author: TIMM, Circuit Judge

text:
    2000 SD 151
    George WUEST as Guardian Ad Litem for Perry CARVER, Plaintiff and Appellant, and Shirley Carver, individually and as Guardian Ad Litem for Jesse Carver and Tina Wilson, Plaintiff, v. McKENNAN HOSPITAL, a South Dakota Corporation, Defendant and Appellee, and Laurie M. Hill, M.D., and Bernie Bahnson, M.D. and Central Plains Clinic, Ltd., Defendants.
    Nos. 20905, 20914.
    Supreme Court of South Dakota.
    Argued March 21, 2000.
    Decided Dec. 6, 2000.

      Michael A. Wilson of Quinn, Day & Barker, Rapid City, SD, Attorneys for appellant Wuest.
    James E. McMahon and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD, Attorneys for appellee McKennan Hospital.
   TIMM, Circuit Judge

[¶ 1.] Perry Carver’s guardian ad litem, George Wuest, and Shirley Carver (collectively Carver) filed suit against McKennan Hospital (McKennan) and Perry Carver’s physicians alleging medical negligence. The claim centered on McKennan’s staffing policies and whether Carver’s bathroom door should have been locked. The case was tried before a jury which returned a verdict in favor of all defendants. Carver now appeals only the verdict in favor of McKennan. We affirm on all issues.

FACTS

[¶ 2.] On the afternoon of November 19, 1993, Perry Carver walked into the Sioux Falls police station, claiming he was suicidal. Police officers transported him to McKennan’s emergency room, where he was immediately admitted into the hospital’s Acute Adult Unit on a 24 hour mental illness hold. He was diagnosed with depression, suicidal thoughts and alcohol intoxication.

[¶ 3.] At 6:00 p.m., a nurse in the Acute Adult Unit assessed Carver who continued to express suicidal tendencies. Later that evening, another nurse heard a loud noise in Carver’s room. Upon investigating, she found a chair lying on its side and Carver sitting on his bed. He had removed his hospital gown, torn it into pieces and tied them back together. Carver told the nurse that if the chair had not slipped, he would have been dead by the time she found him. The nurse viewed this incident as a suicide attempt and, after consulting with Carver’s physician, imposed a continuous one-to-one observation over him. The one-on-one observation continued until 11:30 p.m., when the observing nurse’s shift ended. After that time, Carver was checked every 15 minutes. In addition, the nurse on duty positioned her chair so that she could see into his room. Carver slept for the remainder of the night.

[¶ 4.] At 7:00 a.m., on November 20th, the morning shift arrived for duty. The staff continued making 15 minute observations of Carver. At 8:00 a.m., Carver again expressed suicidal tendencies to a nurse. She encouraged him to take a shower, because she believed that he would feel much better if he cleaned up. The bathroom door in Carver’s room was unlocked in order to allow him to clean up. At approximately 8:45 a.m., a psychiatrist went into Carver’s room to conduct an assessment of his condition. When the doctor finished, he left the room, entered a room near the nurse’s station, and began writing his report.

[¶ 5.] The nurse did not see the psychiatrist leave Carver’s room. After she noticed him writing his report, she went to check on Carver. At 8:59 a.m., she discovered him in his bathroom, hanging by his robe. He was not breathing and his heart had stopped. He was resuscitated, but by then had suffered severe, permanent brain damage. Carver currently resides in a nursing home.

[¶ 6.] On appeal, Carver raises the following issues:

Did the trial court err by refusing to instruct the jury on the adverse inference rule?
Did the trial court err by refusing to instruct the jury on the doctrine of res ipsa loquitur?
Did the trial court fail to clearly instruct the jury regarding liability and causation?
Did the trial court err in replacing a juror with an alternate juror?
Did McKennan’s counsel make unfairly prejudicial statements in its closing argument, thereby requiring a new trial?

ISSUE ONE

[¶ 7.] Did the trial court err by refusing to instruct the jury on the adverse inference rule?

[¶ 8.] This Court reviews a trial court’s refusal of an instruction under the abuse of discretion standard. State v. Wright, 1999 SD 50, 593 N.W.2d 792. To establish error, the appellant must establish that the proffered instruction was a correct statement of the law applicable to the facts. Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 19, 552 N.W.2d 801, 808. In addition, it must be established that the “jury might and probably would have returned a different verdict if the proposed instruction had been given.” Bauman v. Auch, 539 N.W.2d 320, 323 (S.D.1995).

[¶ 9.] During the course of jury instruction settlement, Carver requested an instruction on the adverse inference rule. Carver claims he was entitled to the adverse inference instruction because McKennan destroyed the policy regulating staff to patient ratios for the Acute Adult Unit after Carver hung himself. More significantly, Carver claims McKennan destroyed the policy in spite of knowledge that staffing issues were critical in the events leading to Carver’s hanging. Carver claims such conduct amounted to spoliation and that an adverse inference instruction is appropriate when a party commits spoliation.

[¶ 10.] McKennan asserts that the policy was destroyed as a matter of business routine after Carver’s hanging, but prior to the commencement of this lawsuit. It argues that since the destruction was due to a matter of routine procedure, the adverse inference instruction was not appropriate.

In South Dakota, we recognize and use the “adverse inference rule.” This rule provides that if a party has evidence under its control and does not present that evidence, an inference may be drawn that the evidence would not support that party’s claim. Amert v. Lake County Bd. of Equalization, 1998 SD 66, ¶ 28, 580 N.W.2d 616, 621 (quoting Sabhari v. Sapari, 1998 SD 35, ¶ 14, 576 N.W.2d 886, 891, n. 6 (quoting Matters v. Custer County, 538 N.W.2d 533, 536 (S.D.1995))). See also Klinker v. Beach, 1996 SD 56 ¶ 15, 547 N.W.2d 572, 576, n. 2 (stating that because a relevant document was not offered in support of any claims made by the plaintiff, the court will “assume it would not provide such support”)(citing Matters, 538 N.W.2d at 536).

In re Estate of Klauzer, 2000 SD 7, ¶ 17, 604 N.W.2d 474, 478.

[¶ 11.] The burden was on the spoliator, McKennan, to show it acted in a non-negligent, good faith manner in destroying the document sought. An adverse inference is not automatic, it simply creates a presumption that the evidence sought would be unfavorable to the spoliator. See DeLaughter, 601 So.2d at 823 (finding that the adverse inference instruction failed to inform the jury that the hospital had the burden to show it did not destroy or misplace the hospital record); 29 Am.Jur.2d Evidence § 244 (1980) (stating any presumption that arises from the spoliation of evidence is rebuttable and open to explanation). The spoliator must provide an explanation for the disappearance of any documentary evidence. A duty is imposed upon a hospital such as McKennan to give an “adequate explanation for the absence of the [staffing procedure policy].” DeLaughter, 601 So.2d at 821. “Therefore, the jury was entitled to be told why the [staffing procedure policy] was missing, ... a relevant fact.” Id.

[¶ 12.] The trial court, as gatekeeper of evidence, must use its discretion in deciding whether an adverse inference instruction should be given. The DeLaughter court explained:

As with any other evidence, the explanation for the original record’s absence may be fully satisfying either that it was lost through no fault of the hospital, that the hospital deliberately destroyed it, or as in most cases, somewhere in between, thereby making it a jury issue. For example, where the evidence is positive that the hospital had been destroyed by fire, such circumstance would adequately account for the loss of the original medical record without fault attributable to the hospital, and there would be no reason for the jury to be instructed on a presumption or inference arising from the loss.

Id. But if the trial court concludes the spoliator maliciously destroyed the document, it is unavailable because of negligence, or for some other reason evidencing a lack of good faith, the jury should be given an adverse inference instruction. Id. at 822. The jury must then determine if the explanation given is reasonable, and if it finds it is reasonable, then the jury may not infer the missing document contained unfavorable information to the opposing party. Id.

[¶ 13.] One factor to consider in determining whether a spoliator acted in good faith is an explanation that the evidence sought was destroyed as part of routine destruction in the course of business. McKennan asserts that its policy regulating staff to patient ratios for the Acute Adult Unit was updated as a matter of annual business routine. Many courts provide a safe harbor for a party who destroys a document before litigation com-menees if the destruction was done in the ordinary course of business, which indicates a degree of good faith so that an adverse inference should not be drawn. Scott M. Kline, Advising Clients on the Destruction of Documents Prepared and Used to Formulate Discovery Responses: Perils and Pitfalls, 11 Rev.Litig. 47 (Winter 1991).

[¶ 14.] Allowing a defendant business such as McKennan to offer the routine or formal document destruction policy as an explanation for loss of evidence is simply realistic for many companies, especially large corporations who cannot as a practical matter afford the time or expense to retain every single document involved in its business. If a trial court deems an adverse inference instruction is necessary for the jury, then it will be up to the jury to decide whether a defendant’s explanation for loss or destruction of documentary evidence due to bad faith, negligence or routine destruction warrants an adverse inference against the defendant.

[¶ 15.] Even if it was an abuse of discretion to fail to instruct the jury on the adverse inference rule, it was harmless error based on this Court’s resolution of Issue Three. The appropriate standard of care to which a hospital must comply is primarily “that care which is available at hospitals within the same or similar communities.” Shamburger v. Behrens, 418 N.W.2d 299, 306 (S.D.1988). In this case, claims that the applicable standard of care can be established by the hospital’s internal policies are marginal. For this reason, Carver failed in his burden of establishing that the “jury might and probably would have returned a different verdict if the proposed instruction had been given.” Bauman, 539 N.W.2d at 323.

ISSUE TWO

[¶ 16.] Did the trial court err by refraining from instructing the jury on the doctrine of res ipsa loquitur?

[¶ 17.] During the course of jury instruction settlement Carver requested an instruction on res ipsa loquitur. Carver claims the proposed instruction was supported by the facts in the record. We do not agree.

[¶ 18.] In Van Zee v. Sioux Valley Hospital, 315 N.W.2d 489, 492 (S.D.1982) this Court stated:

The three essential elements which must be present to warrant application of the doctrine of res ipsa loquitur are: (1) the instrumentality which caused the injury must have been under the full management and control of the defendant or his servants; (2) the accident was such that, according to knowledge and experience, does not happen if those having management or control had not been negligent; and (3) the plaintiffs injury must have resulted from the accident. Fleege v. Cimpl, 305 N.W.2d 409 (S.D.1981); Kramer v. Sioux Transit, Inc., 85 S.D. 232, 180 N.W.2d 468 (1970). Also, the doctrine of res ipsa loquitur is to be utilized sparingly and only when the facts and demands of justice make its application essential. Shipley v. City of Spearfish, 89 S.D. 559, 235 N.W.2d 911 (1975); Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97 (1932).
In cases involving medical negligence, which is the cause of action pleaded here, an additional element is required for the doctrine of res ipsa loquitur to be applied: namely, negligence must be established by the testimony of medical experts, unless the kind of negligence involved is within the realm of laymanistic comprehension. Block v. McVay, 80 S.D. 469, 126 N.W.2d 808 (1964); Lundgren v. Minty, 64 S.D. 217, 266 N.W. 145 (1936); Bennett v. Murdy, 61 S.D. 471, 249 N.W. 805 (1933); Myrlie v. Hill, 58 S.D. 330, 236 N.W. 287 (1931).

[¶ 19.] Carver’s own experts testified that suicides occur in hospitals and that patients commit suicide in the absence of a hospital’s or physician’s negligence.- Carver failed to establish that the suicide attempt was such that, according to knowledge and experience, does not happen if those having management or control had not been negligent. Therefore, the proposed instruction was not supported by the facts and was properly refused.

ISSUE THREE

[¶ 20.] Did the trial court fail to clearly instruct the jury regarding liability and causation?

[¶ 21.] Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Sommervold v. Grevlos, 518 N.W.2d 733, 739 (S.D.1994). However, “misleading, conflicting, or confusing instructions create reversible error.” Schaffer, 1996 SD 94, at ¶ 19, 552 N.W.2d at 808.

[¶ 22.] Carver claims the trial court erred in giving liability and causation jury instructions that did not clearly state the law. The liability instruction read:

McKennan Hospital had the duty to provide medical care to Mr. Carver which was commensurate with standard medical care available in the same or similar communities or in hospitals generally. You may take into consideration the hospital’s own standards when determining standard of care. The failure to perform such duty is negligence.

Carver alleges McKennan violated its policy that required the bathroom door to be locked when not in immediate use. Carver argues the trial court erred by failing to clearly instruct that a violation of hospital policy was evidence of negligence. The instruction given according to Carver simply advised the jury to consider these policies when determining standard of care.

[¶ 23.] We find no error in the given instruction. The standard of care to which a hospital must comply is to provide that care which is available at hospitals within the same or similar communities. Shamburger v. Behrens, 418 N.W.2d 299, 306 (S.D.1988). Public policy encouraging standards higher than generally employed in the community dictates that individual hospital policies are not determinative of the standard of care. In this case, testimony revealed that McKennan’s bathroom door policy was above the required community standard of care. Therefore, the given instruction correctly stated the law and allowed the jury to consider the standard of care and balance McKennan’s policy with those of the same or similar hospitals in the community.

[¶ 24.] With regard to causation the jury was instructed:

When the expression “proximate cause” is used, it means an immediate cause of any injury, which, in natural or probable sequence, produces the injury complained of. Without the proximate cause, the injury would not occur. The proximate cause need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it causes the injury.
For proximate cause to exist, you must find that the harm suffered was a foreseeable consequence of the act complained of.

[¶ 25.] We approved this statement of the law in Musch v. H-D Co-op. Inc., 487 N.W.2d 623 (S.D.1992). Carver’s contention that the instruction is unclear and confusing is without merit. The causation instruction correctly stated the law and informed the jury.

ISSUE FOUR

[¶ 26.] Did the trial court err in replacing a juror with an alternate juror?

[¶ 27.] Twelve jurors and two alternates were selected to try this case. On Friday morning of the first week of trial, a juror was called into chambers with Court and counsel present, to discuss some concerns she had voiced to the bailiff. This brief colloquy followed:

The Court: The bailiff indicated to me that you had some concerns that you voiced to him. Do you want to share— you feel comfortable sharing those?
Juror: Yeah, the night before last my brother tried to commit suicide so — I don’t think it’s going to affect my judgment on this, but I just thought you should know.
Counsel for McKennan: Can we ask?
The Court: Sure.
Counsel for McKennan: I don’t want to pry, but where was this?
Juror: Up in northern Minnesota.
Counsel for McKennan: You say “tried.” I’m assuming he was not successful.
Juror: No.
Counsel for McKennan: Is he in the hospital or something now?
Juror: He’s in jail right now.
Counsel for McKennan: Okay. That’s all I wanted to know. Thank you.
Counsel for Dr. Hill: I just want to be sure you are comfortable.
Juror: I mean, it’s just hard to talk about right now.
Counsel for Dr. Hill: It would be. And as long as you’re comfortable with it. But it’s not something you have to do if you think—
Juror: I would just as soon stay on, if that would be okay.
Counsel for Plaintiff: I appreciate you bringing that to our attention.
The Court: You did the right thing. Thank you very much.
Juror: I just wanted to make sure everybody knew about it.
The Court: Okay.
(Juror leaves chambers)

[¶ 28.] The following Monday, McKen-nan moved to have the juror replaced by alternate. This motion was taken under advisement by the Court. At the trial’s conclusion, the trial judge granted the motion.

[¶ 29.] SDCL 15-6-47(b) provides, in part, that “[Ajlternate jurors ... shall replace jurors who, prior to the time the jury retires to consider the verdict, become or are found to be unable or disqualified to perform their duties.” There is no case law in South Dakota that lends definition to this rule. However, when South Dakota adopted this rule in 1939, the same rule existed in both the Federal Rules of Civil and Criminal Procedure. It is therefore proper to look to federal courts for guidance in determining if the trial court acted appropriately in replacing a seated juror with an alternate under the circumstances of this case. See State v. Wright, 1999 SD 50, 593 N.W.2d at 798 fn. 4; Sander v. Geib, Elston, Frost Prof'l Ass’n, 506 N.W.2d 107, 122-23 (S.D.1993).

[¶ 30.] Under Rule 24(c) of the Federal Rules of Criminal Procedure, it is well settled that a trial court has broad discretion to replace a juror with an alternate. United States v. Brown, 540 F.2d 364, 379 (1976); U.S. v. Gambino, 951 F.2d 498, 503 (2nd Cir.1991), cert. denied, 504 U.S. 918, 112 S.Ct. 1962, 118 L.Ed.2d 563 (1992); U.S. v. McAnderson, 914 F.2d 934 (7th Cir.1990); U.S. v. Corsino, 812 F.2d 26, 33 (1st Cir.1987); United States v. Fajardo, 787 F.2d 1523 (11th Cir.1986). That discretion is properly exercised when there are facts presented which convince the trial court that a juror’s ability to perform his duty is impaired. United States v. Smith, 550 F.2d 277, 285, fn. 1 (1977) (quoting United States v. Cameron, 464 F.2d 333, 335 (3rd Cir.1972)), cert. denied, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977). The trial court’s discretion will not be disturbed “absent a showing of bias to the defendant ... or to any other party.” United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978). Prejudice includes the “[d]ismissal of a juror for want of any factual support, or for a legally irrelevant reason.” Id. 573 F.2d at 332.

[¶ 31.] Where it is clear that a juror’s ability to carry out his duties is impaired, a separate hearing is not required. A court may assume, for example, if a juror has suffered a heart attack, or received word of a parent’s death during trial, or has fallen asleep in open court that the juror is unable to discharge their duties. Green, 715 F.2d at 555-58. Where the juror’s impairment is less obvious or less certain, “some hearing or inquiry is appropriate to the proper exercise of judicial discretion.” Id. at 556.

[¶ 32.] This trial focused on the severe brain damage suffered by Perry Carver when his suicide attempt failed. The duty of the jury was to determine whether the defendants were at fault for the injury to Carver. In this context the trial court was faced with the question of whether to replace a juror whose brother attempted suicide during the course of the trial. The trial judge had the opportunity to observe the juror in chambers when she reported the suicide attempt and indicated that it was “hard to talk about” and that she didn’t think it would affect her judgment. Apparently the trial court found the latter representation to lack credibility given the traumatic nature of such an event and the subject matter of the trial. We concede the trial court’s superior vantagepoint in judging a juror’s credibility. See United States v. Smith, 918 F.2d 1501, 1512 (11th Cir.1990). We conclude that replacing the juror whose brother attempted suicide during trial with an alternate juror was not an abuse of discretion.

ISSUE FIVE

[¶ 33.] Did McKennan’s counsel make unfairly prejudicial statements in its closing argument, thereby requiring a new trial?

[¶ 34.] Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. Junge v. Jerzak, 519 N.W.2d 29 (S.D.1994). If the trial court finds an injustice has been done by the jury’s verdict, the remedy lies in granting a new trial. Id., 519 N.W.2d at 34. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion. Id., 519 N.W.2d at 34.

[¶ 35.] Carver claims McKen-nan’s closing argument was unfairly prejudicial because it contained improper attacks on Carver’s counsel and retained expert witnesses. While Carver admits that its failure to object during McKen-nan’s closing argument generally constitutes a waiver of the issue, Carver nevertheless requests this Court to remedy that waiver by applying South Dakota’s plain error rule.

[¶ 36.] In State v. Brammer, 304 N.W.2d 111, (S.D.1981), this Court considered SDCL 23A-44-15 and gave judicial recognition to the plain error rule. However, “[W]e have recognized the plain error rule, but only in exceptional cases, and then it must be applied cautiously. The rule does not encompass every error that occurs at trial, but only those errors which are both obvious and substantial.” State v. Shepley, 440 N.W.2d 294, 298 (S.D.1989), State v. Dornbusch, 384 N.W.2d 682, 686 (S.D.1986), State v. Clabaugh, 346 N.W.2d 448, 452 (S.D.1984).

[¶37.] Error does not exist where counsel confines his closing arguments to the facts admitted into evidence and the law of and issues in the case. Lindsay v. Pettigrew, 3 S.D. 199, 52 N.W. 873 (1892); Binegar v. Day, 80 S.D. 141, 120 N.W.2d 521, 525 (1963). In fact, in such context, counsel is to be afforded the “widest latitude” and “great freedom” in the content of closing argument and may properly argue all legitimate inferences from such facts. Id.; Kloppenburg v. Kloppenburg, 66 S.D. 174, 280 N.W. 209 (1938). Upon a complete review of the record, we find that McKennan properly confined closing arguments to the facts admitted into evidence and the law of and issues in the case. Obviously, where there is no error, the plain error rule can not be applied.

[¶ 38.] We affirm and will not discuss McKennan’s notice of review issues.

[¶ 39.] MILLER, Chief Justice, AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 40.] TIMM, Circuit Judge, for SABERS, Justice, disqualified.

      . Spoliation is destruction or significant alteration of evidence, or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999).

      . See Washington v. State, 478 So.2d 1028, 1032 (Miss.1985); United States v. Coplon, 185 F.2d 629, 637 (2dCir.1950) (holding that a spoliator's routine destruction of original records of wire tappings after 30 to 60 days was a reasonable explanation); Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 923 (2dCir.1981) (concluding the employer had offered a reasonable explanation for non-production of documents that were discarded in the course of business); Delchamps, Inc. v. NLRB, 588 F.2d 476, 480 n. 5 (5th Cir.1979) (noting that adverse inference rule would not apply when there was no indication wage surveys had been destroyed in bad faith and the surveys were routinely destroyed); Vick v. Texas Employment Comm’n., 514 F.2d 734, 737 (5th Cir.1975) (ruling that adverse inference rule would not apply when records were destroyed under routine procedures without bad faith); Berthold-Jennings Lumber Co. v. St. Louis, I.M. & S. RY. Co., 80 F.2d 32, 42 (8th Cir.1935) (ruling there was no evidence of willful, intentional, or fraudulent destruction of records where it was normal business procedure for accumulated files to be destroyed every five years); see also 29 Am. Jur.2d Evidence § 244 (1980) (stating that an adverse presumption or inference does not arise where the destruction of evidence was "a matter of routine with no fraudulent intent.”).

      . Recently an appeal was filed with this Court in Citibank v. State of South Dakota #21618 (1998). Although the parties ultimately dismissed this appeal by stipulation, the stipulated facts stated that the Citibank operations in Sioux Falls contain approximately twenty million Visa and MasterCard credit card accounts.

      . SDCL 15-6-47(b) ensures that alternate jurors who replace seated jurors are equally qualified to meet juror obligations. Alternate jurors are drawn in the same manner, have the same qualifications, are subject to the same examination and challenges, take the same oath, and have the same functions as regular jurors.

      . Prior to the 1991 amendment of Federal Rules of Civil Procedure 47(b) and the 1999 amendment of Federal Rules of Criminal Procedure 24(c), the rules read identical to SDCL 15 — 6—47(b).

      . SDCL § 23A-44-15. (Rule 52(b)) states "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.”


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. David Aaron DAY, Appellant.
    No. C6-99-1568.
    Supreme Court of Minnesota.
    Dec. 14, 2000.

      John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, State Attorney General, John B. Galus, Assistant Attorney General, St. Paul, Gregory D. Larson, Hubbard County Attorney, Park Rapids, for respondent.

      . Day does not claim that his May 14 custodial statement should have been suppressed because he invoked his right to counsel and that issue is not before us.

   OPINION

PAGE, Justice.

Following a jury trial in Hubbard County District Court, appellant David Aaron Day was found guilty of first-degree murder while committing first-degree criminal sexual conduct under Minn.Stat. § 609.185(2) (1998), first-degree murder while committing aggravated robbery under Minn.Stat. § 609.185(3) (1998), and second-degree intentional murder under Minn.Stat. § 609.19, subd. 1(1) (1998), for the May 14, 1998, killing of Carol Ann Kirchner. Day was sentenced to life imprisonment without possibility of release. Before trial, Day moved to suppress a statement he gave to Bureau of Criminal Apprehension (BCA) agents during a custodial interrogation on May 14, 1998. He argued that the statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). That motion was denied.

In this direct appeal, Day again challenges the admissibility of his May 14, 1998, custodial statement. In addition, he argues that the trial court erred by admitting evidence about Carol Kirchner’s life in the form of testimony by her husband, David Kirchner, and four photographs of her while she was alive, which he claims appealed to the sympathy, prejudice, and passions of the jury. Finally, Day claims that he was denied due process and a fair trial by erroneous evidentiary rulings, prosecutorial misconduct during closing argument, and the denial of two mistrial motions. We affirm.

The facts giving rise to Day’s conviction are as follows. Day spent the night of May 13, 1998, socializing, drinking, and driving to various locations in and around Bemidji and Cass Lake with his friend Derwin Lovelace, his cousins Stephanie Littlewolf and Teri Littlewolf, and Teri’s boyfriend, Hershel Crowghost. At some point, Day and Lovelace stole two rifles from a friend of Day’s and put them in the trunk of Day’s car. Near daylight on May 14, while driving on South Big Wolf Lake Road to Lovelace’s uncle’s house, Day lost control and drove the car into a ditch.

As the group worked to free the car from the ditch, Carol Kirchner, who lived at a nearby resort, passed by on her morning walk. Shortly after she went by, Day and Lovelace set out on foot in the same direction as- Kirchner. Lovelace went to his uncle’s house, borrowed a car, and returned. Meanwhile, a man in a pickup truck drove by and pulled Day’s car from the ditch. Although Day had not returned, Lovelace, Crowghost, and the Lit-tlewolf sisters drove to Lovelace’s uncle’s house. Day arrived at the house sometime later wearing wet shoes and pants. He was also wearing what turned out to be Carol Kirchner’s wedding rings on his right pinkie finger. According to Lovelace, when he asked Day where Day got the rings, Day responded, “From that bitch that I left in the woods.”

David Kirchner became concerned when Carol Kirchner failed to return from her walk. With help from a neighbor, he went looking for her and found her body shortly after 9:15 a.m. that morning. She was lying on her back in a swampy area near South Big Wolf Lake Road. Her jacket, blouse, and bra were pushed up exposing her breasts, and she was naked from the waist down with her legs spread apart.

The police arrested Day a little after noon on May 14 and transported him to the Hubbard County Law Enforcement Center, where he was placed in an interview room. During the drive to the law enforcement center, Day asked the officer transporting him for a lawyer. The officer responded that Day would “get a lawyer when [he] got to the jail.” At 3:15 p.m. that afternoon, BCA Special Agents David Bjerga and Daniel Ahlquist went to the interview room to conduct a taped interview with Day. Day initially mistook the agents for public defenders. Meanwhile, the agents discovered that Day had urinated on the floor, which they proceeded to clean. After identifying themselves as BCA agents, the following colloquy took place:

DA: I’m gonna read you your rights. You have the right to remain silent. Anything you say can and mil be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. Do you understand each of these rights as explained to you?
DD: Yes.
Having those rights in mind, do you wish to talk to us now? DA:
DD: [CLEARS THROAT]
DA: Or at least here [sic] what we have to say?
DD: Urn hmm. [AFFIRMATIVE RESPONSE]
DA: Okay.
DB: First of all we need to clear that up. You, you’ll listen to what we have to say and maybe answer some of our questions, is that right?
DD: Yeah. I’m, I’m pretty [INAUDIBLE]
DB: We what?
DD: Said I don’t want to tell you guys anything to say about me in court.
DA: Well, we won’t say anything that isn’t you know, what, what you tell us, you know.
DB: But I guess it’s just real important that you know that you understand your rights and at this time you’ll still talk to us. That’s what we need to know.
DD: Well, to the best of my ability, from what I understand that, yeah, I will.

(Emphasis added.)

Bjerga and Ahlquist then questioned Day for approximately an hour. Day initially denied any involvement with a stuck car on South Big Wolf Lake Road or knowing anything about a woman walking that road. He later admitted that he was at the stuck car and that a woman walked by, but claimed that he did not pay any attention to her. According to Day, he left the car to go to Lovelace’s uncle’s house. At first, Day denied speaking to the woman, but later admitted that he had talked with her. He also stated that he ran ahead of the woman, but returned when he heard her choking or coughing and attempted to give her the Heimlich maneuver. He claimed he then left her alongside the road. Day said he changed his shoes and pants at Lovelace’s uncle’s house and that the shoes were either in the trunk of his car or at the house. He denied having any sexual contact with the woman and stated that DNA evidence would not link him to her. Day cried during the last half of the interview.

The interview ended when Day slid off his chair onto the floor and refused to respond to further questions. Bjerga and Ahlquist attempted to interview Day a second time approximately two and one-half hours later, but Day asked for an attorney and the interview was terminated.

At a pretrial hearing, Day sought to have his May 14, 1998, statement to Bjer-ga and Ahlquist suppressed, claiming that they ignored his invocation of his right to remain silent and that he did not make a knowing, intelligent, and voluntary waiver of his right to remain silent. Day claimed that he invoked his right to remain silent during the interrogation when he stated, “Said I don’t want to tell you guys anything to say about me in court.” The trial court denied Day’s motion, finding that Day’s statement was ambiguous and equivocal and therefore not an invocation of his right to remain silent. The trial court further found that Day’s waiver of his right to remain silent was knowing, intelligent, and voluntary.

Evidence at trial established that Carol Kirchner died from asphyxia due to fractures of the hyoid bone and thyroid cartilage in her neck as a result of being stomped. Death occurred instantaneously or, at most, within a matter of minutes. Kirchner also suffered seven fractured ribs, had abrasions on her back consistent with having been dragged across a rough surface, and her genitalia were injured. Her hands and the right side of her face were bruised and there were herringbone patterns on the left side of her face that appeared to be footwear impressions. Expert testimony at trial indicated that the shoes Day was wearing on the morning of May 14, 1998, could have produced the footwear impressions found on Kirchner’s face. The evidence also established that Carol Kirchner had been sexually assaulted. In addition to evidence of injury to her genitalia, vaginal swabs taken from her body tested positive for sperm. DNA tests performed on the vaginal swabs and on blood samples from Day, Lovelace, and Crowghost eliminated Lovelace and Crow-ghost as possible sources of the sperm, and pointed to Day as the only likely source.

Day testified at trial in his own defense. According to Day, after Carol Kirchner walked by, he told Lovelace he thought she had seen the stolen rifles in the trunk of his car. He then jogged down the road and spoke to her, with Lovelace just a few steps behind. He testified that Kirchner said something about not drinking and driving and about guns in the trunk and that Lovelace “snapped,” grabbed her by the throat, and pushed her down onto her back and fell on her with his knees. Day asked Lovelace what he was doing and Lovelace responded, “Fuck this little ‘ho.” Day claimed that he became scared and ran away. He testified that he glanced back while running away and saw Lovelace on top of Carol Kirchner with her legs kicking in the air. According to Day, he sat listening in the woods for 20 minutes and emerged when he thought he heard someone calling him. He testified that he was returning to the car when he saw scuff marks in the sand along the road and a trail of matted grass. He followed the trail to Carol Kirchner’s body, which was lying in the weeds, naked from the breast-line down and apparently unconscious. Upon seeing Kirchner’s body, he became sexually excited and had sex with her, but claimed that he did not notice that she was not breathing until after the sex act was over. When he realized she was not breathing, he tried to resuscitate her using CPR and the Heimlich maneuver. He denied stomping her face and neck or breaking any of her ribs. He claimed he lied to the BCA agents on May 14, 1998, because he was afraid that if he told the truth Lovelace would retaliate against him or his family.

I.

The first issue raised by Day is whether his May 14, 1998, custodial statement should have been suppressed by the trial court because BCA Agents Bjerga and Ahlquist failed to honor his invocation of his right to remain silent. We have held that an unambiguous and unequivocal invocation of the right to remain silent is required to implicate Miranda’s protections. See State v. Williams, 535 N.W.2d 277, 285 (Minn.1995). Once implicated, the defendant’s right to remain silent must be “ ‘scrupulously honored’ ” and the interrogation must cease. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); see also State v. Johnson, 463 N.W.2d 527, 532 (Minn. 1990). If the invocation of the right is ambiguous or equivocal, the interrogating officers are not required to confine their questioning to clarifying questions. See Williams, 535 N.W.2d at 285.

In Davis v. United States, the United States Supreme Court held that, in order to unambiguously and unequivocally invoke the right to counsel, a suspect must “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). Applying this standard in the right to remain silent context, the proper inquiry is whether the suspect articulated his desire to remain silent sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of the right to remain silent. Cf. Williams, 535 N.W.2d at 283 (“[T]he language used by the suspect must sufficiently articulate the desire to remain silent.”). Thus, the question we must answer is whether Day’s statement — “Said I don’t want to tell you guys anything to say about me in court” — constitutes an unambiguous and unequivocal invocation of his right to remain silent. Viewed in context, we conclude that it does. Agent Ahlquist read the Miranda warning to Day. When asked if he understood, Day said “Yes.” Ahlquist next asked, “Having those rights in mind, do you wish to talk to us now?” Day responded by merely clearing his throat. Ahlquist then asked, “Or at least here [sic] what we have to say?” Day responded “Um hmm.” In an attempt to clarify the extent to which Day was willing to cooperate, Ahlquist continued, “First of all we need to clear that up. You, you’ll listen to what we have to say and maybe answer some of our questions, is that right?” Day responded, “Yeah. I’m, I’m pretty [INAUDIBLE].” Agent Bjerga then asked, “We what?” and Day responded, “Said I don’t want to tell you guys anything to say about me in court.”

The state makes various arguments in support of its claim that Day’s statement was ambiguous and equivocal. These arguments, however, ignore logic, the facts of this case, the Miranda warning itself, and notions of basic fairness. The state first argues that “Said I don’t want to tell you guys anything to say about me in court” could be interpreted as Day merely expressing his concern that the BCA agents would lie about him in court. This is a curious argument because the state does not elaborate on why this is a reasonable interpretation of Day’s words. Because neither Day’s statements nor the surrounding circumstances indicate that Day was concerned about the agents lying, some explanation is necessary. This is especially true'because the interrogation was openly recorded.

Alternatively, the state contends that Day’s statement, like the statement made by the defendant in State v. Jobe, 486 N.W.2d 407 (Minn.1992), “might have reflected his willingness to talk to the agents but only under particular conditions or about particular subjects.” In Jobe, this court held that a suspect did not unambiguously invoke his right to remain silent when he said that “he did not want to discuss the night of the murders but would discuss ‘lighter’ subjects.” Id. at 416. Unlike the defendant in Jobe, however, Day did not limit his refusal to certain subjects or state that he was willing to discuss alternative subjects. Nor did Day suggest that he would speak to the agents if some particular condition was met.

The state also compares the facts of this case to the facts in Williams. In Williams, the defendant after being interviewed for approximately one hour became angry with one of the interrogating officers, stood up from his chair, stated, “ T don’t have to take any more of your bullshit,’ ” and then walked out of the interrogation room. Id. at 281. We held that this statement was ambiguous and equivocal because the defendant never specifically stated he wanted to stop answering questions and because he never exhibited a general refusal to answer questions. See id. at 284.

In contrast, Day’s statement, “Said I don’t want to tell you guys anything to say about me in court,” came almost immediately after he was read the Miranda warning including the statement, “Anything you say can and will be used against you in a court of law.” Clearly, the first part of Day’s statement, “Said I don’t want to tell you guys anything,” is unambiguous and unequivocal. It indicates that there is no action, event, or time that Day was willing to discuss with the BCA agents. The second part of the statement further cements the unambiguous nature of Day’s refusal to discuss “anything” by adding that he refused to talk about anything that would be used against him in a court of law. To read Day’s statement any other way would be perversely unfair in that it would punish him for carefully listening to the Miranda warning and responding in kind. We therefore hold that Day’s statement constituted an unambiguous and unequivocal invocation of his right to remain silent.

In Michigan v. Mosley, the United States Supreme Court concluded that, although Miranda declared that once a suspect invokes the right to remain silent “ ‘the interrogation must cease,’ ” it does not mean that all subsequent questioning is impermissible. 428 U.S. 96, 101-03, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Instead, the Court held that the admissibility of statements made after a suspect invokes the right to remain silent depends on whether that right was “ ‘scrupulously honored.’ ” Id. at 104, 96 S.Ct. 321. The Court observed that the police would fail to honor a person’s invocation of his right to remain silent “either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. 321; see also id. at 102, 96 S.Ct. 321 (the resumption of interrogation following “a momentary cessation would clearly frustrate the purposes of Miranda ”); State v. Johnson, 463 N.W.2d 527, 532 (Minn.1990) (“Once a person subject to custodial interrogation asserts the right to remain silent, interrogation must cease.”). Here, Agents Bjer-ga and Ahlquist continued to question Day after he invoked his right to remain silent and thereby failed to “scrupulously honor” that right. Accordingly, we hold that the trial court erred by not suppressing Day’s May 14,1998, custodial statement.

Having concluded that the admission of Day’s statement was error, we must next answer the question, “What effect did the jury’s hearing [the defendant’s] statement * * * actually have on the guilty verdict rendered?” State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997). If the verdict rendered is “ ‘surely unattributable’ ” to the error, the error is harmless beyond a reasonable doubt and the conviction stands. Id.; see also Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). When applying harmless error analysis, we look to the record as a whole. See Juarez, 572 N.W.2d at 292.

Day points to the admission of eight specific statements he made during the May 14 custodial interrogation that he contends makes the error not harmless. They include: (1) his statement that he was not with the stuck car and did not see a woman walking; (2) his statement that he was with the car and saw a woman but did not pay attention to her; (3) his statement that he left the car to run to Lovelace’s uncle’s house; (4) his statement that he changed shoes and put the ones he took off into the trunk of his car; (5) his statement that he did not speak to the woman who walked by the stuck car, along with his subsequent statement admitting that he did speak to her; (6) his statement that DNA evidence would not link him to the woman; (7) his statement that he heard the woman choking or coughing and tried to save her by using the Heimlich maneuver; and (8) his statement that he did not have sex with the woman. Whether viewed individually or in combination, we conclude that the jury’s guilty verdict was surely unattributable to the erroneous admission of these statements. Therefore, we hold that their admission, although error, was harmless beyond a reasonable doubt.

Our conclusion is based on our review of the record, which includes substantial independent evidence of the facts contained in those statements. There was testimony from everyone who was in Day’s group at the time Day’s car became stuck that Day was present when Carol Kirchner walked by and that, after she walked by, he left the car heading in her direction. Day and two other witnesses testified that he talked to Carol Kirchner. Three witnesses testified that Day put his wet shoes in his car’s trunk and Day testified that he either put the shoes in the trunk of his car or left them at Lovelace’s uncle’s house. Day also testified that he had sex with Carol Kirchner and the state introduced DNA evidence implicating Day and Day alone as having had sex with her.

While there was no independent evidence regarding Day’s custodial statement that he used the Heimlich maneuver on Carol Kirchner, it is unlikely that that part of his custodial statement had any meaningful effect on the jury’s verdict given the DNA evidence and his testimony that he had sex with her.

There was also substantial evidence admitted at trial that was unrelated to Day’s custodial statements which, if believed by the jury, implicated Day in Carol Kirchner’s death. There was evidence that Day was the last person to be seen with Carol Kirchner before her death; that Day had Carol Kirchner’s wedding rings when he returned to Lovelace’s uncle’s house; that he claimed to have gotten the rings “from that bitch that I left in the woods”; that he tried to sell the rings, first to Lovelace and later to Lovelace’s cousin; and that his shoes could have been the ones that made the footwear impressions on Carol Kirchner’s face. Finally, there was the DNA evidence and Day’s admission that he had sex with Carol Kirchner.

II.

Day next argues that the trial court erred by allowing the state to introduce excessive evidence of Carol Kirchner’s past life. Specifically, he claims that David Kirchner’s testimony and the admission of four photographs of Carol Kirchner, along with the prosecutor’s use of one of the photographs during closing argument, was prejudicial because it appealed to the jury’s passions, prejudices, and sympathy. Based on our review of the record, we conclude that this argument has no merit.

Day failed to object at trial to David Kirchner’s testimony and the prosecutor’s closing argument. Because he failed to object at trial, the issues relating to that testimony and the prosecutor’s closing argument are waived. See State v. Buggs, 581 N.W.2d 329, 342 (Minn.1998). While we may review the issues for plain error, a thorough review of the record leads us to conclude that there was no plain error. See State v. Griese, 565 N.W.2d 419, 427 (Minn.1997). With respect to the admission of the photographs, we note that the inclusion of photographs is left to the sound discretion of the trial court, which we will not reverse absent a clear abuse of that discretion. See State v. Scales, 518 N.W.2d 587, 593 (Minn.1994). It is important to note that in the past we have held that evidence, including photographs, showing that “[t]he victim was not just bones and sinews covered with flesh, but was imbued with the spark of life,” is admissible so long as its use “is not an ‘attempt to invoke any undue sympathy or inflame the jury’s passions.’ ” State v. Graham, 371 N.W.2d 204, 207 (Minn.1985). The four photographs admitted here, much like the ones admitted in Scales, were used to provide background information and to personalize Carol Kirchner and were not excessive. See Scales, 518 N.W.2d at 593. Moreover, we conclude that the four photographs were not intended to invoke undue sympathy or inflame the jury’s passions. Therefore, we hold that there was no abuse of discretion in their admission.

III.

Finally, Day claims that a number of erroneous evidentiary rulings and the denial of two mistrial motions by the trial court denied him due process and a fair trial. We see no reason to address these claims individually. We have reviewed each of the claims in light of the record and question whether any error occurred. In any event, we are satisfied, for the reasons discussed above, that if any error did occur such error was harmless beyond a reasonable doubt. See State v. Juarez, 572 N.W.2d 286 (Minn.1997).

Affirmed.

      . "DD” refers to Day; “DA” refers to Agent Ahlquist; "DB” refers to Agent Bjerga.

      .Although Agent Bjerga testified at trial that Day initially denied knowing anything about a woman walking along South Big Wolf Lake Road, the transcript from the May 14 custodial interrogation does not reflect that Day made such a statement. Day has never contended, however, that Agent Bjerga’s testimony was inaccurate.

      . Because we concluded that the admission of Day's May 14 custodial statement was error, we need not address his claim that his May 14 statement was inadmissible because he did not make a knowing, intelligent, and voluntary waiver of his right to remain silent.


author: HALBROOKS, Judge.

text:
    Joseph DIXON, Appellant, v. DEPOSITORS INSURANCE COMPANY, Erroneously captioned Allied Insurance Company, Respondent.
    No. CO-00-519.
    Court of Appeals of Minnesota.
    Nov. 21, 2000.

      Joseph Dixon, Minneapolis, pro se appellant.
    Thomas E. Peterson, Peterson & Hek-tner, Ltd., Minneapolis, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge, RANDALL, Judge, and HARTEN, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s grant of summary judgment in favor of respondent. He raises a variety of claims relating to fraud, racketeering, unfair trade practices, and racial and disability discrimination in connection with the cancellation of his automobile insurance policy. We affirm.

FACTS

In June 1990, appellant Joseph Dixon insured his home and automobile through respondent Depositors Insurance Company, a division of Allied Group Insurance. To obtain his automobile insurance policy, appellant stated that he was gainfully employed, he had not been in an automobile accident within the past five years, and he. did not have any medical conditions that might interfere with his ability to operate a motor vehicle.

In November 1994, a dispute arose over whether appellant had paid his premium for his homeowner’s policy. Upon a subsequent cursory inspection of appellant’s residence, respondent concluded that appellant’s home needed substantial repairs. Respondent also believed that appellant had improperly insured his residence as a single-family dwelling but was actually using it as a multi-unit apartment building. When appellant disputed the inspection’s findings and refused to make repairs, respondent notified him that it would not renew his homeowner’s policy following its expiration on November 8,1995.

Appellant brought suit pro se in U.S. District Court for the District of Minnesota concerning the non-renewal of his homeowner’s policy." Dixon v. Allied Ins. Co., No. 3-96-803 (D.Minn. Apr. 14, 1997) (Dixon I). Respondent brought a counterclaim, asking for a rescission of appellant’s automobile insurance, and moved for summary judgment.

The federal court in Dixon I granted respondent’s motion on appellant’s five claims. First, the court determined that Minnesota does not recognize a private right of action under the Minnesota Unfair Trade Practices Act, Minn.Stat. § 72A.201 (1996). Second, the court determined that Minnesota does not recognize a cause of action against insurers for breach of the duty of good faith and fair dealing for not renewing an insured’s policy. Third, the court found that appellant’s claims were not actionable under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a) (1994), and the Americans with Disabilities Act, 42 U.S.C. § 12112 (1994), because both federal statutes concern employment, not insurer-insured, relationships. Fourth, the court found that appellant failed to establish a prima facie case of discrimination under the Minnesota Human Rights Act, Minn.Stat. § 363.03, subd. 8a(c) (1996) (prohibiting discrimination in business practices). The court found that appellant could not rebut respondent’s proffered nondiscriminatory reason — failing to make needed repairs — for refusing to renew his homeowner’s insurance. Further, the court noted that if respondent were discriminating against appellant, it probably would have cancelled his automobile insurance policy when it cancelled the homeowner’s policy rather than continuing to do business with him.

The federal district court denied respondent’s counterclaim for lack of subject matter jurisdiction. But the court noted that appellant had made several serious misrepresentations in his insurance application: he had been in a serious automobile accident, was taking medication for acute paranoid psychosis and paranoid schizophrenia, and had not been employed when he applied for his insurance.

Respondent subsequently brought a declaratory judgment action in Hennepin County District Court to rescind appellant’s automobile insurance. See Depositors Ins. Co. v. Dixon, No. CT 98-1079 (Minn. Dist. Ct. June 3, 1998) (Dixon II). The district court granted summary judgment in favor of respondent, finding that appellant had made material misrepresentations in his application. The court held that, under Minn.Stat. § 60A.08, subd. 9 (1998), these misrepresentations could cause an increased risk of loss for respondent and were thus grounds for rescinding the automobile insurance policy. Appellant was represented by counsel and failed to appeal the district court decision.

Prior to the decision rescinding the automobile policy, appellant received $6,313.50 in no-fault insurance benefits due to an accident on September 1, 1997, $50 for towing, and $589.40 on a property damage claim. Following Dixon II, respondent refused to pay any further benefits. On March 29, 1999, appellant brought this case against respondent in Hennepin County District Court for failure to pay benefits.

The district court held that res judicata barred all claims concerning the rescinded automobile insurance policy, including appellant’s claims of theft by swindle, race and disability discrimination, and unfair trade practices. Second, the district court granted respondent’s motion for summary judgment in respect to appellant’s claims of fraud and racketeering. Finally, the district court issued a permanent injunction against appellant, enjoining him from bringing any further claims against respondent regarding either insurance policy. This appeal follows.

ISSUES

1.Did the district court err in applying res judicata to appellant’s claims of discrimination, unfair trade practices, and improper contract rescission?

2. Did the district court err by granting a motion for summary judgment against appellant’s claims of fraud and racketeering?

3. Did the district court err by granting an injunction prohibiting appellant from bringing further claims against respondent?

ANALYSIS

1. Did the district court err in applying res judicata to appellant’s claims of discrimination, unfair trade practices, and improper contract rescission?

We review de novo whether the doctrine of res judicata applies to a given set of facts. Erickson v. Commissioner of Dep’t of Human Servs., 494 N.W.2d 58, 61 (Minn.App.1992). If the doctrine does apply, then the decision to apply it is left to the trial court’s discretion. Id. The three elements for res judicata are: (1) identical parties; (2) a final judgment on the merits; and (3) a second suit involving the same cause of action. Myers v. Price, 463 N.W.2d 773, 776 (Minn.App.1990), review denied (Minn. Feb. 4,1991).

We find that the district court properly found all three elements of res judicata were present. The first element is obviously met as the parties have been identical in all three lawsuits.

Second, there are two final judgments from appellant’s previous lawsuits against respondent. “[A]n order or judgment becomes final after the appellate process is terminated or the time for appeal has expired.” State Farm Mut. Auto. Ins. Co. v. Spartz, 588 N.W.2d 173, 175 (Minn.App.1999) (citation omitted), review denied (Minn. Mar. 30, 1999). Appellant failed to properly appeal Dixon I to the Eighth Circuit, and the U.S. Supreme Court denied his writ of certiorari. Similarly, appellant failed to appeal Dixon II and is now time barred. Minn. R. CivApp. P. 104.01. Thus, both Dixon I and Dixon II are final decisions.

Finally, appellant is raising the same claims in the present case that he made in Dixon I and Dixon II: discriminatory treatment based on race and disability, unfair business practices, and improper rescission of his automobile insurance policy.

Finding all the elements of res judicata are present, we then find that the district court dicf not abuse its discretion by applying res judicata to this case. Three different courts have heard this case. Appellant has had his day in court and ample opportunity for appeal. See D.H. Blattner & Sons, Inc. v. Firemen’s Ins. Co., 535 N.W.2d 671, 674 (Minn.App.1995) (suggesting res judicata should only be applied where “the parties were denied a fair hearing and had no opportunity for judicial review”), review denied (Minn. Oct. 18, 1995).

2. Did the district court properly grant respondent’s motion for summary judgment for RICO and fraud claims?

Appellant claims the district court erred by granting respondent’s motion for summary judgment. A district court should grant a motion for summary judgment if, after reviewing the pleadings, depositions, answers to interrogatories, affidavits, and admissions, there is no genuine issue of material fact and a party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Although evidence is reviewed in the light most favorable to appellant, he still must produce specific facts to create a factual issue for trial. Paulos v. Johnson, 597 N.W.2d 316, 318 (Minn.App.1999), review denied (Minn. Sept. 28, 1999).

Here, appellant has failed to produce any facts relating to his racketeering and fraud claims. A review of the voluminous materials appellant submitted to the district court reveals that he has not introduced facts specific to his case. Rather, he has submitted photocopies of legal treatises, textbooks on American history, and articles from various periodicals on the insurance industry. None of these relates to the actual case or parties before us.

Further, a claim of fraud must state the elements of the cause of action with particularity. Minn. R. Civ. P. 9.02; see also Westgor v. Grimm, 318 N.W.2d 56, 58 (Minn.1982). As the district court determined, appellant’s pleadings are “general in nature, failing to allege the necessary elements of fraud such as false representation, reliance and specific pecuniary damage.” His only real allegation is that all the documents furnished by respondent are fraudulent. At most, the record indicates that his first name was listed incorrectly on an application but — as appellant admits — correctly states his last name, date of birth, and social security number.

Second, appellant argues that his former attorneys engaged in a conspiracy with respondent and its attorneys to prevent him from having his claims argued before a jury and from obtaining new counsel. Appellant’s theory is that this alleged conspiracy violates the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (1994) (RICO). But appellant fails to plead any facts necessary to fulfill the three-part test for a RICO violation: a common purpose, continuity, and “an ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity.” State v. Huynh, 519 N.W.2d 191, 194 (Minn.1994) (quoting United States v. Kragness, 830 F.2d 842, 855 (8th Cir. 1987)). Appellant can only point to the fact that he lost his prior lawsuits as any sort of evidence of a common purpose. But as the district court noted, appellant’s prior lawsuits were dismissed on purely legal bases. Appellant has retained at least three different attorneys in the course of his lawsuits. There is no evidence to support a claim of .conspiracy in this case.

Lastly, appellant mistakenly relies on Evitts v. Lucey, 469 U.S. 387, 396-99, 105 S.Ct. 830, 836-37, 83 L.Ed.2d 821 (1985), to suggest that his attorneys’ failures to appeal from summary judgment have violated his due process rights. But Evitts and its progeny concern the rights of criminal defendants, not civil plaintiffs. It is well settled that summary judgment does not violate an unsuccessful litigant’s due process rights. Rather, as the U.S. Supreme Court has held, summary judgment is “an integral part” of civil procedure, not “a disfavored procedural shortcut,” and is “designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quotation omitted).

3. Did the district court abuse its discretion when it permanently enjoined appellant from pursuing further claims against respondent based on the homeowner’s or automobile insurance policies?

“Granting equitable relief is within the sound discretion of the trial court. Only a clear abuse of that discretion will result in reversal.” Nadeau v. County of Ramsey, 277 N.W.2d 520, 524 (Minn.1979) (citátion omitted). This court has recognized that

it is proper for a court to issue a permanent injunction to restrain the initiation of successive suits and proceedings to relitigate a cause of action that is based on the same facts with identical issues and parties and that has been already adjudicated with finality.

Spartz, 588 N.W.2d at 175 (quotation omitted).

There is no evidence that the district court abused its discretion by granting the injunction. This case is the third lawsuit that appellant has filed against respondent. Any future lawsuits will inevitably turn on the same issues appellant has raised here and in his prior two lawsuits. Although we are mindful of the difficulties facing pro se litigants, the courts are not to be used as a tool of harassment.

DECISION

Res judicata bars appellant from relit-igating the rescission of his insurance policies as there are already two final judgments deciding this issue. Summary judgment regarding his claims of fraud and racketeering is appropriate because appellant has failed to raise any genuine issues of material facts. And the district court acted within its discretion by enjoining any further claims against respondent on these issues.

Affirmed.


author: CRIPPEN, Judge.

text:
    Russell NEWBERG, et al., Respondents, v. COMMERCIAL UNION INSURANCE COMPANY, Appellant.
    No. C8-00-1062.
    Court of Appeals of Minnesota.
    Nov. 21, 2000.

      Joseph J. Dudley, Jr., Thomas C. Plunk-ett, Mark K. Thompson, Dudley and Smith, P.A., St. Paul, for respondents.
    Paul A. Banker, Theodore J. Smetak, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, for appellant.
    Considered and decided by WILLIS, Presiding Judge, CRIPPEN, Judge, and PETERSON, Judge.
   OPINION

CRIPPEN, Judge.

Appellant Commercial Union Insurance Company challenges the trial court’s summary judgment for respondents Russell and Delores Newberg, who claimed that coverage for damages from a discharge of raw sewage through their basement drains was unaffected by an exclusion for loss caused “directly or indirectly” by water damage, meaning: “water which backs up through sewers and drains.” Concluding that reasonable minds cannot differ on the scope of the exclusion, we reverse and remand for entry of summary judgment for appellant.

FACTS

Commercial Union claims that the water-damage exclusion in respondents’ policy precludes coverage for appellants’ losses. Noting in its findings and conclusions that “raw sewage” was not “explicitly” written in the exclusion, the trial court found “damage caused by the back-up of raw sewage” was outside the plain and ordinary meaning of the policy’s exclusionary clause. As a result, the trial court granted summary judgment for respondents and denied appellant’s cross motion for summary judgment.

ISSUE

Did the trial court erroneously construe the governing policy exclusion?

ANALYSIS

On appeal from the trial court’s summary judgment, we are to determine whether there are any issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The interpretation of insurance language is a question of law that an appellate court reviews independently. Meister v. Western Nat’l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn.1992). The reviewing court reads the evidence in the light most favorable to the party against whom judgment was granted. Nygaard v. State Farm Ins. Co., 591 N.W.2d 738, 740 (Minn.App.1999), review denied (Minn. June 29,1999).

An insurer has the burden of proving that a policy exclusion applies. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989). Moreover, courts will construe exclusions from coverage narrowly. State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn.1992). Minnesota has a strong policy of extending coverage rather than restricting it by “confusing or ambiguous language.” Hennen v. St. Paul Mercury Ins. Co., 312 Minn. 131, 136, 250 N.W.2d 840, 844 (1977). But the language of an insurance policy is ambiguous only if it is reasonably subject to more than one interpretation. Columbia Heights Motors, Inc. v. Allstate Ins. Co., 275 N.W.2d 32, 34 (Minn.1979). Courts will not redraft insurance policies to provide coverage where the plain language of the policy indicates no coverage exists. Ostendorf v. Arrow Ins. Co., 288 Minn. 491, 494-95, 182 N.W.2d 190, 192 (1970).

Numerous considerations have led us to conclude that “water which backs up through sewers or drains” includes various compositions of “raw sewage.”

First, the impact of the water-damage exclusion is substantially enlarged by the language extending the concept to losses caused “indirectly” by water backing up through sewers or drains, thus including the situation where water carries with it other substances.

Second, we find compelling the reasonableness in understanding water that backs up “through sewers or drains” includes sewer water or water containing various levels of raw sewage.

Third, having in mind the implausibility of determining at what level water containing foreign substances ceases to be water, we find unreasonable a construction of “water” that is confined to pure water or water containing substances other than sewage.

Under the circumstances, we believe that the exclusionary clause is applicable and that it is unreasonable to interpret the clause in any other manner. As a result, we conclude that the plain and ordinary meaning of the water-damage exclusion includes water containing raw sewage, and that appellant was successful in proving that the exclusion applies in this case.

We do not doubt, as respondent contends and as the trial court concluded, appellant might have more explicitly addressed the types of watery substances that might back up through sewers or drains and were to be excluded from coverage. That being said, it does not follow that it is reasonable to read the word “water” with a level of literalism that fails to take into account the other language in the exclusion.

In being reminded that other courts have reached the same conclusion, we also acknowledge the good cause for disillusionment by the insured who has been denied coverage for a substantial loss. If justice requires a different result, this will not be accomplished by an erroneous construction of the policy language but must instead be resolved through legislative or administrative review of policy exclusions.

Finally, we note the trial court’s alternative rationale that respondents reasonably expected coverage would be provided for a backup of sewage. There is no evidence that the water-damage exclusion was hidden and our conclusion that the plain meaning of the exclusion precludes coverage renders moot any examination of respondents’ expectations.

Appellant contends that respondents’ claim is also excluded by the pollution exclusion. Having determined that the water-damage exclusion applies, we decline to review this position.

DECISION

The trial court erred in concluding that respondents’ insurance policy covers damages caused by the backup of raw sewage where the water-damage exclusion unambiguously precludes coverage for damage caused “directly or indirectly” by “water which backs up through sewers or drains.”

Reversed and remanded.

      . The water-damage exclusion provides: 1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. * * * * c. Water Damage, meaning: ⅜ * * *Water which backs up through sewers or drains or which overflows from a sump[.]

      . The trial court characterized the damaging substance as raw sewage, but it made no determination of the extent to which the backup was composed of water.

      . See, e.g., Haines v. United Sec. Ins. Co., 43 Colo.App. 276, 602 P.2d 901, 902 (1979) (finding policy exclusion unambiguously precluded coverage for discharge of raw sewage); Rodin v. Slate Farm Fire & Cas., 844 S.W.2d 537, 539 (Mo.Ct.App.1992) (finding by looking at the "totality of the exclusion,” water-damage exclusion also excludes raw sewage); Capelouto v. Valley Forge Ins. Co., 98 Wash.App. 7, 990 P.2d 414, 419 (1999) (stating insured's understanding of water-damage exclusion was not reasonable where insured argued that sewage is distinct from water); Hallsted v. Blue Mountain Convalescent Ctr., Inc., 23 Wash.App. 349, 595 P.2d 574, 575 (1979) (holding water-damage exclusionary clause as unambiguous as applied to backup of raw sewage). But see Florida Farm Bureau Ins. Co. v. Birge, 659 So.2d 310, 311 (Fla.Dist.Ct.App.1994) (holding policy ambiguous where the average homeowner would not interpret the policy as precluding coverage for raw-sewage damage); Sterling v. City of W. Palm Beach, 595 So.2d 284, 285 (Fla.Dist.Ct.App.1992) (finding ambiguity as to whether water-damage clause also excluded raw-sewage damage).


author: HARTEN, Judge. KLAPHAKE, Judge

text:
    Corliss H. GUNDERSON, Appellant, v. Mark J. HARRINGTON, Respondent.
    No. C7-00-999.
    Court of Appeals of Minnesota.
    Nov. 21, 2000.

      Joseph M. Sokolowski, Kevin R. Coan, Parsinen, Klaplan, Rosberg & Gotlieb, P.A., Minneapolis, for appellant.
    Jeffrey J. Lindquist, Pustorino, Tilton & Parrington, P.A., Minneapolis, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, HARTEN, Judge, and ANDERSON, Judge.
   OPINION

HARTEN, Judge.

Appellant sued respondent, her former employer, alleging assault, battery, intentional infliction of emotional distress, and negligence. The district court awarded respondent summary judgment on the grounds that the exclusive remedy provision of the Workers’ Compensation Act precludes appellant’s claims and that the intentional injury exception to that provision does not apply. Appellant challenges the summary judgment.

PACTS

Respondent Dr. Mark Harrington, an orthodontist d/b/a Harrington Orthodontics, Ltd., a Minnesota Subchapter S corporation, employed appellant Corliss Gun-derson as a receptionist for about five years. Appellant claims that between about May 1997 and her resignation on July 10, 1998, respondent committed five assaults on her when criticizing her work or reprimanding her.

Appellant sought no medical care or treatment for any of the first four alleged assaults, nor did she report them. However, at the suggestion of a friend who was a former police officer, appellant reported the fifth assault to the police the day after it occurred. Because the police recommended that she seek medical treatment, she visited her clinic. She testified that she hadn’t thought about going to a physician before the police suggested it, that her head was examined but that neither treatment nor follow-up care was recommended, that she did not return to the clinic, and that she received no other medical care, psychiatric care, or emotional counseling in regard to the incident. The record includes no medical report of her visit to the clinic but it does include a letter indicating that the visit was paid for by respondent’s workers’ compensation insurance.

Appellant sought damages from respondent for assault, battery, intentional infliction of emotional distress, and negligence but respondent moved successfully for summary judgment.

ISSUES

1. Is respondent, as appellant’s employer, entitled to the protection of the exclusive remedy provision of the Workers’ Compensation Act?

2. Is there a genuine issue of material fact as to whether respondent acted with deliberate and conscious intent to inflict injury on appellant?

ANALYSIS

1. Exclusive Remedy Provision

On an appeal from summary judgment this court asks whether there are genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted).

Under the Workers’ Compensation Act, an employer’s liability is exclusive. Minn.Stat. § 176.031 (1998). “Employer” is defined as
any person who employs another to perform a service for hire; and includes corporation, partnership, limited liability company, association, group of persons, state, county, town, city, school district, or governmental subdivision.

Minn.Stat. § 176.011, subd. 10 (1998). Appellant does not dispute that she was employed to perform the service of a receptionist for hire, but she argues that Harrington Orthondontics, not respondent, was her employer.

Respondent is the president and sole shareholder of Harrington Orthondontics, Ltd. As a corporation, Harrington Or-thondontics could not itself have acted to employ appellant. “[A] corporation is an artificial entity which can only act through agents.” Nicollet Restoration, Inc. v. Turnham, 486 N.W.2d 753, 754 (Minn.1992). Respondent is the only agent of Harrington Orthondontics; he is the only decision-maker; his orthondontia practice is its only business; its employees are hired only to serve that business, and they are hired only by respondent. Holding that respondent was not appellant’s employer would ignore reality. Moreover, when respondent allegedly injured appellant, he was acting in his capacity as master dissatisfied with her job performance. Theirs was a master-servant relationship, and that relationship is covered under the Workers’ Compensation Act. See Fox v. Swartz, 228 Minn. 233, 237, 36 N.W.2d 708, 710 (1949) (Workers’ Compensation Act “is mandatory and clear in its purpose and specifically covers the relationship of master and servant to the exclusion of any liability at common law * * *.”) A master’s decision to do business as a corporation does not alter the “mandatory and clear” purpose of the act.

To support her argument that Harrington Orthondontics, not respondent, was her employer, appellant relies on Parker v. Tharp, 409 N.W.2d 915, 918 (Minn.App.1987). But Parker is readily distinguishable. In Parker, Honeywell, Inc., the employer, was found not liable to an employee assaulted by a có-employee because the co-employee had no “position of policy-making authority at Honeywell * * *.” Id. at 918. Respondent has all the policy-making authority at Harrington Orthon-dontics. Unlike the two tortfeasors and the victim in Parker, both co-employees of Honeywell, respondent and appellant were not co-employees of Harrington Orthon-dontics.

There is no Minnesota case addressing whether an employer loses the protection of the exclusive remedy provision by incorporating. Cases from other jurisdictions address the issue with inconclusive results. See, e.g. Barnette v. Doyle, 622 P.2d 1349 (Wyo.1981) and Crees v. Chiles, 437 N.W.2d 249 (Iowa Ct.App.1988) (both holding that a sole owner and shareholder of an employing corporation cannot invoke the exclusive liability provision); Stoker v. Wood, 161 Ga.App. 110, 289 S.E.2d 265, 265 (1982) (holding that when a corporate executive acts as the alter ego of the corporation, an injured employee may not recover workers’ compensation benefits and then sue the executive in tort.).

To deny respondent the protection of the exclusive liability provision because he chose to do business as a corporation would eviscerate the Workers’ Compensation Act and frustrate its stated basis: “mutual renunciation of common law rights and defenses by employers and employees alike.” Minn.Stat. § 176.001 (1998). We hold that an employer does not lose the protection of the exclusive liability provision of the Workers’ Compensation Act by choosing to incorporate.

2. Intentional Injury Exception

Appellant also contends that, if respondent was her employer and entitled to the protection of the workers’ compensation exclusive remedy provision, a genuine issue of material fact as to the application of the intentional injuries exception to that provision precludes summary judgment. “The determination of whether a genuine issue of material fact exists is * ⅜ * subject to de novo review.” Brookfield Trade Center v. Ramsey County, 609 N.W.2d 868, 874 (Minn.2000).

[A] moving party is entitled to summary judgment when “there are no facts in the record giving rise to a genuine issue for trial as to the existence of an essential element of the nonmoving party’s case.”

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997) (quoting Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847-48 (Minn.1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986))).

[Tjhere is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.

Id. See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (the nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts”); Brookfield, 609 N.W.2d at 874 (citing DLH for this proposition).

For the intentional injury exception to apply, an employer must have acted with conscious and deliberate intent to injure the employee. See Hildebrandt v. Whirlpool Corp., 364 N.W.2d 394, 396 (Minn.1985). Therefore, to oppose summary judgment, appellant must show facts in the record giving rise to a genuine issue of material fact as to whether respondent acted with a conscious and deliberate intent to injure her.

Appellant alleges that respondent struck her on five different occasions: May 1997, August 1997, November 1997, February 1998, and July 10, 1998. Because of their similarity, we will consider the first four incidents together, separately from the fifth.

a. First Four Incidents

Respondent says he has no recollection of the first four incidents, but admits they might have occurred. Appellant testified that the first three incidents were not witnessed and that she did not mention them to anyone. As to the fourth incident, appellant testified that although it occurred in the presence of a mother and two small children, appellant does not know their names, whether they visited respondent’s clinic again, or whether they saw respondent hit her. She also testified that she discussed this incident with her co-workers but not with her husband or respondent.

Appellant sought no medical treatment or psychological treatment after any of the first four incidents and she continued to work for respondent without interruption. In her deposition, appellant was asked, “[In the first incident] [d]o you think [respondent] meant to hurt you?” She replied, “No.” When asked if she had the impression that respondent intended to hurt her in the second incident, she said, “I don’t know.” She repeatedly testified, “I don’t know” when asked if respondent intended to hurt her in the third incident. In regard to the fourth incident, she testified “I don’t know” when asked “Do you know whether [respondent] meant to hurt you?” and when asked whether respondent’s act might have been “just an impulsive act of annoyance or frustration rather than an act intended to hurt [her].”

Appellant’s recollection is the only source of information on any of these four incidents. She testified that respondent did not mean to hurt her in the first one and that she did not know if he meant to hurt her in the other three. Therefore, in regard to these four incidents, there is no evidence from which a factfinder could find that respondent acted with a deliberate and conscious intent to injure appellant. See Hildebrandt, 364 N.W.2d at 396. We conclude that they do not furnish a basis for reversing the summary judgment.

b. Fifth Incident

Appellant must show that there are facts in the record giving rise to a genuine issue for trial as to whether respondent acted with a deliberate and conscious intent to injure her in the July 10, 1998, incident. When asked if, on that occasion, it was possible that respondent “just got carried away out of frustration without intending to hurt [her],” appellant testified that she didn’t know. Therefore, appellant’s testimony as to this incident does not provide “ ‘evidence on which the jury could reasonably find’ ” that respondent acted with a deliberate and conscious intent to injure appellant and does not preclude summary judgment. See DLH, 566 N.W.2d at 71, (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)).

It is not sufficient that the evidence gives rise to an inference that it was possible for respondent to have acted with a conscious and deliberate intent to injure appellant; that inference must be reasonable in light of the competing inferences. See Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356 (holding that the nonmoving party, an antitrust plaintiff, had to show that the inference of conspiracy was not merely possible, but reasonable, in light of competing inferences) cited in DLH, 566 N.W.2d at 70. There is no evidence supporting a reasonable inference that respondent acted with a conscious and deliberate intent to injure appellant.

Moreover, unlike her testimony on the four earlier incidents, appellant’s testimony about the fifth incident is not uncon-troverted. In his deposition, respondent testified that he remembered the occasion and that the incident did not occur: “I have a specific recollection that I did not strike her on July 10th.” The witness before whom the assault is alleged to have occurred submitted an affidavit saying that there was no assault: “[Respondent] did not hit [appellant] or yell at her.” (Emphasis in original). The district court was not obliged to disregard this evidence in determining- that there was no genuine issue of material fact; nor was it obliged to give credence to appellant’s testimony to the contrary.

[W]hen determining whether a genuine issue of material fact for trial exists, the court is not required to ignore its conclusion that a particular piece of evidence may have no probative value, such that reasonable persons could not draw different conclusions from the evidence presented.

DLH, 566 N.W.2d at 70. In light of respondent’s specific recollection that he did not hit appellant and the witness’s affidavit that respondent did not hit appellant, the district court was not required to ignore its conclusion that appellant’s account of the incident had no probative value.

Absent any firm evidence that an assault occurred, there is no evidence that respondent acted with deliberate and conscious intent to inflict injury on appellant in the assault. Appellant does not “make a showing sufficient to establish that essential element.” Id. at 71, (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552).

[W]e conclude that while the Supreme Court uses different language, the import of its analysis [in Celotex. Liberty Lobby, and Matsushita ] is the same— the party resisting summary judgment must do more than rest on mere aver-ments.

DLH, 566 N.W.2d at 71. Appellant does no more than rest on her averments. She offers no evidence other than her own testimony, which is in essence a reiteration of the complaint. “The party resisting summary judgment may not simply rest on its pleadings, but must produce affirmative evidence to show an issue of material fact.” Brookfield, 609 N.W.2d at 874.

We conclude that there was no affirmative evidence that respondent met the standard of acting with a deliberate and conscious intent to inflict injury. Accordingly, the intentional injury exception does not apply.

DECISION

Despite having incorporated his business, respondent was appellant’s employer within the meaning of the exclusive remedy provision of the Workers Compensation Act. The record does not support the existence of a genuine issue of material fact as to whether respondent acted with conscious and deliberate intent to injure appellant. We therefore affirm the summary judgment.

Affirmed.

KLAPHAKE, Judge

(concurring in part, dissenting in part).

I agree with the majority that the intentional injury exception to the Workers’ Compensation Act does not apply under the alleged facts of this case. I take exception only to the majority’s conclusion that respondent’s act of incorporating his orthodontics business should allow him to be immune from tort suit under the common law because of application of the Act’s exclusive remedy provision as it applies to employers.

The majority states that “to deny respondent the protection of the exclusive liability provision because he chose to do business as a corporation would eviscerate the Workers’ Compensation Act.” To do otherwise would eviscerate appellant’s common law right to sue for damages in favor of upholding a legal fiction. Respondent’s act of incorporating his business has not altered the fundamental nature of his business, except to shield him from liability. But he now derives his income as an employee, not as a shareholder. Therefore, he has a dual status as employee and shareholder. Because employees may sue each other, respondent should not be immune from liability for his assault on appellant. Other states that have considered this question have ruled that an injured employee is not barred from initiating a tort action against a co-employee who is also a corporate officer. See, e.g., Barnette v. Doyle, 622 P.2d 1349, 1354-55 (Wyo. 1981) (workers’ compensation act “does not bar an injured employee from bringing an action against a coemployee who is also a corporate officer”); Crees v. Chiles, 437 N.W.2d 249, 252 (Ia.Ct.App.1988) (“legislature did not intend any person who may be determined an ‘alter ego’ of a corporate employer to be immune from suit for gross negligence by a co-employee”); see also 2 Arthur Larson, Larson’s Worker’s Compensation, 72.13 (2000) (“most courts have held that * * * status [as a corporate officer, director or shareholder] is not in itself a bar to liability as a coemployee, since the corporate entity is the employer”). I would reverse the district court’s grant of summary judgment on this issue.

      . Appellant's motion to add a claim for puni-live damages was denied.

      . Crees, moreover, relies on the liberal construction of the Workers' Compensation Act that Minnesota has explicitly rejected. See Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 780 (Minn.1988) (noting legislature's rejection of liberal construction and limited precedential value of cases based on liberal construction).

      . We note our disagreement with respondent's view that the obligation to "view the evidence in the light most favorable to the nonmoving party,” Brookfield, 609 N.W.2d at 874, precludes the district court from considering any evidence that is unfavorable to the nonmoving party. We find no support for this view.

      . Because of our resolution of these issues, we do not address the dismissal of appellants’ negligence claim or the denial of her motion to add a claim for punitive damages.