Amanda Grace Visser, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1204

Amanda Grace Visser,
Appellant,

vs.

State Farm Mutual Automobile Insurance Company,
Respondent.

Filed April 22, 2019
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CV-17-14395

Matthew J. Barber, James S. Ballentine, Mark H. Gruesner, Schwebel, Goetz & Sieben,
P.A., Minneapolis, Minnesota (for appellant)

Emilio R. Giuliani, Kimberly Scriver, La Bore, Giuliani & Viltoft, Ltd., Hopkins,
Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Amanda Grace Visser was injured in an automobile collision . The driver of the
other vehicle was at fault and was underinsured. State Farm Mutual Automobile Insurance
Company, which insured the vehicle that Amanda was driving , paid her underinsured-

2
motorist benefits of $100,000, which is the maximum amount of such coverage on the
policy insuring the vehicle that she was driving. Amanda commenced this action to obtain
additional underinsured-motorist benefits, up to the $250,000 limit on another State Farm
policy that insured another of her family’s vehicles. On cr oss-motions for summary
judgment, the district court ruled in favor of State Farm. We conclude that the maximum
amount of Amanda’s underinsured-motorist coverage is the maximum amount of coverage
provided by the insurance policy for the vehicle she was occupying at the time of the
collision. Therefore, we affirm.
FACTS
In early 2013, Cheryl Visser had insur ance coverage from State Farm on two
vehicles: a 2000 Pontiac and a 1998 Chevrolet. On February 1, 2013, Cheryl’s daughter
Amanda was driving the Pontiac vehicle on state highway 65 in Kanabec County when she
was involved in a collision with a pick-up truck. The accident report, which was prepared
by a state trooper, states that the driver of the pick-up truck was drunk and failed to stop at
a stop sign. Amanda alleges in this action that she suffered personal injuries in the
collision, which resulted in medical care, lost earnings, and pain and suffering, and that she
is entitled to more than $150,000 in damages from the other driver. But the ins urance
policy for the other driver’s pick-up truck provided liability coverage up to a limit of only
$50,000.
Cheryl’s insurance policy for the Pontiac vehicle provided underinsured -motorist
coverage with an upper limit of $100,000 per person. Her insuran ce policy for the
Chevrolet vehicle provided underinsured -motorist coverage with an upper limit of

3
$250,000 per person. Amanda was an additional named insured on the policy for the
Chevrolet vehicle. It is undisputed that Amanda was an insured on the policy for the
Pontiac vehicle because she is related to Cheryl and lived in Cheryl’s home at the time of
the collision. See Minn. Stat. § 65B.43, subd. 5 (2018); Becker v. State Farm Mut. Auto.
Ins. Co., 611 N.W.2d 7, 13 (Minn. 2000). State Farm paid Amanda underinsured-motorist
benefits of $100,000, the upper limit of such coverage under the policy for the Pontiac
vehicle.
In September 2017, Amanda commenced this action against State Farm to obtain a
declaration that she is entitled to additional underinsured-motorist benefits , as much as
$250,000, which is the upper limit under the policy for the Chevrolet vehicle. The parties
filed cross-motions for summary judgment. I n June 2018, the district court filed an order
in which it granted State Farm’s motion and denied Amanda’s motion. Amanda appeals.
D E C I S I O N
Amanda argues that the district court erred by granting State Farm ’s motion for
summary judgment.
A district court must grant a motion for summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that either party is
entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03 (2017).1 A genuine issue

1Rule 56 recently was “revamped” to more “closely follow” the federal rules but in
a way that was not intended to alter existing Minnesota caselaw. See Minn. R. Civ. P. 56,
2018 advisory comm. cmt.; Order Promulgating Amendments to Rules of Civil Procedure,

4
of material fact exists if a rational trier of fact, considering the record as a whole, could
find for the non-moving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564
(Minn. 2008). In evaluating the evidence in the summary-judgment record, a district court
must view the evidence in the light most favorable to the non-moving party. See RAM Mut.
Ins. Co. v. Rohde, 820 N.W.2d 1, 6 (Minn. 2012). This court applies a de novo standard of
review to a district court’s grant of a motion for summary judgment. Id.; Day Masonry v.
Independent Sch. Dist. 347, 781 N.W.2d 321, 325 (Minn. 2010).
Because insurance coverage is primarily a matter of contract, Cincinnati Ins. Co. v.
Franck, 644 N.W.2d 471, 473 (Minn. App. 2002), we begin by reviewing the language of
the applicable insurance policies that State Farm issued to Cheryl. Each of the policies
contains the following provision concerning injuries caused by an underinsured motorist:
We will pay compensatory damages for bodily injury an
insured is legally entitled to recover from the owner or driver
of an underinsured motor vehicle. The bodily injury must be:

1. sustained by an insured; and

2. caused by an accident that involves the operation,
maintenance, or use of an underinsured motor vehicle
as a motor vehicle or motorcycle.

In addition, each policy contains the following provision concerning the situation in which
multiple policies provide coverage for injuries caused by an underinsured motorist:
If Underinsured Motor Vehicle Coverage provided by this
policy and one or more other vehicle policies issued to you or
any resident relative by the State Farm Companies apply to the
same bodily injury, then:

No. ADM04-8001 (Minn. Mar. 13, 2018). We cite the prior version of rule 56 because
that is the version that applied at the time of proceedings in the district court.

5

a. the Underinsured Motor Vehicle Coverage limits of
such policies will not be added together to determine the
most that may be paid; and

b. the maximum amount that may be paid from all such
policies combined is the single highest applicable limit
provided by any one of the policies. We may choose
one or more policies from which to make payment.

The district court resolved the parties’ respective argu ments by reasoning, in part,
as follows:
The policy language relied upon by [Amanda] does
not . . . mandate that both the Chevy and Pontiac Policies apply
to the February l, 2013 accident. The limitations language at
issue merely defines how benefits are apportioned if more than
one poli cy applies. While [Amanda] is co rrect that if both
policies apply . . . , then she is entitled to the single highest
applicable policy, the Court must first decide which policy(s)
apply before reaching the limitation provision relied upon by
[Amanda].

The district court then turned to the Minnesota No-Fault Automobile Insurance Act,
Minn. Stat. §§ 65B.41-.71 (2018), to determine which policy applies and relied on the
following statutory provision:
[1] If at the time of the accident the injured person is
occupying a motor vehicle, the limit of liability for uninsured
and underinsured motori st coverages available to the injured
person is the limit specified for that motor vehicle.
[2] However, if the injured person is occupying a motor
vehicle of which the injured person is not an insured, the
injured person may be entitled to excess insura nce protection
afforded by a policy in which the injured party is otherwise
insured. [3] The excess insurance protection is limited to the
extent of covered damages sustained, and further is available
only to the extent by which the limit of liability fo r like
coverage applicable to any one motor vehicle listed on the
automobile insurance policy of which the injured person is an

6
insured exceeds the limit of liability of the coverage available
to the injured person from the occupied motor vehicle.

Minn. Stat. § 65B.49, subd. 3a(5) (alterations added). The district court reasoned further
that because Amanda “occupied a vehicle for which she was an insured, . . . she is limited
to the amount of underinsured motorist benefits available under the Pontiac Policy.”
On appeal, Amanda contends that both the Pontiac policy and the Chevrolet policy
apply to the injuries she sustained in the Februar y 1, 2013 collision. She also contends
that, because both policies apply , she is entitled to “ the single highest applicable limit
provided by any one of the policies.” She contends further that section 65B.49, subdivision
3a(5), does not determine which policy or polic ies apply because that statut e merely
“explains the default priorities from which an injured person may look for underinsured
motor coverage.” In response, State Farm contends that the district court properly
concluded that Amanda’s entitlement to underinsured -motorist benefits is determined by
the coverage limit of the insurance policy for the Pontiac vehicle because she was
occupying the Pontiac vehicle at the time of the collision.
The district court correctly observed that the two insurance policies do not specif y
which policy or policies apply in the circumstances of this case but, rather, merely specify
which policy provides underinsured -motorist coverage if more than one policy applies.
Accordingly, the key question is whether both policies apply. The language of each policy
recognizes that such a question may arise, but each policy is silent as to how that question
should be answered. In that respect, each policy is different from the State Farm insurance
policy at issue in LaFave v. State Farm Mut. Auto. Ins. Co. , 510 N.W.2d 16 (Minn. App.

7
1993), which expressly stated that “this coverage does not apply if the injured person is an
insured under a policy covering the vehicle occupied at the time the bodily injury is
sustained.” Id. at 18.
To answer the question whether both policies apply, the district court referred to a
statute in the no-fault act, specifically, section 65B.49, subd ivision 3a(5). It wa s
appropriate to do so because section 65B.49, subdivision 3a(5), “directs injured occupants
to seek [underinsured -motorist] coverage initially from the insurer of the motor vehicle
they occupied at the time of the accident and establishes as limits of liability those specified
in the policy on the occupied vehicle.” See Becker, 611 N.W.2d at 10-11. As the supreme
court has explained, “The three sentences in [section 65B.49, subdivision 3a(5)] explain
[1] the source of primary . . . [underinsured-motorist] coverage (the occupied vehicle), [2]
the source of excess . . . [underinsured-motorist] coverage (a vehicle covered by a policy
in which the inj ured party is otherwise insured ), and [3] the availability of excess
coverage.” Sleiter v. Am erican Family Mut. Ins. Co. , 868 N.W.2d 21, 24 (Minn. 2015)
(quotations omitted). But, by its plain language, t he second sentence of section 65B.49,
subdivision 3a(5) applies only “if the injured person is occupying a motor vehicle of which
the injured person is not an insured.” See Minn. Stat. § 65B.49, subd. 3a(5). The supreme
court has followed the plain language of the statute by stating, “The second sentence of
[section 65B.49, subdivision 3a(5)] provides that if the injured person is not an insured of
the occupied motor vehicle , the injured person may then be enti tled to seek excess
insurance protection through another automobile insurance policy in which the injured
person is insured.” Becker, 611 N.W.2d at 11 (emphasis added) . Accordingly, section

8
65B.49, subdivision 3a(5), “‘require[s] the injured occupant to look first and exclusively
to the policy limits on the occupied vehicle’ for . . . [underinsured-motorist] benefits.”
West Bend Mut. Ins. Co. v. Allstate Ins. Co. , 776 N.W.2d 693, 699 (Minn. 2009) (quoting
Vue v. State Farm Ins. Cos., 582 N.W.2d 264, 267 (Minn. 1998)). For these reasons, the
supreme court repeatedly has stated that underinsured -motorist coverage “follows the
vehicle, rather than the person.” Id.; see also Thommen v. Illinois Farmers Ins. Co. , 437
N.W.2d 651, 653 (Minn. 1989); Hanson v. A merican Family Mut. Ins. Co. , 417 N.W.2d
94, 96 (Minn. 1987). The district court’s reasoning reflects a proper understanding of the
statute and the applicable caselaw.
Amanda contends that the district court erred by not confining its analysis to the
language of the two insurance policies, each of which states that it provides coverage for
“compensatory damages for bodily injury an insured is legally entitled to recover from the
owner or driver of an underinsured motor vehicle.” In support of this contention, she cites
Pepper v. State Farm Mut. Auto. Ins. Co. , 813 N.W.2d 921 (Minn. 2012), f or the
proposition that, “so long as coverage required by law is not omitted and policy provisions
do not contravene applicable statutes, the extent of the insurer’s liability is governed by the
contract entered into.” See id. at 927 (quotation omitted). The Pepper opinion, however,
was not concerned with section 65B.49, subdivision 3a(5), and did not discuss the supreme
court’s prior opinions in Sleiter, Becker, and West Bend , let alone overrule them. See
generally id. at 925-29. As stated above, that body of caselaw teaches that section 65B.49,
subdivision 3a(5) “directs injured occupants to seek [underinsured -motorist] coverage
initially from the insurer of the motor vehicle they occupied at the time of the accident and

9
establishes as limits of liability those specified in the policy on the occupied vehicle.”
Becker, 611 N.W.2d at 11. Thus, the district court did not err by relying, in part, on section
65B.49, subdivision 3a(5), to determine Amanda’s entitlement to underinsured -motorist
coverage.
In sum, because Amanda was an insured on the policy for the Pontiac vehicle and
occupied the Pontiac vehicle at the time of the collision, the amount of her underinsured-
motorist coverage is limited by the terms of the insurance policy that provides coverage for
the Pontiac vehicle, which limits underinsured-motorist coverage to $100,000 per person.
Thus, the district court did not err by granting State Farm’s motion for summary judgment.
Affirmed.