Carmen Price, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1173

Carmen Price,
Appellant,

vs.

Unverzagt and Associates, LLC d/b/a Fitness Together Maple Grove,
Respondent.

Filed March 20, 2017
Reversed and remanded
Connolly, Judge

Hennepin County District Court
File No. 27-CV-15-14481

Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota; and

Michael D. Tewksbury, Tewksbury & Kerfeld, P.A., Minneapolis, Minnesota (for
appellant)

Peter M. Waldeck, Waldeck Law Firm, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the summary -judgment dismissal o f her claims against
respondent health club arising out of personal injuries suffered when a trainer purportedly
2
dropped a weight on appellant’ s head. App ellant asserts that the district court erred by
concluding that the claims were barred by an agreement containing an indemnity clause,
arguing that the indemnity clause (1) should not have been considered because it was not
disclosed in discovery; (2) does not bar first -party claims; (3) is overbroad and
unenforceable; and (4) is void as against public policy. Because we conclude that the
relevant language in the agreement is void because it is not a release and is not clear and
unequivocal, we reverse the district court’s grant of summary judgment to respondent and
remand this case for a trial on the merits.
FACTS
Appellant Carmen Price, who was 28 years old at the time of the incident, purchased
a membership at respondent health club Fitness Together through LivingSocial, a website
and phone application that provides coupons and discounts for products and services.
Appellant testified at her deposition that she purchased ten personal training sessions for
$99 because it was a great deal. Appellant had her initial fitness assessment on January 26,
2015, the first time appellant went to the health club. The trainer asked appellant to fill out
a “Quick F.I.T.” form and sign the agreement on the back. The Quick F.I.T. form is a two-
page document that asked for appellant’s “goals & dreams” and her “medical health &
lifestyle”; the second page held an “Agreement Release & Acknowledgement of Risk” (the
agreement), which stated:
You are responsible for ensuring that your exercise program is
the right one for you. We strongly recommend that you consult
with your physician before beginning or modifying your
exercise regime. By signing below you hereby represent ,
warrant and agree as follows:
3
. . . .
5. You hereby agree to indemnify and hold harmless the
Fitness Together studio, Fitness Together Franchise
Corporation, the franchisor of the Fitness Together franchise
system, Calories Inc. and its and their affiliates and their
respective share -holders, members, principals, owners,
officers, directors, employees, a gents, representatives,
supervisors and assigns (the “Indemnified P arties”) from any
and all claims, demands, actions and causes of action,
including personal injury, and all other liability whatsoever
arising out of your participation in the Fitness Toget her
training program, the Nutrition Together program, the use of
equipment located at the Fitness Together studio and any and
all violation(s) of codes, statutes, licensing requirements or
regulations of the state in which the Fitness Together studio is
located, wherever known or unknown as of the date hereof.
At her deposition, appellant agreed that, by signing the document, she was agreeing
to the terms contained therein whether she read it or not. Appellant’s affidavit stated that
the language containe d in the agreement was not explained to her and that no contract
negotiations took place regarding the signing of the form. Membership at Fitness Together
was offered on a take-it-or-leave-it basis and appellant was required to sign the form prior
to being able to use the personal-training sessions.
After her first personal -training session, appellant continued to work out with
several different trainers employed by respondent. The accident at issue occurred during
her 13th personal-training session while appellant was being trained by a certified strength
and conditioning specialist employed by respondent. Appellant was performing the second
set of a bench press exercise when, according to appellant:
I was laying down on the bench looking up, and as my hands
reached up to grab the bar, grip the bar, the trainer released the
bar and the next thing I know it fell on my head. So I had not
actually gripped the bar, the bar fell on my head. And after that
4
happened, he . . . caught the bar, and I sat up, and it felt like my
head had split open.1
Appellant testified at her deposition that she had done the bench press exercise countless
times prior to the incident and the bench press she was doing was not different than the
bench press exercise she had done on previous occasions.
As a result of the accident, appellant claims damages for past and future medical
expenses for treatment of the injuries, impairment of wages and earning capacity, and pain,
disability, embarrassment, and emotional stress and requested judgment in an amount in
excess of $50,000. The district court granted respondent summary judgment, concluding
that the agreement contained an exculpatory clause that prevents appellant from bringing
an action against respondent as a matter of law.
D E C I S I O N
“On appeal from summary judgment, we must review the record to determine
whether there is any genuine issue of material fact and whether the district court erred in
its application of the law.” Dahlin v. Kroening, 796 N.W.2d 503, 504 (Minn. 2011). “We
review a district court’s summary judgment decision de novo. In doing so, we determine
whether the district court properly applied the law and whether there are genuine issues of
material fact that preclude summary judgment.” Riverview Muir Doran, LLC v. JADT Dev.
Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted).

1 On summary judgment, we review the evidence in the light most favorable to the
nonmoving party, in this case, appellant. Hoyt Properties, Inc. v. Prod. Res. Grp., L.L.C.,
736 N.W.2d 313, 318 (Minn. 2007). Therefore, we assume the accident occurred as
appellant claims.
5
I. Did the trial court err in considering the agreement because it was not
produced through initial disclosures or in response to discovery requests?
Appellant first argu es that respondent did n ot produce the agreement in its initial
disclosures under Minn. R. Civ. P. 26.01 and therefore it should have been barred fr om
consideration in the summary-judgment motion. The district court did not address the late
discovery disclosure in its order granting summary judgment.
“[A] party must, without awaiting a discover y request, provide to the other
parties: . . . a copy . . . of all documents . . . that the disclosing party has in its pos session,
custody, or control and may use to support its claims or defenses, unless the use would be
solely for impeachment.” Minn. R. Civ. P. 26.01. “If a party fails to provide information
or identify a witness as required by Rule 26.01 or .05, the party is not allowed to use that
information or witness to supply evidence on a motion . . . unless the failure was
substantially justified or is harmless .” Minn. R. Civ. P. 37.03 (emphasis added). We
conclude that the failure to more promptly disclose the Quick F.I.T. form was harmless.
The dec ision to permit evidence is within the discretion of the district court.
Wojciechowski v. William D. Stanley Shows, Inc. , 378 N.W.2d 87, 88 -89 (Minn. App.
1985). “Factors to be considered are the willfulness of the failure to disclose, the resulting
prejudice, and the harm to the truth -seeking process if severe sanctions are imposed. ” Id.
at 89. One of the purposes of discovery is to prevent unjust surprise and prejudice.
McCarthy Well Co. v. St. Peter Creamery, Inc. , 410 N.W.2d 312, 317 (Minn. 1987). In
this case, appellant was not surprised nor prejudiced. Appellant signed the document with
the language in question in January 2015. While the agreement was in smaller font, it was
6
not unreadable and was approximately half of one page long. This was not a short, hidden
clause buried in a lengthy agreement. She was given the Quick F.I.T. form again at her
deposition on January 14, 2016. On March 1, 2016, respondent filed a motion for summary
judgment. Appellant was able to depose the trainer who was involved in the accident and
the owner of the health club on March 15, 2015, two mont hs after receiving the Quick
F.I.T. form at her deposition. The Quick F.I.T. form was mentioned in the deposition of
the trainer and was discussed at length by the owner of respondent at his deposition.
Appellant filed her response to the summary judgment on March 18, 2016. No evidence
in the record suggests that the failure to disclose the Quick F.I.T. form was done willfully
or maliciously.
Appellant argues that, because the district court made no factual findings on whether
the failure to disclose was justified or harmless, this court is not in a position to find facts
on those issues and may only make rulings as a matter of law. While “[i]t is not within the
province of this court to determine issues of fact on appeal[,]” Kucera v. Kucera, 275 Minn.
252, 254, 146 N.W.2d 181, 183 (1966), a determination of whether a document produced
late in discovery should be excluded is a question of law. Because the relevant fa cts are
not in dispute, we can make a legal determination as to whether the late production of the
documents was harmless. Appellant did not depose key defense witnesses until after the
Quick F.I.T. form was disclosed at appellant’s deposition. We conclude that the failure to
timely disclose was ultimately harmless.
7
II. Did the district court err in characterizing the agreement as a n exculpatory
clause rather than an indemnity clause and by holding that the clause barred
appellant’s personal-injury claims?
Appellant next argues that the district court erred in characterizing the relevant
clause in the Quick F.I.T. agreement as an exculpatory clause when it is actually an
indemnification clause. Respondent characterizes the language as both an exculpatory
clause and an indemnity clause. The district court concluded it was an exculpatory clause.
We disagree.2
The clause reads:
You hereby agree to indemnify and hold harmless the
Fitness Together studio, Fitness Together Franchise
Corporation, the franchisor of the Fitness Together franchise
system, Calories Inc. and its and their affiliates and their
respective share -holders, members, principals, owners,
officers, directors, employees, agents, representatives,
supervisors and assigns ( the “Indemnified Parties”) from any
and all claims, demands, actions and causes of action,
including personal injury, and all other liability whatsoever
arising out of your participation in the F itness Together
training program, the Nutrition Together program, the use of
equipment located at the Fitness Together studio and any and
all violation(s) of codes, statutes, licensing requirements or
regulations of the state in which the Fitness Together studio is
located, wherever known or unknown as of the date hereof.
(Emphasis Added.)
An exculpatory clause is “[a] contractual provision relieving a party from liability
resulting from a negligent or wrongful act.” Black’s Law Dictionary 608 (8th ed. 2004).
An indemnity clause is “[a] contractual provision in which one party agrees to answer for

2 We note that these are difficult concepts that are not always readily distinguishable.
8
any specified or unspecified liability or harm that the other party might incur.” Black’s
Law Dictionary 784 (8th ed. 2004). “Technically, an indemnity clause and an exculpatory
clause differ in form, but the substantive effect of each to shift liability operates essentially
the same under either type of contract clause, and they are usually given the same treatment
by the courts.” Schlobohm v. Spa Petite, Inc ., 326 N.W.2d 920, 922 n.3 (Minn. 1982).
However, courts “examine the enforceability of exculpatory and indemnification clauses
under different standards. Indemnification clauses are subject to greater scrutiny because
they release negligent parties from liability, but also may shift liability to innocent parties.”
Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 792 n.6 (Minn. 2005).
While we do not require any “magic language” to create an exculpatory clause, we
observe that an example of a proper exculpatory clause would read something to the effect
of, “YOU ARE AWARE AND AGREE THAT BY EXECUTING THIS WAIVER AND
RELEASE, YOU ARE GIVING UP YOUR RIGHT TO BRING A LEGAL ACTION OR
ASSERT A CLAIM AGAIN ST CLUB FOR ITS NEGL IGENCE, OR FOR ANY
DEFECTIVE PRODUCT ON ITS PREMISES.” Johnson v. Fit Pro, LLC, No. A09-1919,
2010 WL 2899661, at *1 (Minn. App. July 26, 2010). The language in this case is
completely different.
Read together, the first sentence of the agreement reads that “[appellant] agrees to
indemnify and hold harmless . . .” and then continues to classify each person or entity
covered by the clause as “the indemnified parties.” Additionally, the language used in the
agreement is common to other clauses that have been considered to be indemnification
9
clauses. See Yang, 701 N.W.2d at 787; Braegelmann v. Horizon Development Co. , 371
N.W.2d 644, 646 (Minn. App. 1985).
Because we conclude that the clause is an indemnification clause, we must next
determine whether or not the clause is valid.
“Agreements seeking to indemnify the indemnitee for losses occasioned by its own
negligence are not favored by law and are not construed in favor of indemnification unless
such intention is expressed in clear and unequivocal terms, or unless no other meaning can
be ascribed to it.” Yang, 701 N.W.2d at 791. Courts also will not enforce an
indemnification clause if it is contrary to public policy. Id. Thus, an indemnity agreement
seeking to indemnify a party for losses caused by its own negligence is enforceable where
(1) the terms of the agreement are expressed in clear and unequivocal terms, and (2) the
agreement is not contrary to public policy. We conclude that the terms of the agreement
are ambiguous and not expressed in clear and unequivocal terms.
The language states that appellant shall indemnify and hold harmless respondent
and its employees from “all claims, demands, actions and causes of act ion, including
personal injury, and all other liability whatsoever arising out of your participation in the
Fitness Together training program [and] . . . the use of equipment located at the Fitness
Together studio.” It is undisputed that the incident happ ened while using the bench press
located at respondent’s studio, that the trainer was an employee of respondent, and the blow
to the head was a personal injury.
However, because the clause does not specifically state that appellant indemnifies
and holds harmless respondent from negligent actions, we conclude that the language is
10
not clear and unequivocal. See id. at 791 n.5. In Yang, the supreme court stated, in dicta,
that the indemnification clauses were not enforceable because the language was not cl ear
and unequivocal: it did not “(1) specifically refer[] to negligence, (2) expressly state[] that
the renter will indemnify [respondent] for [respondent’s] negl igence, or (3) clearly
indicate[] that the renter will indemnify [respondent] for negligence occurring before the
renter took possession of the houseboat.” Id. The indemnification clause here does not
specifically state that appellant agreed to indemnify and hold harmless respondent for any
personal injury, even if caused by respondent’s own negligence.
We do not hold that all indemnification agreements that indemnify a party for its
own negligence are automatically void. See Nat. Hydro Systems v. M.A. Mortenson Co. ,
529 N.W.2d 690, 693 (Minn. 1995) . R ather we conclude that an indemnification
agreement is not clear and unambiguous if it does not apprise the indemnifying party that
it is responsible for the indemnified party’s own negligence . Because the language is not
clear and unequivocal in that it does not expressly state that appellant would be responsible
for the negligence of respondent or its employees , we reverse the district court’s grant of
summary judgment to respondent . Since the indemnification clause is not clear and
unequivocal, we decline to address the issue of whether the indemnification clause is void
as against public policy.
Finally, although we are reversing the district court, we wish to commend it for the
thoughtful way it explained its decision to appellant. This is the essence of procedural
fairness.
Reversed and remanded.