Andrew Cusick, et al., Respondents,

This opinion will be unpublished and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
A19-1293

Andrew Cusick, et al.,
Respondents,

vs.

Mozey’s Concrete & Masonry Inc., and
SullivanDay Construction, Inc., defendants/third-party plaintiffs,
Respondents,

vs.

Demo Unlimited, Incorporated, third-party defendant,
Appellant.

Filed May 11, 2020
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CV-17-16170

Alicia N. Sieben, Matthew J. Barber, Schwebel, Goetz, & Sieben, P.A., Minneapolis,
Minnesota (for respondents Andrew Cusick, et al.)

Deborah C. Eckland, Elizabet h L. Taylor, Matthew G. Ne lson, Goetz & Eckland P.A.,
Minneapolis, Minnesota (for respondent Mozey’s Concrete)

Michael J. Tomsche, James C. Kovacs, To msche, Sonnesyn & Tomsche, P.A., Golden
Valley, Minnesota (for respondent SullivanDay Construction)

Mark G. Pryor, Elizabeth J. Roff, Brown & Carlson, P.A., Minneapolis, Minnesota, and

Timothy Poeschl, Laura Johnson, Grotefel d, Hoffman, Gordan, Ochoa & Evinger LLP,
Minneapolis, Minnesota (for appellant)

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Considered and decided by Bratvold, Presiding Judge; Jesson, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this appeal from a final judgment, appe llant challenges the district court’s order
granting respondents’ motions to enforce a settlement agreement signed by all parties at a
mediation. Appellant argues the district c ourt erred when it concluded that (1) the
settlement agreement “was a global release of all claims,” which included appellant’s
increased-premium claim, and (2) appellant’s attorney ha d “authority to settle its
increased-premium claim.” Because we conclude that the district court did not err when it
enforced the settlement agreem ent and when it determined th at appellant’s attorney had
authority to enter a mediated settlement under Minn. Stat. § 481.08 (2018), we affirm.
FACTS
This dispute arises from respondent Andrew Cusick’s workplace injury. Respondent
SullivanDay Construction Inc. (SullivanDay) was the general contractor for a project
that involved converting a bank into a Montessori school in Golden Valley. SullivanDay
hired appellant Demo Unlimited Incorporated (Demo), Cusick’s employer, to perform
demolition work at the project site. SullivanDay also hired respondent Mozey’s Concrete
& Masonry Inc. (Mozey’s) as a subcontractor to remove a bank-vault door, among other
tasks. Mozey’s removed the door, and “left [it] leaning against the wall outside the vault.”
Cusick was near the door when “[s]omehow the vault door fell on Cusick’s left leg and he
sustained severe injuries.”

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Cusick received workers’ compensatio n benefits and sued SullivanDay and
Mozey’s for damages. In his amended complain t, Cusick alleged negligence, breach of
contract, joint enterprise, vicarious liab ility, and res ipsa loquitur. SullivanDay and
Mozey’s filed separate answers denying liability , filed cross-claims against each other,
and filed third-party complaints agains t Demo. Mozey’s alleged contribution and
indemnity against Demo. Sulliv anDay alleged contractual and common-law contribution
and indemnity, breach of contract, negligent misrepresentation, and negligent supervision
against Demo. Demo answered both third-party complaints and denied liability.
On February 20, 2019, all parties par ticipated in mediation and executed a
settlement agreement. The settlement agre ement is two typed pages, with a few
handwritten notes in the margin, and states, in part:
Now, therefore, in consideration of the mutual
covenants herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
the parties, intending to be bound pursuant to Minn. Stat.
§ 572.35, and with the intent of resolving any and all claims
that have been brought or could have been brought in the Legal
Action, hereby agree as follows:

1. Defendant shall pay Plaintiff and Plaintiff’s Attorney
the sum of seven hundred fifty thousand Dollars (750,000.00)
in full and final settlement of all claims, except for no-fault
benefits, which were made, or c ould have been made in the
Legal Action as to the settling parties.

. . . .
5. Plaintiff shall execute a Release of All Claims and the
settling parties shall execute a St ipulation of Dismissal with
Prejudice of the legal Action.

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(Emphasis added.) The right margin includes handwritten notes that read “Naig: 730,000,”
“Reverse Naig 20,000, Demo agrees to no comp future credit.”
After the mediation, Mozey’s circulated proposed release language by email. Demo
responded that the proposed release language was “overbroad” and sent a revised draft that
removed Demo from the proposed release. Moze y’s rejected Demo’s revised draft. Each
party moved to enforce the settlement. Cusick asked the district court to enforce the
settlement agreement signed at the mediation an d to permit the parties to distribute funds
as directed by the handwritten notes. Demo asked the district court to enforce a settlement
that excluded Demo’s clai m for increased workers’ co mpensation premiums against
Mozey’s and SullivanDay, both of whom separately m oved to enforce the settlement
agreement as signed by the parties at mediation.
After a hearing, the district court issued a written order, finding that the settlement
agreement was unambiguous and by its plain terms “settles, resolves and provides for the
release and stipulated dismissal, of any and all claims that were brought or could have been
brought as part of this action.” The dist rict court granted Mozey’s and SullivanDay’s
motions and dismissed with prejudice “[a]ll claims, cross-claims, counterclaims, and third
party claims and counterclaims brought by the parties or which could have been brought,
including any claim by Demo for increased worker’s compensation premiums.” Finally,
the district court denied Demo’s motion, but did not direct entry of judgment.
Demo then filed a counterclaim agains t Mozey’s and SullivanDay for increased
workers’ compensation premiums. The district court dismissed the attempted counterclaim
and directed entry of judgment. Demo file d a letter with the district court seeking

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permission to move to reconsider the order enforcing the settlement agreement. The district
court denied Demo’s request in a written order, stating it found “no equitable reason to put
the settlement aside.”
Demo appeals.
D E C I S I O N
I. The district court did not err when it enforced the mediated settlement
agreement as including a global settlement of all claims.

A settlement agreement is “contractual in nature.” Voicestream Minneapolis, Inc. v.
RPC Props., Inc. , 743 N.W.2d 267, 27 1 (Minn. 2008). When determining whether a
contract is ambiguous, the court gives cont ractual language “its plain and ordinary
meaning.” Current Tech. Concepts, Inc. v. Irie Enter., Inc. , 530 N.W.2d 539, 543
(Minn. 1995). A contract is ambiguous if its language is “reasonably susceptible to more
than one interpretation.” Id. A contract must be interpreted to give effect to all of its
provisions. Id. Whether a contract is ambiguous is a question of law that this court reviews
de novo. Storms, Inc. v. Mathy Const. Co., 883 N.W.2d 772, 776 (Minn. 2016). Appellate
courts review a district court’s decision to enforce a settlement agreement for an abuse of
discretion and will “not [] reverse[] unless it be shown th at the court acted in such an
arbitrary manner as to frustrate justice.” Johnson v. St. Paul Ins. Co., 305 N.W.2d 571, 573
(Minn. 1981) (quotation omitted).
Demo argues that the mediated settlement agreement is unambiguous and that the
“only reasonable interpretation is that the parties did not intend to settle [Demo’s] increased

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premium claim.” Demo makes three arguments why the settlement agreement does not
include its increased-premium claim, which we will discuss in turn.
First, Demo argues that this case is not a “run of the mill” personal-injury case
because it requires an understa nding of workers’ compensation. Demo points out that an
increased-premium claim is a cause of action for an insured employer to recover
increased workers’ compensation premiums ag ainst a third-party to rtfeasor under Minn.
Stat. § 176.061, subd. 5(c) (2018). Here , the settlement agreement refers to a Naig
settlement, which is “an agre ement between the injured em ployee and the third-party
tortfeasor that settles only those damages that are not recoverable under workers’
compensation law.” Drake v. Reile’s Transfer & Delivery, Inc., 613 N.W.2d 428, 432 n.2
(Minn. App. 2000) (citing Naig v. Bloomington Sanitation , 258 N.W.2d 891, 893
(Minn. 1977)). And the settlement agreement refers to a reverse-Naig settlement, which is
“when the tortfeasor settles potential subr ogation claims for wo rkers’ compensation
benefits with the employer and the employer’s workers’ compensation insurer.” Fish v.
Ramler Trucking, Inc. , 923 N.W.2d 337, 339 n.1 (Minn. App. 2019) (quotation and
citations omitted), aff’d, 935 N.W.2d 738 (Minn. 2019).
With this background, Demo argues that the settlement agreement resolved only
Naig and reverse-Naig claims, and did not include its increased-premium claim against
Mozey’s and SullivanDay. De mo relies on the handwritten comments in the margin
referring to “ Naig” and “reverse- Naig” and contends that this language “narrowed the
broad release language.” Mozey’s argues that if we adopt Demo’s reading of the settlement
agreement, it would “require the Court to ignore the unambiguous global settlement

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language wholesale.” Because a contract should be interpre ted to give meaning to all
contract provisions, see Current Tech. Concepts. , 530 N.W.2d at 543, SullivanDay
contends that the handwritten comments shou ld be interpreted “t o allocate how the
settlement funds would be distributed.”
The settlement agreement provides that it is a “full and final settlement of all claims,
except for no-fault benefits, which were made, or could have been made in the Legal Action
as to the settling parties.” (Emphasis adde d.) We conclude that this language is
unambiguous and governs the scope of the claims settled . When contract language is
unambiguous, we must apply its “plain and ordinary meaning.” Current Tech. Concepts.,
530 N.W.2d at 543. And, here, the settlement agreement stated that the parties intended to
resolve “any and all claims that have been brought or could have been brought.” We reject
Demo’s interpretation of the handwritten comments because it ignores and negates the “any
and all claims” language in the settlement agreement. See id.1
Second, Demo argues that the district court’s interpretation of the settlement
agreement as a “global release” makes the handwritten comments meaningless. Demo also
contends that the parties would have “omitted or crossed out the Naig and reverse Naig
limiting language” if they had intended a global release. The district court determined that
the handwritten comments “specify certain terms of the settlement,” but do “not negate the
other, broad language settling all claims.” We agree with the district court’s interpretation

1 Demo argues, alternatively, that the sett lement agreement is am biguous, but does not
articulate two reasonable interpretations of the “any and all claims” language. Because we
conclude the settlement agreement is unambi guous, we do not further address Demo’s
ambiguity arguments.

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of the settlement agreement. The handwritten comments alloca te the settlement funds as
between the Naig and reverse- Naig amounts, but do not limit the scope of the claims
settled, i.e., the parties agreed to “fu ll and final settlement of all claims . . . which were
made, or could have been made.”
Third, Demo argues that the parties’ dis pute about the scope of the claims settled
“evidences no meeting of the minds necessary to form an enforceable agreement.” A “full
and enforceable settlement” requires “a definite offer and acceptance [so] that it can be said
that there has been a meeting of the minds on the essential terms of the agreement.” Jallen
v. Agre, 119 N.W.2d 739, 743 (Mi nn. 1963). “Minnesota follows the objective theory of
contract formation, under which an outward manifestation of assent is determinative, rather
than a party’s subjective intention.” Speckel by Speckel v. Perkins , 364 N.W.2d 890, 893
(Minn. App. 1985); see also SCI Minn. Funeral Servs., Inc. v. Washburn-McReavy Funeral
Corp., 795 N.W.2d 855, 864 (Minn. 2001) (“Whether mutual assent exists is tested under
an objective standard.”).
Demo relies on Smoliak v. Myhr, 361 N.W.2d 153 (Minn. App. 1985). In Smoliak,
two parties executed a purchase agreement for the sale of s horeline property, but did not
include a legal description of the land. Id. at 156. Both understood the property to have 600
feet of shoreline, except the purchaser assu med a “straight line” measurement while the
seller measured in a “meandering fashion,” leading to a discrepancy of 75 feet. Id. at 155.
This court affirmed the district court’s determination that the “contract was insufficient and
could not be specifically enforced by either party” because there was no meeting of the
minds about the measurement of the property to be sold. Id. at 155-56.

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Demo argues that Smoliak is instructive because, here, the parties did not have a
meeting of the minds about what the term “claims” encompassed. Mozey’s argues Smoliak
is inapposite because, there, the purchase agreement did not describe the land sold and
the district court received evidence about the parties’ conflicting understandings of what
land was conveyed. We ag ree with Mozey’s. The purchase agreement in Smoliak was
ambiguous and the district court considered extrinsic evidence. Here, the settlement
agreement is unambiguous and no essential term is missing, so the district court did not
consider extrinsic ev idence. In short, Smoliak does not appl y because the settlement
agreement is unambiguous.
Because Demo objectively manifested its assent to the settlement agreement by
signing unambiguous language that resolved “any and all claims,” we conclude that Demo
agreed to settle “all claims . . . which were made, or could have been made” and that “all
claims” includes Demo’s increased-premium cl aim. The district court did not abuse its
discretion when it enforced th e mediated settlement agreem ent as including a global
settlement of all claims.
II. The district court did not err when it determined that De mo’s attorney had
authority to enter into a settlement agreement.

Demo argues the district court erred because its attorney lacked authority to settle
its increased-premium claim at the mediation. The district court rejected this argument,
relying on Demo’s concession th at the settlement is govern ed by Minn. Stat. § 481.08
(2018), which provides that “[a]n attorney may bind a client, at any stage of any action or
proceeding, by agreement . . . made in writing and signed by such attorney.”

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At the district court and on appeal, Mo zey’s and SullivanDay argue that Demo is
bound by the settlement agreement. Along with citing section 481.08, respondents also rely
on Minn. Stat. § 572.35, subd. 1 (2018), whic h provides that a mediated settlement
agreement is not binding, unless:
(1) it contains a provision sta ting that it is binding
and a provision stating substan tially that the parties were
advised in writing that (a) the me diator has no duty to protect
their interests or provide them with information about their
legal rights; (b) signing a mediated settlement agreement if
they are uncertain of their rights; and (c) they should consult
an attorney before signing a mediated settlement agreement if
they are uncertain of their rights.

We conclude that the district court did not err in rejecting Demo’s argument that its
attorney lacked authority to sign the mediated settlement agreement. First, the settlement
agreement states, “the parties are desirous of creating a binding Mediated Settlement
Agreement that is enforceable pursuant to Minn. Stat. § 572.35.” Second, the settlement
agreement explicitly satisfied section 572.35’s statutory requirements by these provisions:
6. Pursuant to Minn. Stat. § 572.35, the parties are hereby
advised of the following:
a. The mediator,[], has no duty to protect their
interest or provide them with information about their legal
rights;
b. The signing of th e Mediated Settlement
Agreement may adversely affect their legal rights; and
c. They should consult w ith an attorney before
signing a Mediated Settlement Agreement if they are uncertain
of their rights.

Third, Demo’s attorney bound Demo under Minn. Stat. § 481.08 by signing a
written settlement agreement. Demo never asked the district court to vacate the settlement
agreement; when the district court asked Demo ’s attorney at the hearing whether Demo

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would seek to “get[] . . . out of the deal,” Demo responded, “No.” Rather, Demo’s motion
in the district court sought to enforce the settlement agreement by adding an exception for
its increased-premium claim. Thus, Demo implicitly conced es that its attorney had
authority to bind it at the mediation. See, e.g., Ghostley v. Hetland, 204 N.W.2d 821, 823
(Minn. 1973) (enforcing settlement agreement under section 481.08 after determining that
“[i]t is clear—indeed, undisputed—that both parties authorized their attorneys to settle the
litigation and that a good-faith settlement was made by the two attorneys”); Triple B & G,
Inc. v. City of Fairmont , 494 N.W.2d 49, 52-53 (Minn. App. 1992) (affirming district
court’s decision to enforcement settlement agreement under sec tion 481.08 because
attorney had authority to settle dispute). To the extent that Demo has attempted to shift its
theory on appeal, we decline to grant relief on that basis. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988) (“[A] party [may not] obtain review by ra ising the same general issue
litigated below but under a different theory.”).
Affirmed.