Ross v. Briggs and Morgan, No. C7-93-2568

CourtSupreme Court of Minnesota (US)
Writing for the CourtCOYNE
Citation540 N.W.2d 843
Docket NumberNo. C7-93-2568
Decision Date22 December 1995
PartiesScott M. ROSS, M.D., Respondent, v. BRIGGS AND MORGAN, Petitioner, Appellant, BRIGGS AND MORGAN, Third-Party Plaintiff, Petitioner, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Third-Party Defendant, Respondent.

Page 843

540 N.W.2d 843
Scott M. ROSS, M.D., Respondent,
v.
BRIGGS AND MORGAN, Petitioner, Appellant,
BRIGGS AND MORGAN, Third-Party Plaintiff, Petitioner, Appellant,
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, Third-Party
Defendant, Respondent.
No. C7-93-2568.
Supreme Court of Minnesota.
Dec. 22, 1995.

Page 845

Michael R. Cunningham and Jonathan M. Redgrave, Minneapolis, for Appellant.

Jerome S. Rice and Stephen B. Young, Minneapolis, for Respondent Ross.

Jeffrey J. Bouslog and David M. Wilk, St. Paul, for Respondent St. Paul Fire & Marine.

Heard, considered and decided by the court en banc.

OPINION

COYNE, Justice.

The plaintiff Scott M. Ross, M.D., commenced this legal malpractice action complaining that the Briggs and Morgan law firm was negligent in representing him in connection with his termination of employment with Manuel O. Jaffe, M.D., and Skin Diseases, P.A., by reason of the firm's failure to tender the defense of that termination litigation to St. Paul Fire & Marine Insurance Company, Ross' commercial general liability insurer. Claiming that the policy required the insurer to defend and indemnify him for advertising injury liability, Ross alleged that he incurred damages of over $175,000 in attorney fees, $40,000 in settlement costs and the diversion of financial resources from his medical practice. 1 The law firm moved the trial court for summary judgment, asserting that the Fire & Marine policy provided no coverage for the claims alleged in Jaffe's complaint and that, accordingly, there was no basis for legal malpractice liability. The trial court granted the motion and on Ross' appeal from the judgment, the court of appeals reversed and remanded the matter to the district court for trial on the merits of the plaintiff's claims. Ross v. Briggs & Morgan, 520 N.W.2d 432 (Minn.App.1994). We reverse and reinstate that summary judgment.

On December 21, 1985, Ross, then completing his medical training as a dermatologist, and Jaffe, acting on behalf of Skin Diseases, P.A., entered into an employment agreement which was to become effective on the first day of employment, August 1, 1986, and which purported to govern the terms and conditions of the employment relationship and also the restrictions on Ross' activities in the event of the termination of the employment. Among the provisions were three--paragraphs 5.4, 5.5 and 5.6--which defined a restrictive covenant and the restrictions on marketing and which identified liquidated damages for violation of those provisions and others of the contract. The employment did commence as anticipated on August 1, 1986, but by late March 1987, the relationship had deteriorated. Ultimately, Ross' employment was terminated by an agreement executed on April 18, 1987. The termination agreement referenced and reaffirmed the termination restrictions to which Ross had agreed in executing the original employment agreement and, in addition, contained provisions defining the severance of the parties' relationship.

A specific provision of the agreement required the prompt notification to patients and others of Ross' disassociation from Skin Diseases, P.A., and the parties' mutual agreement with respect to the contents of the notice. Ross later testified by deposition that because Jaffe was "stalling" and because he received no response to his proposed communications, he mailed a letter which he alone drafted to persons included on Skin Diseases' computerized mailing list. Printed on the letterhead of his newly formed practice, Skin Physicians, P.A., on which only Ross' name was listed, the letter conveyed the message that "[w]e are pleased to announce the opening of our new office" at an address specified. The letter also welcomed

Page 846

patients to "our new luxurious office suites." There was, however, no direct mention of the cessation of Ross' association with Jaffe and Skin Diseases, P.A. The letter, dated April 30, 1987, was mailed to designated individuals either prior to or at the same time as a copy was sent to Jaffe. In addition, Ross placed advertisements in the May 24, 1987 edition of the Minneapolis Star and Tribune and the June 1987 edition of Minneapolis-St. Paul Magazine, using the name "Institute of Cosmetic and Laser Surgery," a name similar to that used by Skin Diseases, "Institute of Cosmetic Surgery and Hair Transplants."

In apparent anticipation of opening his own dermatology practice as the relationship between the parties further deteriorated in late March and early April, Ross had contacted insurance agent Joseph Byrne from the Insurance Mart on April 9, 1987 seeking insurance coverage for contents, theft, fire and public liability. Ross did not inform Byrne of the ongoing dispute with Jaffe. 2 The Fire & Marine issued its "Professional Office Package Policy," including commercial general liability coverage to Ross' newly named practice, Skin Physicians, P.A., effective April 15, 1987. 3 Among its protections, the policy indemnified Skin Physicians, P.A., for advertising injury liability:

We'll pay amounts any protected person is legally required to pay as damages for covered personal injury or advertising injury that's caused by an offense committed while this agreement is in effect.

The policy defined...

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37 practice notes
  • In re Src Holding Corp., Bankruptcy No. 02-40284.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — District of Minnesota
    • August 28, 2006
    ...in order to show proximate causation." Jerry's Enters., 711 N.W.2d at 819. The Court cited its prior opinions in Ross v. Briggs & Morgan, 540 N.W.2d 843, 847 (Minn.1995), and Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 282-84 (Minn.1983). The Court then that in an action for legal malpract......
  • Amway Distributors Benefits Ass'n v. Federal Ins., No. 1:96-CV-726.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • November 26, 1997
    ...for purpose of inducing switch to competitor); Ross v. Briggs & Morgan, 520 N.W.2d 432, 435 (Minn.Ct.App.1994), rev'd on other grounds, 540 N.W.2d 843 (Minn.1995) (finding that letter sent by insured to 8,000 patients soliciting new business was clearly advertising where it was widely Some ......
  • In re Senior Cottages of America, LLC, No. 00-32012. No. 03-3132.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — District of Minnesota
    • February 18, 2005
    ...Defendants' alleged negligence and intent to the total loss of viability in the operations of Senior Cottages. Ross v. Bnggs & Morgan, 540 N.W.2d 843, 847 (Minn. 1995); See, e.g., Blue Water Corp., Inc. v. O'Toole, 336 N.W.2d 279, 282 (Minn. 1983); Rampy v. Messerli, 224 B.R. 701, 704 (D.Mi......
  • US Fidelity & Guar. v. Star Technologies, No. CV-95-1479-ST.
    • United States
    • U.S. District Court — District of Oregon
    • August 16, 1996
    ...(three letters to one 935 F. Supp. 1115 client); Ross v. Briggs & Morgan, 520 N.W.2d 432, 435 (Minn1994), rev'd on other grounds, 540 N.W.2d 843 (Minn1995) (single letter sent to client In New Hampshire Insurance Co. v. Foxfire, Inc., 820 F.Supp. 489, 494 (NDCal1993), the district court poi......
  • Request a trial to view additional results
37 cases
  • In re Src Holding Corp., Bankruptcy No. 02-40284.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — District of Minnesota
    • August 28, 2006
    ...in order to show proximate causation." Jerry's Enters., 711 N.W.2d at 819. The Court cited its prior opinions in Ross v. Briggs & Morgan, 540 N.W.2d 843, 847 (Minn.1995), and Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 282-84 (Minn.1983). The Court then that in an action for legal malpract......
  • Amway Distributors Benefits Ass'n v. Federal Ins., No. 1:96-CV-726.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • November 26, 1997
    ...for purpose of inducing switch to competitor); Ross v. Briggs & Morgan, 520 N.W.2d 432, 435 (Minn.Ct.App.1994), rev'd on other grounds, 540 N.W.2d 843 (Minn.1995) (finding that letter sent by insured to 8,000 patients soliciting new business was clearly advertising where it was widely Some ......
  • In re Senior Cottages of America, LLC, No. 00-32012. No. 03-3132.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — District of Minnesota
    • February 18, 2005
    ...Defendants' alleged negligence and intent to the total loss of viability in the operations of Senior Cottages. Ross v. Bnggs & Morgan, 540 N.W.2d 843, 847 (Minn. 1995); See, e.g., Blue Water Corp., Inc. v. O'Toole, 336 N.W.2d 279, 282 (Minn. 1983); Rampy v. Messerli, 224 B.R. 701, 704 (D.Mi......
  • US Fidelity & Guar. v. Star Technologies, No. CV-95-1479-ST.
    • United States
    • U.S. District Court — District of Oregon
    • August 16, 1996
    ...(three letters to one 935 F. Supp. 1115 client); Ross v. Briggs & Morgan, 520 N.W.2d 432, 435 (Minn1994), rev'd on other grounds, 540 N.W.2d 843 (Minn1995) (single letter sent to client In New Hampshire Insurance Co. v. Foxfire, Inc., 820 F.Supp. 489, 494 (NDCal1993), the district court poi......
  • Request a trial to view additional results

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