John A. Dalsin & Sons, Inc., Appellant, vs. Travelers Insurance Companies, d/b/a The Travelers, defendant/third-party plaintiff, Respondent, Berkley Insurance Services, Inc., defendant/third- party defendant, Respondent.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C5-96-736 John A. Dalsin & Sons, Inc., Appellant, vs. Travelers Insurance Companies, d/b/a The Travelers, defendant/third-party plaintiff, Respondent, Berkley Insurance Services, Inc., defendant/third-party defendant, Respondent. Filed October 15, 1996 Affirmed Thoreen, Judge Hennepin County District Court File No. 94-1007 Dudley R. Younkin, Stutzman Building, 733 East Seventh Street, St. Paul, MN 55106; L.T. Merrigan, Merrigan, Quayle, Brandt & Ostenso, 25 Ninth Avenue North, Hopkins, MN 55343 (for Appellant) Brooks F. Poley, Winthrop & Weinstine, P.A., 3000 Dain Bosworth Plaza, 60 South Sixth Street, Minneapolis, MN 55402 (for Respondent Travelers) Mary Steenson, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, Minneapolis, MN 55402-3787 (for Respondent Berkley) Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Thoreen, Judge.(*) [Footnote] (*)Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. Unpublished Opinion THOREEN, Judge (Hon. Philip D. Bush, District Court Trial Judge) Respondent purchase Appellant John A. Dalsin & Sons, Inc. (Dalsin) sued respondent Travelers Insurance Companies (Travelers) and Berkley Insurance Services (Berkley), seeking recovery for workers' compensation benefits that Dalsin had paid to a worker. Following settlement discussions, and without actually agreeing to the amount of benefits payable, the parties stipulated to a dismissal of Dalsin's lawsuit. A judgment of dismissal with prejudice was entered. The parties thereafter disagreed on the amount of benefits payable, and Dalsin brought a motion to vacate the dismissal, arguing that it had reasonably believed that Travelers had accepted Dalsin's assumptions regarding the level of benefits payable. The district court denied Dalsin's motion, and Dalsin appealed. We affirm. Facts Dalsin was awarded a roofing contract in Tennessee. Through Berkley, Dalsin purchased a contract of workers' compensation insurance from Travelers. Dalsin later sued Berkley and Travelers, seeking recovery for Minnesota workers' compensation benefits owed to a worker. The parties arrived at a settlement, which provided: Travelers agrees to pay the amount of benefits owed under its Tennessee workers' compensation policy * * *. Travelers and [Dalsin] agree that the total amount owed under Tennessee law * * * is $______. The parties never filled in the amount owed, and they never signed this settlement agreement. Dalsin's attorney mailed Travelers' attorney a letter stating that Berkley and Dalsin had agreed to settle the balance of the claim contingent on Travelers paying $175,000. In a later letter, however, Dalsin's attorney confirmed that Travelers was ``willing to pay whatever benefits are payable under Tennessee law.'' In another letter, Dalsin's attorney indicated that he believed the amount of Tennessee benefits payable under Travelers' policy was $140,927.27, plus attorney fees. The letter requested that Travelers notify Dalsin if Travelers' calculation of Tennessee benefits differed from Dalsin's. After judgment was entered on the parties' stipulation of dismissal, an adjuster for Travelers evaluated the workers' compensation benefits under Tennessee law at between $9,408 and $56,448. Decision Dalsin claims the district court erred by refusing to vacate the judgment of dismissal because of mistake or inadvertence, under Minn. R. Civ. P. 60.02(a). The district court's decision whether to vacate a judgment will be upheld on appeal absent an abuse of discretion. Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984). The district court's findings will be upheld on appeal unless they are clearly erroneous. In re Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). We conclude that there was no clear abuse of discretion. While there is some evidence that Dalsin's counsel believed the parties had agreed that $175,000 was payable under Tennessee law, the district court found that Dalsin knew the parties had not agreed on the amount of the settlement. This finding is supported by a letter from Dalsin's counsel to Travelers, indicating that Dalsin expected that Travelers would pay ``whatever benefits are payable under Tennessee law.'' Furthermore, as the district court noted, the parties left the actual amount of the settlement agreement blank, and the parties did not sign the agreement, suggesting that the parties had not finally agreed upon the amount of Tennessee benefits to be paid. Dalsin also claims that it should be relieved from the stipulation of dismissal under rule 60.02(a) as a result of excusable neglect. In Kurak v. Control Data Corp., 410 N.W.2d 34 (Minn. App. 1987), the court recognized the rule that a party should not be penalized for his attorney's mistakes where the party was not involved in the decisions leading to the dismissal of the action. Id. at 36. But unlike Kurak, involving the dismissal of an action as a result of a procedural rule that did not involve the party himself, here we assume that Dalsin itself participated in the settlement and stipulation of dismissal. See Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973) (denying relief under rule 60.02 where party was personally guilty of inexcusable neglect). Dalsin also claims that it should be relieved from the stipulation of dismissal as a result of fraud, misrepresentation, or other inequitable conduct, pursuant to rule 60.02(c). A motion for relief on these grounds must be supported by clear and convincing evidence of the alleged misconduct that prevented the movant from fully and fairly presenting its case. Regents of the Univ. of Minn. v. Medical, Inc., 405 N.W.2d 474, 480 (Minn. App. 1987), review denied (Minn. July 15, 1987), cert. denied, 484 U.S. 981 (1987). Clear and convincing evidence is more than a preponderance of the evidence, although less than proof beyond a reasonable doubt. Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978). ``Clear and convincing proof will be shown where the truth of the facts asserted is `highly probable.''' Id. The district court found that at the time Travelers agreed to the settlement, it had not yet determined the amount of workers' compensation benefits payable under Tennessee law. The court found that Travelers' silence regarding the amount of those benefits did not amount to ``anything more than a lack of knowledge about what the benefit level would be.'' The court did not believe that there was any evidence presented to support Dalsin's claim of fraud, misrepresentation, or inequitable conduct by Travelers. These findings are supported by the record, and the court did not abuse its discretion by finding a lack of clear and convincing evidence to prove fraud or misrepresentation by Travelers. Finally, Dalsin moved to vacate the judgment under an estoppel theory, citing Minn. R. Civ. P. 60.02(f), which provides for a vacation for ``[a]ny other reason justifying relief from the operation of the judgment.'' This clause is ``designed to cover unforeseen contingencies, * * * is exclusive of clauses (a) through (e) and [is] not applicable if relief properly falls under another clause.'' Western Lake Superior Sanitary Dist. v. Interpace Corp., 454 N.W.2d 449, 452 (Minn. App. 1990). Dalsin's claim for relief appropriately alleged a claim of mistake or excusable neglect, or fraud or misrepresentation; therefore, Dalsin's claim for relief under Minn. R. Civ. P. 60.02(f) is not proper. Affirmed.