Smith Jadin Johnson, PLLC, et al., Respondents,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1152

Smith Jadin Johnson, PLLC, et al.,
Respondents,

vs.

Minnesota Lawyers Mutual Insurance Company,
Appellant.

Filed June 16, 2025
Reversed and remanded
Harris, Judge

Hennepin County District Court
File No. 27-CV-23-8247

Margo Brownell, Bryan Freeman, Judah Druck, Maslon LLP, Minneapolis, Minnesota (for
respondents)

Richard J. Thomas, Chris Angell, Burke & Thomas, P.L.L.P., Arden Hills, Minnesota (for
appellant)

Considered and decided by Harris, Presiding Judge; Johnson, Judge; and Bentley,
Judge.
NONPRECEDENTIAL OPINION
HARRIS, Judge
In this insurance-coverage dispute, appellant challenges the district court’s grant of
judgment on the pleadings in favor of respondents. For respondents to be entitled to
coverage, the insurance policy required the claim to be deemed made and reported during
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the applicable policy period. The district court concluded that those requirements were
satisfied, and appellant had a duty to defend respondents.
Appellant argues that the district court’s interpretation of the insurance policy was
erroneous based on the plain language of the policy and that the district court should have
granted appellant’s motion for summary judgment because there is no genuine issue of
material fact. Based on our recent decision in Minnesota Laws. Mut. Ins. Co. v. Bradshaw
& Bryant L. Off. PLLC, 19 N.W.3d 206 (Minn. App. 2025) (Bradshaw), we agree with
appellant that the district court’s interpretation of the policy was erroneous and we
therefore reverse.1 However, because there remains a genuine issue of material fact, we
remand for further proceedings.
FACTS
The Insurance Policy
Respondents Smith Jadin Johnson PLLC, Alexander Jadin, and Ross Hussey (SJJ)
purchased professional-liability insurance from appellant Minnesota Lawyers Mutual
Insurance Company ( MLM) since 2013. In 2022, SJJ renewed its insurance with MLM
for the applicable policy period, March 29, 2022, through March 29, 2023. In relevant
part, the MLM policy provided coverage for “all DAMAGES the INSURED may be
legally obligated to pay and CLAIM EXPENSES, due to any CLAIM,” “provided that”,
“the CLAIM is deemed made during the POLICY PERIOD; and . . . the CLAIM is reported

1 We recognize that the district court did not have the benefit of Bradshaw, which was
decided after briefing, but prior to oral argument, in this matter.
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to [MLM] during the POLICY PERIOD or within 60 days after the end of the POLICY
PERIOD.”
The policy defines a “claim” as:
(1) a demand communicated to the INSURED for
DAMAGES [f]or PROFESSIONAL SERVICES;
(2) a lawsuit served upon the INSURED seeking such
DAMAGES;
(3) any notice or threat, whether written or oral, that
any person, business entity or organization intends to hold an
INSURED liable for such DAMAGES; or
(4) any act, error or omission by any INSURED which
could support or lead to a demand for such DAMAGES.

At issue here is the policy’s deemed-made clause, which explains that a “CLAIM”
is deemed made when:
(1) a demand is communicated to an INSURED for
DAMAGES resulting from the rendering of or failure to render
PROFESSIONAL SERVICES; or
(2) an INSURED first becomes aware of any actual or
alleged act, error or omission by any INSURED which could
support or lead to a CLAIM.

The deemed-made clause also states that, “All CLAIMS arising out of the same or
related PROFESSIONAL SERVICES shall be considered one CLAIM and shall be
deemed made when the first CLAIM was deemed made.”
The Underlying Malpractice Claim
On August 28, 2020, Aspenwood Condominiums of Duluth approached SJJ seeking
representation in a disputed property insurance claim against Aspenwood’s insurer, PMA
Companies, related to hail damage that occurred on August 31, 2018. Aspenwood’s
insurance policy included a requirement that any lawsuit be brought within two years of
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the loss, which expired on August 31, 2020. The same day that this two-year limitation
period expired, Aspenwood officially retained SJJ. SJJ drafted a summons and complaint
and attempted personal service on PMA at its corporate headquarters in Pennsylvania.
The following day, September 1, 2020, SJJ learned that personal service was
impossible, and served the summons and complaint by certified mail on the Minnesota
Commissioner of Commerce under Minnesota Statutes section 45.028 (2024). SJJ
contended that PMA was required to maintain a registered agent for personal service and
failed to do so, and that the Aspenwood complaint did not qualify for substitute service
under section 45.028.
2
In April 2021, the district court dismissed the Aspenwood matter because
Aspenwood did not commence the lawsuit within the two-year limitation contained in the
insurance contract. SJJ appealed. See Aspenwood Condominium of Duluth, Inc. v. PMA
Cos., No. A21-0719, 2022 WL 433241 (Minn. App. Feb. 14, 2022), rev. denied (Minn.
Apr. 27, 2022). We affirmed, concluding:
[T]he Association failed to take “reasonably prudent
steps” to avoid the consequences of ineffective and untimely
service. The Association knew of the COVID-19 pandemic
and its ramifications, yet it elected to personally serve an out-
of-state corporation on the last day of the contractual period

2 SJJ contends under section 45.028, substitute service is only available via the
Commissioner of the Department of Commerce when the complaint alleges a violation of
certain Minnesota statutes, which the Aspenwood complaint did not allege. See Wandersee
v. RAM Mut. Ins. Co., No. A21-1060, 2022 WL 589461, at *1-2 (Minn. App. Feb. 28, 2022)
(“[S]ubstitute service pursuant to section 45.028 requires the complaint to allege the
defendant ‘engage[d] in conduct prohibited or made actionable’ by section 65A. The plain
language of the statute, therefore, requires an allegation that the defendant engaged in a
prohibited act or behavior for substitute service to be available.” (quoting Minn. Stat.
§ 45.028, subd. 1 (2020))).
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without even attempting to confirm that PMA’s office was
open. Had the Association called PMA to inquire as to whether
the office would be open, it could have timely commenced this
action by serving the Commissioner via certified mail.
Moreover, had the Association taken advantage of the
alternative method of service via the Commissioner, it would
have eliminated the risk of ineffective service entirely.
Accordingly, the Association assumed the calculated risk
associated with attempting personal service under these
circumstances.
Id. at *3.
SJJ contends that, following our decision, it petitioned the Minnesota Supreme
Court for review because SJJ recognized a conflict between the Aspenwood decision and
Wandersee, 2022 WL 589461, at *2-3. The supreme court denied review of the Aspenwood
matter on April 27, 2022.
On September 28, 2022, Aspenwood provided SJJ with a written demand for
damages related to the litigation against PMA. The same day, SJJ provided notice of the
demand for damages to MLM. On October 14, 2022, MLM notified SJJ that SJJ’s policy
did not provide coverage for the Aspenwood claim. MLM explained that the claim was
deemed made, at the latest, on February 14, 2022—the date that we issued our decision in
the Aspenwood matter, which was prior to the applicable policy period. MLM concluded
that SJJ did not timely report the Aspenwood claim to MLM as required under the policy.
In December 2022, Aspenwood sued SJJ for negligence and malpractice for failure to
commence its suit against PMA within two years.
This Appeal
In May 2023, SJJ sued MLM for breach of contract and declaratory judgment,
alleging that MLM wrongfully denied coverage for the Aspenwood claim. SJJ filed a
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motion for judgment on the pleadings and MLM filed a motion to dismiss because SJJ did
not name Aspenwood as a party. MLM also argued that there were no genuine issues of
material fact and that the district court should grant summary judgment in favor of MLM.
The district court denied MLM’s motion to dismiss and granted SJJ’s motion for
judgment on the pleadings, concluding that MLM had a duty to defend SJJ in the
Aspenwood claim. The district court stated that “[b]oth parties agree the claim involves
interpretation of the insurance contract and that there are no material issues of fact.” The
district court determined that the policy language is “clear and unambiguous,” and that a
claim is deemed made when either of the conditions in the deemed -made clause occurs.
The district court further stated, “[t]he fact that one could argue that facts could have been
determined such that [the claim] could have been ‘deemed made’ under the second,
separate clause [prior to the policy period] does not prevent it . . . from also being deemed
made . . . upon the demand.”
MLM appeals.
DECISION
MLM argues that the district court erred by granting judgment on the pleadings
because the district court’s interpretation of the insurance policy was erroneous under the
plain language of the policy. MLM also argues that the district court should have granted
MLM’s motion for summary judgment because, under the correct interpretation of the
policy, there is no genuine dispute that the Aspenwood claim was deemed made prior to
the applicable policy period and not timely reported.
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We review a district court’s decision on a motion for judgment on the pleadings de
novo “to determine whether the complaint set s forth a legally sufficient claim for relief.”
Burt v. Rackner, Inc., 902 N.W.2d 448, 451 (Minn. 2017) (quotation omitted) . “[W]e
consider only the facts alleged in the complaint, accepting those facts as true and drawing
all reasonable inferences in favor of the nonmoving party.” Zutz v. Nelson, 788 N.W.2d
58, 61 (Minn. 2010). The interpretation of the professional liability insurance policy is a
question of law that we also review de novo. Com. Bank v. W. Bend Mut. Ins. Co., 870
N.W.2d 770, 773 (Minn. 2015). This includes “whether a policy provides coverage in a
particular situation” and “whether provisions in a policy are ambiguous.” Depositors Ins.
Co. v. Dollansky, 919 N.W.2d 684, 687 (Minn. 2018); King’s Cove Marina, LLC v.
Lambert Com. Constr. LLC, 958 N.W.2d 310, 316 (Minn. 2021) (quotation omitted). An
insurance policy is ambiguous only “if it is reasonably subject to more than one
interpretation.” Am. Com. Ins. Brokers, Inc. v. Minn. Mut. Fire & Cas. Co., 551 N.W.2d
224, 227 (Minn. 1996).
We first consider whether the district court erred by granting judgment on the
pleadings based on an erroneous interpretation of the insurance policy. Then, we consider
whether a genuine dispute remains.
I. The district court erred by granting judgment on the pleadings because the
plain language of the insurance policy requires that the insured timely report
the claim the first time that the claim is deemed made.

The parties disagree whether SJJ’s claim was deemed made within the applicable
policy period as required by the plain language of the deemed-made clause. The deemed-
made clause states that a “CLAIM is deemed made” when one of the following conditions
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occur: “(1) a demand is communicated to an INSURED for DAMAGES resulting from the
rendering of or failure to render PROFESSIONAL SERVICES; or (2) an INSURED first
becomes aware of any actual or alleged act, error or omission by any INSURED which
could support or lead to a CLAIM.” Additionally, “All CLAIMS arising out of the same
or related PROFESSIONAL SERVICES shall be considered one CLAIM and shall be
deemed made when the first CLAIM was deemed made.”
MLM argues that a claim is deemed made the first time either of the two conditions
are met. In contrast, SJJ argues, consistent with the district court’s interpretation, that a
claim is deemed made if either of the two conditions are met, regardless of whether the
same claim may have already been deemed made in a previous policy period but was not
reported. Alternatively, SJJ argues that the policy is ambiguous and should be interpreted
in favor of the insured to require coverage.
We recently interpreted the identical policy language and deemed-made clause at
issue here. In Bradshaw, 19 N.W.3d at 215 -217, we concluded that the policy was not
ambiguous and that “under the policy, once a claim was deemed made under either
provision of the deemed-made clause, the claim had to be reported during the then-
applicable policy period and could not later be deemed made again and reported during
another policy period.” We discern no reason to depart from the same conclusion here.
Therefore, the district court erred by interpreting the deemed-made clause to provide
coverage. The district court concluded that even if SJJ’s claim was deemed made prior to
the applicable policy period, the same claim could be deemed made again during the
applicable policy period. This conclusion directly conflicts with our holding in Bradshaw.
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19 N.W.3d at 217. Because the district court’s decision to grant judgment on the pleadings
in favor of SJJ was based on an erroneous interpretation of the insurance policy, we
reverse.3
II. Whether SJJ’s claim was deemed made prior to the applicable policy period is
a factual dispute for the district court to resolve.

The parties disagree whether, under the correct interpretation of the policy, a
genuine factual dispute remains regarding whether the claim was deemed made prior to the
applicable policy period. MLM maintains that it does not have a duty to defend SJJ because
“it is undisputed that [SJJ] became aware on September 1, 2020, that Aspenwood’s
complaint against PMA had not been served within the two -year limitations period.”
Therefore, SJJ is not entitled to coverage because SJJ’s claim was deemed made on
September 1, 2020, prior to the applicable policy period—March 29, 2022, through March
29, 2023. In contrast, SJJ argues that the fact development and discovery is needed to
determine when SJJ first became aware of allegations that could lead to a claim for
damages because “SJJ’s awareness of an act or error that could later lead to a claim [is]
necessarily fact-dependent.” SJJ argues that SJJ’s awareness is dependent on “the SJJ-
Aspenwood engagement and relationship, communications between SJJ and Aspenwood,

3 Alternatively, SJJ argues that we should affirm the district court’s decision because notice
is not a condition precedent to coverage and MLM has never alleged any actual prejudice
from the timing of SJJ’s notice. In Bradshaw, we decided that notice is a condition
precedent because the policy language uses the phrase “provided that,” which
“unambiguously requires [the insured] to report a claim within a certain time frame as a
condition precedent to coverage.” 19 N.W.3d at 220. And because notice is a condition
precedent, if the claim was not timely reported, actual prejudice is not required to deny
coverage. Therefore, SJJ’s alternative argument lacks merit.
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SJJ’s actions, the proceedings in the initial Aspenwood property-insurance litigation, and
more.”
Whether an insurer has a duty to defend or indemnify is a legal question that we
review de novo. Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 879 (Minn. 2022).
“The duty to defend is broader than the duty to indemnify,” because it extends to “claims
that arguably fall within the scope of the policy.” Meadowbrook, Inc. v. Tower Ins. Co.,
559 N.W.2d 411, 415 (Minn. 1997). An insurer challenging the duty to defend “has the
burden of showing that all parts of the cause of action fall clearly outside the scope of
coverage.” Westfield Ins. Co. v. Kroiss, 694 N.W.2d 102, 106-07 (Minn. App. 2005)
(quotation omitted).
To support its argument that SJJ is not entitled to coverage, MLM relies on Pelagatti
v. Minnesota Laws. Mut. Ins. Co. , No. 11- 7336, 2013 WL 3213796 (E.D. Pa. June 25,
2013). In Pelagatti, the court analyzed whether the insured violated the policy by failing
to notify the insurance company of an “act, error or omission . . . which could reasonably
support or lead to a demand for damages.” 2013 WL 3213796, at *2, *7. To interpret
“reasonably support,” Pelagatti applied a two-pronged subjective/objective test to
“consider[] the subjective knowledge of the insured and then the objective understanding
of a reasonable attorney with that knowledge.” Id. at *6 (quotation omitted). The court
granted summary judgment in favor of the insurance company because, as relevant here,
“[the insured] knew that [the] claims were dismissed . . . because of his failure to comply
with the relevant statute of limitations, and he knew that his appeal was dismissed as
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untimely. Also, [the insured] and [his client] discussed the possibility of [his client] suing
him.” Id. at *7.
MLM argues that we should apply the same two-pronged test as in Pelagatti and
conclude that SJJ objectively became aware that it had not served the summons and
complaint within the two-year contractual limitations period on September 1, 2020.
However, Pelagatti is distinguishable from this case. First, as a nonprecedential, district
court case, Pelagatti is not binding on this court. State v. M.L.A., 785 N.W.2d 763, 767
(Minn. App. 2010) (stating that we are “bound by supreme court precedent and the
published opinions of the court of appeals”), rev. denied (Minn. Sept. 21, 2010). Pelagatti
also analyzed different policy language and was decided after discovery was completed.
Because the court had the benefit of discovery, it relied on summary judgment evidence,
including a letter and deposition, to make its decision. Id. at *6-7. Even if we applied this
standard here and concluded that the objective prong was met, the record lacks sufficient
facts to determine when SJJ subjectively became aware that the untimely service could
lead to a claim for damages because the parties did not engage in discovery and evidence
was not presented to the court.
Like Pelagatti, Bradshaw involved a grant of summary judgment after the district
court determined that there was no genuine dispute that the claim was first deemed made
prior to the applicable policy period when the insured received a letter threatening legal
action. Bradshaw, 19 N.W.3d at 219. Because the insured did not report the claim to the
insurer when it received the letter, the insurer did not have a duty to defend. Id. at 218-19.
We concluded that the claim was deemed made prior to the applicable policy period
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because, upon receiving this letter, the insured “was aware of allegations that could lead to
a claim for damages.” Id. at 219. To reach this conclusion, we relied on undisputed facts
in the record, including that the litigation-hold letter referred to “potential legal action,”
and “that failure to comply with the litigation hold could negatively affect [the insured’s]
‘defenses in this matter.’” Id. The insured also received an email “instruct[ing] him to
notify his malpractice carrier” because the “letter concerns a potential malpractice action.”
Id. The insured was also aware that the client they had just represented at trial was
“understandably upset,” and that two months after trial the client “requested substitution
of counsel ‘to handle the posttrial and appeal process.’”
Here, unlike Bradshaw , the district court did not decide whether SJJ’s claim was
deemed made prior to the applicable policy period. Instead, the district court relied on the
September 28, 2022, demand from Aspenwood and determined that the policy language
was “clear and unambiguous” and that the claim could be deemed made again, even if it
had already been deemed made prior to the applicable policy period. The parties’ briefing
focused on the interpretation of the policy, not whether the claim was deemed made prior
to the applicable policy period, and there is nothing definitive in the pleadings, such as the
letter in Bradshaw, to establish when SJJ became aware of allegations that could lead to a
claim. Therefore, we remand to the district court to reconsider whether MLM has a duty
to defend SJJ in light of this opinion. See Hoyt Inv. Co. v. Bloomington Com. & Trade Ctr.
Assocs., 418 N.W.2d 173, 175 (Minn. 1988) (“[A]n undecided question is not usually
amenable to appellate review.”); see also Thiele v. Stich , 425 N.W.2d 580, 582 (Minn.
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1988) (stating that appellate courts generally address only those questions previously
presented to and considered by the district court).
Reversed and remanded.