Latest news and events from Stich, Angell, Kreidler, Dodge & Unke.
Legal Matters: Change in indemnity law raises questions:
There are a fair amount of questions as to how the changes in 337.05 are going to play out,” said Louise Behrendt, a partner with Minneapolis firm Stich, Angell, Kreidler, Dodge & Unke. “The intention was to eliminate the circumstances under which a general contractor could ask a subcontractor to insure the general for the general’s own fault. Whether or not it will actually do that is questionable.
In July 2013, Garth Unke and Stacey Sever won summary judgment dismissal on behalf of a corporate client in a wrongful death (carbon monoxide) lawsuit.
Betsy Kumagai and Jesse Beier wrote an article on examinations under oath (EUO’s) in the no-fault context and in the wake of Western National Insurance Company v. Thompson, 797 N.W. 2d 201 (Minn. 2011) and the unpublished Court of Appeals decision in State Farm v. Padilla, No. A12-0928, 2012 WL 6652635 (Minn. Ct. App. Dc. 24, 2012). The article, entitled “Tying the Hands of Insurance Companies and the Contractual Right to Examinations Under Oath: How Western National and Padilla Limit EUOs in the No-Fault Context,” appears in the Spring, 2013 edition of Minnesota Defense, a quarterly publication of the Minnesota Defense Lawyers Association (MDLA).
On April 22, 2013 Garth Unke and Louise Behrendt obtained a favorable ruling from the Minnesota Court of Appeals on a statute of limitations issue involving construction defect claims in a case entitled Lee v. Gorham Builders, Inc., A12-1619 (Minn. Ct. App. Apr. 22, 2013). The decision affirmed the Anoka County District Court’s grant of summary judgment to the firm’s client, Gorham Builders, with regard to, among other things, claims of breach of the statutory warranties provided by Minn. Stat. 327A.02, because the undisputed facts establish that the homeowner received information more than two years before suit was commenced upon which they knew or should have known that the builder was refusing to or was unable to honor its warranties.
On April 1, 2013, Mike Kreidler and Louise Behrendt received a favorable ruling from the Minnesota Court of Appeals in a wrongful death case involving the death of an individual riding an ATV on a bicycle trail near Red Wing. The decision affirmed the Goodhue County District Court’s grant of summary judgment to the firm’s client, the contractor on the trail paving project, based on lack of evidence establishing that any alleged action or inaction by the contractor was the proximate cause of the decedent being thrown from the back of the ATV. The decision is entitled Weeks v. Mathy Construction, A12-1543 (Minn. Ct. App. Apr. 1, 2013).
Louise Behrendt and Mike Kreidler received a favorable decision from the Minnesota Supreme Court on a contractual indemnity issue in Engineering and Construction Innovations, Inc. v. L.H. Bolduc Company.
The Minnesota Supreme Court issued its decision on January 23, 2013 in Engineering and Construction Innovations, Inc. v. L.H. Bolduc Co., Inc. and Travelers Indemnity Company of Connecticut, reversing a problematic decision by the Minnesota Court of Appeals that imposed a contractual indemnification obligation on a subcontractor, Bolduc, which was found not negligent at a jury trial for underlying property damage. Mike Kreidler represented Bolduc at trial, and both Louise Behrendt and Mike Kreidler represented Bolduc throughout the appellate process.
The Minnesota Supreme Court’s decision is significant because it reiterates that the anti-indemnification provisions of Minn. Stat. 337.02 are alive and well, and that such indemnification obligations rise and fall on what the construction contract requires with regard to the subcontractor’s obligation to procure insurance. Specifically, the Court affirmed what Minnesota’s anti-indemnity law, Minn. Stat. 337.03 makes clear: indemnity agreements that obligate a subcontractor to indemnify a general contractor for the general contractor’s own negligence are prohibited and that this unenforceable obligation is “saved” only to the extent that, under Minn. Stat. 337.05, subd. 1, the contract obligates the subcontractor to get specific insurance for the general contractor, covering the unenforceable indemnification obligation. Finally, the Court concluded that indemnification obligations may be directly imposed upon the subcontractor, with regard to the general contractor’s fault, only if the general contractor demonstrates three things, under MInn. Stat. 337.05, subd. 2: that specific types and limits of insurance (covering the general’s own fault) were supposed to be obtained via the contract; that a claim arose within the scope of the specified insurance; and that the subcontractor did not obtain and keep in force the specified insurance.
Professional Association Honors
In August 2012 Rich Scattergood was appointed Secretary of the Board of Directors of Minnesota Defense Lawyers Association (MDLA) at the MDLA’s summer conference in Duluth.
Product Liability – Wrongful Death
In August 2012 Garth Unke and Stacey Sever obtained a favorable settlement of a product defect (wrongful death) case on behalf of their product manufacturer client. The case involved product defect claims including insufficient and defective warnings, and defective design. Economic loss damages alone were claimed at over $3 million dollars. The case resolved favorably on a confidential basis.
Product Defect – Construction Defect
In August 2012, Louise Behrendt successfully obtained an affirmance from the Minnesota Court of Appeals of the summary judgment dismissal of the firm’s window manufacturer client in a large construction defect case involving a commercial building. The decision may be accessed at http://www.lawlibrary.state.mn.us/archive/ctapun/1208/opa120168-082712.pdf .
Product Liability – Wrongful Death
In August 2012, Garth Unke and Stacey Sever successfully obtained the dismissal with prejudice of a product distributor client in a wrongful death product defect case. The dismissal was obtained by way of a motion based on the Seller’s Exception Statute, Minnesota Statute §544.41.