Allen v. Burnet Realty, LLC

801 N.W.2d 153, 2011 Minn. LEXIS 464, 2011 WL 3300347
CourtSupreme Court of Minnesota
DecidedAugust 3, 2011
DocketNo. A09-1963
StatusPublished
Cited by10 cases

This text of 801 N.W.2d 153 (Allen v. Burnet Realty, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Burnet Realty, LLC, 801 N.W.2d 153, 2011 Minn. LEXIS 464, 2011 WL 3300347 (Mich. 2011).

Opinion

OPINION

ANDERSON, G. BARRY, Justice.

Appellant Timothy B. Allen asks us to decide whether contracts he signed while he worked as a sales associate for respondent Burnet Realty LLC were contracts of insurance as a matter of Minnesota law. Under the contracts, Allen and Burnet Re[155]*155alty agreed to an allocation of expenses should a dispute arise related to Allen’s work for Burnet Realty. In litigation commenced after he left Burnet Realty, Allen claimed that Burnet Realty violated Minn. Stat. § 60K.47 (2010) because the contracts were insurance, and as a result, Burnet Realty was required to be, but was not, “authorized to engage in the business of insurance” in Minnesota. Allen also claimed other relief on the basis that the contracts were insurance. The district court granted summary judgment in favor of Burnet Realty, concluding that the contracts were not contracts of insurance. The court of appeals affirmed. We affirm.

Allen was a licensed real estate salesperson and an independent contractor for Burnet Realty from 1999 through 2007. The parties’ respective obligations and duties were set out in independent contractor agreements (ICAs) that Allen and Burnet Realty signed in each of the years at issue in this case. On the same days that Allen executed the ICAs, Allen also executed agreements to participate in Bur-net Realty’s Legal Administration Program (LA Program).

The LA Program was an agreement between Burnet Realty and its sales associates designed to “limit” a sales associate’s “personal liability exposure” should an associate be “involved in a dispute or lawsuit.” The LA Program applied to “Covered Disputes,” which included “a dispute, arbitration proceeding, or lawsuit” initiated against the sales associate, Burnet Realty, or both. The dispute also had to “relate[ ] to” the sales associate’s “actions which [were] contemplated within the scope of’ the ICA between the sales associate and Burnet Realty. There were eer-tain exceptions to the disputes that were covered by the LA Program, including when the associate engaged in intentional or reckless wrongdoing or fraud, or when the associate acted as a buyer or seller in a transaction. All sales associates were required to either join the program or obtain “company approved outside coverage.”

When a covered dispute arose, the associate and Burnet Realty had different rights and obligations. The sales associate and Burnet Realty agreed to split all the legal expenses in connection with a covered dispute, which included errors-and-omissions insurance costs, attorney fees, and settlement costs. The sales associate and Burnet Realty split these expenses in the same proportion as the commissions the associate received. The LA Program capped the sales associate’s liability at $1,500, and Burnet Realty was responsible for all expenses above that amount. The sales associate also had to cooperate with Burnet Realty in the defense of the dispute. Burnet Realty retained the ability to choose the attorney and retained the authority to make decisions on resolutions and settlements, but agreed to discuss resolutions and settlements with the sales associate. The LA Program also prohibited Burnet Realty from asserting any claims against the sales associate in connection with a covered dispute. The LA Program charged the sales associate an annual fee, which rose from $395 in 2002 to $450 in 2006.

About one year after leaving Burnet Realty, Allen commenced an action against the company, alleging that Burnet Realty (1) sold insurance through its LA Program in violation of Minn.Stat. § 60K.47 (2010);1 [156]*156(2) violated the Minnesota Prevention of Consumer Fraud Act, MinmStat. §§ 325F.68-.70 (2010), by failing to inform sales associates that the indemnification program was an errors-and-omissions insurance policy; and (3) obtained unjust enrichment by selling unauthorized insurance and keeping the proceeds. Burnet Realty moved for summary judgment.

Before ruling on the summary judgment motion, the district court requested that the Minnesota Department of Commerce, which regulates both real estate and insurance, provide its view as to whether the LA Program constituted an unlawful insurance policy. The Commissioner of the Department concluded that the LA Program created a relationship that was “markedly different” from the typical insurer-insured relationship, and that the LA Program acted as “a self-insurance arrangement” that “would not be regulated under Minnesota’s insurance laws.”

The district court granted summary judgment in favor of Burnet Realty. The court relied on the fact that the LA Program was incidental to the independent contractor relationship and that Burnet Realty, because of its statutory and common-law liability for the actions of sales associates, was not assuming new risks in exchange for a premium. The court also concluded the LA Program did not fall within our characterization of insurance as a contract providing indemnification for “losses with which the indemnitor had no connection and over which it had no control.” Anstine v. Lake Darling Ranch, 305 Minn. 243, 251, 233 N.W.2d 723, 728 (1975), overruled on other grounds by Farmington Plumbing & Heating Co. v. Fischer, 281 N.W.2d 838 (Minn.1979). The court concluded that because the LA Program was not insurance, Allen’s section 60K.47 claim failed. The court also concluded that Allen’s other claims failed because “those claims assume[d] that the LA Program was insurance that Burnet [Realty] was selling in violation of Section 60K.47.”

Allen appealed. The court of appeals affirmed in a published decision. Allen v. Burnet Realty, LLC, 784 N.W.2d 84, 90 (Minn.App.2010). The court of appeals concluded the general statutory definition of insurance to be too broad, choosing to apply the “principal object and purpose” test to determine whether the LA Program was insurance. Id. at 88 (citing Jordan v. Grp. Health Ass’n, 107 F.2d 239, 247-48 (D.C.Cir.1939)). Under the principal object and purpose test — which we have never adopted — to determine whether a contract is one for insurance, “[t]he question turns, not on whether risk is involved or assumed, but on whether that or something else to which it is related in the particular plan is its principal object and purpose.” Jordan, 107 F.2d at 248. Applying this test, the court affirmed summary judgment on all of Allen’s claims. Allen, 784 N.W.2d at 90. Allen sought review, and we granted his petition.

We review decisions to grant or deny summary judgment de novo. Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 758 (Minn.2010). Under the de novo standard of review, “we determine if the law was properly applied and whether there were genuine issues of material fact that precluded summary judgment.” Id. The material facts of this case are not disputed. The interpretation of statutes is a question of law that we review de novo. Eischen Cabinet Co. v. Hildebrandt, 683 [157]*157N.W.2d 813, 815 (Minn.2004).

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Bluebook (online)
801 N.W.2d 153, 2011 Minn. LEXIS 464, 2011 WL 3300347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-burnet-realty-llc-minn-2011.