East View Information Services, Inc., Appellant,

This opinion will be unpublished and it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

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-2066

East View Information Services, Inc.,
Appellant,

vs.

Xigent Solutions, LLC,
Respondent.

Filed August 20, 2018
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CV-17-7752

Kevin R. Coan, Kyle A. Eidsness, Hinshaw & Culbertson, L.L.P., Minneapolis, Minnesota
(for appellant)

Charles G. Frohman, Thomas R. Pack, Ma slon, L.L.P., Minneapolis, Minnesota (for
respondent)

Considered and decided by Johnson, Presiding Judge; Wo rke, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges the district court’ s dismissal of its breach-of-contract and
negligence claims. We affirm.

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FACTS
Appellant East View Information Serv ices, Inc. (East View) is a Minnesota
corporation that provides native and translated foreign-information products and services
to various organizations and businesses. Respondent Xi gent Solutions (Xigent) is a
Minnesota limited liability company that prov ides information tech nology (IT) products
and support services to businesses.
In February 2014, the parties signed a c ontract in which Xigent agreed to provide
East View with ad hoc technical consulta tion and support services upon East View’s
request. Thereafter, Xigent performed consulting services consistent with the terms of the
contract.
Section 4.2 of the contract st ates that East View is re sponsible for “[p]erform[ing]
backups of all systems affected by services performed in this [contract].” The section also
includes an exculpatory clause stating that “Xigent is not responsible for lost data.”
In 2017, East View filed su it against Xigent for breach of contract and negligence,
alleging that Xigent permanently deleted a substantial portion of East View’s critical data
while creating a complete backup of East Vi ew’s “Production Storage Area Network” as
requested. The district court granted Xigent’s motion to dismiss both claims under Minn.
R. Civ. P. 12.02(e). This appeal follows.
D E C I S I O N
Under Minn. R. Civ. P. 12.02(e), a pleading may be dismissed for “failure to state a
claim upon which relief can be granted.” Whether a complaint sets forth a legally sufficient
claim for relief is reviewed de novo, and the reviewing court must “accept the facts alleged

3
in the complaint as true and construe all reasonable inferences in favor of the nonmoving
party.” Walsh v. U.S. Bank, N.A. , 851 N.W.2d 598, 606 (Min n. 2014). “A claim is
sufficient against a motion to di smiss for failure to state a cl aim if it is possible on any
evidence which might be produced, consistent with the pleader’s theory, to grant the relief
demanded.” Id. at 603.
I. The district court did not err in dismissing the breach-of-contract claim.
East View argues that the district court erred in dismissing the breach-of-contract
claim because the contract’s exculpatory clau se is not valid and therefore Xigent is
responsible for East View’s lost data. We disagree.
An exculpatory clause may be unenforceable if (1) it is ambiguous in scope; (2) it
purports to release a party from liability for intentional, w illful, or wanton acts; (3) a
disparity in bargaining power existed between the parties to the contract; or (4) the
exculpated party offers or provides either a public or an e ssential service. Beehner v.
Cragun Corp., 636 N.W.2d 821, 827 (Minn. App. 2001), review denied (Minn. Feb. 28,
2002).
East View claims that the exculpatory cl ause is not valid because it is ambiguous
and purports to release a part y from liability for intentional, willful, or wanton acts.1 We
address each issue in turn.

1 East View also alleges that the exculpatory clause violates public policy. “An assignment
of error on mere assertion, unsupported by argument or authority, is forfeited and need not
be considered unless prejudicial error is obvious on mere inspection.” Scheffler v. City of
Anoka, 890 N.W.2d 437, 4 51 (Minn. App. 2017), review denied (Minn. Apr. 26, 2017).
Because East View fails to make a legal ar gument or cite to any authority, East View
forfeited this argument.

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A. The exculpatory clause is not ambiguous.
Whether a contract provision is ambiguous is a question of law that we review de
novo. Yang v. Voyagair e Houseboats, Inc. , 701 N.W.2d 783, 788 (Minn. 2005). “An
exculpatory clause is ambigu ous when it is susceptible to more than one reasonable
interpretation.” Beehner, 636 N.W.2d at 827.
East View argues that the exculpatory cl ause can be read to have conditional
language, such as “Xigent is not responsible for lost data if East View does not hire Xigent
to back up its data ,” or “Xigent is not responsible for lost data if data is lost on a system
that is affected by servi ces performed in the contract .” (Emphasis added). But the
contract’s exculpatory clause contains no such conditional language. And we cannot create
or add exceptions to the contract or rewrite it on behalf of either of the contracting parties,
which is essentially what East View asks us to do. See Telex Corp. v. Data Products Corp., 271 Minn. 288, 295, 135 N.W.2d 681, 687 (1965).
East View also argues that the exculpatory clause is ambiguous because it is located
in section 4.2 of the contract , which delineates East View’s responsibilities, rather than
section 4.1, which delineates Xigent’s responsibilities. We do not agree, as this court reads
contract terms “in the contex t of the entire contract.” Employers Mut. Liab. Ins. Co. v.
Eagles Lodge, 282 Minn. 477, 477, 165 N.W.2d 554, 555 (1969). Placing the exculpatory
clause in another location within the contract does not create a differ ent interpretation of
the clause that is reasonable, as it would be read in the same manner regardless of its
location when read in the context of the entire contract. Moreover, the exculpatory clause

5
logically follows the clause providing that East View is responsible for backing up its data
systems.
Finally, East View relies on the district court’s ruling2 to argue that the exculpatory
clause’s use of the term “lost data” is ambiguo us because it can mean either “data that is
temporarily misplaced” or “data which is dele ted or permanently unrecoverable.” This
argument lacks merit.
In determining whether a contract is ambi guous, “a court must give the contract
language its plain and ordinary meaning.” Current Tech Concepts, Inc. v. Irie Enters. Inc.,
530 N.W.2d 539, 543 (Minn. 1995). Courts may look to dictionaries to determine the plain
and ordinary meaning of a contract term. See e.g., Bank Midwest, Minn., Iowa, N.A. v.
Lipetzky, 674 N.W.2d 176, 180 (Minn. 2004). The American Heritage Dictionary defines
“lost” as “[n]o longer in the possession, care , or control of someone or something.” The
American Heritage Dictionary of the English Language 1034 (4th ed. 2006). Black’s Law
Dictionary defines it as property “beyond the possession and custody of its owner and not
locatable by dilig ent search.” Black’s Law Dictionary 1089 (10th ed. 2014). In both
definitions, the temporary or permanent nature of the loss is not part of the plain and
ordinary meaning of the word. Rather, it is a difference with out a distinction. As such,
East View’s two proposed interpretations are not reasonable.

2 In its order dismissing East View’s breach-of-contract and negligence claims, the district
court determined that the term “lost data” is unambiguous, not ing that “[a] quick Internet
search for this term reveals an almost uniform set of definitions, all of which include data
that is temporarily misplaced and data which is deleted or permanently unrecoverable.”
The district court’s ruling does not support East View’s position.

6
We conclude that neither the exculpatory clause nor the term “lost data” is
ambiguous.
B. The exculpatory clause does not purport to release Xigent from liability
for willful, wanton, or intentional conduct.

East View asserts that the exculpatory cl ause is not valid because it purports to
release Xigent from liability for willful, want on, or intentional conduct. We are not
persuaded.
An exculpatory clause cannot release a party from liab ility for intentional, willful,
or wanton acts, Beehner 636 N.W.2d at 827, but a clause that is broad enough to cover the
negligence of the benefitted party is enforceable. Otis Elevator Co. v. Don Stodola’s Well
Drilling Co., 372 N.W.2d 77, 78 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985).
And an exculpatory clause need not explicitly refer to “negligence.” Id. In Otis Elevator,
this court held that an ex culpatory clause that purported to release a party from
responsibility for “damage to property caus ed by seller’s act or omission during the
performance of the work,” but did not use the word negligence, was enforceable. Id.
The exculpatory clause here is similar to the clause in Otis Elevator and is broad
enough to cover lost data caused by Xige nt’s alleged negligence and is therefore
enforceable. Because the exculpatory clause is valid and enforceable, Xigent is not liable
for East View’s lost data, and the district court did not err in dismissing the breach-of-
contract claim.

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II. The district court did not err in dismissing the negligence claim.
Appellant contends that the district court erred by dismissing East View’s
negligence claim. This argument lacks merit.
The elements of negligence are: “(1) the existence of a duty of care; (2) a breach of
that duty; (3) an inju ry; and (4) the breach of the duty being the proximate cause of the
injury.” Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). To prevail on a negligence
claim brought along with a breach-of-contract claim, an appellant must demonstrate a duty
independent of the duty established by contract. D & A Dev. Co. v. Butler , 357 N.W.2d
156, 158 (Minn. App. 1984); see also Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572,
584 (Minn. 2012) (providing that “when a contract provides the only source of duties
between the parties, Minnesota law does not permit the breach of those duties to support a
cause of action in negligence.” (quotation omitted)).
In setting forth its cause of action for neg ligence, East View alleged that Xigent
“had a duty to use reasonable care at all times while at [East View]’s place of business and
when accessing [East View]’s electronic devi ces, backup servers, network, and
electronically stored information.” And it alle ged that “[Xigent] also had a duty to hire
and train competent IT professionals, and supervise its employees and contractors to ensure
they were meeting industry standards.”
As the district court properly found an d the record reveals, these duties were
established by the contract, and East View failed to plead Xigent’s extra-contractual duty.
Although East View claims that discovery might reveal that Xigent’s misconduct occurred
outside of the contract’s scope, this court is not permitted to go outside of the pleadings on

8
a motion to dismiss for failure to state a claim. N. States Power Co. v. Franklin, 265 Minn.
391, 396, 122 N.W.2d 26, 30 (1963). Therefore, the district court did not err in dismissing
East View’s negligence claim.
Affirmed.