Hailey Elisabeth Steele Daberkow, a minor, by and through her parents and natural guardians John Daberkow and Bernadette Steele, Respondent,

This opinion will be unpublished and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
A17-0345

Hailey Elisabeth Steele Daberkow,
a minor, by and through her parents and natural guardians
John Daberkow and Bernadette Steele,
Respondent,

vs.

Anne Remer, f/k/a Anne Hummel,
Respondent,

American Family Mutual Insurance Company, intervenor,
Appellant

Filed November 13, 2017
Reversed and remanded
Worke, Judge

Mille Lacs County District Court
File No. 48-CV-16-2264

Grim Daniel Howland, Lindell & Lavoie, LLP, Minneapolis, Minnesota (for respondent
Hailey Elisabeth Steele Daberkow)

Michael Coyne Rajkowski, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for
respondent Anne Remer)

Darwin S. Williams, Eden Prairie, Minnesota (for appellant American Family Mutual
Insurance Company)

Jennifer E. Olson, TSR Injury Law, Bloomington, Minnesota (for amicus Minnesota
Association for Justice)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Johnson,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court erred by denying its motion to intervene as
of right and by declining to hear argument from appellant upon the motion for approval of
a Miller-Shugart agreement. Because the district court did not properly consider the
motion to intervene, we reverse and remand.
FACTS
In May 2012, respondent Hailey Elisabeth Steele Daberkow was bitten by a dog at
the home of respondent Anne Remer, the dog’s owner, who operated a childcare center out
of her home. Daberkow was a child enrolled at Remer’s childcare center at the time of the
dog-bite incident.
Riverport Insurance Services, LLC (Riverport) issued a childcare insurance policy
to Remer’s chi ldcare center. Appellant American Family Mutual Insurance Company
(American Family) issued a homeowners insurance policy to Remer . Soon after the
incident, Daberkow notified Riverport of a claim for bodily injury . Riverport accepted
coverage and agreed to a settlement of $25,000 , the policy limit. Daberkow also notified
American Family of her claim. On July 18, 2012, American Family denied coverage for
Daberkow’s claim under Remer’s homeowners policy.
Over the next two -and-a-half years, Daberkow and R emer notified American
Family of their intent to settle through a Miller-Shugart agreement. Approximately four
years after the incident, Daberkow informed American Family that she and Remer had
entered into a Miller-Shugart agreement (the agreement) and agreed to submit the case to

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a neutral arbitrator for a determination of damages . American Family appeared at the
arbitration but declined to participate. The arbitrator valued Daberkow’s injuries and
damages at $510,000.
In November 2016, Daberkow filed the present action seeking approval of the
agreement and entry of judgment against Remer . In December 2016, American Family
filed its motion to intervene as of right, but the district court elected to consider Daberkow’s
motion without rega rd to the motion to intervene . The district court then held that the
agreement was reasonable and prudent, approved the agreement, entered judgment against
Remer for $510,000, and “dismissed” the motion to intervene.
D E C I S I O N
American Family first argues that the district court erred by denying its motion to
intervene as of right. Orders concerning intervention as of right are subject to de novo
review and are independently assessed on appeal. State Fund Mut. Ins. Co. v. Mead , 691
N.W.2d 495, 499 (Minn. App. 2005).
The rule for intervention as of right provides:
Upon timely application anyone shall be permitted to
intervene in an action when the applicant claims an interest
relating to the property or transaction which is the subject of
the action and the applicant is so situated that the disposition
of the action may as a practical matter impair or impede the
applicant’s ability to protect that interest, unless the applicant’s
interest is adequately represented by existing parties.
Minn. R. Civ. P. 24.01. “The spirit behind Rule 24 is to encourage all legitimate
interventions, and the rule is to be liberally applied.” Gruman v. Hendrickson, 416 N.W.2d
497, 500 (Minn. App. 1987).

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A nonparty must satisfy a four-part test to intervene as of right:
(1) timely application for intervention;
(2) an interest relating to the property or transaction which is
the subject of the action;
(3) circumstances demonstrating that the disposition of the
action may as a practical matter impair or impede the par ty’s
ability to protect that interest; and
(4) a showing that the party is not adequately represented by
the existing parties.

Blue Cross/Blue Shield of R. I. v. Flam, 509 N.W.2d 393, 395 (Minn. App. 1993), review
denied (Minn. Feb. 24, 1994).
In its order approving the a greement and entering judgment against Remer, the
district court ruled that the agreement was reasonable and “dismissed” American Family’s
motion to intervene. 1 This dismissal does not constitute a ruling on American Family’s
motion. Consequently, we may not decide whether the district court erred by dismissing
American Family’s motion. See Hoyt Inv. Co. v. Bloomington Commerce & Trade Ctr.
Assocs., 418 N.W.2d 173, 175 (Minn. 1988) (“[A]n undecid ed question is not usually
amenable to appellate review.”) ; see also In re Tr . Known as Great N. Iron Ore Props. ,
308 Minn. 221, 231 -32, 243 N.W.2d 302, 308 (1976) (stating that appellate courts better
fulfill their function when they review issues after they have been decided below, rather

1 It appears that district courts typically consider the reasonableness of a Miller-Shugart
agreement in the context of a declaratory judgment or garnishment action, rather than in
the manner adopted by the district court. See Brownsdale Coop. v. Home Ins. Co. , 473
N.W.2d 339, 341-42 (Minn. App. 1991) (addressing the district court’s conclusion —in a
declaratory judgment action —as to the reasonableness of a Miller-Shugart agreement),
review denied (Minn. Sept. 25, 1991); see also Burbach v. Armstrong Rigging & Erecting,
Inc., 560 N.W.2d 107, 109, 111 (Minn. App. 1997) (concluding that the district court erred
in holding—in the context of a garnishment action —that a Miller-Shugart agreement was
enforceable and reasonable).

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than deciding them in the first instance) . We therefore reverse and remand to the district
court for consideration of whether American Family satisfies the relevant test for
intervention as of right. Because American Family will now have an opportunity to present
argument to the district court concerning the four requirements of its motion to intervene,
we need not decide whether the district court abused its discretion by refusing to allow
American Family to argue at the hearing upon Remer’s motion.
Reversed and remanded.