Tschimperle v. Aetna Cas. & Sur. Co.

529 N.W.2d 421, 1995 Minn. App. LEXIS 408, 1995 WL 128997
CourtCourt of Appeals of Minnesota
DecidedMarch 28, 1995
DocketC5-94-1753
StatusPublished
Cited by16 cases

This text of 529 N.W.2d 421 (Tschimperle v. Aetna Cas. & Sur. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tschimperle v. Aetna Cas. & Sur. Co., 529 N.W.2d 421, 1995 Minn. App. LEXIS 408, 1995 WL 128997 (Mich. Ct. App. 1995).

Opinion

529 N.W.2d 421 (1995)

Delbert P. TSCHIMPERLE, Appellant,
v.
AETNA CASUALTY & SURETY COMPANY, Respondent.

No. C5-94-1753.

Court of Appeals of Minnesota.

March 28, 1995.
Review Denied May 31, 1995.

*422 Britton D. Weimer, Hagglund & Weimer, Minneapolis, for appellant Delbert P. Tschimperle.

John H. Hinderaker, James B. Sheehy, Faegre & Benson, P.L.L.P., Minneapolis, for respondent Aetna Cas. & Sur. Co.

Considered and decided by PARKER, P.J., NORTON and SCHUMACHER, JJ.

OPINION

SCHUMACHER, Judge.

Delbert P. Tschimperle appeals summary judgment, arguing the district court erred in concluding that respondent Aetna Casualty & Surety Company (Aetna) did not breach its duties to defend and indemnify Clayton Management Inc. (Clayton Management) under the comprehensive general liability policy's property and advertising liability provisions. We affirm.

*423 FACTS

Clayton Management is an investment company that manages tax shelter lease investments. Under the investment scheme at issue, Lease Resources Corporation (Lease Resources) sold farm equipment to investors through Clayton Management. At the time of the sale, Klockmann & Sons, Inc., a farm corporation, leased farm equipment. Lease Resources contemporaneously assigned the lease to the investors. The lessee's debt was guaranteed by Wendell Klockmann, the president of Klockmann & Sons, Inc. Clayton Management closed the transactions and managed the leases, which involved but was not limited to, collecting rent payments, maintaining insurance. The investors received tax credits for 10% of the purchase price of the farm machinery, a depreciation deduction, and periodic lease payments.

Independent State Bank of Minnesota (Independent State Bank) provides investment services to its member banks. Independent State Bank sent literature to its member banks, and Independent State Bank and Clayton Management conducted seminars about the investment. Vesta State Bank, Wendell State Bank, and Belview State Bank purchased two of the leases.

Tschimperle is a certified public accountant. He was interested in a tax shelter and heard about Clayton Management's opportunities from someone at his office. He went to Clayton Management and spoke with its president, John Henrikson. Henrikson told Tschimperle that Klockmann was a good risk, that Independent State Bank had already worked out two other leases, and that the equipment would be used primarily in North Dakota. Tschimperle decided to purchase Lease 268, a Holland combine, for $149,750. The lease and supporting documentation provided that the equipment was new, located in North Dakota, and worth $149,750. Klockman defaulted on the lease. Tschimperle discovered that the equipment was used, located in California, and worth only $59,000. Tschimperle auctioned off the equipment and received $16,476 gross.

Clayton Management, as agent for Tschimperle and the other banks, sued Klockmann. The parties settled for a nominal amount. Tschimperle then sued Clayton Management, Independent State Bank, and Lease Resources for negligence, misrepresentation, rescission, conversion, and breach of contract, warranty, and fiduciary duty. Tschimperle alleged that Clayton Management and Lease Resources commingled his money with the money received from another lease and that this money was unlawfully converted. Independent State Bank was dismissed from the lawsuit because there was no joint venture between Independent State Bank and Clayton Management. Tschimperle v. Independent State Bank, No. CX-92-30, 1992 WL 138621 (Minn.App. June 17, 1992).

Clayton Management was a named insured under a comprehensive general liability (CGL) policy issued by Aetna. Clayton Management tendered defense of the lawsuit, but Aetna refused the tender. Tschimperle then notified Aetna that it was entering into Miller-Shugart negotiations with Clayton Management. Aetna chose not to participate. Tschimperle and Clayton Management entered into a Miller-Shugart agreement and Clayton Management assigned to Tschimperle its rights against Aetna. In April 1993, Tschimperle brought this garnishment action against Aetna. Both parties moved for summary judgment. The court ruled in favor of Aetna, concluding there was no "occurrence" and no "advertising activities" within the meaning of the policy and thus no coverage.

ISSUES

1. Are negligent misrepresentations and failure to timely repossess "occurrences" within the meaning of the CGL policy?

2. Are loss of investment and consequential damages flowing from the loss of use of property covered under a CGL policy?

3. Does in-person sales talk constitute "advertising?"

4. Is there coverage under an advertising liability provision where the insured has advertised its product to others but these advertising activities were unrelated to the investor's injuries?

*424 ANALYSIS

On appeal from summary judgment, this court decides whether the district court correctly applied the law and whether there are any genuine issues of material fact. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Interpretation of an insurance policy is a question of law, which this court reviews de novo. Garrick v. Northland Ins. Co., 469 N.W.2d 709, 711 (Minn.1991).

Tschimperle argues that Aetna breached its duties to defend and indemnify. The duty to defend is broader than the duty to indemnify and thus we will focus on it. Economy Fire & Casualty Co. v. Iverson, 445 N.W.2d 824, 826 (Minn.1989). If any claim is arguably within the scope of coverage of the insurance policy, the insurer must defend. Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165 (Minn.1986). The duty to defend is contractual in nature and is generally determined by comparing the allegations in the complaint with the language of the insurance policy. Prahm v. Rupp Const. Co., 277 N.W.2d 389, 390 (Minn.1979). The complaint is not controlling, however, where extrinsic facts establish the existence or nonexistence of the duty to defend. Johnson v. AID Ins. Co., 287 N.W.2d 663, 665 (Minn. 1980); see also Garvis v. Employers Mut. Casualty Co., 497 N.W.2d 254, 258 (Minn. 1993).

1. First, Tschimperle argues that the district court erred in determining that there was no coverage under the property liability clause. The clause provides:

The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured.

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Bluebook (online)
529 N.W.2d 421, 1995 Minn. App. LEXIS 408, 1995 WL 128997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tschimperle-v-aetna-cas-sur-co-minnctapp-1995.