Recent News

Intent Not Required In Uninsured Hit-And-Run

In Russell v. Sentinel Ins. Co., Ltd., the Minnesota Court of Appeals held that if an uninsured-motorist policy provision does not define “hit-and-run vehicle,” a vehicle is a “hit-and-run vehicle” if the vehicle does not stop, leaves the accident scene and the insured does not have an opportunity to obtain the unidentified driver's information. A17-0591, 2018 WL 256728, at *1 (Minn. Ct. App. Jan. 2, 2018). At issue in the case was the fact that the alleged hit-and-run driver could not be proved to have “intentionally” fled the scene to escape liability. Based on the facts of the case, there was no way to know that the driver of the alleged hit-and-run vehicle even knew about the injury to Plaintiff as it was dragging a hose behind it that struck Plaintiff. The Court of Appeals dismissed the argument that Plaintiff was required to prove intent, rather, the Plaintiff must only show that the unidentified driver did not stop/left the scene and Plaintiff had no opportunity to obtain the driver’s information.

“Proceeds Awarded” To An Insured Are Capped By The Insurance Policy's Limit In First-Party Bad Faith

In Wilbur v. State Farm Mut. Auto. Ins. Co., the question of whether the “proceeds awarded” to an insured under Minn. Stat. § 604.18 (2016)—which authorizes the award of “taxable costs” when an insurer denies benefits without a reasonable basis (in the context of first-party bad faith)—are capped by the insurance policy limit. A15-1438, 2017 WL 1245282 (Minn. Apr. 5, 2017). Both the district court and the Minnesota Court of Appeals held that the policies limit was a cap, for various reasons. The Minnesota Supreme Court agreed with the result of both courts, but held that it was the plain language of Minn. Stat. § 604.18 that provided that “proceeds awarded” to an insured are capped by the insurance policy's limit.

The facts of the case are straightforward. The underlying liability settled for the policy limits of $100,000, the UIM went to trial and the jury awarded $412,764.63. As State Farm’s UIM policy was $100,000, Plaintiff amended his complaint to recover “taxable costs” for State Farm’s unreasonably denial of insurance benefits. After a separate trial, the district court found State Farm had no reasonable basis to deny insurance benefits. The amount of “taxable costs” available to the Plaintiff under section 604.18 turned on whether the phrase “proceeds awarded” referred to an amount capped by the insurance policy limit. If capped, these proceeds were $36,000 and, if not, Plaintiff would have recovered $114,578.30 based on the jury award (post-collateral source offsets). Ultimately, it was determined that the “proceeds awarded” referred to in 604.18 refernced the policy limit.

If you have questions regarding any UIM/UM issue or any other questions, please feel free to give us a call or e-mail our office. 

The Minnesota Supreme Court Upholds Insurance Policy’s Anti-Assignment Clause

The dispute in Stand Up Multipositional Advantage MRI, P.A. v. Am. Family Ins. Co., centered on the enforceability of an anti-assignment clause in an automobile insurance policy. A15-0843, 2017 WL 123330 (Minn. Jan. 11, 2017).

American Family Insurance issued policies to multiple Plaintiffs who were in separate auto accidents, which stated in pertinent part that “[i]nterest in this policy may be assigned only with [American Family's] written consent.” There was no dispute that American Family did not consent to Plaintiffs’ assignment of their rights to their medical provider Stand Up MRI. However, in order to obtain treatment, Plaintiffs assigned their rights and benefits under the policy to Stand Up MRI. The assignment also stated Stand Up MRI would not have to reduce its bill upon recovery from Plaintiffs’ attorneys. American Family denied payment of Plaintiffs bills to Stand Up MRI, but lost their arguments at no-fault arbitration and had to pay. Payment was issued from American Family to Plaintiffs and their respective counsels post-arbitration award.

Stand Up MRI brought suit against Plaintiffs, their attorneys and American Family seeking to recover the full amount of their bills and the district court agreed with Stand Up that the anti-assignment clause was invalid in Plaintiffs’ policies, thus allowing Stand Up to recover their full amount. On appeal, the Minnesota Court of Appeals reversed the district court by holding that the anti-assignment clauses in the policies were valid and the Minnesota Supreme Court agreed with the Court of Appeals decision upholding the anti-assignment clauses. The Minnesota Supreme Court held that “the anti-assignment clause in an automobile insurance policy prohibits the assignments the policyholders made to their medical provider” and that American Family’s anti-assignment clauses were valid pursuant to Minnesota law.  

If you have questions regarding any issue or any other questions, please feel free to give us a call or e-mail our office.

The Minnesota Court Of Appeals Holds Residency As An Issue Of Material Fact In UIM Case Involving Wisconsin Policy

In the recent unpublished decision of Hedrington v. Am. Standard Ins. Co. of Wisconsin, the Minnesota Court of Appeals found that a genuine issue of material fact remained as to the residency of a Wisconsin resident who purchased his automobile coverage under a Wisconsin policy in 2009. A16-0527, 2016 WL 7337098 (Minn. Ct. App. Dec. 19, 2016). Further, it was improper for the district court to permit American Standard, in a dispositive order, to amend its pleadings so that a claim of misrepresentation could be raised against the individual claiming UIM benefits. The Court of Appeals remanded the matter to the district court for a determination of Hedrington's residency at the time of his accident. Also, “American Standard must plead fraud with sufficient particularity, and Hedrington must be given an opportunity to respond to American Standard's particularized fraud allegation.”

Prior to obtaining a policy with American Standard, Bret Hedrington’s Minnesota home burned down. He then obtained an auto insurance policy from American Standard Insurance Company of Wisconsin, listing his parent’s Wisconsin residence on the policy. The Wisconsin policy contained an exhaustion provision that required his liability limits be exhausted prior to collecting UIM benefits (which contradicts Minnesota’s Best Settlement Rule) and a fraud provision (which voided the policy “if Hedrington misrepresented a material fact with intent to deceive or breached an affirmative warranty, and American Standard relied upon that misrepresentation or breach or the misrepresentation or breach contributed to ‘the loss’”). American Standard was granted summary judgment because the district court “found that either: (1) the exhaustion provision was valid because Hedrington was a Wisconsin resident; or (2) Hedrington knowingly misrepresented material facts in his insurance application, and the policy was therefore void. The district court found that the UIM benefits under the umbrella policy were not available because Hedrington did not purchase the required endorsement.”

The Minnesota Court of Appeals identified that the crux of the issues in Hedrington were dependent on factual determinations. American Standard asserted that misrepresentations were made to their representatives and Hedrington asserting that he was a Minnesota resident at the time of the loss. Both sides had facts to support these contentions on the record. The Court of Appeals remanded the case for a determination on Hedrington’s residency at the time of the accident, specifically requiring American Standard to plead fraud with sufficient particularity allowing Hedrington an opportunity to respond to its claims.

If you have questions regarding any UIM/UM issue or any other questions, please feel free to give us a call or e-mail our office. 

Out-Of-State Insurance Carriers, Not Licenses To Sell Insurance In Minnesota, Must Still Pay No-Fault Benefits

Last week the Minnesota Supreme Court overruled a 31 year precedent set down by the Minnesota Court of Appeals in Burgie v. League Gen. Ins. Co. 355 N.W.2d 466 (Minn. Ct. App. 1984), review denied (Minn. Feb. 16, 1985). In the recent decision of Founders Ins. Co. v. James Yates, the Minnesota Supreme Court held:

A motor vehicle insurance carrier that is not licensed to sell insurance in Minnesota is still obligated under Minn. Stat. § 65B.50, subd. 2 (2014), to pay basic economic loss benefits to the insured when the insured vehicle is in Minnesota and an accident occurs in Minnesota.

A15-1174, 2016 WL 7118918 (Minn. Dec. 7, 2016). Prior to this decision, out-of-state insurance providers not licensed to sell insurance in Minnesota were not required to provide no-fault benefits under Minn. Stat. § 65B.50. Often, individuals seeking no-fault benefits would be required to seek these benefits from Minnesota’s Assigned Claims Plan.

The Minnesota Supreme Court in Founders seized on the plain language of Minn. Stat. § 65B.50, subd. 2, which provides in pertinent part that “[E]very contract of liability insurance for injury, wherever issued . . . includes basic economic loss benefit coverages and residual liability coverages . . . while the vehicle is in this state.” The Supreme Court only alludes to the string of cases from the Minnesota Court of Appeals interpreting Minn. Stat. § 65B.50 to mean that no-fault benefits need not be provided by unlicensed out-of-state insurers, but the Supreme Court had never previously ruled on the applicability of subd. 2. to these insurers in its prior decisions. Ultimately, the Court decided that the plain language of Minn. Stat. § 65B.50, subd. 2 is governing and basic economic loss benefits must be provided by an out-of-state insurer “when its insured is in an accident in Minnesota and the insured vehicle is in Minnesota.” 

The facts in Founders may be summed up rather simply. A man from Illinois moved to Minnesota, kept his Illinois policy (issued by Founders Insurance - who was not licensed nor writing policies in Minnesota), was in a car accident and sought no-fault benefits from Founders. Founders denied that it was required to provide these benefits and sought a declaratory judgment after the no-fault arbitration hearing. Notably, Founders’ policy “did not contain a conformity clause, which would have increased coverage as required to comply with applicable law.”

In closing, the Minnesota Supreme Court noted that there could be “one or more constitutional issues in an appropriate case,” but that these were not before the Court or asserted by Founders. Therefore, the Minnesota Supreme Court did not express an opinion on the constitutionality of their interpretation of Minn. Stat. § 65B.50 as noted in the case, which may leave the door open to some future potential arguments.

If you have any questions regarding these cases or any other questions, please feel free to give us a call or e-mail our office.

The Minnesota Supreme Court Allows Excusable Neglect Arguments To Avoid Dismissal Under Rule 5.04

The Minnesota Supreme Court recently handed down dual decisions interpreting the interplay between Minnesota Rule of Civil Procedure 5.04 and Minnesota Rule of Civil Procedure 60.02. Rule 5.04 by design dismisses a case if not filed with the Court within one year after service of the summons and complaint. However, until these rulings, it was unclear if Rule 60.02 allowed relief from judgment and how harsh Rule 5.04 was intended to be for Plaintiffs when they miss the one year filing deadline. The Court's holding in these recent decisions indicates that the majority of dismissals under Rule 5.04 will likely be vacated once a “fact specific” inquiry is conducted by a district court.

First, the Court needed to address whether 60.02 relief was even available once a Rule 5.04 dismissal was granted. These arguments focused on the fact that Rule 5.04, on its face, seemed akin to a statute of limitations. But, the Court dismissed these arguments stating that the rule “is a procedural tool we promulgated to aid the orderly and efficient administration of justice.”

Second, the Court addressed how the four factors governing 60.02 relief are to be applied. There are four factors, set forth in Finden v. Klaas, that the courts have consistently considered when granting 60.02 relief: (1) a meritorious claim; (2) a reasonable excuse for a failure to act; (3) due diligence after learning of the error or omission; and (4) that no substantial prejudice will result to the other party. 128 N.W.2d 748, 750–51 (Minn. 1964). Three of the Finden factors are generally easily proven by Plaintiffs. The difficult factor for Plaintiffs was the “reasonable excuse” for failing to file within the one year period. In addressing this factor, the Court found that the district court abused its discretion and failed to properly apply the four factor test when it could not find that “ignorance of the law constitutes excusable neglect.” These cases were ultimately remanded for the district court to apply all four Finden factors and to determine whether judgment should be vacated.

Rule 5.04 appears to be rendered toothless as district courts have now had their hands tied when seeking to uphold the harsh consequence set forth in Rule 5.04. District courts will likely find "excusable neglect" when an attorney fails to file a claim within a year and vacate a Rule 5.04 judgement of dismissal pursuant to Rule 60.02.

For further reading on the interplay between Rule 5.04 and 60.02, see the following recent decisions from the Minnesota Supreme Court:

Gams v. Houghton, A14-1747, 2016 WL 4536500 (Minn. Aug. 31, 2016)

Cole v. Wutzke, A15-0060, 2016 WL 4536505 (Minn. Aug. 31, 2016)

If you have any questions regarding these cases or any other questions, please feel free to give us a call or e-mail our office. 

Statute of Limitations for Excess Uninsured Motorist Coverage Now Defined In Minnesota

In the case of Hegseth v. American Family Mutual Insurance, the Minnesota Supreme Court held that the statute of limitations for excess uninsured benefits begins to run on the date of the accident, which is the same for primary UM benefits. — N.W.2d —, No. A14-1189 (Minn. Mar. 23, 2016). Additionally, the Minnesota Supreme Court ruled that the resolution of a primary UM claim is not a condition precedent to the assertion of a claim for excess UM benefits. In other words, a claim for excess UM benefits may be brought at any time after the date of the accident, and within the six year statute of limitations,  if the claimant has excess UM coverage and a good faith basis to believe that the amount of damages sustained exceeds the primary UM coverage available. This six year statute of limitations governing the excess UM coverage is based on the Minnesota statute of limitations governing contracts. Minn. Stat. § 541.05, subd. 1(1).

The appellant in Hegseth brought a lawsuit against her insurer after settling her primary UM claim for injuries she sustained in a 2007 car accident. The accident occurred on March 30, 2007, primary UM benefits were settled on June 14, 2012 and the excess UM claim was filed on July 9, 2013. The Respondent, American Family, moved and was granted summary judgment by arguing that Appellant’s claim accrued on the date of the accident and was therefore barred by the six year statute of limitation governing contract actions in Minnesota. The Supreme Court of Minnesota agreed with American Family, holding that statute of limitations for Appellant’s excess UM claim did begin on the date of the accident because settling the primary UM claim was not required in order for Appellant to seek excess benefits in good faith.

If you have any questions regarding this case or any other automobile related questions, please feel free to give us a call or e-mail our office.


Paul S. Hopewell


B. Jon Lilleberg


Peter M. Leiferman


Paul S. Hopewell and Peter M. Leiferman win motion denying Plaintiff's Motion to Vacate

A Minnesota District Court issued an order denying Plaintiff's Rule 60.02 Motion to Vacate based on excusable neglect.

Plaintiff's Motion to Vacate was brought after Mr. Hopewell and Mr. Leiferman successfully moved the Court to have Plaintiff's claims dismissed with prejudice pursuant to the recently adopted Rule 5.04 of Civil Procedure.

At this time, application of Rule 5.04 remains a hotly contested issue and it remains likely that the meaning of the rule will not be fully realized until the Supreme Court of Minnesota is given an opportunity to expound further on 5.04's application.

If you have questions regarding how Minnesota courts are applying Rule 5.04, please give Mr. Hopewell a call. 

B. Jon Lilleberg and Peter M. Leiferman win Summary Judgment in wrongful death action

On February 13, 2015, in a decisive victory, B. Jon Lilleberg and Peter M. Leiferman were able to have their client dismissed with prejudice from a wrongful death cause of action. Much of their argument was based on the general immunity provision of the Minnesota Good Samaritan Statute, Minn. Stat. § 604A.01, which provides as follows:

A person who, without compensation or the expectation of compensation, renders emergency care, advice, or assistance at the scene of an emergency or during transit to a location where professional medical care can be rendered, is not liable for any civil damages as a result of acts or omissions by that person in rendering the emergency care, advice, or assistance, unless the person acts in a willful and wanton or reckless manner in providing the care, advice, or assistance.

The decision of the district court upholds both the legal and moral principle that a person should not be punished when they attempt to assist those in need.

Paul S. Hopewell and Peter M. Leiferman present at Minnesota Claims Manager Luncheon

Upon invitation, Paul S. Hopewell and Peter M. Leiferman presented at the monthly luncheon for the Minnesota Claims Managers. The presentation was focused on the following:

1. Recent cases and court decisions concerning the newly enacted Rule 5.04 of  the Minnesota Rules of Civil Procedure and the application of Minnesota Rule of Civil Procedure 60.02 as a means of relief;

2. The decision in Staab v. Diocese of St. Cloud, and its holding that a party that is severally liable cannot be forced to pay more than its equitable share of damages; and

3. An update regarding the Minnesota No-Fault Act, Minn. Stat. § 65B.41 et seq.

B. Jon Lilleberg now licensed to practice in Wisconsin!

Lilleberg and Hopewell, PLLC, congratulates B. Jon Lilleberg on his recent admission to the Wisconsin Bar. On January 20, 2015, Mr. Lilleberg was officially sworn in before Justice David Strass in a special ceremony.

Lilleberg & Hopewell welcomes new attorney!

We are proud to announce our newest attorney at Lilleberg & Hopewell. Peter M. Leiferman passed the July 2014 Bar Exam and was sworn in on October 11, 2014. 

Mr. Leiferman has been employed by us as a law clerk since January of 2014.

He is a graduate of William Mitchell College of Law where he attended law school while working full time in the insurance industry. He then left the corporate insurance world to spend a year at a personal injury law firm which was then followed by a semester working for a Hennepin County Judge. Mr. Leiferman's elective classes through school were focused on civil litigation.

What little free time Mr. Leiferman had while attending law school while working was spent with his wife of eight years and daughter of three.

We look forward to having this new addition to our team. 

Paul S. Hopewell and B. Jon Lilleberg invited to Las Vegas

Paul S. Hopewell and B. Jon Lilleberg were invited out to Las Vegas this week by one of their valued clients to attend the Defense Research Institute's ("DRI's") seventh Trucking Law Seminar.

DRI’s seventh Trucking Law Seminar is designed to educate trucking industry professionals on the ever evolving issues facing the trucking industry. The program will provide practical lessons for handling trucking accidents, including how to deal with and rehabilitate the “disaster driver,” how to obtain and use video footage from cameras that seem to watch our every move, and methods to combat new strategies from the plaintiffs’ bar. Our unique format will incorporate a breakout session, allowing those new to trucking to learn skills that will enhance their handling of trucking claims and permit others to learn the art of mediation from national experts. Former Secretary of Transportation Ray LaHood will kick off the program with a keynote presentation on the current state of transportation in the United States and abroad.

The conference is two intensive days from June 19, 2014 through June 20, 2014.

For more information go to

B. Jon Lilleberg presents on strategies for a successful mediation

On May 7, 2014, B. Jon Lilleberg presented at The Motor Vehicle Accidents Deskbook Seminar at the City Center in Minneapolis. He presentation was focussed on the following:

Mediations of Bodily Injury Claims in Motor Vehicle Accident Cases

Mediations often fail because the parties do not know how to get their cases ready for resolution—such as knowing lien amounts or having subrogation problems. Sometimes they do not appreciate the dynamics or personalities in the other rooms. Experienced mediator Jon Lilleberg will review issues seen frequently in mediations of auto accident cases and provide an honest and candid recommendation for the best chance of a successful mediation. 

For more information go to 

Lilleberg-Hopewell is happy to announce a new hire.

Lilleberg-Hopewell, PLLC is happy to announce that Peter M. Leiferman has accepted the position of law clerk with our firm. Mr. Leiferman is finishing up his studies at William Mitchell College of Law in St. Paul, Minnesota and plans to take the July 2014 bar exam.

Contact Jon

B. Jon Lilleberg

Phone 612.255.1130

Fax 612.255.1140

Contact Paul

Paul S. Hopewell

Phone 612.255.1129

Fax 612.255.1139

Contact Us

Lilleberg & Hopewell, PLLC

Edina Executive Plaza

5200 Willson Road, Suite 325

Edina, MN 55424

Phone (612) 255-1127