Mark E. Welch, Appellant, vs. Joan Marie Boeser, Respondent.

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-98-448

Mark E. Welch,
Appellant,

vs.

Joan Marie Boeser,
Respondent.

Filed August 4, 1998
Affirmed
Holtan, Judge*

Hennepin County District Court
File No. 979697

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

James A. Jardine, Votel, Anderson & McEachron, Suite 1250, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

Appellant Mark E. Welch appeals from the trial court's grant of summary judgment in favor of respondent and dismissal of appellant's complaint, contending that genuine issues of material fact exist as to whether agency relationships existed for purposes of accepting service of process between respondent and her mother, and respondent and her insurance agent. Because we find that respondent was not properly served, we affirm.

D E C I S I O N

Viewing the evidence in a light most favorable to the party against whom judgment was granted, this court determines whether any issues of material fact remain and whether either party is entitled to a judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). We need not defer to a trial court's decision on a purely legal question. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. Misrepresentation

Appellant contends that genuine issues of material fact exist as to whether respondent's mother misrepresented to appellant's former attorney that her daughter had moved out of state. It is undisputed that respondent was living in Minnesota at the time the complaint was served. Respondent's mother denies making the misrepresentation to appellant's attorney. But even assuming that the misrepresentation was made, appellant has not shown how that fact is material to the merits of his case. Appellant claims that her attorney relied on that misrepresentation in following the service procedures set forth in Minn. Stat. § 170.55, subd. 1 (1996) (service on nonresident parties, or resident parties absent from the state for six months). But as the trial court observed, "[t]he statute cannot be used in lieu of investigation as to the actual place of residence of [respondent]." Appellant has not presented any evidence to show that a diligent attempt was made to find appellant's current address through other means. See Duresky v. Hanson, 329 N.W.2d 44, 49 (Minn. 1983) (requiring proof of diligent search to justify tolling of the statute of limitations).

Appellant further contends that disputed facts exist as to whether respondent's mother was acting as respondent's agent in making that misrepresentation. Appellant argues that respondent should be equitably estopped from denying proper service because of her mother's misrepresentation. But appellant has cited no legal authority to support her contention that respondent's mother could serve as respondent's agent for purposes of accepting service of a summons and complaint in representing her residence. Appellant has failed to raise a genuine issue for trial. The trial court properly granted summary judgment on this claim.

2. Admission or waiver of service

Appellant contends that respondent admitted service of process or waived service through her insurance agent who requested an extension of time to serve an answer. In dismissing this claim, the trial court noted that "Minnesota courts have never allowed service on a claims adjuster to constitute personal service on a defendant driver." This observation is correct. Minn. R. Civ. P. 3.01 requires "service upon the defendant," and insurance agents are agents of the insurer, not the insured. Minn. Stat. § 60K.15 (1996). Hence, in the absence of any legal support for his argument, appellant fails to raise genuine issues for trial. See Winkel v. Eden Rehabilitation Treatment Facility, Inc., 433 N.W.2d 135, 140 (Minn. App. 1988) (affirming summary judgment where appellant failed to present material evidence of an agency relationship for purposes of receiving service of process). We conclude that the trial court properly dismissed the complaint based on the insufficiency of service of process.

Affirmed.

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