American Auto. Ins. Co. v. City of Minneapolis

• Decision Date: 20 January 1961
• Docket Number: No. 37867,37867
• Parties: AMERICAN AUTOMOBILE INSURANCE COMPANY, Appellant, v. CITY OF MINNEAPOLIS, Respondent.
• Court: Minnesota Supreme Court

Page 320

107 N.W.2d 320

259 Minn. 294

AMERICAN AUTOMOBILE INSURANCE COMPANY, Appellant, v. CITY OF MINNEAPOLIS, Respondent.

No. 37867.

Supreme Court of Minnesota.

Jan. 20, 1961.

Syllabus by the Court.

1. Notice to a municipality under Minn.St. 465.09 is required only when an action is predicated upon negligence. The purpose of requiring notice within 30 days that a claim will be made against a municipality for personal injuries sustained by reason of defects on a public street is to enable its authorities to make timely investigations into the time, place, and circumstances of accident while witnesses are obtainable and their recollections fresh so that claims can be settled, if valid, and if not, so that an intelligent answer can be made in any action brought to enforce the claim. Held, under the record here the action is predicated upon negligence.

2. The right to indemnity is based upon an equitable doctrine under which a party is entitled to indemnity if he has paid an obligation which, as between himself and another person, the latter in equity and in good conscience ought to have paid. Held, under the record here that the failure to serve timely notice on defendant city prevented any liability on its part from existing and therefore there could be no indemnity.

Tyrrell, Jardine, Logan & O'Brien, and Ross M. Muir, St. Paul, for appellant.

Charles A. Sawyer, City Atty., Raymond H. Hegna, Asst. City Atty., Minneapolis, for City of Minneapolis.

Orville C. Peterson, Minneapolis, amicus curiae.

FRANK T. GALLAGHER, Justice.

This is an appeal from a judgment of the district court entered pursuant to an order granting defendant's motion for summary judgment.

The plaintiff insurance company in its brief, and the trial court in its memorandum and order, refer to the action as one for indemnification. Dovre Hall Association carried liability insurance with the plaintiff company covering the association's premises at 2337 Central Avenue N.E. in Minneapolis. A ramp ran from the building on the premises to the public sidewalk. The sidewalk had sunk over the years so that on December 23, 1953, it was lower than the ramp. On that day one Nora B. Nelson walked down the ramp toward the sidewalk. She fell at some point and was injured. She gave no notice of her injuries to the city.

On May 11, 1954, Mrs. Nelson commenced an action for damages against Dovre Hall Association. The case was tried before a jury, which returned a verdict in her favor on December 12, 1955. After various court proceedings, the case was settled on March 12, 1957, for $20,000 and that amount was paid to Mrs. Nelson by plaintiff in this action as insurer for Dovre Hall Association. On that same day plaintiff served a notice of claim for $20,000 upon the city of Minneapolis. This was more than 3 years after Mrs. Nelson was injured.

Plaintiff commenced this action against the defendant city on June 27, 1957. Thereafter the defendant city moved for summary judgment in its favor, which motion was granted. Judgment was entered accordingly for the city dismissing the action with prejudice, and this appeal was taken from that judgment.

Plaintiff's only assignment of error here is that the trial court erred in granting defendant's motion for summary judgment, which raises the following issues:

(a) Does Minn.St. 465.09, relating to notice of claim to a municipality, apply to an action for indemnification?

(b) If it does, does it apply to the indemnitee at the time when the original accident occurs or when the indemnitee sustains a loss?

The pertinent provisions of § 465.09 are:

'Every person who claims damages from any city, * * * for or on account of any loss or injury sustained by reason of any defect in any bridge, street, sidewalk, * * * or by reason of the negligence of any of its officers, agents, servants, or employees, shall cause to be presented to the common council or other governing body, within 30 days after the alleged loss or injury, a written notice, stating the time, place, and circumstances thereof, and the amount of compensation or other relief demanded. No action therefor shall be maintained unless such notice has been given; or if commenced within ten days thereafter, or more than one year after the occurrence of the loss or injury.'

Plaintiff contends that since it is bringing an action for indemnification against defendant city it is not barred by the failure to give notice to defendant within 30 days of the accident as required by § 465.09. It argues that § 465.09 applies only to actions based upon negligence and that its action is not based on negligence but on contract; that the contract upon which its action is based is one of indemnity which the law implies in...