). More recently, in Massachusetts Cas. Ins. Co. v. Forman, 516 F.2d 425, 429 (5th Cir.1975), the Fifth Circuit held that an incontestability clause similar to the one here did not extend coverage to a disability where the disability first manifested itself prior to the term of the policy. The court reasoned that because the condition manifested itself almost a year before the policy became effective, “disability resulting from [the condition] was never within the scope of policy coverage,” and the incontestability provisions of the policy could not breathe life into a claim that never existed. Forman, 516 F.2d at 428. The court then concluded that extending eover-age beyond the date of the policy “is contrary to the general principle that incontestable clauses do not operate to extend coverage * * * .” Id. at 429. The purpose of an incontestability clause is thus to preclude insurers from denying the validity of a policy based upon a defect in the application, with the sole exception of fraud. It has not and should not be construed to expand coverage to risks clearly not intended to be insured by the policy.

Respondent’s depression is a sickness that was never within the scope of policy coverage because it did not manifest itself during the policy period. Because there never was coverage for the sickness, the expiration of two years or five years or ten years is wholly irrelevant. Not only does basic insurance law-that insurable losses are those that occur during the policy period and the parties to an insurance contract can agree to exclude from coverage losses caused by preexisting sicknesses-compel this conclusion, it also appropriately puts the burden on the insured to disclose and bear the risk of non-coverage for sicknesses manifesting themselves prior to the policy period.

Finally, the majority relies on Minn. Stat. § 62A.05, subd. 1, providing that a policy cannot provide “less favorable” coverage than the statute prescribes and argues that the “first manifests itself’ provision significantly reduces the number of preexisting conditions covered by the policy and thus violates the statute. Of course that is true, but the provision defines the risks the parties agreed to. Further, the Commissioner of Commerce specifically approved the “first manifests itself’ language, as noted above.

I would reverse the ruling of the court of appeals because the incontestability provision does not have its roots in creating coverage where it never existed. Its purpose is instead to prevent the denial of the validity of a policy after the expiration of the requisite years of being in force.

      . The dissent correctly observes that the statute analyzed by the Fifth Circuit in Forman contained a clause similar to clause (b) of Minn.Stat. § 62A.04, subd. 2(2). But the Fifth Circuit court’s analysis in Forman was conducted primarily under a provision similar to clause (a) of section 62A.04, subd. 2(2), which clause contained no exception for fraud by the insured. The court's discussion focused on the language of clause (a) and the court only discussed clause (b) briefly to state that the clause did not have any impact on the court's analysis. See Forman, 516 F.2d at 429-30.

        . The dissent suggests that our holding forces an insurer to assume liability for losses that occurred before the policy is in force. This misconstrues our holding and misunderstands the nature of a loss under a disability policy. A loss only occurs under a disability policy once the insured is disabled, not when the disease or physical condition exists or even when it manifests itself. Minnesota Mutual’s policy defines disability as
      a disease or injury which:
      (1) requires the reasonable and customary care of a physician; and
      (2) results in your inability to perform substantial and material duties of your regular occupation * * *.
      This event, disability, is the loss that must occur after the policy is in force. After the policy is in force for 2 years, section 62A.04, subd. 2(2)(b) prohibits an insurer from denying or reducing coverage, after the loss, on the basis of a pre-existing condition that the policy did not exclude by name or specific description.

      . The majority suggests that the Commissioner of Commerce may not have approved Minnesota Mutual's insurance policy. While there was no detailed finding made by the lower courts as to this point, Minnesota Mutu-ai’s request for approval was stamped as received by the Department of Commerce on January 29, 1985, and stamped as approved on February 1, 1985.

      .Clause (b) of the incontestability clause stated "No claim * ⅜ ⅜ commencing after two years from the date of issue of this Policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this Policy.” Forman, 516 F.2d at 428.
      The majority asserts that the language in clause (b) had no impact on the Forman court’s analysis. However, the Forman court takes care to discuss clause (b) at some length, noting for instance that "[t]his statutory clause only prohibits denials of claims based on the prior existence of a disease ” and that reading the clause to extend coverage “would not promote the purpose or policy” of the statute. Id. at 429 (emphasis added).

      . See also Neville v. American Republic Ins. Co., 912 F.2d 813 (5th Cir.1990) (holding that insured’s deafness was not a "sickness” under the policy where it first manifested before the policy was in force, thus the incontestability clause did not require coverage for surgery more than two years after the policy was issued to cure insured’s deafness).

      . The majority states that this represents a misunderstanding of the distinction between a "loss” and a "sickness” as defined by Minnesota Mutual's disability policy. A "loss” occurs under a disability policy when the injured is disabled, to be sure, and here the disability occurred while the policy was in force. But the loss was caused by a sickness manifesting itself years before the policy was in force and coverage for such a loss is explicitly excluded by the policy.


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    Aldrick L. WOODRUFF, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C3-99-1074.
    Supreme Court of Minnesota.
    April 13, 2000.

      John Stuart, State Public Defender, Cathryn Middelbrook, Asst. State Public Defender, Minneapolis, for appellant.
    Amy Klobuchar, Hennepin County Atty., Donna J. Wolfson, Asst. Hennepin County Atty., Minneapolis, Michael A. Hatch, Atty. Gen., St. Paul, for respondent.
   OPINION

BLATZ, Chief Justice.

Appellant Aldrick L. Woodruff was convicted following a jury trial of one count of premeditated murder in the first degree under MinmStat. § 609.185(1) (1998). On the morning of July 14, 1993, shortly after appellant drove her to work at the Ken-wood Cleaners, appellant’s wife, Wanda Woodruff, was shot in the head with a .22 caliber bullet.

The evidence produced at trial strongly indicated appellant’s guilt. Testimony established that a partially melted Flintstones push-up popsicle and fragments of a red-skinned potato were found at the scene. An investigating police officer testified that the potato fragments were likely from a potato used as a silencer. One witness testified that she found a two-thirds empty bag of red-skinned potatoes in appellant’s kitchen, and Woodruffs daughter testified that appellant had in his freezer a box of Flintstones push-up popsi-cles of the type found at the scene.

Three witnesses driving in the vicinity of the cleaners shortly after seven in the morning on the day of the shooting observed a man running away from the cleaners. The man was wearing a white, hooded sweatshirt with the hood drawn under a yellow jacket, and generally matched appellant’s description. All three witnesses later identified a yellow jacket removed from appellant’s home as the jacket worn by the man they observed. Moreover, David Jones, a friend of appellant’s, testified that appellant borrowed a .22 caliber revolver from Jones a couple of days before the shooting, and that the day after the shooting appellant told Jones he had thrown the revolver in the river so that Jones would not be implicated in Woodruffs murder. Finally, the three persons appellant wished to implicate in his third-party defense - James Webber, Nate Harris, and John Marberry - were eliminated as suspects after providing police with alibis.

Appellant was charged, convicted by a jury, and sentenced to life in prison. Peti-turner did not exercise his right to a direct appeal but instead petitioned for postcon-viction relief. This appeal follows the postconviction court’s denial of relief. Appellant claims the postconviction court abused its discretion when it denied appellant a new trial based on the trial court’s errors in excluding evidence, the prosecution’s failure to properly, disclose evidence, the prosecutor becoming a witness in the case, and newly discovered evidence. Appellant also argues that the evidence was insufficient to support his conviction.

I.

We first consider appellant’s argument that the postconviction court abused its discretion by refusing to grant a new trial based on the trial court’s alleged errors in excluding evidence that would have supported his defense that another person committed the murder. This court will not overturn a postconviction court’s decision absent an abuse of discretion, and it will consider only whether sufficient evidence supports the postconviction court’s conclusions. See State v. Bliss, 457 N.W.2d 385, 391 (Minn.1990). At trial, appellant wished to cross-examine police officers about evidence they allegedly uncovered regarding other men in Woodruffs life, and to pursue Woodruffs alleged extramarital affairs. The trial court granted the state’s motion to exclude this evidence, stating that “[t]he defendant did not make the requisite offer of proof * * * connecting such evidence to the crime itself. * * * As such, the evidence defendant seeks to introduce at trial involve [sic] collateral matters that will confuse the jury, and are not relevant to the case.” The postconviction court agreed with the trial court’s decision and declined to grant appellant a new trial for the trial court’s exclusion of this evidence.

Pursuant to Rule 404(b) of the Minnesota Rules of Evidence, a defendant may seek to introduce evidence that a third person, not the defendant, committed the crime of which defendant is accused. See State v. Johnson, 568 N.W.2d 426, 433 (Minn.1997). Such evidence is often referred to as “reverse-Spreigl” evidence. See id. This evidence may consist of a third person’s motive to commit the crime, threats made by the third person, or other facts tending to prove the third person committed the crime. See State v. Hawkins, 260 N.W.2d 150, 159 (Minn.1977).

However, before the defendant can introduce such evidence he must lay a foundation consisting of additional evidence which has “ ‘an inherent tendency to connect such other person with the actual commission of the crime.’ * * * This requirement avoids the use of bare suspicion and safeguards the third person from indiscriminate use of past differences with the deceased.” Id. (citations omitted). In other words, in addition to evidence connecting a third party to the victim, the threshold also requires a foundation consisting of evidence connecting that third party to the crime of which the defendant is accused.

Before a court can admit reverse-Spreigl evidence, the defendant must show: (1) by clear and convincing evidence that the third party participated in the revers e-Spreigl incident; (2) that the reverse-Spreigl incident is relevant and material to defendant’s case; and (3) that the probative value of the revers e-Spreigl evidence outweighs its potential for unfair prejudice. See Johnson, 568 N.W.2d at 433-34.

Appellant argues that he satisfied the revers e-Spreigl threshold by connecting Webber, Harris, and Marberry to Woodruffs murder. In fact, as the trial court noted in its order excluding evidence of Woodruffs extra-marital relationships, appellant did not make the requisite offer of proof connecting these third parties to Woodruffs murder. There was no evidence of threats against Woodruff by these persons or evidence that any of them were seen at the Kenwood Cleaners on the day of the murder. Contrary to appellant’s assertions, the record strongly supports the exclusion of appellant’s proffered evidence: Webber and Harris both were at work at the time of the shooting, and therefore had alibis which precluded their presence at the scene of the murder. Further, police determined that Marberry, who lived in Montana, had never traveled to Minneapolis, and therefore was also absent from the murder scene. In short, appellant did not provide a foundation connecting Webber, Harris, or Marberry to Woodruffs murder, thus making any evidence of Woodruffs relationships with them not material to appellant’s case. Accordingly, appellant’s proffered evidence did not meet the test for admission set forth in State v. Johnson. We therefore conclude that the postconviction court did not abuse its discretion in denying appellant relief on this claim.

II.

Next, we consider appellant’s argument that the postconviction court abused its discretion by refusing to grant a new trial on the basis of the state’s alleged failure to disclose key evidence to the defense. Prosecutors must disclose to the defense all relevant written or recorded statements that relate to the case. See Minn. R.Crim. P. 9.01, subd. 1(2). This obligation extends to materials in possession or control of the prosecutor’s staff and any others who have participated in the investigation or evaluation of the case. See id. at subd. 1(7).

In addition, the United States Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the prosecution’s failure to disclose material evidence that is favorable to the accused violates the Due Process Clause. Evidence is material if there is a reasonable probability that, had it been disclosed, the result of the trial would have been different. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). To establish a Brady violation, appellant must show (1) that the evidence at issue was favorable to him; (2) that the evidence was willfully or inadvertently suppressed by the state; and (3) that he was thereby prejudiced. See Strickler v. Greene, 527 U.S. 263, 280-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). Appellant argues that the state violated his right to due process by failing to disclose police reports and other information relating to witnesses Denise Hall and Ann Weirs, as well as by not disclosing evidence of an allegedly shoddy police investigation.

The undisclosed evidence relating to Denise Hall consists of a memorandum written by a police officer that was improperly filed and not found until after Hall had testified. The memorandum reported that Hall had called the police after watching an evening newscast about Woodruffs murder. She stated that on the morning of the murder, she had been near the Kenwood Cleaners and had witnessed a suspicious man running on the sidewalk. The officer who took the call and wrote the memorandum placed the memorandum on the desk of Sergeant Wagenknecht, one of the investigating officers. Wagenknecht’s partner, Sergeant Boeckman, noticed and read the memorandum, but failed to place it in the investigative file. Shortly before he was to testify, Boeckman discovered the memorandum and immediately notified the defense. However, Hall had already testified before the jury as to what she had witnessed on the day of the murder. Appellant argues that in the nondisclosed memorandum Hall gave a description of the suspicious person that was very different from the description she gave at trial. Although the trial court denied appellant’s motion for a mistrial, it found that the state’s nondisclosure was a discovery violation.

In determining sanctions or remedies for discovery violations, this court has set forth the following factors to be considered: (1) the reason why the disclosure was not made; (2) the extent of the prejudice to the opposing party; (3) the feasibility of rectifying that prejudice with a continuance; and (4) any other relevant factors. See State v. Lindsey, 284 N.W.2d 368, 373 (Minn.1979). The trial court considered remedies for the violation under these factors and concluded that any prejudice to appellant could be remedied by recalling Hall for further defense cross-examination on the contents of the memorandum. Accordingly, Hall was recalled to the stand and cross-examined by the defense.

The postconviction court denied further relief, noting that appellant had failed to explain why the remedy did not cure the alleged prejudice. Upon review of the record, we agree. Because appellant thoroughly cross-examined Hall on her statement, appellant cannot demonstrate prejudice from the state’s failure to disclose the statement. The postconviction court did not abuse its discretion by denying appellant relief on this claim.

Appellant also argues that the postconviction court abused its discretion by refusing to grant him a new trial based on the prosecution’s nondisclosure of an alleged identification of appellant by Ann Weirs. Weirs witnessed a man arguing with Woodruff in the Kenwood Cleaners a few days before Woodruff was shot. Weirs viewed a photo line-up, which included appellant’s picture, and was unable to identify appellant as the person arguing with Woodruff. The state did not call Weirs as a witness, but Boeckman testified at trial that after the photo line-up, Weirs called the police and identified appellant as the man she saw arguing with Woodruff. This was the first appellant and his counsel heard of this subsequent identification. Boeckman further testified that while he made no formal report of Weirs’ call, he told the prosecutor about it.

In further argument to the court, outside of the jury’s hearing, the prosecutor denied being told of any subsequent positive identification by Weirs. Defense counsel then moved to remove the prosecutor so she could be called as a witness. The trial court brought another prosecutor in to present argument on this issue. The state contended that any evidence the original prosecutor could provide would be extrinsic evidence under Minn. R. Evid. 608(b), and therefore could not be used to attack Boeckman’s credibility. After hearing arguments, the court denied the defense motion to remove the prosecutor. However, the court concluded that under Minn. R. Evid. 616, relating to witness bias, the court would allow the use of extrinsic evidence for the purpose of impeaching Boeckman’s testimony. Accordingly, the court had the parties draft a stipulation as to what the prosecutor would testify to if called, which was then read to the jury. The stipulation stated that the prosecutor recalled no conversation with Boeckman concerning Weirs’ positive identification of appellant.

In addition, appellant argues that the trial court’s solution made the prosecutor a witness in the case, which is a violation of the advocate-witness rule. This rule bars a lawyer from acting as an advocate in cases where the lawyer is likely to be a necessary witness. See Minn. R. Prof. Conduct 3.7. Appellant contends the prosecutor was a necessary witness because until Boeckman’s testimony concerning the alleged identification, the defense believed Weirs was a favorable witness who would support its third-party theory, as she had not initially identified appellant in the photo line-up.

Appellant’s argument on this point is not persuasive. It does not follow from the fact that the defense believed Weirs would have been a favorable witness that the prosecutor was therefore a necessary witness. The commentary to Rule 3.7 states that in determining whether a testifying attorney should be disqualified, “[i]t is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.” Minn. R. Prof. Conduct 3.7 cmt. (1987). Here, neither party disputes that Boeckman’s testimony regarding Weirs’ later identification came as a surprise to all, and therefore the prosecutor’s testimony cannot be said to have been reasonably foreseeable.

Still, appellant argues that he was prejudiced by the prosecutor’s stipulation. The commentary to Rule 3.7 states that “[wjhether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probable ten- or of the lawyer’s testimony, and the probability that the lawyer’s testimony will conflict with that of other witnesses.” Id. The stipulation read to the jury was clearly not prejudicial to appellant as it served to impeach part of Boeckman’s testimony. Moreover, police determined the man Weirs had seen arguing with Woodruff was James Webber, and the state never implied that Weirs had identified appellant. Finally, the state was not planning to nor did it call Weirs as a witness.

We next address appellant’s claim that the nondisclosure of Weirs’ call constituted a Brady violation. As stated above, no Brady violation occurs unless evidence favorable to the accused is willfully or inadvertently suppressed, resulting in prejudice to the appellant. See Strickler, 527 U.S. at 280-82, 119 S.Ct. at 1948. Appellant is unable to satisfy at least two of these elements. First, Weirs was not a scheduled prosecution witness, and was unable to identify appellant in the photo line-up. It is unclear how disclosure of a call in which, according to Boeckman, Weirs identified appellant, could be seen as evidence favorable to appellant. Second, the stipulation that was read to the jury served to discredit Weirs’ alleged identification of appellant, and, as the post-conviction court concluded, appellant has failed to show any prejudice. For these reasons, after reviewing the record, we agree with the postconviction court that evidence of Weirs’ call was not favorable to appellant and its nondisclosure did not result in prejudice. Therefore, no Brady violation occurred and the postconviction court did not abuse its discretion in denying appellant a new trial on this claim.

Last among appellant’s list of alleged Brady violations is that the police investigation was of such inferior quality that evidence of the investigation constituted evidence favorable to appellant that the state was obligated to disclose. Appellant’s alleged evidence of a shoddy investigation includes evidence of the officers’ failure to collect evidence at the scene; the failure to secure the scene; racist remarks and threats made by officers to witnesses; the officers’ failure to turn critical reports over to the prosecutor; and their failure to confirm the alibis of suspects other than appellant. Contrary to appellant’s assertion, it is unclear how this evidence was not disclosed. One of the defense’s primary arguments during trial and at closing argument was the inadequacy of the police investigation. Even the state conceded both in brief and at oral argument that the “conduct of the two police detectives ⅜ * * was admittedly wanting.” Nonetheless, as the state argues, the record supports our determination that evidence was properly collected, the scene was secured, and other suspects’ alibis were confirmed.

Further weakening appellant’s claim of a Brady violation is the fact that he offers no proof of any prejudice caused by the allegedly inferior investigation. In denying appellant a new trial on this ground, the postconviction court noted that appellant offered only “unsubstantiated, conclusory remarks” to support his allegations of an inadequate police investigation. We agree with the postconviction court, and conclude that appellant’s allegations regarding an inadequate police investigation do not amount to a Brady violation. We therefore hold that the postconviction court did not abuse its discretion by denying relief on this ground.

III.

We next address appellant’s argument that the postconviction court abused its discretion in refusing to grant him a new trial after he proffered newly discovered evidence. In Race v. State, this court held that a new trial may be granted due to newly discovered evidence where: (1) the evidence was not known to defendant or counsel at the time of trial; (2) the failure to learn of the evidence prior to trial was not due to a lack of diligence; (3) the evidence is material, not merely impeaching, cumulative, or doubtful; and (4) the evidence will probably produce either an acquittal or a more favorable result for the defendant. 504 N.W.2d 214, 217 (Minn.1993).

Appellant argues that he should be granted a new trial due to newly discovered evidence concerning Nathaniel Harris, one of the three people he claimed may have killed Woodruff. Attempting to satisfy the reverse-Spreigl threshold for that defense, appellant argued that Woodruff had a romantic relationship with Harris, and therefore appellant’s evidence tended to connect Harris to the crime. However, as the postconviction court noted, the only evidence of this relationship is the uncorroborated testimony of appellant and his girlfriend, Kimberly Fardoun. Moreover, connecting Harris to Woodruff is not the same as presenting evidence “ ‘having an inherent tendency to connect such other person with the actual commission of the crime.’ ” Hawkins, 260 N.W.2d at 159.

Since appellant’s conviction, Harris has been convicted on several counts of armed robbery, including robberies of dry cleaners in the Minneapolis area that involved the use of a gas-powered gun. Appellant argues that this is newly discovered evidence warranting a new trial. However, the postconviction court found no credible evidence connecting Harris to Woodruffs murder, and found that in contrast to the crime of which appellant was convicted, Harris never physically injured anyone or even fired his gun during the robberies. Thus, appellant could not satisfy the third Race factor, materiality, and is not entitled to a new trial on the basis of newly discovered evidence.

IV.

Finally, we address appellant’s argument that the postconviction court abused its discretion in refusing to reverse his conviction given that the evidence presented at trial was insufficient to support the conviction. Insufficiency of evidence claims are reviewed in the light most favorable to the verdict, and courts are to assume that the jury disbelieved any testimony in conflict with the result reached. See State v. Daniels, 361 N.W.2d 819, 826 (Minn.1985).

Appellant’s support for his argument consists of bare allegations and conclusory pronouncements. First, part of the state’s theory of the case was that appellant killed his wife for financial reasons, believing she owned land in North Dakota. To buttress this theory, the state introduced evidence that appellant made several calls to a person Woodruff claimed was her attorney in North Dakota to inquire about Woodruffs assets while she was dying in the hospital on July 14th. Appellant argues that Woodruff had told him to call her attorney should anything ever happen to her, and therefore the financial motive is untrue. Even if appellant is correct, however, his explanation does not account for the calls he made the morning after the murder to at least four North Dakota banks, two of Woodruffs sisters; one of her friends, and one of her daughters, all attempting to locate Woodruffs assets. The state’s financial motive theory is amply supported by the evidence.

Second, appellant argues his affair with Kimberly Fardoun could not have been a motive for him to kill Woodruff because he simply could have divorced her. Our review of the record shows that appellant started seeing Fardoun roughly three months before the murder; that he falsely told Fardoun he had hired a divorce lawyer; that he was afraid if he got a divorce he would lose land that Woodruff supposedly owned; that Woodruff had told him she was pregnant but planned to have an abortion; that Woodruff later told appellant it was too late for her to obtain an abortion, which led to an argument; that shortly thereafter, on Tuesday, July 13th, appellant told Fardoun they would be together “in a few days”; that when Far-doun asked, “by Thursday, then?” appellant said “yeah”; and that Woodruff was shot the next day.

Third, appellant claims the three eyewitness identifications of appellant running around the corner from the cleaners just before Woodruffs body was discovered are highly questionable and the discrepancies between them render the identifications insufficient to support his conviction. In fact, the differences in the witnesses’ descriptions are minor, and the defense had ample opportunity to cross-examine these witnesses and thereby point out to the jury any discrepancies.

Fourth, appellant argues that the physical evidence collected at the crime scene which indicated appellant’s presence - a partially melted Flintstones push-up popsi-cle and an exploded red-skinned potato - does not support the state’s theory that appellant was present at the scene. Woodruffs daughter testified that the pop-sicle found at the scene was of the same brand as those previously located in the freezer at appellant’s home; that she had eaten one the night before her mother’s death; and that she had never seen her mother eat one. The potato, apparently used as a silencer, was found in pieces at the scene, including in Woodruffs hair. Shortly after the murder, one of Wood-ruffs friends found a two-thirds empty bag of red-skinned potatoes in the kitchen of appellant’s home.

The physical evidence of popsieles and red-skinned potatoes is supplemented by testimony from Victor Bethea, a friend of appellant’s, that on the afternoon of the shooting, while Woodruff was still alive, appellant told Bethea that Woodruff had been shot in the head around seven in the morning at close range with a potato used as a silencer. Because this information was not known to police at the time appellant told Bethea, it is unlikely that appellant would have known the details of the shooting unless he had been at the scene of the murder.

Fifth, and finally, appellant argues that David Jones’ testimony that appellant borrowed a revolver from him shortly before the murder does not support appellant’s conviction because of Jones’ questionable motives for testifying. Jones testified that several days before the murder, he agreed to loan appellant his antique .22 revolver after appellant claimed certain persons were harassing him. Jones’ girlfriend observed Jones placing the gun in a paper sack, and handing the sack to appellant in the hallway the next morning. Jones further testified that on the evening of July 15th, the day after the murder, appellant went to Jones’ apartment and told Jones that Woodruff had been murdered, and that appellant had thrown Jones’ revolver into the river because he did not want Jones to be blamed for the murder. The gun that killed Woodruff was not recovered. Testimony at trial, however, established that Woodruff was shot with a .22 caliber bullet, which was likely fired from a revolver as no shell casing was found.

Appellant claims Jones’ testimony was false and motivated either by the fact that Jones had sold marijuana to appellant when appellant visited him on July 15th, or because Jones admitted to buying the gun illegally and feared prosecution. These claims amount to mere speculation. Moreover, it is unlikely that Jones would fabricate such an elaborate tale when it included facts that might expose him to criminal prosecution.

Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence presented was legally sufficient to support appellant’s conviction. Therefore, the postconviction court did not abuse its discretion by refusing to reverse appellant’s conviction on this ground.

Affirmed.

      . To avoid confusion, appellant will be referred to as appellant and the victim as Wood-ruff.

      . Rule 608(b) provides:
      Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
      Minn. R. Evid. 608(b).

      . Rule 616 provides:
      For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.
      Minn. R. Evid. 616.

      . In addition, Webber's alibi of working during the murder is not contradicted by Weirs’ call.


author: DAVIES, Judge.

text:
    Agnes S. MBONG, Relator, v. NEW HORIZONS NURSING, Respondent, Commissioner of Economic Security, Respondent.
    No. C4-99-1469.
    Court of Appeals of Minnesota.
    April 11, 2000.

      Bernice L. Fields, Fields Law Office, Minneapolis (for relator).
    Lisa Montague Ingalls, Henretta, Cross, Ness & Dolan, Minnetonka (for respondent New Horizons Nursing).
    Kent E. Todd, Department of Economic Security, St. Paul (for respondent Commissioner of Economic Security).
    Considered and decided by DAVIES, Presiding Judge, LANSING, Judge, and HARTEN, Judge.
   OPINION

DAVIES, Judge.

When laid off from full-time employment, relator Agnes Mbong, a licensed practical nurse, accepted a few one-day assignments from a temporary employment agency. After two weeks, she declined further temporary assignments because she felt her time was better spent searching for permanent, full-time work. The commissioner ruled that she was disqualified from reemployment benefits. We reverse, remand, and deny the motion for attorney fees.

FACTS

At the end of February 1999, Agnes Mbong was laid off from a permanent job. She then contacted a temporary employment agency, respondent New Horizons Nursing, for which she had occasionally worked for in the past. New Horizon, which serves nursing homes, does not guarantee employees any work offers or shifts. Even if a shift is offered to an employee, the shift can be canceled by the agency client up to two hours before it is scheduled to begin.

On February 28 and March 2, 1999, Mbong completed one-day assignments from New Horizons. On March 5, she accepted another one-day assignment, but when she arrived, the client informed her that they needed a nurse’s aide, not a licensed practical nurse. She was sent home and paid for four hours of work. After March 5, Mbong accepted several other assignments, but they were all canceled by the client.

Frustrated with the cancellations and the confusion over client needs, Mbong decided that she should pursue something more permanent and would no longer accept temporary assignments. Two months later, she obtained full-time, permanent employment as a nurse.

Mbong applied for reemployment benefits for the two months she was unemployed. Following an evidentiary hearing, a reemployment insurance judge found Mbong eligible for benefits. The judge determined the one-day assignments offered by New Horizons were not “suitable” employment because Mbong had a history of full-time, permanent employment. The record demonstrates that, although she worked for temporary employment agencies at times during her base period (October 1997 to September 1998), even those assignments were for long-term positions and, once she obtained a permanent, full-time position, Mbong stopped accepting further temporary assignments.

The commissioner’s representative reversed the reemployment judge’s decision, concluding that Mbong was disqualified on two separate grounds. First, she failed without good cause to accept “suitable” work offered by New Horizons in violation of Minn.Stat. § 268.095, subds. 8 and 9 (1998). Second, her failure to accept further temporary assignments constituted a “quit” under Minn.Stat. § 268.095, subds. 1 to 3 (1998).

ISSUES

I. Did relator “decline an offer of suitable employment” by refusing further assignments of short duration when her work history demonstrated a pattern of seeking and obtaining long-term employment?

II. Did relator “quit” employment with New Horizon under Minn.Stat. § 268.095, subds. 1 to 3 (1998), by failing to accept further temporary assignments?

III. Is relator entitled to costs and fees under rule 115.05 of the Minnesota Rules of Civil Appellate Procedure or under the Minnesota Equal Access to Justice Act?

ANALYSIS

I. Failure to Accept Suitable Employment

The commissioner concluded that Mbong had failed to accept suitable work from New Horizons. An employee who fails to accept suitable employment without good cause shall be disqualified. Minn.Stat. § 268.095, subd. 8(a)(2). “Suitable employment” is

employment in the claimant’s labor market area that is reasonably related to the claimant’s qualifications. In determining whether any employment is suitable for a claimant, the degree of risk involved to the health and safety, physical fitness, prior training, experience, length of unemployment, prospects for securing local employment in the claimant’s cus-' tomary occupation, and the distance of the employment from the claimant’s residence shall be considered.

Minn.Stat. § 268.095, subd. 9(a). An offer is not “suitable” if

the wages, hours, or other conditions of employment are substantially less favorable than those prevailing for similar employment in the locality.

Minn.Stat. § 268.095, subd. 9(b) (emphasis added). In considering whether a temporary position constitutes suitable employment, courts have looked to the employment history of the employee. Compare Henry v. Dolphin Temp. Help Servs., 386 N.W.2d 277, 281 (Minn.App.1986) (short-term jobs offered by temporary agency wholly inconsistent with 16-year history of full-time employment of relator, who was actively seeking permanent, full-time employment), with Vejdani v. Western Temp. Servs., Inc., 486 N.W.2d 461, 462-63 (Minn.App.1992) (temporary assignment suitable offer when relator had worked primarily for temporary agencies during base period and there was no evidence she sought permanent full-time employment).

The commissioner’s representative is vested with wide discretion in determining whether the offered work is suitable. Di Re v. Central Livestock Order Buying Co., 246 Minn. 279, 288, 74 N.W.2d 518, 526 (1956). But the commissioner’s representative must follow and apply the relevant statutory standards. Id.

Here, the commissioner’s representative concluded that the temporary assignments were suitable because the employment offered by New Horizons was in the nursing field, involved duties that Mbong had performed for this employer in the past, and paid comparable wages. The commissioner’s representative did not comment on the fact that the assignments were temporary, that the work was not guaranteed and could be canceled, that one-day assignments were inconsistent with her employment history, or that Mbong’s unemployment lasted less than two months.

Based on this record, the commissioner’s representative erred in finding that the temporary, one-day assignments were suitable. The record shows that Mbong sought temporary work because she was separated from full-time permanent employment for non-disqualifying reasons. But she wanted something stable and permanent, rather than accepting one-day assignments that could be, and were, canceled by the client without warning and without compensation. Even though she had worked for three temporary agencies during her base period, even these positions were long-term, not short-term, assignments. As noted above, employment is not suitable if the “conditions of employment are substantially less favorable than those prevailing for similar employment in the locality.” Minn.Stat. § 268.095, subd. 9(b).

Although the temporary jobs were in the nursing field, they were temporary assignments, with no guarantee of future employment. Temporary jobs are inherently less favorable than permanent work. This is especially significant when one considers that Mbong obtained full-time, permanent employment less then two months after she was laid off.

II. Quit Without Good Cause

The commissioner’s representative also found Mbong disqualified on the ground that her failure to accept further temporary assignments from New Horizon constitutes a “quit,” thus disqualifying her under Minn.Stat. § 268.095, subds. 1 to 3.

The threshold issue is whether an employee who fails to accept further assignments from a temporary employment agency “quit” employment. This issue was settled in Smith v. Employers’ Overload Co., 314 N.W.2d 220, 221-22 (Minn.1981). Smith held that when the employment relationship involves a temporary agency the mere failure to appear for a possible offer of employment does not mean that the relator “quit” the employment. Id. at 222. In Smith, the two relators were laid off from their regular full-time employment, then accepted four one-day assignments through a temporary agency. Both relators refused further temporary assignments in favor of searching for permanent, full-time work. The commissioner disqualified both because they had voluntarily terminated their employment with the temporary agencies. Mat 221.

The Minnesota Supreme Court reversed this disqualification, stating: “The intent of the parties was manifestly contrary to the notion of an ongoing employment relationship.” Id. at 223. To hold otherwise, the court ruled, would penalize the “industrious worker” for seeking temporary employment after losing full-time employment under non-disqualifying conditions. Id. We add that to hold otherwise would also have the effect of trapping employees of temporary agencies in long-term relationships in which all obligation to perform fell only on the employee. Once this became generally known, it would undermine the ability of temporary agencies to recruit new employee clients.

Consistent with the rationale of Smith, the failure of relator to accept further fill-in assignments from New Horizon does not constitute a “quit” under Minn. Stat. § 268.095, subds. 1 to 3.

The commissioner claims that Smith has been overruled by subsequent statutory amendments, pointing to these words:

This [disqualifying provision] shall apply to:

(1) all covered employment, full time or part time, temporary or limited duration, permanent or indefinite duration * * *.

Minn.Stat. § 268.095, subd. 11(1) (1998).

This provision, enacted in 1997, does not alter the holding in Smith. In analyzing the employment relationship with a temporary agency, Smith relied on basic contract principles. With temporary agencies, an employment relationship arises only when each temporary assignment is offered and accepted. Once each assignment is completed, the employment relationship ends because there is neither a guarantee of future assignments nor any employer obligation to provide them. A refusal, avoidance, or unwillingness to accept future assignments does not constitute “quitting” employment. The reasoning in Smith applies with full force to the amended statute. We hold that the commissioner erred in finding Mbong disqualified under the “quit” provisions of Minn. Stat. § 268.095, subds. 1 to 3.

III. Request for Attorney Fees

Relator requests costs and fees under Minn. R. Civ.App. P. 115.05. But rule 115.05 does not provide for such relief against the Department of Economic Security.

She also requests fees and expenses under the Minnesota Equal Access to Justice Act (MEAJA), Minn.Stat. § 15.472 (1998), which permits an award of fees and other expenses in a “civil action or contested case” brought against the state if the position of the state is not “substantially justified.” Without deciding whether MEAJA might apply to reemployment determinations in some circumstances, we decline to award costs or fees in this case. We cannot say the department’s position, based on its misreading of a statute, was not without some justification.

DECISION

The commissioner erred in disqualifying relator from reemployment benefits. We remand to the commissioner for proceedings consistent with this decision. Attorney fees are denied.

Reversed, remanded, and motion denied.

      . 1997 Minn. Laws ch. 66, § 54.

      . In contrast, if the worker accepts an assignment from the temporary agency, but refuses without good cause to complete that specific assignment, the worker may face disqualification under the "quit” provisions. See McDonnell v. Anytime Temporaries, 349 N.W.2d 339, 341 (Minn.App.1984) (disqualifying relator for quitting when he accepted two-week assignment from temporary agency, but worked only one day and then refused to complete assignment); see also Holman v. Olsten Corp., 389 N.W.2d 236, 240-41 (Minn.App.1986) (relator who accepted six-week assignment with temporary agency, then quit after two days, was not disqualified, but her benefits were suspended for period she would have held temporary assignment).


author: RANDALL, Judge.

text:
    Jeffrey C. RUSSELL, et al., Appellants, NWA Health Care Plus, Intervenor, v. Randall K. JOHNSON, M.D., et al., Respondents.
    No. C7-99-1398.
    Court of Appeals of Minnesota.
    April 11, 2000.

      Joseph T. O’Neill, Michael D. O’Neill, Elizabeth I. Goodpaster, O’Neill, Grills & O’Neill, P.L.L.P., and Patrick H. O’Neill, Jr., Patrick H. O’Neill, Jr., LTD., St. Paul (for appellants).
    Ryan J. Burt, Kevin D. Hoffman, Halle-land, Lewis, Nilan, Sipkins & Johnson, P.A., Minneapolis (for intervenor).
    William M. Hart, Melissa Dosick Rieth-of, Meagher & Geer, P.L.L.P., Minneapolis (for respondents).
    Considered and decided by RANDALL, Presiding Judge, AMUNDSON, Judge, and WILLIS, Judge.
   OPINION

RANDALL, Judge.

Appellant Jeffrey C. Russell suffered cardiac arrest and resulting brain damage when he collapsed while coaching youth hockey. Appellants sued Russell’s physician, Dr. Randall K. Johnson, for negligence and negligent nondisclosure based on the physician’s failure to advise Russell to limit his physical activities or to warn of the risk of sudden death from strenuous exercise. The jury returned a verdict in favor of the physician and the clinic, and the district court denied appellants’ motion for a new trial. Appellants challenge the district court’s rejection of their proposed jury instruction and special-verdict interrogatories on negligent nondisclosure. They also argue that the district court erred in denying a new trial on the ground there was insufficient evidence to support the verdict.

FACTS

In June of 1995, Russell’s primary physician was disturbed by the results of an electrocardiogram performed on the 33 year old and referred Russell to cardiologist Dr. Randall Johnson. Dr. Johnson was provided with Russell’s 1995 electrocardiogram report and an abnormal echo-cardiogram report from 1982. Dr. Johnson saw Russell several times in August 1995. First he took Russell’s medical history; then he ordered an echocardiogram. Relying on the results of the most recent echocardiogram, Dr. Johnson diagnosed Russell with hypertrophic cardiomyopathy (“HCM”).

During a follow-up visit with Russell on August 30, 1995, Dr. Johnson told Russell about his diagnosis and informed him that the chance of serious complications was small because Russell had been stable for 13 years and there had been no significant change in his cardiac condition. Because Russell was asymptomatic, Dr. Johnson did not affirmatively recommend that Russell modify his lifestyle or refrain from strenuous athletic activities. Dr. Johnson did not tell Russell directly that strenuous exercise might increase his risk of sudden death. On December 17, 1995, while coaching youth hockey, Russell experienced cardiac arrest, sometimes referred to as sudden death. He was resuscitated, but was in a coma for several weeks and suffered severe brain injury.

Russell and his wife sued Dr. Johnson for negligent care and treatment and negligent nondisclosure. The district court refused to give jury instructions and special-verdict questions regarding negligent nondisclosure, finding that in this case the claim for nondisclosure was not a separate theory from negligent care and treatment. The jury returned a verdict for the respondent on the issue of negligence. The jury also found no damages, despite the parties’ stipulation to the amount of Russell’s medical expenses. Appellants moved for a new trial, arguing insufficient evidence supported the verdict and error on the part of the district court in refusing to present the jury with separate instructions and special-verdict questions on negligent nondisclosure. The district court denied the motion for a new trial. This appeal followed.

ISSUES

1. Did the district court err in refusing proposed jury instructions and special verdict questions about negligent nondisclosure?

2. Did the district court abuse its discretion in refusing to grant a new trial for insufficient evidence?

ANALYSIS

I.

District courts are allowed considerable latitude in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn.1990); Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986). District courts also have broad discretion in drafting special-verdict questions. Dang v. St. Paul Ramsey Med. Ctr., 490 N.W.2d 653, 658 (Minn.App.1992), review denied (Minn. Dec. 15, 1992). Where jury instructions fairly and correctly state the applicable law, this court will not reverse the denial of a new trial. Alevizos v. Metropolitan Airports Comm’n, 452 N.W.2d 492, 501 (Minn.App.1990), review denied (Minn. May 11, 1990).

The district court here refused to give a requested jury instruction on negligent nondisclosure, opting to rely on a more general negligence and malpractice instruction. Similarly, the district court denied appellants’ request to include specific questions about negligent nondisclosure on the special-verdict form, instead asking a general question about negligence and the standard of care in treatment.

To prevail under a negligent nondisclosure theory, a plaintiff must show:

“(1) a duty on the part of the physician to know of a risk or alternative treatment plan; (2) a duty to disclose the risk or alternative program, which may be established by a showing that a reasonable person in what the physician knows or should have known to be the plaintiffs position would likely attach significance to that risk or alternative in deciding whether to consent to treatment; (3) breach of that duty; (4) causation (the undisclosed risk must materialize in harm); and (5) damages.”

Reinhardt v. Colton, 337 N.W.2d 88, 96 (Minn.1983) (quoting Plutshack v. University of Minn. Hosps., 316 N.W.2d 1, 9 (Minn.1982)). In Reinhardt, the supreme court distinguished the role of expert witnesses in negligent nondisclosure cases from the role of experts in cases involving negligent treatment because their prima facie cases consist of different elements. Id.

In Pratt by Pratt v. University of Minn. Affiliate Hosps. & Clinics, 414 N.W.2d 399, 402 (Minn.1987), the Minnesota Supreme Court limited negligent nondisclosure, holding “diagnosis, without more, does not give rise to a duty to disclose risks concerning conditions not diagnosed.” The supreme court noted that if the diagnosis was negligently made, then the proper claim would be for malpractice. Id.

In Madsen v. Park Nicollet Med. Ctr., 431 N.W.2d 855, 856 (Minn.1988), the plaintiff argued the doctor’s failure to insist on hospitalization was both negligent treatment and negligent nondisclosure of the risk of not being hospitalized. The district court did not give an instruction on negligent nondisclosure, and the jury found for the defendant. Id. The Minnesota Supreme Court determined that

[t]he informed consent/nondisclosure doctrine does not involve negligence in the administration of treatment, in failure to treat, or in failure to properly diagnose. Physician liability is imposed by the rule only for failure to secure the patient’s informed consent to treatment which results in harm which the patient would have avoided by declining treatment or by choosing alternative treatment.

Id. at 861. The supreme court also noted:

Broad latitude at trial was given to all parties to present evidence and to argue all theories of liability in final argument. By its verdict, the jury rejected all of the respondent’s theories of negligent treatment. Respondent’s consent/negligent nondisclosure claim is no different; the negligence is bottomed on [the doctor’s] failure to hospitalize.

Id.

The district court in the present case similarly allowed appellants broad latitudes in presenting their theories and were rooted in Dr. Johnson’s failure to recommend Russell not participate in strenuous exercise. The district court refused to give a separate instruction on negligent nondisclosure because it determined appellants were actually arguing negligent care and treatment. Negligent nondisclosure and negligent care and treatment can overlap at times, but they are different causes of action. Appellants’ attempt to create a difference that would allow both theories to be presented to the jury was unsuccessful. In essence, appellants have one case of medical malpractice based on allegations of negligent treatment. It was tried fully and fairly to the jury. Appellants cannot now claim they had two separate cases. We cannot conclude that the district court erred in finding appellants’ negligence claims were all based on allegations of negligent care and treatment. The district court did not err in refusing to give separate jury instructions and special-verdict questions on the theory of negligent nondisclosure.

II.

Appellants argue the district court erred in refusing to grant them a new trial because respondent presented insufficient evidence to support the verdict. The district court has discretion to decide whether to grant a new trial, and we will not disturb the decision absent a clear abuse of that discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). This court will affirm a jury verdict unless no reasonable person could come to the same conclusion as the jury. Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn.1984). And a jury’s answer to a special-verdict question will not be set aside unless it is “perverse and palpably contrary to the evidence” and “no reasonable mind could find as did the jury.” Id.; Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn.1997) (citation omitted). A jury’s answers on a special-verdict form will be disturbed only if they cannot be reconciled on any theory. Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 198 (Minn.1986) (holding jury verdict will be sustained on any reasonable theory based on evidence); Nihart v. Kruger, 291 Minn. 273, 276, 190 N.W.2d 776, 778 (Minn.1971) (holding reviewing court need only examine record to determine whether jury’s verdict is consistent on any theory).

Appellants cited five facts they claim are uncontroverted and constituted negligence on the part of Dr. Johnson and therefore precluded the jury from finding for respondent: (1) Dr. Johnson’s failure to accurately measure Russell’s echocardio-gram; (2) Dr. Johnson’s uncertainty in his diagnosis; (3) Dr. Johnson’s failure to properly assess Russell’s risks; (4) Dr. Johnson’s failure to inform Russell of additional available treatments; and (5) Dr. Johnson’s failure to refer Russell to an HCM specialist.

However, respondent demonstrated that facts presented to the jury challenged these assertions, and these facts, if believed, allow a jury to find Dr. Johnson was not negligent. First, the experts determined that despite Dr. Johnson’s inaccurate echocardiogram measurement, his diagnosis of Russell’s condition was accurate. Second, Dr. Johnson testified that he was certain of his diagnosis in Decern-ber 1995, and Dr. Sherrid agreed that Dr. Johnson made a clear and accurate diagnosis at that time. Third, appellants’ expert, Dr. McKenna, admitted that asymptomatic HCM patients, like Russell, are at low risk for sudden death, and Dr. Sherrid agreed that Russell was a low-risk HCM patient. Fourth, Dr. Sherrid testified that the additional treatments available for HCM are not effective. Fifth, Russell was at low risk for sudden death and Dr. Johnson did not depart from the generally acceptable standard of care. Viewed in the light most favorable to the verdict, sufficient evidence existed to support the jury verdict, and the district court did not err in denying a new trial.

Appellants also argue they are entitled to a new trial because the jury’s failure to award stipulated damages demonstrates prejudice and passion and renders the verdict perverse. We understand appellants’ argument, but this issue has been addressed before. The Minnesota Supreme Court held

“where a jury has answered other questions so as to determine that there is no liability on the part of the defendant, which finding is supported by credible evidence, the denial of damages or granting of inadequate damages to the plaintiff does not necessarily show prejudice or render the verdict perverse.”

Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340 341 (Minn.1973) (quoting Sell v. Milwaukee Auto. Ins. Co., 17 Wis.2d 510, 117 N.W.2d 719, 724 (1962)); see also Otterness v. Horsley, 263 N.W.2d 403, 405 (Minn.1978) (holding if credible evidence supports no-liability verdict, jury’s denial of damages does not require a new trial).

The jury answered the first question of the special-verdict form finding Dr. Johnson not negligent in the care and treatment he provided to Russell. The record shows this finding is supported by credible evidence. The jury’s denial of stipulated damages does not necessarily show prejudice nor render the verdict perverse. The jury’s first answer on the negligence question (in favor of Dr. Johnson) effectively mooted the issue of damages. Thus, the jury’s error, if any, in not awarding at least some damages does not mandate a new trial.

The district court did not err in refusing to grant appellants a new trial on this issue.

DECISION

The district court did not err in refusing to present the jury with separate instructions and special-verdict questions on negligent nondisclosure or in denying a new trial.

Affirmed.