Mower County District Court File No. C7011056
Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and
A party opposing a district court's sua sponte order for summary judgment must be given a "meaningful opportunity" to acquire evidence to oppose the motion.
II. Where an insured provides his insurance agent with information regarding a pre-existing condition, and the agent, in preparing the application, erroneously informs the insured that the information is not required and excludes the information, resulting in denial of benefits and cancellation of the policy, the insured has a claim for negligent misrepresentation.
The opinion of the court was delivered by: G. Barry Anderson, Judge
Reversed and remanded; motion denied
Appellant challenges the district court's sua sponte grant of summary judgment in favor of respondent. Appellant argues that the district court erred in (1) granting summary judgment on respondent's disguised and improperly noticed motion for summary judgment; (2) holding that the policy definition of "physicians" was unambiguous; and (3) barring evidence that the agent negligently assisted appellant in completing the disability insurance application. Because respondent's motion in limine, requesting that the court bar evidence regarding appellant's treatment by a physician, was actually a motion for summary judgment, and the district court abused its discretion in excluding all evidence regarding the agent's alleged negligence, we reverse and remand.
Appellant James T. Hebrink purchased a disability-insurance policy from Stanley S. Thompson, an insurance agent for respondent Farm Bureau Life Insurance Company, on June 10, 1999. Thompson filled out the application as appellant gave him the information. According to appellant, he informed Thompson that he had received prior chiropractic treatment, but Thompson told him that this information was not sought in the application. Appellant signed the application and Farm Bureau issued the policy.
On August 31, 1999, appellant was injured while working on a cement project on his driveway. Appellant went to see Dr. M.O. Reeve, a chiropractor, on September 3, 1999. Dr. Reeve later referred appellant to the Mayo Clinic, where he was diagnosed as having "a right S-1 radiculopathy resulting in considerable pain and mild weakness, which did not resolve with an extensive period of maximal conservative therapy." As a result, appellant underwent surgery on April 5, 2000. Appellant was released the following day and was once again placed in the care of Dr. Reeve.
In March 2000, appellant made a claim under his insurance policy. Appellant's chiropractor submitted a physician's statement to Farm Bureau, indicating that appellant had also been treated for back problems in November of 1998, but that his problem had resolved in four treatments. Based on this disclosure, Farm Bureau cancelled appellant's policy. Specifically, Farm Bureau asserted that appellant failed to disclose his prior back problems, and that had he done so, no policy would have been issued.
On June 25, 2001, appellant served Farm Bureau with a complaint, alleging breach of contract and negligence by its agent. In its answer, Farm Bureau denied all claims. Farm Bureau claimed that there was no breach of contract because appellant made material misrepresentations on the application by failing to reveal a pre-existing condition. The answer did not assert that appellant failed to establish he was "totally disabled" because he was not under the care of a "physician" for 90 days.
A pretrial conference was held on August 7, 2002. On August 12, 2002, Farm Bureau filed a motion in limine, requesting that the district court bar (1) appellant from submitting any testimony relating to "total disability" within the meaning of the policy definition because it was undisputed that appellant had not been under the care of a physician for more that 90 days, and (2) all evidence relating to negligence of the insurance agent because the alleged negligence, if any, did not proximately cause appellant's damages.
On the scheduled trial date, August 19, 2002, the district court considered and granted Farm Bureau's motion in limine, barring evidence on "total disability" and negligence of the agent. Ultimately, the district court granted summary judgment, sua sponte, explaining as follows:
Given the clear understanding that chiropractors are not permitted to practice medicine while physicians are in the state of Minnesota, the Court finds as a matter of law no ambiguity exists in the definition "physician" as stated in the Farm Bureau's Insurance policy issued to [appellant]. Based upon this finding, [appellant] is unable to prove he complied with the 90 and 120 day policy requirement for treatment by a physician. The court's ...