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Fernow v. Gould

Supreme Court of Minnesota

August 14, 2013

Donald Morris Fernow, Appellant,
v.
Michael Donald Gould, et al., Respondents. Country Mutual Insurance Company, Appellant,

Court of Appeals Office of Appellate Courts

Michelle D. Hurley, Steven L. Theesfeld, Yost & Baill, LLP, Minneapolis, Minnesota, for appellant.

Rylee J. Retzer, League of Minnesota Cities, Saint Paul, Minnesota, and Jessica E. Schwie, Jardine, Logan, & O'Brien, PLLP, Lake Elmo, Minnesota, for respondents.

Paul D. Reuvers, Susan M. Tindal, Iverson Reuvers, Bloomington, Minnesota, for amici curiae Association of Minnesota Counties and Minnesota Association of Townships.

Anderson, J. Dissenting, Stras, J. Took no part, Lillehaug, J.

SYLLABUS

Claims of immunity, including necessary questions of fact, are determined by the district court prior to arbitration on the merits under the Minnesota No-Fault Automobile Insurance Act, Minn. Stat. §§ 65B.41-71 (2012).

Affirmed.

OPINION

ANDERSON, Justice.

On April 26, 2008, respondent Michael Gould, a snowplow driver for the City of Alexandria, crossed the center line in his snow plow and collided with the vehicle of Donald Fernow, causing Fernow's vehicle to roll over. Witnesses indicated that it was a sunny day, and although there was slush present on the road, driving conditions were good. Gould agreed that road conditions were fair, and that the driving lanes were clear.

Fernow brought a personal injury action against both the City and Gould. At around the same time, Fernow's insurance company, appellant Country Mutual Insurance Company, sought arbitration against the City under Minn. Stat. § 65B.53, subd. 4 (2012), [1] seeking repayment of $23, 326 in basic economic loss benefits paid to Fernow. In the personal injury action in district court, the City moved for summary judgment, arguing that Fernow's claim was barred by statutory discretionary immunity, common law official immunity, and statutory "snow and ice immunity" under Minn. Stat. § 466.03, subd. 4(a) (2012).[2] The district court denied the City's summary judgment motion, concluding that the involvement (or lack thereof) of snow and ice in the collision was a question of material fact making summary judgment inappropriate. Country Mutual intervened in the action in January 2010, and the court of appeals affirmed the district court's denial of summary judgment. Fernow v. Gould, No. A10-223, 2010 WL 3463694 (Minn.App. Sept. 7, 2010).

At Country Mutual's urging, the arbitrator, who had granted the City a delay in proceedings pending the district court's determination of the immunity claims, then awarded the insurance company $23, 326 in basic economic loss benefits. The City argued that the arbitrator lacked authority to decide the issue of statutory immunity; the arbitrator addressed this claim in a brief paragraph:

The [City] asserts that [the arbitrator] does not have authority nor jurisdiction to hear this matter. Further stating their defense that there [sic] snowplow driver is exempt from any and all liability asserting statutory immunity. The [City] filed a motion for summary judgment in District Court to request this matter be dismissed by governmental statutory immunity. The District Court denied the motion. The Court of Appeals affirmed the District Court decision. Therefore, the defense of governmental statutory immunity does not apply to this matter.

The City filed a motion in the district court to vacate the arbitration award, arguing that the legal issue of immunity was not within the arbitrator's authority. The district court denied the motion and confirmed the award. The City appealed, and the court of appeals reversed. Fernow v. Gould, 816 N.W.2d 647, 651 (Minn.App. 2012). The court of appeals held that "[b]ecause the application of immunity is a question of law and, because, in the area of automobile reparation, arbitrators are limited to deciding issues of fact, the arbitrator exceeded ...


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