author: GILBERTSON, Chief Justice.

text:
    2004 SD 91
    Peggy BURHENN, Individually and as Special Administrator of the Estate of Timothy F. Burhenn, Plaintiffs and Appellants, v. DENNIS SUPPLY COMPANY, Defendant and Appellee.
    No. 22737.
    Supreme Court of South Dakota.
    Argued April 27, 2004.
    Decided Aug. 4, 2004.

      Mark V. Meierhenry, Robin J. Houw-man of Danforth, Meierhenry & Meierhen-ry, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    Melissa B. Nicholson, Thomas J. Nicholson of Johnson, Eklund, Nicholson & Peterson, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Peggy Burhenn, as representative for the Estate of Timothy F. Burhenn (Burhenn), brought a wrongful death action against Dennis Supply Company (Dennis Supply). The complaint alleged Dennis Supply acted negligently when it took several of its customers on a fishing trip, resulting in the drowning death of Burhenn. Dennis Supply denied any negligence on its part and asserted the affirmative defenses of contributory negligence and assumption of the risk. After a four-day trial, a jury found Dennis Supply negligent but denied recovery based on its finding that Dennis Supply’s negligence was not the proximate cause of Berhenn’s death. Burhenn now appeals raising several issues for our review. Affirmed.

FACTS AND PROCEDURE

[¶ 2.] Dennis Supply is a wholesale heating and air conditioning business headquartered in Sioux City, Iowa. In addition to its business in Iowa, Dennis Supply operates stores in Nebraska and South Dakota. Burhenn co-owned and operated a heating and air conditioning supply business in Sioux Falls, South Dakota, that had done business with Dennis Supply for a number of years. As part of its business, Dennis Supply annually invited some of its customers on a fishing trip it financed to The Lake of the Woods in Ontario, Canada.

[¶ 3.] In September of 1999, William Sinkbeil (Sinkbeil), manager of the Sioux City Dennis Supply, informed Tom De-Groot (DeGroot), a Dennis Supply employee in Sioux Falls, he was scheduled for the annual fishing excursion to Canada and that he should invite a customer. DeGroot invited Burhenn, and Burhenn accepted the invitation. Dennis Supply furnished all the necessary provisions for the trip and provided transportation to Canada by way of its company vehicles. Sinkbeil organized the trip.

[¶ 4.] On September 10, 1999, customers from Iowa and Nebraska met in Sioux City, Iowa and headed north in a vehicle provided by Dennis Supply. The group stopped in Sioux Falls, South Dakota in order to pick up Burhenn and DeGroot. After picking up Burhenn and DeGroot, the group continued on to Fargo, North Dakota where they stayed the night. They departed from Fargo early the next morning and arrived at The Lake of the Woods on September 11,1999.

[¶ 5.] The next morning, Dennis Supply arranged for a local fishing guide to lead a group comprised of three boats — two supplied by Dennis Supply and one furnished by the guide. DeGroot, Sinkbeil and the fishing guide each operated a sixteen-foot aluminum boat. The boats were equipped with the proper Ontario safety equipment, including six floating seat cushions, life jackets, a whistle and other safety devices. Despite the presence of the life jackets, testimony established that none of the group members actually wore the life jackets while fishing. Neither of Dennis Supply’s employees had official training in operating these boats.

[¶ 6.] That morning, the professional guide led the group to various places around the lake. The morning was cool, and it rained throughout the day. The guide operated his boat at three quarters throttle and utilized his lanyard when he moved from place to place. After an uneventful morning of fishing, the party returned to the houseboat where they were staying for lunch.

[¶ 7.] Sometime in the late afternoon of September 12,1999, DeGroot and Burhenn went back out on the lake to fish. They used a twenty-five horse power boat owned by Dennis Supply. DeGroot operated and steered the boat by a tiller attached to the engine, but he did not use the lanyard designed to kill power to the boat if he fell overboard. After fishing for a while, the men decided to move the boat to a different area in an attempt to catch their daily limit. DeGroot was seated on the rear seat of the boat with his legs straddling the seat, and his chest faced east. Seated in the front of the boat, Burhenn faced west. DeGroot operated the boat at full throttle, while steering with his left hand and looking over his shoulder to the south. Neither man wore a life jacket. Shortly thereafter, DeGroot and Burhenn were pitched from the boat. After both men were thrown from the boat, they began swimming toward the shore. It appears that Burhenn tossed DeGroot a floating seat cushion, and DeGroot was able to reach the shore. Burhenn, however, drowned after making it two-thirds of the way.

[¶ 8.] At trial, the parties offered different explanations as to the cause of the accident. DeGroot testified that he looked down for a second, and when he looked back up he saw Burhenn in a crouched position, not quite standing. According to DeGroot, the boat began to roll after Bu-rhenn assumed this position. He further testified that he attempted to shift his weight to level out the boat but to no avail. Both men were thrown from the boat, which continued to circle in the water at full throttle.

[¶ 9.] Although Peggy Burhenn offered no exact explanation of what caused both men to be thrown out of the boat, she denied that her husband had done anything to cause the accident. She argued DeGroot’s negligent operation of the boat and failure to use the lanyard caused the accident. She also claimed Dennis Supply was liable for the accident because it failed to properly train its employees in the operation of the boats.

[¶ 10.] After a four day trial, a jury found that Dennis Supply was negligent, but denied any recovery because it believed Dennis Supply’s negligence had not been the proximate cause of Burhenn’s death. Burhenn now appeals and raises the following issues for our review:

1. Whether the trial court’s jury instructions on the relative duties of the Plaintiff and Defendant were in error.
2. Whether the trial court erred when it allowed Dennis Supply to amend its answer the day before trial to plead the affirmative defense of assumption of the risk.
3. Whether the trial court’s decision to apply South Dakota law to Bu-rhenn’s claim was in error.
4. Whether the trial court committed reversible error by not transcribing the opening statement and in permitting Dennis Supply to argue last.
5. Whether the Legislature’s 1998 amendment to SDCL 20-9-2 requires this Court to establish a new method to compare negligence of plaintiffs and defendants in South Dakota.
6. Whether implied assumption of the risk should be abolished as subsumed under comparative negligence in South Dakota.
7. Whether the trial court erred when it instructed the jury on assumption of the risk.
8. Whether South Dakota should continue to apply an objective standard under implied assumption of the risk.

Affirmed.

STANDARD OF REVIEW

[¶ 11.] The relative standards of review applicable to Burhenn’s various claims are straightforward. Conclusions of law, such as a trial court’s choice of law determination and statutory construction, are reviewed de novo. Great West Cas. Co. v. Hovaldt, 1999 SD 150, ¶6, 603 N.W.2d 198, 200; Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611. We review jury instructions as a whole, and error is not reversible unless prejudicial. Buxcel v. First Fidelity Bank, 1999 SD 126, ¶ 13, 601 N.W.2d 593, 596. “The burden of demonstrating prejudice in failure to give a proposed instruction is on the party contending error.” Id. The standard of review on a motion granting an amendment of a pleading is clear abuse of discretion resulting in prejudice to the non-moving party. Isakson v. Parris, 526 N.W.2d 733, 736 (S.D.1995).

ANALYSIS AND DECISION

[¶ 12.] 1. Whether the trial court’s jury instructions on the relative duties of the Plaintiff and Defendant were in error.

[¶ 13.] Burhenn argues the trial court improperly instructed the jury on the relative duties of the parties. First, Burhenn points out that the trial court instructed the jury on Dennis Supply’s burden of proving contributory negligence and assumption of the risk in Instruction 23, but it did not define contributory negligence or assumption of the risk until Instructions 32 and 34, respectively. Burhenn believes this constitutes reversible error. We disagree.

[¶ 14.] On appeal, this Court has consistently stated that jury instructions must be read as a whole. Buxcel, 1999 SD 126, ¶ 13, 601 N.W.2d at 596. When the trial courts jury instructions are read as a whole the law is correctly stated. Simply because Burhenn wanted the instructions read in a different order or submitted a different instruction relaying the same information does not mean that the trial court committed reversible error.

[¶ 15.] Burhenn next argues that the trial courts refusal to give an instruction on the duty of a boat passenger created reversible error. This argument is also misplaced. Trial courts possess broad discretion in instructing the jury. See Artz v. Meyers, 1999 SD 156, ¶ 8, 603 N.W.2d 532, 534 (citations omitted). Here, the trial court gave an instruction on the standard of care generally applicable in a negligence action, and was not required to go further. See SDCL 20-9-1 (general negligence statute). Burhenn is unable to cite any authority requiring South Dakota courts to specifically submit an instruction to the jury on the duty of a boat passenger as proposed by Burhenn. As the trial court did not refuse to give an instruction that properly set forth the law of this state, it did not create reversible error. Buxcel, 1999 SD 126, ¶ 13, 601 N.W.2d at 596.

[¶ 16.] Finally, Burhenn believes that the trial courts failure to give a requested instruction on the duty of Dennis Supply being the same as a professional fishing or hunting guide constituted prejudicial error. In this context, prejudicial error means “the jury might and probably would have returned a different verdict if [the] instruction had been given.” Fritzmeier v. Krause Gentle Corp., 2003 SD 112, ¶11, 669 N.W.2d 699, 703. In this case, the trial court gave an instruction informing the jury of a fishing guide’s duty. This instruction was accurate, and Burhenn is unable to cite any authority requiring the trial court to have given a more detailed instruction. We note, however, that even had Burhenn been able to establish that the trial courts failure to accept her proposed instructions constituted error; she would be unable to show prejudice. The jury found that Dennis Supply violated a duty it owed to Burhenn. Thus, her instructions requiring a higher duty of care by Dennis Supply would not have advanced her case.

[¶ 17.] Burhenn is unable to establish prejudice, and her claims under this issue must therefore fail. See Buxcel, 1999 SD 126, ¶ 13, 601 N.W.2d at 596.

[¶ 18.] 2. Whether the trial court erred when it allowed Dennis Supply to amend its answer the day before trial to plead the affirmative defense of assumption of the risk.

[¶ 19.] For her second point of error, Burhenn argues that the trial court committed reversible error when it granted Dennis Supply’s motion to amend its answer to include the affirmative defense of assumption of the risk. Dennis Supply filed the motion on January 9, 2003, but a hearing on the motion was not held until January 27, 2003, one day before the start of the trial. Burhenn points out that Dennis Supply made great use of the assumption of the risk theory in its final argument.

[¶ 20.] The standard of review on a motion granting an amendment of a pleading is clear abuse of discretion resulting in prejudice to the non-moving party. Isakson, 526 N.W.2d at 736. “[A] party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” SDCL 15-6-15(a). “A trial court may permit the amendment of pleadings before, during, and after trial without the adverse party’s consent.” Dakota Cheese, Inc. v. Ford, 1999 SD 147, ¶ 24, 603 N.W.2d 73, 78. (citation omitted) “[T]he most important consideration in determining whether a party should be allowed to amend a pleading is whether the nonmoving party will be prejudiced by the amendment.” Id. (citation omitted).

[¶ 21.] We do not believe Bu-rhenn is able to show any prejudice as a result of the trial court’s granting of Dennis Supply’s motion to amend. Here, Dennis Supply filed the motion to amend its answer twenty-two days before trial was scheduled to begin. That a hearing on the motion was scheduled only one day before trial was not under the control of Dennis Supply. Presumably, Burhenn was put on notice of the motion when it was filed twenty-two days before the trial, and it was within her discretion to choose how to proceed in light of the motion’s scheduling date. Burhenn had the choice to do nothing until the motion was heard or to prepare for challenging the motion.

[¶ 22.] Moreover, that the granting of the motion did not actually prejudice Bu-rhenn’s case is evidenced by the fact that the jury never actually reached the issue of assumption of the risk. The jury returned a verdict finding Dennis Supply negligent. The jury further found, however, that Dennis Supply’s negligence was not the proximate cause of Burhenn’s injuries. Thus, Burhenn failed to establish her prima facie case against Dennis Supply, and it was not necessary for the jury to address the defendant’s affirmative defenses. In fact, the verdict form given to the jury specifically directed it not to consider the affirmative defenses after it found that Dennis Supply’s negligence was not the legal cause of Burhenn’s injuries. We also note that Dennis Supply did allege contributory negligence on the part of Bu-rhenn in its answer, a fact which suggests Burhenn had notice Dennis Supply intended to raise an affirmative defense at trial closely related to assumption of the risk. As Burhenn is unable to show any prejudice under these facts, her arguments under this issue fail. See Dakota Cheese, 1999 SD 147, ¶ 26, 603 N.W.2d at 78-79.

[¶ 23.] 3. Whether the trial court’s decision to apply South Dakota law to Burhenn’s claim was in error.

[¶ 24.] The trial court applied South Dakota law to Burhenn’s claim. On appeal, Burhenn argues this choice was incorrect and submits that the court should have applied Iowa law. It is well-settled that South Dakota employs the most significant relationship test when determining choice of law questions. Rothluebbers v. Obee, 2003 SD 95, ¶¶ 20-21, 668 N.W.2d 313, 320-21; Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 68 (S.D.1992). Under the most significant relationship approach a court must consider:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue. Restatement (Second) of Conflict of Laws § 145 (1971). The principles to be considered under § 6 are:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second), supra § 6.

[¶ 25.] In determining that South Dakota’s law applied, the trial court correctly considered the most significant relationship test. It found that the place where the injury occurred was Canada; the conduct causing the injury occurred in Canada; both parties resided in South Dakota, with Dennis Supply headquartered in Iowa; and that the relationship between the parties was centered in Sioux Falls, South Dakota. The court further stated that, all things being equal, the ultimate tie breaker was the state’s interest. Since this case involved a South Dakota resident and a corporation doing business in South Dakota, its interest was compelling. Therefore, the trial court determined that South Dakota law applied. In addition, after the parties presented evidence, the trial court commented that its decision to apply South Dakota was stronger having heard all of the facts in the case.

[¶ 26.] Burhenn correctly points out the trial court’s finding Dennis Supply was a resident of South Dakota was in error. See Sioux Falls Taxpayers Association v. City of Sioux Falls, 69 S.D. 93, 7 N.W.2d 136, 139 (1942) (a corporation is a resident of the state in which it was incorporated). Although the trial court may have erred in stating that Dennis Supply was a resident of South Dakota, its analysis of the most significant relationship test and its decision to apply the laws of South Dakota remains valid.

[¶ 27.] We believe the facts show that the center of the relationship between Burhenn and Dennis Supply was Sioux Falls, South Dakota. Burhenn conducted business with Dennis Supply exclusively through its Sioux Falls store. There was no evidence to show that Burhenn had contact with Dennis Supply or any of its employees outside of South Dakota. Bu-rhenn ordered supplies through Dennis Supply’s Sioux Falls store, had a relationship with and was invited on this trip by a South Dakota employee, began his trip from South Dakota and planned to return from the trip to South Dakota. All of Burhenn’s interactions with Dennis Supply took place in South Dakota; thus, the trial court correctly determined that the center of the relationship between the parties was in South Dakota.

[¶ 28.] We note that the two places that have the strongest interest in this action were Ontario, Canada and South Dakota. Since the facts of this case demonstrate there was no Iowa connection to the suit, Iowa law would not be an appropriate choice of law to apply. As both parties agreed Ontario law should not have applied, the trial court’s determination that South Dakota law would be applied was correct.

[¶ 29.] 4. Whether the trial court committed reversible error by not transcribing the opening statement and in permitting Dennis Supply to argue last.

[¶ 30.] Burhenn argues the trial court committed reversible error by denying her request that the parties’ opening statements be transcribed. SDCL 15-14-14 provides: “The court reporter need not make stenographic report of the opening statements of counsel unless the court shall direct, nor if made shall he include same in the transcript unless requested by the party ordering the transcript.” SDCL 15-14-14 clearly states that if the court does not direct the court reporter to make a record of the attorneys’ opening statements, they need not be taken down. This comports with the general rule that attorney’s words are not evidence to be considered by the jury when determining the outcome of a case. Statutory law does not give any exception to SDCL 15-14-14 based upon a request of either party that the opening statements be recorded. Whether or not to record opening statements is a decision solely within the trial court’s discretion, and Burhenn is unable to show an abuse of discretion under this issue.

[¶ 31.] Next, Burhenn maintains that the trial court committed reversible error when it permitted Dennis Supply to argue last. SDCL 15-14-1 outlines the general order of proceedings in civil jury trials. According to SDCL 15-14-1(8), “[a]fter the court shall have charged the jury, the plaintiff or party having burden of proof may commence and may conclude the argument, the opposing party making his argument between the opening and concluding argument of plaintiff.” The statute declares, however, that this general order is to be followed “subject to the right of the court, for good cause shown, otherwise to direct the order of statements, proof, and argument[.]” (emphasis added).

[¶ 32.] SDCL 15-14-1 clearly gives trial courts authority to change the order of closing arguments for good cause. It also states that the party bearing the burden of proof may commence and conclude the argument. Since Dennis Supply asserted the affirmative defenses of contributory negligence and assumption of the risk, it bore the burden of proving those two claims. In accordance with the statute, Dennis Supply was entitled to conclude the closing argument as it had the burden of proving Burhenn’s negligence. In view of the fact that both parties carried some burden of proof, the trial court had good cause to change the order of closing arguments and deviate from the normal statutory procedure. We hold the trial court was in compliance with SDCL 15-14-1, and, therefore Burhenn is unable to show an abuse of discretion under this issue.

[¶ 33.] 5. Whether the Legislature’s 1998 amendment to SDCL 20-9-2 requires this Court to establish a new method to compare negligence of plaintiffs and defendants in South Dakota;

[¶ 34.] 6. Whether implied assumption of the risk should be abolished as subsumed under comparative negligence in South Dakota;

[¶ 35.] 7. Whether the trial court erred when it instructed the jury on assumption of the risk;

And

[¶ 36.] 8. Whether South Dakota should continue to apply an objective standard under implied assumption of the risk.

[¶ 37.] Burhenn raises several challenges based upon Dennis Supply’s affirmative defenses of assumption of the risk and contributory negligence. As noted earlier, however, the jury never reached these issues. The jury returned a verdict finding that Dennis Supply was negligent but that its negligence was not the legal cause of Burhenn’s injuries. In reaching this verdict, the jury did not consider the defendant’s affirmative defenses. Since the jury’s verdict did not consider, let alone depend upon, any issues related to assumption of the risk or contributory negligence, they are now moot.

[¶ 38.] Assumption of the risk allows a jury to relieve a party of liability even though it has found the party was negligent and the legal cause of another party’s injuries. It allows the jury to do so if the party asserting the defense can prove that the injured party had actual or constructive knowledge of the risk, appreciated the risk, and “voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice.” Bell v. East River Electric Power Cooperative, Inc., 585 N.W.2d 750 (S.D.1995). Similarly, the statutorily defined affirmative defense of contributory negligence bars a plaintiff from recovery where its negligence was more than slight in comparison with the defendant’s negligence. SDCL 20-9-2. The verdict form in this case specifically instructed the jury not to consider these affirmative defenses if it found Dennis Supply’s negligence was not the proximate cause of Burhenn’s injuries.

[¶ 39.] When the jury returned a verdict finding that Dennis Supply’s negligence was not the legal cause of Burhenn’s injuries, it did not consider Dennis Supply’s affirmative defenses. As noted previously, the jury was explicitly instructed not to consider any affirmative defenses after it determined an absence of legal cause on the part of Dennis Supply. The fact that evidence was introduced in order to prove Burhenn’s assumption of the risk or contributory negligence is irrelevant since the jury did not actually reach the point of taking it into account. Although Burhenn argues this evidence influenced the decision in this ease, we must assume that the jury correctly followed and applied the law of the case. See Bland v. Davison County, 1997 SD 92, ¶ 15, 566 N.W.2d 452, 457. Thus, we hold all issues raised by Burhenn concerning Dennis Supply’s affirmative defenses are moot and need not be addressed.

[¶ 40.] Affirmed.

[¶ 41.] SABERS, KONENKAMP, and ZINTER, Justices, and STEELE, Circuit Judge, concur.

[¶ 42.] STEELE, Circuit Judge, sitting for MEIERHENRY, Justice, disqualified.

       We wish to note, however, that despite Bu-rhenn's argument to the contrary, there is proper, recent precedent that the affirmative defense of assumption of the risk is alive in South Dakota despite the 1998 amendment to SDCL 20-9-2. See Buisker v. Thuringer, 2002 SD 81, 648 N.W.2d 817; Parker v. Casa Del Rey, 2002 SD 29, 641 N.W.2d 112; Rantapaa v. Black Hills Chair Lift, Co., 2001 SD 111, 633 N.W.2d 196.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    HOME PRIDE FOODS OF IOWA, INC., Appellee, v. Lynn MARTIN, Appellant, and Nebraska State Bank of Omaha, Intervenor-Appellee.
    No. 03-0540.
    Supreme Court of Iowa.
    July 21, 2004.
    Joseph M. Barron and Lee P. Hook of Peddicord, Wharton, Spencer & Hook, L.L.P., Des Moines, for appellant.
    Jennifer Jaskolka-Brown of Sullivan & Ward, Des Moines, and Joseph G. Ber-troche, Sr. of Bertroche Law Offices, Des Moines, for appellee.
    Eric F. Turner of Turner Law Offices, West Des Moines, for intervenor-appellee.
   CARTER, Justice.

Lynn Martin, a judgment creditor of Home Pride Foods of Iowa, Inc. (Home Pride), appeals from a judgment in garnishment proceedings rejecting her effort to subordinate a prior security interest of the intervenor, Nebraska State Bank (NSB), to her garnishment of certain accounts receivable owing to Home Pride. The issues on appeal all relate to Martin’s contention that NSB’s failure to provide information concerning its secured debt, as required by Iowa Code section 626.42, triggers a subordination of its secured claim pursuant to Iowa Code section 626.48.

The district court had concluded that Martin’s request for the information was insufficient to comply with section 626.42, that NSB’s response was sufficiently timely to preclude subordination of its secured interest, and that, because Martin was not a levying creditor at the time of her request, she may not rely on the provisions of section 626.42. After reviewing the record and considering the arguments presented, we conclude that it is not necessary to determine the sufficiency of Martin’s notice to comply with section 626.42. As to the other matters decided by the district court, we conclude that, if the procedures contemplated by section 626.42 apply to garnishments, they are only available to judgment creditors who have completed garnishment of assets subject to a prior security interest. If Martin’s request is considered to have continuing viability subsequent to the time that her garnishment was perfected, we are satisfied that NSB’s response was sufficiently timely to preclude subordination of its lien pursuant to section 626.48. Consequently, we affirm the judgment of the district court.

On February 15, 2002, Martin recovered a judgment by jury verdict against Home Pride in the amount of $127,931. In an attempt to enforce that judgment, Martin, prior to the ruling in the present case, caused three sequential executions to be issued. The first two executions issued on July 3, 2002, and September 24, 2002, respectively, were both returned unsatisfied. While the September 24 execution was still outstanding, Martin conducted a judgment examination of Home Pride and learned of several outstanding accounts receivable. It was also informed that Home Pride believed that all these accounts were subject to a security interest held by NSB.

On October 17, 2002, while the second execution was still viable, Martin’s counsel wrote to a vice president of the bank (previously alerted to her interest by telephone) and made the following request:

Please provide a statement of the nature and amount of the original debt of Home Pride Foods of Iowa, Inc., the date and amount of each payment that has been paid on this account and an itemized statement of the amount currently due and unpaid.

Accompanying this request was a copy of Martin’s judgment against Home Pride. On October 31, 2002, NSB responded as follows:

In your letter dated October 18, 2002, you requested account information in regards to Home Pride Foods of Iowa, Inc. Unfortunately without the consent of the principal of Home Pride Foods of Iowa, Inc. this information will not be released even in [view] of your judgment.

Martin’s second execution was returned to the clerk unsatisfied on November 7, 2002.

A third execution issued on November 13, 2002, and resulted in the garnishment of accounts receivable totaling approximately $39,885. On November 22, 2002, NSB wrote to Martin’s attorney, stating:

I have received your letter of October 18, 2002, to Steve Sorenson at Nebraska State Bank. I have obtained the permission of Mr. Brice Johnson [Home Pride’s CEO] to respond to your questions. Accordingly, please allow the accompanying document to serve as response to your inquiry pursuant to ICA § 626.42.

Accompanying that letter was an itemized statement of the extent of NSB’s security interest in the accounts receivable that are in controversy in this litigation.

On December 18, 2002, NSB intervened in the garnishment proceedings and filed a motion to quash the garnishment and enjoin execution on the judgment. A hearing was held on February 7, 2003, and the district court ruled as previously stated.

I. Scope of Review.

Factual issues in garnishment proceedings are tried at law. Iowa Code § 642.11. Consequently, our review is for the correction of errors at law. Iowa R.App. P. 6.4.

II. Whether a Creditor Who Has Not Levied or Garnished is Entitled to Demand the Information Contemplated by Section 626.42.

To aid in determining the meaning of Iowa Code section 626.42, we deem it helpful to consider the statutory scheme in which it arises. At the outset of this inquiry, we note that personal property subject to a security interest may be taken on attachment or execution subject to certain conditions. This is recognized by the following statutory provision:

Personal property subject to a security interest not exempt from execution may be taken on attachment or execution issued against the debtor, if the officer, or the attachment or execution creditor, within ten days after a levy, shall pay to the secured party the amount of the secured debt and interest accrued, or deposit the same with the clerk of the district court of the county from which the attachment or execution issued, for the use of the secured party, or secure the same as in. this chapter provided.

Iowa Code § 626.34. To assure' compliance with this provision, the statutes further provide:

If within ten days after such levy the attachment or execution creditor does not pay the amount, make the deposit, or give the security required, the levy shall be discharged, and- the property restored to the possession of the person from whom it was taken and the creditor shall be liable to the secured party for - any damages sustained by reason of such levy.

Iowa Code § 626.36.

The statute that gives rise to the present dispute provides as follows:

Iowa Code § 626.42. Failure to so respond “shall have the effect to postpone the priority of the security interest and give the levy of the writ of attachment or execution priority over the claim of the holder thereof.” Iowa Code § 626.48.

At the outset of our inquiry, we note that the statutes under consideration make no mention of garnishment proceedings. They refer to situations in which personal property has been levied upon preparatory to selling such property to satisfy a judgment. The writ of execution provides the requisite authority for the subsequent undertaking to seize and sell the property and apply the proceeds on the judgment. In those situations, things move quite rapidly. The property is seized or inventoried and advertised for sale. In garnishment proceedings, the funds are either returned to the sheriff or the garnishees suffer judgments against themselves for the amount duly owing the judgment debtor. Both of these situations require further action by the court before the funds are applied on the judgment.

It can be argued that the procedures applicable to levying on and selling assets subject to a prior security interest, which envision a deposit of money or furnishing a bond to hold the levy in place, are unnecessary and inappropriate in garnishment proceedings where all these matters can be thrashed out in a court hearing before any of the garnished funds are released. We need not decide this question in the present case, however, because the arguments of both parties assume that the provisions of section 626.42 and section 626.48apply equally to situations involving garnishment and those involving levy and sale of personal property.

The district court concluded that the procedures contemplated by section 626.42 and section 626.48 were only available to judgment creditors who had by levy or garnishment created a security interest competing with a prior security interest of the party from whom the information described in section 626.42 was requested. The situation that is described in section 626.42 and section 626.48supports that conclusion. Statutory words and phrases are ordinarily to be interpreted according to the approved usage of the language employed and the context in which it appears. Kearney v. Ahmann, 264 N.W.2d 768, 769-70 (Iowa 1978). When interpreting statutory provisions, we examine their usage in context in order to discover the purpose of the provision and its relationship with other statutory provisions in the same chapter. Dubuque Casino Belle, Inc. v. Bair, 562 N.W.2d 605, 607 (Iowa 1997).

The stated purpose of section 626.42 is to permit a judgment creditor who has levied to secure the information necessary to tender a deposit or indemnifying bond to hold the levy or garnishment in force. The subordination of a prior secured claim that occurs under section 626.48is a subordination to “the levy of the writ of attachment or execution.” Assuming that these rules apply to garnishments, the statutes would operate to subordinate a prior security interest to a judgment creditor’s acquisition of the secured accounts by garnishment. Martin maintains that NSB’s refusal to respond was final and complete on October 31, 2002. At that time, there was no completed garnishment to which NSB’s prior security interest could be subordinated. No garnishment of accounts was completed by Martin until after the second execution (the one outstanding on October 31, 2002) was returned unsatisfied. Consequently, on October 31, 2002, Martin had no interest in the accounts to which NSB’s security interest might be subordinated. The district court correctly concluded that Martin had no rights under the statute at this time.

III. The Timeliness of the Response if Martin’s Request is Viewed as a Continuing Demand at the Time that Garnishment Was Completed.

If we assume that Martin’s request for information in her October 18, 2002 letter was a continuing demand with legal significance after she had obtained an interest in the accounts via garnishment, we are satisfied that the November 22, 2002 response by NSB was sufficiently timely to preclude subordination of the latter’s security interest under section 626.48. Martin’s third execution was issued on November 13, 2002. The first completed answers to the garnishment were not received until November 22, 2002, the same day as NSB’s section 626.42 response.

In Becken v. Keystone Manufacturing Jewelry Co., 130 Iowa 208, 106 N.W. 622 (1906), the holder of a prior security interest initially refused the request of a levying creditor to provide the information specified in section 3987 of the 1897 Code of Iowa (identical in all material respects with current section 626.42), but later complied with the request. In finding such compliance to be timely, this court stated:

[Tjhere is no stated limit to the time in which the mortgagee shall furnish the written statement of his claim after demand is made therefor. It follows, we think, as an elementary proposition of law, that if the statement is furnished within a reasonable time after the demand it should be held a sufficient compliance with the law. Generally speaking, we think that, if the statement is given to the creditor before any sale under the levy has been made, it should be held sufficient....
It is said that plaintiff and his attorney at first refused compliance with this demand; but, if this be so, we think the fact immaterial, so long as they did comply within a reasonable time thereafter and before the sale was made.

Becken, 130 Iowa at 210-11, 106 N.W. at 623. If section 626.42 is to be applied to garnishments, we are satisfied that, in the present case, the requested information was supplied within a reasonable time for purposes of accommodating the statutory scheme.

Based on our consideration of the issues presented, we conclude that the judgment of the district court should be affirmed.

AFFIRMED.

All justices concur except LARSON, J., who takes no part.

      . The completed answers to the garnishment were not made by Home Pride's creditors until November 22, 2002.

      . In the alternative, an indemnifying bond may be provided pursuant to Iowa Code section 626.54.


author:
•HANSON, Justice.
      PAGE, Justice

text:
    Torrey WESTROM, Respondent (C9-03-128), Dennis Westrom, et al., Respondents (C0-03-129), v. MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY, Appellant (C9-03-128).
    Nos. C9-03-128, C0-03-129.
    Supreme Court of Minnesota.
    Sept. 2, 2004.

      Erica K.G. Jacobson, Assistant Attorney General, Richard L. Vareo, Jr., Assistant Attorney General, St. Paul, MN, for Relator/Appellant.
    Edward F. Klinger, Moorhead, MN, Robert A. Awsumb, St. Paul, MN, for Respondents.
    Mark R. Anfinson, Minneapolis, MN, for Amicus Curiae.
   OPINION

•HANSON, Justice.

These consolidated appeals arise out of two separate actions that seek damages pursuant to the Minnesota Government Data Practices Act (MGDPA), Minn.Stat. §§ 13.01-99 (2002). They are based on the release to the news media by appellant, the Department of Labor and Industry (DOLI), of orders and objections that are alleged to be confidential or protected nonpublic civil investigative data. The district court granted DOLI’s motions for summary judgment, concluding that the released documents were “public” documents under the MGDPA and that the claims against DOLI should be dismissed with prejudice. The court of appeals reversed, holding that data reflected in the orders and objections were confidential or protected nonpublic data that should not have been released. Westrom v. Minn. Dept. of Labor & Indus., 667 N.W.2d 148, 153 (Minn.App.2003). We affirm.

In July 1997, DOLI’s Investigative Services Unit (ISU) began an internal investigation of Trendsetters Construction Company (Trendsetters) and WBC Construction (WBC), two companies that were owned by the individual respondents, who are members of the Westrom family (respondents will be referred to collectively as “the Westroms”). The investigation was made under Minn.Stat. § 176.181, subd. 3 (2002), to determine whether the two companies had obtained all compulsory workers’ compensation insurance coverage. The ISU completed its internal investigation on March 6, 1998, and forwarded the investigation file to DOLI’s Penalty Administrator. The Penalty Administrator calculated a monetary, penalty and forwarded his recommendation to the Director of the Special Compensation Fund (Director).

To this point in the investigation, no contact had been made with the Westroms and there is no indication in the record that they were aware of the investigation. On March 25, 1998, by way of an Order to Comply and Penalty Assessment, the Director notified respondents Dennis, Tor-rey, and Trevor Westrom, and Trendsetters and WBC, that the ISU of DOLI had determined that the Westroms had violated Minn.Stat. § 176.181, subd. 2 (2002), because they “did not have workers’ compensation insurance for the period 05/01/96 to 06/30/97.” The order directed the Wes-troms to obtain insurance and assessed a monetary penalty.

The Westroms submitted written objections to the order, alleging that Trendsetters had inadvertently allowed its insurance to lapse but had obtained new insurance; that Torrey Westrom did not direct or control the activities of any employees of Trendsetters during the alleged violation period; that WBC is a partnership and the only respondent who had a partnership interest in it was Trevor Westrom; and that WBC “had no employees during the times at issue” and was exempt from any compulsory workers’ compensation insurance requirements.

After the objections were submitted, the Attorney General’s office submitted discovery requests to the Westroms in July 1998. On September 24 and 25, 1998, DOLI issued two Amended Orders to Comply and Penalty Assessments, one applicable to Trendsetters and the other to WBC. The Westroms submitted written objections to the amended orders. With respect to Trendsetters, the Westroms alleged that Torrey Westrom did not direct or control the activities of any employee and was thus entitled to dismissal as an individual; that Trendsetters maintained workers’ compensation coverage in November 1995; and that any lapse in coverage was inadvertent and was remedied as soon as the error was discovered. With respect to WBC, the Westroms alleged that Dennis Westrom and Torrey Westrom were not affiliated with WBC and should be dismissed from the action as individuals ■ and that WBC was not required to carry workers’ compensation insurance because it had no employees during the penalty period.

As early as October 19, 1998, DOLI released copies of the amended orders of September 24 and 25, 1998, and the objections to those orders, to various news organizations. DOLI has not shown in the record that on the date of that release the orders and objections had already been filed as part of a Petition for Expedited Hearing with the Office of Administrative Hearings, which would have commenced an administrative proceeding. Minn.Stat. § 176.181, subd. 3(b) (2002). In fact on October 19, 1998, an Assistant Attorney General sent the Westroms a letter informing them that DOLI had not filed a Petition for an Expedited Hearing as of that date and reiterating DOLI’s willingness to “resolve these matters in an informal settlement conference.” On October 26 and 27, 1998, DOLI released additional copies of the orders and objections to other news organizations. Again, the record does not disclose whether a Petition for an Expedited Hearing had been filed by those dates.

On December 28, 1998, the Westroms wrote to the Assistant Attorney General, requesting “a copy of any and all materials in your file, other than, of course, your personal notes and your correspondence with your client” in connection with “this investigation!!]” The Westroms also asked for clarification on “the status of this file under the Data Privacy Act” and inquired whether “that status [would] change now that the matter [was] filed for hearing[.]” The record does not contain any other information regarding the filing of a Petition for Expedited Hearing on these matters.

On April 28, 1999, the Assistant Attorney General wrote the Westroms a second letter responding to their December 1998 request for clarification. The Westroms interpret the Assistant Attorney General’s response of that date to state that “the matter was still ‘pending’ and was an ‘active investigation.’ ” This may be a fair inference, but the letter was more general, stating:

As I mentioned in [my February 22, 1999,] letter, all documentation retained by a state agency is presumed “public” unless classified to the contrary by Minnesota Statutes Chapter 13. As I understand the Data Practices Act, all documents maintained by a state agency during an active investigation or while a matter is “pending,” is “protected nonpublic data” in the case of data not on individuals or “confidential” in the case of data on individuals.
The statute allows an agency discretion, however, to make any data classified as “confidential” or “protected nonpublic” available to the public if “access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest.” Minn. Stat. § 13.39, subd. 2.[sic] (1998). At this time, I do not foresee invoking that discretion. If you [sic] client’s confidentiality is of great concern, you may want to seek a protective order barring the agency from responding to a data practice request.

On February 20, 2000, pursuant to a request by the Westroms, the Commissioner of the Department of Administration, the state agency charged with the primary responsibility for enforcing and administering the MGDPA, issued an advisory opinion concluding that the documents released by DOLI were active investigative data under Minn.Stat. § 13.39 (2002), and that DOLI’s release of these documents violated the protections of the MGDPA. According to the Commissioner, “[t]he process had not yet reached a conclusion but DOLI still released data about X while his/her appeal was pending.” On August 4, 2000, pursuant to a request by DOLI, the Attorney General contradicted that conclusion in an advisory opinion that the orders and objections were public data within the meaning of Minn.Stat. § 13.39.

In January 2002, the Westroms commenced this action against DOLI for damages under the MGDPA. The district court granted DOLI’s motion for summary judgment, concluding that the orders and objections were public documents, the release of which was permitted by the MGDPA. The court of appeals reversed, holding that data reflected in the orders and objections was confidential or protected nonpublic data. We granted DOLI’s petition for further review.

We review a grant of summary judgment to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law to the facts. Jorgensen v. Knutson, 662 N.W.2d 893, 897 (Minn.2003). When a district court grants summary judgment after applying the law to undisputed facts, we review the legal conclusion de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). Statutory construction is also reviewed de novo. State v. Colosimo, 669 N.W.2d 1, 8 (Minn.2003). We must, however, view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

I.

The Westroms argue that the orders and objections released by DOLI reflect civil investigative data that are confidential or protected nonpublic data under Minn.Stat. § 13.39, subd. 2(a) (2002). DOLI argues that the data in the orders and objections are not civil investigative data because (1) DOLI did not “collect” these orders and objections; (2) the orders and objections were created after the investigation was complete, and, therefore, were not a part of the fact-finding or investigative process; and (3) the orders and objections do not fit within the statutory definition of either “confidential data” or “protected nonpublic data.” DOLI also claims that the orders and objections constitute public documents under sections of the Workers’ Compensation Act. Minn. Stat. §§ 175.10, 175.24 (2002). Review of these claims requires us to analyze and compare several provisions of the MGDPA.

Overview of the MGDPA

All state agencies are required to “make and preserve all records necessary to a full and accurate knowledge of their official activities.” Minn.Stat. § 15.17, subd. 1 (2002). Under subdivision 4 of section 15.17, access to these records is governed in relevant part by section 13.03 of the MGDPA. Section 13.03 provides in part:

Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places
⅜ ⅜ ⅜ ⅝
If the responsible authority or designee determines that the requested data is classified so as to deny the requesting person access, the responsible authority or designee shall inform the requesting person of the determination ⅜ * * and shall cite the specific statutory section, temporary classification, or specific provision of federal law on which the determination is based.

Minn.Stat. § 13.03, subd. 3 (2002).

The MGDPA “establishes a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.” Minn.Stat. § 13.01, subd. 3 (2002). But section 13.02 then defines two categories of nonpublic data that are relevant here:

Subd. 3. “Confidential data on individuals” means data which is made not public by statute or federal law applicable to the data and is inaccessible to the individual subject of that data.
⅜ ⅜ ‡ $
Subd. 13. “Protected nonpublic data” means data not on individuals which is made by statute or federal law applicable to the data (a) not public and (b) not accessible to the subject of the data.

Minn.Stat. § 13.02, subds. 3,13 (2002).

The Westroms do not base their claims on these definitions directly because each definition would appear to not apply to orders and objections that are, by necessity, accessible to the subjects of an investigation. But the Westroms argue that these definitions are supplemented and, in a sense, overridden by Minn.Stat. § 13.39 (2002), which specifically addresses the topic of civil investigative data. That section provides:

Subdivision 1. A “pending civil legal action” includes but is not limited to judicial, administrative or arbitration proceedings. Whether a civil legal action is pending shall be determined by the chief attorney acting for the state agency, political subdivision or statewide system.
Subd. 2. (a) Except as provided in paragraph (b), [1] data collected by state agencies, political subdivisions, or statewide systems [2] as part of an active investigation [3] undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals. Any agency, political subdivision, or state-wide system may make data classified as confidential or protected nonpublic pursuant to this subdivision accessible to any person, agency or the public if the agency, political subdivision, or statewide system determines that the access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest.

(Emphasis added.) Thus, the Westroms argue that section 13.39 prohibits the release of civil investigative data by deeming it to be protected nonpublic data or confidential data, unless such release is expressly determined to be appropriate to aid law enforcement, promote public health or safety, or dispel widespread rumor or unrest. DOLI made no express determination of a need to release the data under section 13.39 and does not attempt to justify the release of the orders and objections on that basis. The question then is whether the orders and objections were civil investigative data, which requires review of the three highlighted elements of such data: (1) data collected by a state agency, (2) as part of an active investigation, (3) undertaken for or in anticipation of a pending civil action.

Data Collected

We first consider whether the orders and objections constitute “data collected.” Although the term “data” is not defined in the MGDPA, “data” usually is said to mean “individual facts, statistics, or items of information[.]” The Random House Dictionary of the English Language 508 (2d ed.1987). To “collect” means “to gather together; assemble^]” Id. at 403. Thus, section 13.39, subdivision 2, requires some affirmative action by the state agency to gather or assemble data. See St. Peter Herald v. City of St. Peter, 496 N.W.2d 812, 814 (Minn.1993). When an agency gets information as a “passive recipient,” that information is not “data collected.” Id.

DOLI argues that the orders do not constitute “data collected” because the orders were not collected by the agency but instead were created by the agency itself. St. Peter Herald is the only case involving the MGDPA where this court has addressed whether the data in question constitute “data collected.” 496 N.W.2d at 814. In St. Peter Herald, the city of St. Peter received a notice of claim in the form of a letter from a private attorney. Id. at 813. When reporters requested copies of the letter, the city attorney refused to provide copies on the ground that the letter was private data. Id. Two newspapers then brought an action to compel disclosure of the notice of claim. Id. This court concluded that the information contained in a notice of claim sent to the city by a private attorney was not “data collected” because the city did not take any affirmative action to gather the information contained in the notice of claim. Id. at 814.

The facts here are quite different from St. Peter Herald. DOLI did undertake an internal investigation that involved the collection of data concerning Trendsetters, WBC, and the Westroms. DOLI acknowledges that the “issuance of the Orders was undoubtedly based upon information obtained by [DOLI’s] ISU investigation[.]” Therefore, although DOLI created the orders, these orders are inextricably linked to and are the product of the data collected by DOLI during its investigation. To the extent that the orders reflect DOLI’s conclusions, drawn from examining data gathered in the course of its investigation, we conclude that the orders constitute “data collected” under Minn.Stat. § 13.39, subd. 2(a) (2002).

With respect to the objections, DOLI contends that they do not constitute “data collected” because DOLI was merely a “passive recipient” of these objections. But DOLI issued the orders and the Wes-troms were required to submit written objections within ten days in order to preserve their right to challenge the order. Minn.Stat. § 176.181, subd. 3(b) (2002). By requiring that an employer file timely objections to its orders in order to maintain a vital right, DOLI becomes more than a “passive recipient” of the objections. The objections are not in any sense voluntary, but are a continuation of DOLI’s data collection process. We conclude that the objections also constitute “data collected” under MinmStat. § 13.39, subd. 2(a) (2002).

Active Investigation

We next consider whether the investigation was active when the orders and objections were released to the media. This inquiry requires us to determine whether DOLI’s fact-finding process had been completed or was ongoing at that time.

Although DOLI argues that the formal investigation ended on March 6, 1998, there is evidence that the fact-finding process did not end at that time. The orders and objections were created in September and October 1998 and released to the media in October 1998. On March 9, 1999, DOLI issued a second amended order aimed at Dennis and Trevor Westrom, individually, and WBC — an order that did not list Torrey Westrom as an individual respondent. The record does not indicate what led to the decision to issue this second amended order and to effectively drop the charges against Torrey Westrom in the WBC matter. Yet, viewing the evidence in the light most favorable to the Westroms, the party against whom summary judgment was granted, this decision may have been the result of fact-finding conducted subsequent to the issuance of the September 25, 1998, order identifying Torrey Westrom as an individual respondent in the WBC matter. This evidence suggests that the investigation was still active when the orders and objections were created and released.

Further, DOLI’s argument would presume that the investigation ended before the first orders were issued. But, the record does not indicate that the Wes-troms were even aware that an investigation was under way until the orders were issued. We are reluctant to conclude that a civil investigation could begin and end before the subject of the investigation is provided notice, much less given the opportunity to respond.

Finally, for summary judgment purposes, the Westroms are entitled to rely on the admissions made in the letter of the Assistant Attorney General, on behalf of DOLI, that the matter was still “pending” and was an “active investigation” as late as April 28, 1999, long after the orders and objections had been released to the media. For or in Anticipation of a Pending Civil Action

We next consider whether the investigation was “undertaken either for the purpose of commencing or defending a [pending] civil legal action or of [retaining] the data in anticipation of [a pending civil] legal action.” St. Peter Herald, 496 N.W.2d at 814. “A ‘pending civil legal action’ includes but is not limited to judicial, administrative or arbitration proceedings.” Minn.Stat. § 13.39, subd. 1 (2002).

Under Minn.Stat. § 176.181, subd. 3(a) and (b), the commissioner of DOLI must give an employer ten working days to file an objection once an order is issued. If the employer does not file an objection within ten working days, the order becomes final, and “violation of that order shall be enforceable by way of civil contempt proceedings in district court.” Minn.Stat. § 176.181, subd. 3(b) (2002). If the employer files a timely objection, the commissioner has to “refer the matter to the office of administrative hearings for an expedited hearing before a compensation judge.” Id. Thus, the statute requires the commissioner to retain the orders in anticipation of a judicial proceeding and/or to retain the orders and objections in anticipation of an administrative proceeding, each of which fits within the definition of a “pending civil legal action.”

II.

DOLI argues that even if the orders and objections could properly be classified as civil investigative data pursuant to section 13.39, subdivision 2(a), they do not fit within the definition of either “confidential data on individuals” or “protected nonpublic data” provided by Minn.Stat. § 13.02, subds. 3 and 13. DOLI points out that to be “protected nonpublic data” under subdivision 13, the data must be “not accessible to the subject of the data,” and to be “confidential data on individuals” under subdivision 3, the data must also be “inaccessible to the individual subject of the data.” Obviously, the orders and objections were accessible to the Westroms.

But section 13.39, subdivision 2, appears to override these definitions when it states that data that qualifies as civil investigative data “are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals.”

We view any conflict between section 13.39 and section 13.02 as being subject to the rule of statutory construction that:

When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions be irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted at a later session and it shall be the manifest intention of the legislature that such general provision shall prevail.

MinmStat. § 645.26, subd. 1 (2002). Section 13.39, subdivision 2, is the special provision because it deals specifically with the subject of civil investigative data. It prevails over the general provisions of section 13.02, subdivisions 3 and 13, which provide definitions that are applicable in all other circumstances to classify data as confidential data on individuals or protected nonpublic data.

III.

At oral argument, the Westroms conceded that the orders and objections would have constituted public documents had DOLI filed a petition for an expedited hearing with the office of administrative hearings before releasing the documents to the news organizations. In essence, the Westroms agreed that the orders and objections would have become public documents upon the filing of the petition because they then would become a part of the record of an administrative contested case proceeding.

It appears from the record that DOLI filed a petition for an expedited hearing sometime between October 19, 1998, when the objections and orders were first released to the news media, and December 28, 1998, when a letter written by the Westroms suggests that the matter had been “filed for hearing!.]” Viewing the evidence in the light most favorable to the Westroms, there are genuine issues of material fact as to whether the orders and objections were released to the media before DOLI commenced the contested case proceeding. Thus, we conclude that summary judgment was not appropriate. We leave it to the district court to determine when the orders and objections may have lost their character as protected nonpublic or confidential civil investigative data.

IV.

DOLI argues that the protection of civil investigative data under section 18.39, subdivision 2, is overridden by provisions of the Workers’ Compensation Act, under which the investigation was undertaken. One provision states:

The department of labor and industry shall be open for the transaction of business during all business hours of each and every day, except Saturdays, Sundays and legal holidays. The hearings of the workers’ compensation division are open to the public and may be adjourned from time to time. All the proceedings of the division shall be shown on its records, which are public records.

Minn.Stat. § 175.10. DOLI suggests that this provision is controlling because the creation of orders and objections constitute a “proceeding.”

But this provision deals broadly with “proceedings” of the workers’ compensation division and goes only so far as to declare them “public,” without addressing data privacy issues. We do not find section 175.10 particularly relevant to the issue before us, and, to the extent it is relevant, the more specific provisions of section 13.39, subdivision 2, would prevail over section 175.10.

Another provision of the workers’ compensation act states:

On request of the department of labor and industry, and within the time limited therein, every employer of labor, any officer of a labor organization, or any person from whom the department of labor and industry shall find it necessary to gather information, shall make a certified report to the department, upon blanks furnished by it, of all matters covered by the request. The names of persons or concerns supplying such information shall not be disclosed. Every notice, order, or direction given by such department shall be in writing, signed by an officer or inspector of such department, or a person specially designated for the purpose, and be served by the signer. Papers so served and all records and documents of the department are hereby declared public documents and shall not be destroyed within two years after their return or receipt by such department.

Minn.Stat. § 175.24 (2002) (emphasis added). The subject of this provision is the data provided by employers and others in a report that has been requested by DOLL The orders issued-to the Westroms did not request a report under this section and it is therefore irrelevant to the issues before us. Further, because section 175.24 only secondarily addresses the public character of the “records and documents,” its provision would not prevail over the more specific requirements of the MGDPA.

We affirm the decision of the court of appeals, reverse the summary judgment granted by the district court, and remand for further proceedings.

Affirmed.

PAGE, Justice

(dissenting).

I respectfully dissent. The Minnesota Government Data Practices Act provides that:

All government data collected, created, received, maintained or disseminated by a state agency, political subdivision, or statewide system shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential.

Minn.Stat. § 13.03, subd. 1 (2002).

Under the act, “nonpublic data” means “data not on individuals that is made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data.” Minn.Stat. § 13.02, subd. 9 (2002). “Protected nonpublic data” means “data not on individuals which is made by statute or federal law applicable to the data (a) not public and (b) not accessible to the subject of the data.” Minn.Stat. § 13.02, subd. 13 (2002). “Private data on individuals” means “data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data.” Minn.Stat. § 13.02, subd. 12 (2002). “Confidential data on individuals” means “data which is made not public by statute or federal law applicable to the data and is inaccessible to the individual subject of that data.” Minn.Stat. § 13.02, subd. 3 (2002).

The Westroms contend and the court concludes that the orders and objections at issue are either protected nonpublic data or confidential data on individuals because the data contained in the orders and objections was collected by the Department of Labor and Industry (DOLI) as part of an active investigation undertaken for the purpose of commencement or defense of a pending civil legal action under Minn.Stat. § 13.39, subd. 2 (2002). While I agree that the data was collected by DOLI, I do not agree that it was collected as part of an active investigation undertaken for purposes related to the commencement or defense of a pending civil legal action. The data collected by DOLI contained in the orders and objections at issue here consists of the names of the employers, the fact that the employers did not carry workers’ compensation insurance for various periods between April 1, 1996, and November 7, 1997, and the employers’ denials and explanations with respect to their alleged failure to carry workers’ compensation insurance. In reaching its conclusions about the status of the data, the court ignores the status of the data at the time it was collected, which was before it became part of the “active investigation.” Although the court concludes that the “orders are inextricably linked to and are the product of the data collected by DOLI during its investigation,” in fact, the data is “inextricably” linked to and collected by the Special Compensation Fund (SCF) at DOLI pursuant to Minn.Stat. § 176.185, subd. 1 (2002), and Minn. R. 5222.2002 (2003).

“Every employer * * * liable under this chapter to pay compensation shall insure payment of compensation with some insur-anee carrier * * * or obtain a written order from the commissioner of commerce exempting the employer from insuring liability for compensation and permitting self-insurance of the liability.” Minn.Stat. § 176.181, subd. 2 (2002). Minnesota Statutes § 176.185, subdivision (1) (2002), provides in relevant part, “[w]ithin ten days after the issuance of a policy of insurance covering the liability to pay compensation under this chapter * * *, the insurer shall file notice of coverage with the commissioner under rules and on forms prescribed by the commissioner.” The rules enacted by DOLI require insurers to file notices of coverage with the Minnesota Workers’ Compensation Insurers Association, Inc. (MWCIA). Minn. R. 5222.2002 (2003). At the point this data is collected under section 176.185, subdivision 1, and the rule, there is no statute, temporary classification, or federal law classifying the data as nonpublic, protected nonpublic, private data on individuals, or confidential data on individuals. Therefore, the data is public when collected.

Indeed, according to a manual co-written by the then-acting director of the SCF, although insurance registrations and terminations are submitted to MWCIA:

The Special Compensation Fund Insurance Verification Section still remains the official source of all information regarding workers’ compensation coverage in the State of Minnesota. All inquiries for this purpose should be addressed to that section as follows:
Special Compensation Fund Insurance Verification 444 Lafayette Road St. Paul, MN 55101
Most inquires can be accomplished much more efficiently by telephone, and the number to call is:
(612) 296-2170, Ext. 27 or 28

The information available from this source includes:

1. Coverage related to a particular date or a particular period.
2. All known coverage for a particular employer.
3. The name of the insurer.
4. The Policy Number for each period of coverage.
The sources of this information are paper records maintained in the Insurance Verification Section for periods from 1970 through February 28, 1987; computer files of the workers’ Compensation Insurers Association for periods form [sic] 1983 on an unofficial basis and from March 1, 1987 that is the official record (Insurance Verification has a terminal in the office to obtain this information.); and information extracted from the actuarial files the Workers’ Compensation Insurers Association maintains on all covered employers. All sources are checked, when necessary, but if the only source of information available is the actuarial files, there can be considerable delays if the particular file needed is out for auditing.
Insurance Verification will provide a telephone response whenever possible, followed up with a written record in all cases. If any doubt exists as to the proper insurer for an employer, Insurance Verification should be contacted prior to filing a Claim Petition or Petition for Contribution.

Leo M. Eide & William R. Howard, A Primer on the Special Compensation Fund 56-58, in Minnesota Institute of Legal Education, Workers’ Compensation (1987).

Thus, it is clear that before the “active investigation” began, the names of the employers and information with respect to the employers’ lack of coverage was in DOLI’s possession and constituted public data under Minn.Stat. § 13.03, subd. 1. The fact that this data was used in an active investigation commenced after it was collected does not convert that public data into either protected nonpublic data or confidential data on individuals.

As the Eide/Howard manual points out, the data at issue is public and is available to any member of the public merely by placing a telephone call to the SCF. It would be anomalous to, on one hand, .have the data classified as public and available to the public by telephone while, on the other hand, have it classified as either protected nonpublic data or confidential data on individuals because it is contained in an order notifying the employer of a workers’ compensation insurance coverage violation. Placing public data into an order issued as part of a pending civil legal action does not cause the data to cease being public. We recently stated that the Data Practices Act is “intended to promote the general welfare by making government information accessible to the people.” Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 286 (2004). In the end, the court’s interpretation of section 13.39, subdivision 2, in this case ill serves the cause of openness in government. Therefore, I would reverse the court of appeals and reinstate the district court orders dismissing the Westroms’ actions.

      . Although the Penalty Administrator’s recommended penalty is not in the record, his affidavit states that his recommendation was accepted by the Director and is set out in the Order to Comply and Penalty Assessment.

      . The release of these documents drew significant attention because it occurred during the final days of Torrey Westrom’s campaign for re-election to the Minnesota House of Representatives.

      . DOLI issued the orders, and the Westroms filed their objections, pursuant to Minn.Stat. § 176.181, subd. 3(a) & (b) (2002), which provide:
      (a) The commissioner [of DOLI], having reason to believe that an employer is in violation of subdivision 2, may issue an order directing the employer to comply with subdivision 2, to refrain from employing any person at any time without complying with subdivision 2, and to pay a penalty of up to $1,000 per employee per week during which the employer was not in compliance.
      (b) An employer shall have ten working days to contest such an order by filing a written objection with the commissioner, stating in detail its reasons for objecting. If the commissioner does not receive an objection within ten working days, the commissioner’s order shall constitute a final order not subject to further review, and violation of that order shall be enforceable by way of civil contempt proceedings in district court. If the commissioner does receive timely objection, the commissioner shall refer the matter to the office of administrative hearings for an expedited hearing before a compensation judge. The compensation judge shall issue a decision either affirming, reversing, or modifying the commissioner’s order within ten days of the close of the hearing. If the compensation judge affirms the commissioner’s order, the compensation judge may order the employer to pay an additional penalty if the employer continued to employ persons without complying with subdivision 2 while the proceedings were pending.

      . There is no indication in the record that this matter was set for hearing before a compensation judge after the filing of a timely objection, as is required by section 176.181, subd. 3(b). According to the Westroms' opposition to DOLI's motion for summary judgment, the parties reached a confidential settlement with regard to the dispute in January 2000.

      . On March 9, 1999, DOLI issued a Second Amended Order to Comply and Penalty Assessment aimed at Dennis and Trevor Wes-trom, individually, and WBC. This order did not list Torrey Westrom as an individual respondent.

      . The dissent suggests that the data reflected in the orders was in the possession of DOLI, pursuant to the employers reporting requirements of Minn.Stat. § 176.195, subd. 1 (2002), before the ISU began its investigation, and therefore that the data was not collected as a part of that investigation. There are several difficulties with this suggestion. First, it presents an issue that was not raised by DOLI or addressed in the parties’ briefs. I Second, there is no support for this sugges-s tion in the record. The only description in * the record of the ISU investigation is in the affidavit of a senior investigator, who does not disclose the source of the data relied on in the orders, but does state that the ISU investigation lasted almost 7 months, from July 17, 1997, to March 6, 1998. The duration of the investigation does not support the conclusion that the investigators relied solely on data available by a single phone call to the Special Compensation Fund Insurance Verification Section. Third, the information available from the Insurance Verification Section is only the name of the insurer and the policy number for each period of coverage for a particular employer. That information might disclose that there was no insurance in effect for a certain period but would not support the conclusions, as reflected in the orders, that insurance was required for that period (i.e. that the individual or company had employees) or that the named respondents were persons who were legally responsible to obtain insurance coverage or to pay any penalties for the failure to obtain coverage. Consequently, this suggestion does not provide a basis for summary judgment.

      . Section 13.39, subdivision 2, provides:
      (a) Except as provided in paragraph (b), data collected by state agencies, political subdivisions, or statewide systems as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic data pursuant to section 13.02, subdivision 13, in the case of data not on individuals and confidential pursuant to section 13.02, subdivision 3, in the case of data on individuals.

      . While I believe that the court s analysis of the section 13.39 language classifying data collected as part of an active investigation as protected nonpublic or confidential is faulty, I do not intend to discuss that analysis here,


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Darnell Raymond GOODWIN, Appellant.
    No. A03-1807.
    Court of Appeals of Minnesota.
    Sept. 7, 2004.

      Daniel S. Adkins, Richard Sand, Sand, Adkins & Associates, P.A., St. Paul, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN, and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Hastings, MN, for respondents.
    Considered and decided by ANDERSON, Presiding Judge; PETERSON, Judge; and PARKER, Judge.

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

   OPINION

G. BARRY ANDERSON, Judge.

On December 20, 2001, Dakota County Task Force Agent Dawn Johnson applied for a warrant to search an apartment in Burnsville for controlled substances. The police executed the search warrant on December 27, 2001 and arrested appellant, Darnell Raymond Goodwin, at the scene. The state charged Goodwin with multiple violations of controlled-substance laws. At an omnibus hearing on March 1, 2002, appellant maintained that (1) the unannounced-entry provision in the search warrant was invalid, and (2) the exclusionary rule applies to the evidence seized because, while the warrant was to be executed no earlier than 7:00 a.m., the entry of the police occurred one minute and seven seconds before 7:00 a.m. The district court concluded that the unannounced entry was justified by the information contained in the supporting affidavit for the warrant and that application of the exclusionary rule was not appropriate under the circumstances of this case. This appeal follows.

FACTS

The warrant was issued based on Johnson’s supporting affidavit, which outlined information from two confidential informants that a male was selling narcotics from the residence. Additionally, the informants provided information to Johnson that the individual selling narcotics was known as “Ray,” that he drove a white Pontiac Grand Prix, and that he was living at his girlfriend’s apartment — the property identified in the warrant.

Johnson specifically requested permission for an unannounced entry into the apartment based on information that in 2001 a male brandished a handgun while leaning out a window of the apartment, as well as information from both informants that the drug dealer in the apartment was a member of a gang and carried a gun. The district court granted Johnson’s application for an unannounced entry and specified the apartment could only be searched between 7:00 a.m. and 8:00 p.m.

The police executed the search warrant at the apartment on December 27, 2001. At 6:51:00 a.m. police reported they would use flash-bang procedures when entering the apartment. At 6:55:03 a.m. police reported someone began moving around and turning lights on inside the apartment. At 6:56:47 a.m. police reported traffic at the apartment. The police then entered the apartment, using a flash-bang, and Sergeant D. Athmann recorded the time of entry into the apartment as 7:01:38 a.m. But it is undisputed by the parties that the fire alarms at the apartment were set off by the flash-bang at 6:58:53 a.m.

ISSUES

I. Did the district court err in determining that reasonable suspicion existed to justify an unannounced entry into the apartment?
II. Did the district court err in determining that the exclusionary rule should not apply to evidence seized by police when a warrant is executed one minute and seven seconds before the permitted time frame?

ANALYSIS

I.

Appellant argues that the district court erred by concluding that reasonable suspicion existed to justify an unannounced entry into the apartment. An unannounced, or no-knock, entry provision to a warrant is proper when: (1) police “have reason to believe that an unannounced entry will be required in order to successfully and safely execute the warrant”; (2) police “inform the issuing magistrate of the circumstances which they believe justify the unannounced entry”; (3) police obtain advance authorization for the unannounced entry; and (4) police show that an entry that is announced “will result in the destruction of evidence or in danger to the officers executing the warrant.” State v. Lien, 265 N.W.2d 833, 838 (Minn.1978).

When the material facts are undisputed, we independently determine whether evidence obtained during a search conducted with a no-knock warrant should be suppressed. State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000). Generally, we review the district court’s determination of probable cause to issue a search warrant to ensure there was a substantial basis to conclude that probable cause actually existed. State v. Harris, 589 N.W.2d 782, 787-88 (Minn.1999). But when we review the determination that an unannounced entry is warranted, the standard for review is reasonable suspicion, not probable cause. Wasson, 615 N.W.2d at 320. The United States Supreme Court has stated that this showing “is not high.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 1422, 137 L.Ed.2d 615 (1997).

In Wasson, the Minnesota Supreme Court concluded that because (1) weapons were seized from the same location three months before and (2) police had knowledge that the owner of the property was willing to facilitate drug sales on the property, an unannounced entry was appropriate because the facts were sufficient to justify reasonable suspicion. Wasson, 615 N.W.2d at 320-21. In this case, the affidavit supporting the application for the no-knock warrant contained information that: (1) an individual who lived in the apartment to be searched was engaged in drug sales; (2) a confidential informant had knowledge that the individual selling drugs from the apartment was involved in a gang and frequently carried a gun; (3) because the resident was involved in a gang, one confidential informant was afraid for his or her life; and (4) a concerned citizen had seen a male leaning out the window of the apartment with a handgun. Johnson provided this information to the issuing magistrate, and the magistrate subsequently signed a warrant containing an unannounced-entry provision. These facts, taken as a whole, establish a reasonable suspicion that the safety of the officers would have been threatened if the unannounced-entry provision was not part of the warrant. The unannounced-entry provision to the warrant was appropriate.

II.

Appellant argues that the district court erred in determining that the exclusionary rule does not apply because the police seized the evidence when they executed the warrant one minute and seven seconds before the time authorized in the warrant. We disagree.

Minn.Stat. § 626.14 (2000) states:

A search warrant may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless the court determines on the basis of facts stated in the affidavits that a nighttime search outside those hours is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public. The search warrant shall state that it may be served only between the hours of 7:00 a.m. and 8:00 p.m. unless a nighttime search outside those hours is authorized.

Minnesota courts have held the execution of a daytime warrant during the night is a statutory, rather than constitutional, error. Lien, 265 N.W.2d at 840 (concluding that a statutory violation does not mandate exclusion of the seized evidence); State v. Alt, 469 N.W.2d 732, 734 (Minn.App.1991) (citing Lien, and stating, “The execution of a search warrant at night in violation of this statute[, Minn.Stat. § 626.14 (1990),] may be grounds for suppression of any evidence seized.”); see also State v. Lunsford, 507 N.W.2d 239, 245 (Minn.App.1993) (holding a warrant to search a St. Paul residence improperly issued to, and executed by, Inver Grove Heights police was a statutory violation and therefore the exclusionary rule did not automatically apply), review denied (Minn. Dec. 14,1993).

Here, assuming that the police executed the search warrant at 6:58:53 a.m., such action was a technical violation of Minn.Stat. § 626.14 (2000). But the district court was not “obliged to conclude that suppression of the fruits of the search was necessary.” State v. Yaritz, 287 N.W.2d 13, 16 (Minn.1979); see also Lien, 265 N.W.2d at 840 (denying appellant’s request to suppress evidence when the nighttime execution of the search warrant was a statutory violation). We conclude that, while executing a warrant less than two minutes before the applicable time for commencement of the search warrant constitutes a statutory violation, the early execution is a de minimis violation and does not justify suppression of the fruits of the search as a remedy.

But as appellant argues and Lien suggests, the general statutory rule against nighttime searches may also have a “constitutional dimension.” Lien, 265 N.W.2d at 839. The rationale, as set forth by the Minnesota Supreme Court, is the belief that a “nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.” Id. at 839^10.

Not all searches, however, executed outside of the permissible time frame are unconstitutional. See United States v. Roller, 559 F.Supp. 539, 541 (D.Ark.1983) (concluding that evidence obtained by a search that was executed ten minutes after the daytime warrant had expired would not be suppressed because (1) the search did not violate the policy prohibiting unexpected searches in the middle of the night, (2) it began only a matter of minutes after the warrant expired, and (3) it did not cause surprise intrusion into the defendant’s privacy). We conclude that a warrant executed less than two minutes before the applicable time for the commencement of a search does not constitute a constitutional violation. It is unlikely such a de minimis departure from the statutory requirement would be so unexpected so as to cause a surprise intrusion into a defendant’s privacy beyond the invasion that would occur if the search was properly executed one minute and seven seconds later.

DECISION

Because we conclude that the district court appropriately determined that reasonable suspicion existed, thereby justifying an unannounced entry when executing the warrant, and because suppression of the seized evidence is inappropriate in light of a de minimis statutory violation, we affirm appellant’s convictions.

Affirmed.

      . "A flash-bang device distracts inhabitants of structures by creating loud noise and smoke.” United States v. Williams, 181 F.3d 945, 948 n. 4 (8th Cir.1999); see also Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 39 (Minn.1991) (stating a flash-bang grenade is thrown into a house by law enforcement to confuse the suspect).