Thomas R. Blanck, et al., Appellants,

This opinion will be unpublished and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
A19-0618

Thomas R. Blanck, et al.,
Appellants,

vs.

Rayvell Deprie Carter,
Defendant,
Ameriprise Auto & Home Insurance Company,
Respondent,
EAN Holdings, LLC, et al.,
Respondents.

Filed December 2, 2019
Affirmed
Florey, Judge

Ramsey County District Court
File No. 62-CV-18-3306

Marcy S. Wallace, St. Paul, Minnesota (for appellants)

Randall E. Gottschalk, Gottschalk Law, P.L.L.C., St. Louis Pa rk, Minnesota (for
respondent Ameriprise Auto & Home Ins.)

Jeannie Provo-Peterson, Daniel J. Stahley, Provo-Petersen & Associates, P.A., Lake Elmo,
Minnesota (for respondents EAN Holdings, et al.)

Considered and decided by Florey, Presiding Judge; Cleary, Chief Judge; and
Peterson, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
On appeal from an action arising from a motor -vehicle collision, appellants
challenge the district court’s grant of summary judgment for respondents, arguing that the
district court erred in (1) relying on, as a business record under Minn. R. Evid. 803(6), an
unsworn statement taken by an insurance adjuster; (2) determining that the at -fault driver
was not a permissive user of the rental vehicle; (3) determining that respondent insurer is
not estoppe d from asserting the defenses of defective process and defective service of
process; (4) determining that appellants failed to properly serve the summons and
complaint on respondent foreign insurance company; and (5) determining that the
complaint could no t be amended to correct a typographical error after the statute of
limitations had run. We affirm.
FACTS
In May 2011, A.C. was in possession of a car rented from respondents -defendants
Enterprise and EAN Holdings ( together, Enterprise). In May 2011, A.C. learned that her
daughter was injured at her daycare center. A.C. drove the rental car to her parents’ home,
parked it in the driveway and hung the keys from a hook inside. Then, she and her family
went to the hospital to see her daughter. Later that d ay, defendant Rayvell Deprie Carter,
a friend of A.C.’s brother who had been staying at A.C.’s parents’ house, took the rental
car. Carter used the rental car to transport narcotics. St. Paul Police attempted to stop and
arrest him, and Carter led them on a high-speed chase on Rice Street in St. Paul. During
the chase, Carter rear-ended appellant-plaintiff Thomas R. Blanck’s car, which was pushed

3
off the road and flipped over. Carter was subsequently arrested. Within days of the crash,
A.C. gave a recorded but unsworn statement to an Enterprise claims adjuster. A.C. stated
that she had not given anyone permission to use the rental car and that she did not know
Carter.
On May 11, 2017, Blanck and appellant -plaintiff Linda M. Bjorklund served
Enterprise with a summons and complaint. Blanck and Bjorklund also attempted to serve
their uninsured/underinsured insurance company. Blanck and Bjorklund, both Wisconsin
residents, named “Ameriprise Auto & Home Insurance Company f/k/a IDS Property
Casualty Insurance Company” (“Ameriprise”) as the defendant and attempted substituted
service via the Minnesota Secretary of State pursuant to a long-arm statute; specifically,
Minn. Stat. § 5.25 (2016) as directed by Minn. Stat. § 303.13 (2016).
On May 25, 2017, “Amerip rise” filed its answer and identified IDS Property
Casualty Insurance Company (IDS) as the entity underwriting Blanck and Bjorklund’s
UM/UIM policy.
One year later, Blanck and Bjorklund filed their complaint in district court. After
attempting service of the complaint on Enterprise and “Ameriprise,” Blanck and Bjorklund
did not conduct discovery, answer interrogatories, notice any depositions, or generally
engage in any of the normal litigation activities . Importantly, Blanck and Bjorklund did
not move to amend their complaint to name IDS as a party, nor did they move to amend
their complaint to address a typographical error in their claim for relief. 1

1 Blanck and Bjorklund claimed that “Ameriprise” provided “underinsured motorist
coverage in the amount of One Hundred Thousand Dollars ($100,000) per person and

4
In September 2018, Enterprise moved for summary judgment, asserting that it was
not liable because th e rental car was driven without permission. Blanck and Bjorklund
counterargued that A.C.’s unsworn statement that she did not give anyone permission to
use the vehicle should not be considered and that because A.C. left the keys to the rental
car in her relatives’ home, she had given “implied consent” for someone else to use it.
“Amerprise” also moved for summary judgment. “Amerprise” argued that Blanck
and Bjorklund did not properly serve process within the limitations period and did no t
properly ident ify Ameriprise; “thereby fai ling to provide [the district] c ourt with
jurisdiction.” “Ameriprise” asserted that it is a foreign insurer, and that therefore Minn.
Stat. § 60A.19, subd. 4 (2016) , governs service of process and requires that substituted
service be made on the Commissioner of Commerce. Ameriprise also asserted that IDS,
the correct party, is also a foreign insurer licensed to do business in Minnesota, and must
similarly be served in compliance with Minn. Stat. § 60A.19, subd. 4.
Blanck and Bjorklund counterargued that service upon “Ameriprise” under the
long-arm statute was proper because neither Minn. Stat. § 60A.19 nor 60A.21 applied, that
IDS was estopped from denying the adequacy of service because IDS intentionally used
the “Ameriprise” name to confuse counsel about the proper entity to serve, and that IDS
could properly be added by amendment pursuant to Minn. R. Civ. P. 15.03.

Three Hundred Thousand Dollars ($300,000) per accident and underinsured motorist
coverage in the same amounts.” The second “underinsured motorist coverage” should have
read “uninsured.”

5
The district court held a motion hearing and subsequently granted summary
judgment to both Enterprise and “Am eriprise.” The district court concluded that, with
respect to Enterprise, the unsworn statement was admissible as a business record, that
Carter did not have express or implied permission to use the rental car, and that even if he
had, he exceeded the scope of that permission by fleeing from police.
Despite the representations made by Blanck and Bjorklund’s counsel at the motion
hearing that at no time was she attempting to serve IDS, but rather, to serve “Amerprise”;
it appears the district court at least implicitly concluded that Blanck and Bjorklund intended
to serve their UM/UIM carrier, regardless of the name of the entity, which is undisputedly
IDS. The district court concluded that Blanck and Bjorklund “knew or should have
known” that IDS “was the appropriate entity to include as a party to this suit since at least
the time it received the answer in May 2017,” and that they did not properly effect service
on IDS pursuant to Minn. Stat. § 60A.19 and Minn. Stat. § 45.028, subd. 2. The district
court also noted that, despite the a nswer from “Amerprise” identifying IDS as the correct
entity, and despite the numerous documents that reflected that IDS was the correct entity,
Blanck and Bjorklund did not move to amend their complaint or caption. The district court
concluded that it lacked jurisdiction over “the proper defendant in this matter” and that
even if Blanck and Bjorklund were allowed to relate back, there was no effective service
date, and the statute of limitations had already run, rendering any amendment futile. This
appeal follows.

6
D E C I S I O N
On appeal from summary judgment, we review whether there
are any genuine issues of material fact and whether the district
court erred in its application of the law. We view the evidence
in the light most favorable to the party against whom summary
judgment was granted. We review de novo whether a genuine
issue of material fact exists. We also review de novo whether
the district court erred in its application of the law.

STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002) (citations
omitted). “[W]e may affirm a grant of summary judgment if it can be sustained on any
grounds.” Doe 76C v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).
I. Summary Judgment for Enterprise
Blanck and Bjorklund’s claim against Enterprise hinges on whether Carter had
explicit or implied permission to use A.C.’s rental car. Christensen v. Milbank Ins. , 658
N.W.2d 580, 584 (Minn. 2004). The district court determined that Carter had neither
explicit nor implied permission and that summary judgment was therefore proper.
A. Did the district court abuse its discretion by relying on an unsworn
statement made to an insurance adjuster pursuant to Minn. R. Evid.
803(6)?

Blanck and Bjorklund assert that the district court erred by relying on A.C.’s
unsworn statement to an Enterprise claims adjuster because the statement was taken in
anticipation of litigation and was therefore inadmissible hearsay under Minn. R. Evid.
803(6). “Evidentiary rulings rest within the sound discretion of the district court, and we
will not reverse an evidentiary ruling absent a clear abuse of discretion.” State v. Ali, 855
N.W.2d 235, 249 (Minn. 2014). “A defendant claim ing error in the district court’ s

7
reception of evidence has the burden of showing both the error and the prejudice resulting
from the error.” Holt v. State, 772 N.W.2d 470, 483 (Minn. 2009) (quotation omitted).
Minn. R. Evid. 803(6) states:
A memorandum, report, record, or data compilat ion, in any
form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular pra ctice
of that business activity to make the memorandum, report,
record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness, unless the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness. The term “ business” as used
in this paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or
not conducted for profit. A memorandum, report, record, or
data compilation prepared for litigation is not admissible under
this exception.

Here, the district court concluded that A.C.’s statement was a business record
because “it was made at or near the time by a person with knowledge and done so in the
course of a regularly conducted business activity.” The district court also noted that while
A.C.’s statement “was not acknowledged to have been made under the penalty of perjury,”
A.C. stated that she understood the questions and that her answers were true and correct to
the best of her knowledge. The district court also noted that Blanck and Bjorklund
“presented no evidence that is contrary to the assertions made in [ A.C.’s] recorded
statement” and that A.C.’s statement “is the only evidence regarding whether she granted
[Carter] permission to use the vehicle.” Additionally, the district court noted that Blanck
and Bjorklund “failed to produce any admissible evidence as to whether Carter’s use of the
vehicle was permissive and rest on the allegations of their Complaint, many of which are

8
not supported by the record,” and that Blanck and Bjorklund “merely provide speculation
that [A.C.] might have given someone permission despite her recorded statement to the
contrary.” Finally, the district court noted that mere speculation is “insufficient to create a
factual dispute to survive summary judgment.” Fuchness v. Cecil Newman Corp. , 632
N.W.2d 666, 672 (Minn. 2001).
The record, including the timing of A.C.’s statement to Enterprise (which occurred
within days of the accident), as well as the fact that it was Enterprise and not an insurance
company or attorney who made the statement, supports the conclusion that this was a
business record, not prepared in an ticipation of litigation. It is reasonable that , after an
accident occurred, an Enterprise claims adjuster would want to take a statement from the
person who had rented the vehicle. And it is reasonable that a car -rental company would
take such statements as part of their regular course of business. Further, A.C.’s statement
is the only and best evidence on the issue of permission. Based on the record, we conclude
that the district court did not abuse its discretion by considering the statement.
B. Did the district court err in its conclusion that the at-fault driver was not
a permissive user of the rental car?

There is no support in the record for Blanck and Bjorklund’s position that Carter
was granted explicit permission to use the rental car. The only remaining issue, therefore,
is whether A.C. granted implicit permission, and if so, whether Carter’s conduct exceeded
the scope of that permission.
The district court concluded that no “reasonable finder of fact could conclude that
leaving keys on the hook in a house grants implied permission to any person within that

9
home to drive the car for any conceivable purpose,” but noted that such a determination
may be “an impermissible balancing of evidence.” The district court noted that “while the
grant of implied permission may be a disputed fact, it is not material” because even if
Carter had been granted implied permission, his “subsequent conduct exceeded that which
the implied permission allowed.”
Blanck and Bjorklund contend that A.C.’s act of l eaving the keys to the rental car
on a hook inside her relative s’ home was a grant of implied permission, which makes
Enterprise vicariously liable. They offer no record evidence or caselaw to support this
assertion. The record reflects that Carter is a friend of A.C.’s brother and was unknown to
A.C.. Carter may have been staying at the relative’s home, but for no more than a few
days. Additionally, the record reflects that A.C. left the keys to the rental car inside the
home after arriving to pick up family members and visit her hospitalized daughter. A.C.
did not reside in the home, nor did she routinely leave her car in the driveway or leave her
keys inside. There is no evidence to suggest that A.C.’s brother or anyone else was in the
habit of borrowing her car. Blanck’s and Bjorklund’s mere assertion that A.C. leaving the
keys in the house amounts to implied permission is not sufficient to overcome summary
judgment, because it does not rise to the level of a genuine dispute of material fact. Because
we conclude that Carter was not a permissive user of the rental car, we affirm the district
court’s grant of summary judgment for Enterprise.

10
II. Summary Judgment for “Ameriprise”
Blanck and Bjorklund assert that they properly effected service upon “Ameriprise”
and that they are therefore entitled to amend their complaint and caption to proceed with
their UM/UIM claim against IDS—the correct defendant in this matter.
A. Did the district court err in its conclusion that Blanck and Bjorklund
failed to properly serve the summons and complaint on “Ameriprise”
and IDS?

Service in a manner not authorized by a rule or statute is ineffective. Tullis v.
Federated Mut. Ins , 570 N.W.2d 309, 311 (Minn. 1997) . Whether service of process is
effective is a question of law. Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn.
2008).
In Minnesota, service of process upon foreign insurance companies is governed by
Minn. Stat. § 60A.19, subds. 3, 4 (2016) , and Minn. Stat. § 60A. 21 (2016). Minn. Stat.
§ 60A.19 applies to insurance companies a uthorized to do business in Minnesota, while
Minn. Stat. § 60A.21 applies to those that are not authorized to do business in Minnesota
but do so anyway. Both Minn. Stat . § 60A.19 and § 60A.21 provide that insurance
companies should be served “in compliance with section 45.028, subd. 2.” Minn. Stat.
§ 45.028, subd. 2 (2016), states that service of process should be made on the commissioner
of commerce, and that service is
not effective unless: (1) the plaintiff, who may be the
commissioner in an action or proceeding instituted by the
commissioner, sends notice of the service and a copy of the
process by certified mail to the defendant or respondent at the
last known addre ss; and (2) the plaintiff ’s affidavit of
compliance is filed in the action or proceeding on or before the

11
return day of the process, if any, or within further time as the
court allows.

Here, it is undisputed that Blanck and Bjorklund did not comply with any of these
requirements when attempting to serve “Amerprise.” Rather, Blanck and Bjorklund
attempted substituted service through the secretary of state pursuant to Minn. Stat. § 5.25
(2016), as directed by Minn. Stat. § 303.13 (2016). Blanck and Bjorkl und contend that at
the time of service, “Ameriprise” was not a foreign insurance company aut horized to do
business because it was not registered with the Department of Commerce. Blanck and
Bjorklund also contend that there is “no evidence” that “Ameripri se” was a foreign
insurance company unauthorized to do business in Minnesota, but was doing so anyway.
Thus, they argue, service under the long-arm statute via the secretary of state was proper.
Blanck and Bjorklund assert that Hunt v. Nevada State Bank stands for the
proposition that the long-arm statute can be used to sue foreign insurance companies when
Minn. Stat. §§ 60A.19 and .21 do not apply. 172 N.W.2d 292, 307-08 (Minn. 1969) (“[I]t
can be inferred that if § 60A.21 doesn’t apply (and it would n ot when the insurance
company has contacts not related to insurance), then § 303.13 does.”). The district court
correctly noted that Hunt contemplates service pursuant to the long -arm statute when an
“insurance company has contacts not related to insurance,” such as the tort claims asserted
in that case. Id. at 308. The district court concluded that Blanck and Bjorklund
“erroneously concluded that § 60A.21 does not apply” because they are asserting
insurance-related claims “against [their] insurance comp any.” We agree. Counsel for
Blanck and Bjorklund asserts that service was attempted on “Ameriprise” because she

12
believed, based on the letters captioned with both “Ameriprise” and IDS , that the
companies had merged. Based on this speculation, counsel created a fictitious legal entity,
“Ameriprise,” which she attempted to serve via the long -arm statute. But the evidence in
the record and the information available to the parties do not provide a reasonable basis for
this assumption or course of action. Blanck and Bjorklund were in possession of the policy
declaration page which clearly listed IDS as the policy underwriter for their UM/UIM
insurance. And in its answer, “Ameriprise” was clear that IDS was the proper defendant
in this matter. Thus, despite Blanck’s and Bjorklund’s assertions, there is no support in the
record for their argument that they were attempting to serve “Ameriprise” or that they did
so properly. The record shows that Blanck and Bjorklund were attempting to serve their
UM/UIM insurer, which is IDS. It is undisputed that IDS was not properly served pursuant
to § 60A.19, subd. 2. The district court noted that Blanck and Bjorklund “knew or should
have known that IDS Property Casualty Insurance was the appropriate entity to include as
party to this suit since at least the time it received the Answer in May of 2017.” We agree.
Accordingly, we affirm the district court’s conclusion that service was ineffective and that
summary judgment was appropriate. Because we conclude that service was improper, we
need not address Blanck ’s and Bjorklund’s contention that the district court erred in
concluding that amending their complaint is “futile” because there is not an effective date
of service to relate-back to.

13
B. Did the district court err in its conclusion that IDS is not estopped from
asserting defenses of defective process and service of process?

Blank and Bjorklund contend that IDS is estopped from asserting the defenses of
defective service because its conduct made it confusing for them to determine which entity
to sue. The district court concluded that IDS was not estopped from claiming a defense of
ineffective service because Blanck and Bjoklund did not prove that IDS “made
representations or inducements, upon which [Blanck and Bjorklund] reasonably relied” or
that Blanck and Bjorklund “will be harmed if the claim of estoppel is not allowed.”
Northern Petrochemical Co. v. US Fire Ins. , 277 N.W.2d 408, 410 (Minn. 1979).
“Estoppel is an equitable doctrine addressed to the discreti on of the court” and is
“ordinarily a fact question.” Id.
The district court noted specifically that the correspondence between Blanck and
Bjorklund and their insurance company came on letterhead stating “Ameriprise Auto &
Home Insurance” that also had an address block that read “IDS Property Casualty
Insurance Company.” Each letter from a claims representative indicated “IDS Property
Casualty Insurance Company” in the signature block. The district court concluded that the
perceived inconsistencies “could have easily been cleared up through an email or phone
call” and that there “is no evidence that [Blanck and Bjorklund] attempted to seek any
clarification for their confusion regarding the status of the insurance entity that issued their
policy.”

14
The district court’s conclusion is well -supported by the record. We affirm the
district court’s grant of summary judgment with respect to “Ameriprise” and its conclusion
that IDS is not estopped from asserting the defense of defective service.
Affirmed.