Progressive Ins. v. Abel

• Decision Date: 13 June 2022
• Docket Number: A21-1267
• Parties: Progressive Insurance, Respondent, v. Justin Abel, et al., Appellants.
• Court: Minnesota Court of Appeals

Progressive Insurance, Respondent,
v.
Justin Abel, et al., Appellants.

No. A21-1267

Court of Appeals of Minnesota

June 13, 2022

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Clay County District Court File No. 14-CV-19-4575

Kenneth H. Bayliss, Jessie L. Sogge, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for respondent)

Jordan B. Weir, Vogel Law Firm, Fargo, North Dakota (for appellants)

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and Klaphake, Judge. ^[*]

OPINION

BRATVOLD, JUDGE

This is an underinsured-motorist-benefits action arising from injuries to an insured's 20-year-old stepdaughter. Appellants challenge the district court's grant of summary

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judgment for respondent-insurer and its denial of summary judgment for appellants. Appellants argue, among other things, that the district court improperly weighed evidence and made credibility determinations and therefore erred by denying coverage under the resident-relative provision of the stepfather's automobile policy. Because genuine issues of material fact preclude summary judgment, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

On December 9, 2015, appellant Aubrie Abel was injured while a passenger in a car accident in Harvey, North Dakota. Aubrie was a 20-year-old student at Minot State University. Aubrie settled for the $100, 000 limit of the driver's insurance policy and pursued underinsured-motorist (UIM) benefits.

At the time of the accident, appellant Justin Abel, Aubrie's stepfather, ^[1] had UIM coverage through an automobile policy with respondent-insurer Progressive Preferred Insurance Company (Progressive). Progressive denied Aubrie's UIM claim after concluding that "Aubrie was no longer a resident of Justin's household." Progressive filed a complaint seeking a declaratory judgment that Aubrie was not covered by Justin's automobile insurance policy. Appellants counterclaimed for UIM benefits. Both parties moved for summary judgment.

The summary-judgment record established many undisputed facts. Aubrie lived with her mother and Justin (parents) in Sabin, Minnesota, until her high-school graduation

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in 2014. After graduation, Aubrie lived in West Fargo, North Dakota, with her mother's grandparents to get a North Dakota driver's license, which she obtained. Aubrie testified that she "struggled" to pass the Minnesota driver's test and did not have a Minnesota driver's license. In March 2015, Aubrie moved to Harvey, North Dakota, to live with and help care for her great-grandparents.

While in Harvey, Aubrie became a certified nursing assistant (CNA). Aubrie's grandmother paid for the CNA coursework. In July 2015, Aubrie began working 36.5 hours per week as a CNA in Harvey. Aubrie's employer paid for her online classes at Minot State so she could be certified as a direct support professional. At the same time she started working as a CNA, Aubrie moved into an apartment in Harvey, where she lived by herself for four months until the accident. After the accident, Aubrie moved back to Sabin and lived with her parents.

After hearing arguments on the parties' summary-judgment motions, the district court issued a written decision determining there was no UIM coverage for Aubrie's injuries through Justin's automobile policy. The district court concluded that Aubrie was not a resident of Justin's household because "the undisputed facts show that Aubrie had established a separate residence in Harvey, North Dakota, at the time of the accident." In making this determination, the district court relied on Aubrie's employment in Harvey, her rent payments for the apartment, her North Dakota driver's license, and Aubrie's response during a deposition that she would move back to Sabin "eventually" and was not going to live in Harvey "forever." The district court also rejected an affidavit from Aubrie as "self-serving and not sufficient to create a genuine issue of material fact as it contradicts

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testimony provided in a prior deposition, under oath." The district court therefore denied appellants' motion for summary judgment and granted Progressive's motion for summary judgment.

This appeal follows.

DECISION

Appellate courts "review the grant of summary judgment de novo to determine whether there are genuine issues of material fact and whether the district court erred in its application of the law." Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotation omitted). In considering the record on summary judgment, appellate courts "view the evidence in the light most favorable to the party against whom summary judgment was granted." STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). Summary judgment is proper if the moving party shows that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law" based on the...