Herbert L. Carter, Jr., Appellant, vs. Minnesota Automobile Assigned Claims Bureau, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-97-1078

Herbert L. Carter, Jr.,

Appellant,

vs.

Minnesota Automobile Assigned

Claims Bureau, et al.,

Respondents.

Filed December 23, 1997

Reversed and remanded

Forsberg, Judge**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

Hennepin County District Court

File No. 95-19570

Christopher R. Walsh, Walsh Law Office, 270 Grain Exchange North Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Timothy J. Eiden, Renee K. Fearing, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for respondents)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Forsberg, Judge.

U N P U B L I S H E D O P I N I O N

FORSBERG, Judge

Herbert Carter, an uninsured individual, was involved in an accident while driving a friend's uninsured car. Carter sought economic loss benefits from respondent Minnesota Automobile Assigned Claims Bureau (the bureau). The bureau denied Carter's claim, alleging that Carter had lived and functioned as a family with the friend whose uninsured car he was driving at the time of the accident.

Carter sued to recover his claimed economic loss benefits, and the district court granted summary judgment in favor of the bureau. Because the parties presented conflicting evidence on the issue of Carter's residence at the time of the accident, we reverse and remand.

FACTS

Carter was involved in an automobile accident on December 19, 1994, while driving an uninsured automobile owned by a friend, Linda West.

Linda West's address was 5932 Parkway Avenue North. Immediately after the accident, a police officer filled out a report stating that Carter's address was also 5932 Parkway Avenue North.

Carter did not own an automobile and did not have insurance. He applied for economic loss benefits, stating on his application that his address was 5932 Parkway Avenue North. On that same date, Carter also signed an "affidavit of no insurance" stating that on December 19, his residential address was 5932 Parkway Avenue North.

The bureau investigated and denied Carter's application for economic loss benefits, concluding that he had been cohabiting with West at the time of the accident and therefore was disqualified from receiving assigned claims plan benefits.[3]

Hennepin County District Court

File No. 95-19570

Christopher R. Walsh, Walsh Law Office, 270 Grain Exchange North Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Timothy J. Eiden, Renee K. Fearing, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN 55112-6973 (for respondents)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Forsberg, Judge.

U N P U B L I S H E D O P I N I O N

FORSBERG, Judge

Herbert Carter, an uninsured individual, was involved in an accident while driving a friend's uninsured car. Carter sought economic loss benefits from respondent Minnesota Automobile Assigned Claims Bureau (the bureau). The bureau denied Carter's claim, alleging that Carter had lived and functioned as a family with the friend whose uninsured car he was driving at the time of the accident.

Carter sued to recover his claimed economic loss benefits, and the district court granted summary judgment in favor of the bureau. Because the parties presented conflicting evidence on the issue of Carter's residence at the time of the accident, we reverse and remand.

FACTS

Carter was involved in an automobile accident on December 19, 1994, while driving an uninsured automobile owned by a friend, Linda West.

Linda West's address was 5932 Parkway Avenue North. Immediately after the accident, a police officer filled out a report stating that Carter's address was also 5932 Parkway Avenue North.

Carter did not own an automobile and did not have insurance. He applied for economic loss benefits, stating on his application that his address was 5932 Parkway Avenue North. On that same date, Carter also signed an "affidavit of no insurance" stating that on December 19, his residential address was 5932 Parkway Avenue North.

The bureau investigated and denied Carter's application for economic loss benefits, concluding that he had been cohabiting with West at the time of the accident and therefore was disqualified from receiving assigned claims plan benefits.[1] The bureau's decision was mailed to Carter on July 26, 1995. The following month, Carter submitted a new "affidavit of no insurance," stating that on the date of his accident his main residential address had been 3711 Park Avenue--an apartment leased by another friend, Deborah Wright. Carter claimed that Wright was his girlfriend, with whom he lived five days a week, and West was his "other girlfriend." Carter claimed that although he stayed at West's residence on weekends, he was not a member of her household and was not cohabiting with her at the time of the accident.

Carter sued the bureau, alleging that he was entitled to benefits from the assigned claims plan. In his deposition, Carter stated that he had been living with Wright at the time of the accident, and that he had not stayed at West's house in the month or so before the accident. Carter also stated that he had not kept any personal items at West's house, had never helped her with household chores or child care, and had never contributed anything towards the cost of her household.

Carter claimed that he had never stayed with West, but he gave the police officer her address because the car belonged to her and he could be contacted there. Carter

claimed that he did not understand the first affidavit of no insurance and that he wrote West's address on his application for assigned claims benefits because he would receive mail there. He claimed that he had stayed with so many women he had trouble remembering the ones with whom he had stayed. In his corrections to his deposition, however, Carter stated that he had stayed with West on weekends.

Both parties moved for summary judgment. Carter submitted an affidavit by his attorney stating that he had filled out Carter's first affidavit of no insurance and had used the address on the police report. Carter also submitted an affidavit by West, stating that on the date of the accident, Carter did not live with her or dwell together or function together with her as a family. Carter submitted his own affidavit stating that he had used West's address solely as a mailing address in connection with the accident. Carter also submitted excerpts from Wright's deposition, stating that Carter had lived with her "off and on" between August 1993 and February 1995.

D E C I S I O N

The district court granted the bureau's motion for summary judgment, finding that at the time of the December 19, 1994, accident, Carter had been living and functioning together with West as a family. On appeal from a summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We will "view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The supreme court has recently cautioned that on a motion for summary judgment, the district court must not weigh the evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). Here, the district court in effect weighed and then rejected Carter's evidence that he did not live with West at the time of the accident, concluding that Carter's evidence was unbelievable because it was submitted after the bureau had already denied his application for benefits, which was based on his claim that he lived with West at the time of the accident. By rejecting Carter's evidence and granting summary judgment in favor of the bureau, the district court decided a factual dispute, which is inappropriate at the summary judgment stage. Cf. Mutual Serv. Cas. Ins. Co. v. Wochnick, 397 N.W.2d 435, 437 (Minn. App. 1986) (characterizing determinations of "residency" for insurance coverage purposes as questions of fact inappropriate for summary judgment).

Reversed and remanded.

[ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

1] See Minn. Stat. § 65B.64, subd. 3 (1994) (disqualifying persons from benefits when they "dwell and function together as a family" with the owner of an uninsured motor vehicle).