Benjamin Menier, a minor, by and through Robin Menier as parent and natural guardian, Appellant,

This opinion is nonprecedential except as provided by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
A25-0618

Benjamin Menier, a minor, by and through
Robin Menier as parent and natural guardian,
Appellant,

vs.

The Cincinnati Insurance Company,
Respondent,

Alliance Insurance Advisors Agency, LLC.,
Defendant.

Filed December 15, 2025
Affirmed
Wheelock, Judge

Hennepin County District Court
File No. 27-CV-22-12944

Chuck Slane, TSR Injury Law, Bloomington, Minnesota (for appellant)

Stephen M. Warner, Rakiah B. Adams, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota (for respondent)

Mary E. Eliasen, Penn, Kestner & McEwen, PLLC, Inver Grove Heights, Minnesota (for
amicus curiae Minnesota Association for Justice)

Considered and decided by Bentley, Presiding Judge; Wheelock, Judge; and Larson,
Judge.
2
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Appellant insured challenges the district court’s grant of summary judgment to
respondent insurer, arguing that the district court erred in not applying the
reasonable-expectations doctrine to a reducing clause when interpreting an insurance
policy. We affirm.
FACTS
Robin Menier brings this appeal on behalf of her child, appellant Benjamin Menier.
The facts as described below are not in dispute. Benjamin was a passenger in his father’s
vehicle when it was involved in a traffic collision with another vehicle and driver.
Benjamin sustained serious injuries as a result of the collision and was hospitalized for
several months with a skull fracture and traumatic brain injury.
Sometime before the collision, the family had purchased an umbrella insurance
policy1 from respondent The Cincinnati Insurance Company (Cincinnati). In addition to
other coverage under the umbrella policy, Robin purchased $1 million in coverage under
an excess uninsured- and underinsured-motorist coverage endorsement (UIM
endorsement).2

1An “umbrella policy” typically requires the insured to carry underlying insurance. The
umbrella policy then provides an “umbrella” over this underlying coverage in which the
insurance company agrees to pay the part of a claim that exceeds the limits of the
underlying coverage up to the limit of the umbrella policy. See Jostens, Inc. v. Mission
Ins. Co., 387 N.W.2d 161, 165 (Minn. 1986) (explaining umbrella-policy coverage).

2As indicated in the full name of the endorsement, the umbrella policy contains both
uninsured-motorist (UM) and underinsured-motorist (UIM) coverage. However, because
3
Liability claims were asserted against Benjamin’s father as the driver of the vehicle
in which Benjamin was injured and against the other driver involved in the collision. For
claims against Benjamin’s father, Cincinnati paid Benjamin the underlying policy’s
liability limit of $100,000 plus $500,000 under the umbrella policy. For claims against the
other driver, who was insured with a different insurance carrier, that carrier paid Benjamin
that underlying policy’s liability limit of $250,000 plus $1 million from the other driver’s
umbrella policy.
Benjamin then sought coverage under the $1 million UIM endorsement, but
Cincinnati denied the claim based on the reducing clause in the UIM endorsement,
reasoning that, because the liability payments already made by Cincinnati and the other
driver’s insurance to Benjamin exceeded the $1 million coverage limit, the amounts
payable under the UIM-endorsement coverage were reduced to zero.
Benjamin brought suit against Cincinnati, asserting a breach-of-contract claim and
seeking a declaratory judgment that the UIM endorsement was not subject to reduction and
should be paid out at the $1 million coverage limit. Cincinnati moved for summary
judgment on the ground that the reducing clause was unambiguous and that, therefore, the
plain language of the policy applied to reduce the amount available under the
UIM-endorsement coverage.
In response, Benjamin argued that the insurance policy should be interpreted
according to the reasonable-expectations doctrine set forth in Atwater Creamery Co. v.

no person involved in the collision was uninsured, in this opinion, we discuss only the UIM
coverage in the endorsement.
4
Western National Mutual Insurance Co., 366 N.W.2d 271 (Minn. 1985), and Carlson v.
Allstate Insurance Co., 749 N.W.2d 41 (Minn. 2008). Benjamin argued that the policy was
intentionally unclear and that it was reasonable for an insured to believe the $1 million
limit in the UIM endorsement would not be subject to reduction. Benjamin also pointed to
Cincinnati’s marketing materials, which did not explain the reducing clause and referenced
a Minnesota statute that did not apply to the policy, to demonstrate that the Meniers had a
reasonable expectation that no reduction would occur and that the UIM endorsement would
provide additional coverage in the amount of $1 million.
The declarations section of the umbrella policy spans two pages; the relevant portion
of which is pictured below:

Following the declarations section, the first page of the policy includes a “quick
reference index” of the page numbers on which different sections of the policy begin. The

5
final line states “ENDORSEMENTS, if any, will be attached to this policy and follow the
last page.” The policy is 16 pages long, and the UIM endorsement follows the last page.
The endorsement page of the policy is pictured below:

The district court granted Cincinnati’s motion for summary judgment, determining that the
UIM endorsement was unambiguous and reduces available coverage to zero and that
Benjamin failed to demonstrate that the reasonable-expectations doctrine should apply.
Benjamin appeals.
DECISION
Benjamin argues that the district court erred by declining to apply the
reasonable-expectations doctrine to its enforcement of the UIM endorsement’s reducing
clause on summary judgment for three reasons: (1) the reducing clause is ambiguous and
was hidden in the policy; (2) Cincinnati’s marketing materials were misleading because
they did not accurately describe the product; and (3) the rule established in Canadian
Universal Insurance Co. v. Fire Watch, Inc., 258 N.W.2d 570 (Minn. 1977), which is the

6
basis for Minnesota’s reasonable-expectations doctrine, is not limited to renewals of an
insurance policy but also applies to endorsements such as the UIM endorsement here.
Summary judgment is appropriate when “there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01.
“We review a district court’s summary judgment decision de novo. In doing so, we
determine whether the district court properly applied the law and whether there are genuine
issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). Evidence is
viewed “in the light most favorable to the party against whom summary judgment was
granted.” Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co., 825 N.W.2d 695, 704
(Minn. 2013) (quotation omitted). The interpretation of an insurance policy “is a legal
question subject to de novo review.” King’s Cove Marina, LLC v. Lambert Com. Constr.
LLC, 958 N.W.2d 310, 316 (Minn. 2021) (quoting Latterell v. Progressive N. Ins. Co.,
801 N.W.2d 917, 920 (Minn. 2011)).
I. The district court did not err by determining that the reasonable- expectations
doctrine did not apply.

“[I]n certain limited situations,” the reasonable-expectations doctrine permits courts
to depart from “the literal terms and conditions of [an insurance] policy” in order to “protect
the reasonable expectations of the insured with respect to coverage.” W. Bend Mut. Ins.
Co. v. Allstate Ins. Co., 776 N.W.2d 693, 701 (Minn. 2009). First recognized in Atwater
Creamery, the reasonable-expectations doctrine is closely related to the doctrine of contract
adhesion. 366 N.W.2d at 277. The reasonable-expectations doctrine takes into account
7
the lack of insurance expertise on the part of insureds and the recognized marketing
techniques of insurance companies and ensures that “[t]he objectively reasonable
expectations of applicants and intended beneficiaries regarding the terms of insurance
contracts will be honored even though painstaking study of the policy provisions would
have negated those expectations.” Id. (quotation omitted). After experiencing a burglary,
the plaintiff in Atwater Creamery filed a claim under its burglary policy, which the
insurance company denied because there were no visible marks of entry and the definition
of “burglary” in Atwater’s policy required visible marks. Id. at 274. The supreme court
determined that Atwater reasonably expected that its burglary insurance policy would
cover the burglary that occurred. Id. at 279.
Since Atwater Creamery, the supreme court has said it is unwilling to expand the
doctrine beyond use as a tool for resolving ambiguity or correcting extreme situations in
which a party’s coverage is significantly different from what the party reasonably believes
they have paid for and in which the only notice is in an obscure and unexpected provision.
Carlson, 749 N.W.2d at 49. “[I]n the absence of an ambiguity, a hidden major exclusion,
or other special circumstances, the doctrine of reasonable expectations is inapplicable.”
Frey v. United Servs. Auto. Ass’n, 743 N.W.2d 337, 343 (Minn. App. 2008).
An insured asserting that the doctrine should supersede the actual policy language
must point to facts or circumstances that, “despite the clear import of the exclusion, would
justify a reasonable expectation of coverage.” Hubred v. Control Data Corp., 442 N.W.2d
308, 311-12 (Minn. 1989). The doctrine does not eliminate the insured’s obligation to read
the policy; rather, it holds an insured only to a reasonable understanding of that policy. Id.
8
at 311. In short, the doctrine asks whether the insured ’s expectation of coverage is
reasonable given all the facts and circumstances. Id.
Consistent with Carlson, to determine whether the reasonable-expectations doctrine
applies here, we first consider whether the policy is ambiguous, and then whether the facts
represent “an extreme situation” in which coverage is significantly different than what the
Meniers reasonably believed and in which the only notice they had was an obscure and
unexpected provision. 749 N.W.2d at 49.
A. The UIM endorsement is not ambiguous.

Policy language is ambiguous if it is susceptible to two or more reasonable
interpretations, and if it is ambiguous, any ambiguity is resolved in favor of the insured.
Midwest Fam. Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 636 (Minn. 2013). But policy
endorsements and exclusions “must be construed in terms of the entire contract, and in
such a way, if possible, to give effect to all provisions.” Gen. Mills, Inc. v. Gold Medal
Ins. Co., 622 N.W.2d 147, 151 (Minn. App. 2001) (citing Bobich v. Oja, 104 N.W.2d 19,
24 (Minn. 1960)), rev. denied (Minn. Apr. 17, 2001). When the language of an insurance
policy is clear and unambiguous, reviewing courts interpret the policy according to the
plain, ordinary sense. Carlson, 749 N.W.2d at 45. “Words not defined in the policy must
be given their plain and ordinary meaning.” Walker v. State Farm Fire & Cas. Co.,
569 N.W.2d 542, 544 (Minn. App. 1997) (quotation omitted), rev. denied (Minn. Dec. 22,
1997).
Here, the reducing clause is located on a page titled, “EXCESS UNINSURED AND
UNDERINSURED MOTORISTS COVERAGE ENDORSEMENT (MINNESOTA).”
9
The page consists of two sections; the second section contains the reducing clause. The
full text of the provision under SECTION II —LIMIT OF INSURANCE, subsection B,
reads as follows:
However, the limit of insurance payable under this excess
coverage shall be reduced by all sums paid because of the
“bodily injury” by or on behalf of persons or organizations who
may be legally responsible. This includes all sums paid by
“underlying insurance” and all sums paid under this policy for
“bodily injury[.]”

Benjamin argues the policy is ambiguous because the first sentence of subsection B
says those “who may be legally responsible” and does not clarify who decides who may be
legally responsible. However, he does not provide an alternative reasonable interpretation
for the provision. See Wolters, 831 N.W.2d at 636 (stating that policy language “is
ambiguous if it is susceptible to two or more reasonable interpretations”) . It appears that
there is only one reasonable interpretation of the provision—that the UIM-endorsement
coverage will be reduced by payments from those who may be legally responsible for the
injury. In this case, that means Benjamin’s coverage is reduced by payments to Benjamin
that were made by Cincinnati for claims against Benjamin’s father and by the other driver’s
insurance carrier for claims against that driver.
Benjamin also argues that the second sentence of subsection B, which says, “[t]his
includes all sums paid by ‘underlying insurance’ and all sums paid under this policy for
‘bodily injury,”’ modifies the prior sentence and that, therefore, subsection B can only be
reasonably read to say that the limit would be reduced only by payments made by
10
Cincinnati and cannot include payments made by the other driver’s insurance carrier. This
reading is not reasonable.
“Include” is defined as “[t]o contain or take in as a part, element, or member.” The
American Heritage Dictionary of the English Language 888 (5th ed. 2011). The American
Heritage Dictionary also includes a note on usage that states, “[t]he word include generally
suggests that what follows is a partial list, not an exhaustive list, of the contents of what
the subject refers to.” Id. Accordingly, we discern that “includes” as used in the policy is
not limited to payments from Cincinnati pursuant to the underlying insurance and the
umbrella policy; it also encompasses payments made by others who may be legally
responsible—in this case, the other driver and that driver’s insurance carrier.3 We therefore
conclude that the district court did not err in determining the policy was not ambiguous.

3 Amicus curiae point to Wisconsin caselaw to persuade us to adopt rules requiring that
insurers clearly set forth in a UIM policy or endorsement that an insured is purchasing a
fixed level of coverage that will be arrived at by combining payments made from all
sources, so as to avoid the implication that a policy limit is always an attainable payment.
Badger Mut. Ins. Co. v. Schmitz , 647 N.W.2d 223, 231 (Wis. 2002) (recognizing that a
“reasonable insured might not understand, intuitively, the scope of his or her UIM
coverage”). We observe that we are an error-correcting court without authority to change
the law. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (“The function of the court
of appeals is limited to identifying errors and then correcting them.”); LaChappelle v.
Mitten, 607 N.W.2d 151, 159 (Minn. App. 2000), rev. denied (Minn. May 16, 2000); see
also Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435, 439-40 (Minn. App. 2005)
(“Although these concerns are not without merit, we are bound to follow Minnesota
Supreme Court precedent.”), rev. denied (Minn. June 14, 2005). The authority to create
new law rests not in this court but in the legislature and supreme court. Tereault v. Palmer,
413 N.W.2d 283, 286 (Minn. App. 1987), rev. denied (Minn. Dec. 18, 1987).
11
B. The reducing clause was not obscure and unexpected.

A reducing clause is not obscure if it appears in plain language, under an appropriate
heading, and in reasonably sized text. Johnson v. Cummiskey, 765 N.W.2d 652, 662 (Minn.
App. 2009). When a reducing clause lies within an expected section of the policy, it is not
hidden. Frey, 743 N.W.2d at 343 (determining that, when a policy exclusion lies within
the “exclusion” section of a policy, it is not hidden); cf. Atwater Creamery, 366 N.W.2d at
277 (determining that, in a burglary policy, a major exclusion to burglary that was located
within the policy’s definition of burglary was hidden).
The reasonable-expectations doctrine does not relieve the insured of their
responsibility to read the policy, and at the same time, it does not hold the insured to an
unreasonable level of understanding of the policy. Hubred, 442 N.W.2d at 311. Not being
verbally informed of a provision does not, standing alone, free the insured of the
responsibility of having to read it. Id. at 312.
Benjamin argues that Cincinnati hid the reducing clause and describes the policy as
“a scavenger hunt.” The policy declarations page states, under “LIMITS OF
INSURANCE,” that the excess UIM endorsement has a limit of $1 million “unless
otherwise modified by endorsement.” Following the declarations, the next page states,
“ENDORSEMENTS, if any, will be attached to this policy and follow the last page.” This
is an accurate statement. The UIM endorsement appears on a single page, and the reducing
clause is contained in section two under the heading, “LIMIT OF INSURANCE.”
As such, the reducing clause is not hidden because it is located in the “limit of
insurance” section of the UIM endorsement. See Frey, 743 N.W.2d at 343. It also has an
12
appropriate heading and is written in text that is reasonably sized. See Cummiskey,
765 N.W.2d at 662. The record evidence does not support the assertion that the reducing
clause was hidden in the policy.
Benjamin also argues that the declarations and “quick reference index” make the
policy so confusing that a reasonable insured could not navigate it and that the phrase
“unless otherwise modified by endorsement” is unclear because the policy was modified
by endorsement. It is undisputed that the Meniers did not actually go to the endorsement
page to read it. On these facts, it cannot be said that the district court erred in determining
that the phrase “unless otherwise modified by endorsement” is not confusing and that a
reasonable insured would have read the endorsement. See Hubred, 442 N.W.2d at 311.
Next, Benjamin asserts the district court erred by failing to consider that Cincinnati
intentionally misleads consumers with its marketing materials. Benjamin points to a
document created by Cincinnati that summarizes the option to add an excess UIM
endorsement to an umbrella policy. He highlights that the language in the document says
that such an endorsement can provide “another layer of defense,” yet the document fails to
mention the method used to calculate limits.4

4 In response, Cincinnati asserts the materials “have no place in this Court’s interpretation
of the challenged policy language” because the policy is an integrated contract. We
generally do not rely on extrinsic evidence to establish contractual ambiguity. Wilcox v.
State Farm Fire & Cas. Co., 874 N.W.2d 780, 784 (Minn. 2016). However, “in certain
limited situations,” the reasonable-expectations doctrine permits courts to depart from “the
literal terms and conditions of [an insurance] policy” in order to “protect the reasonable
expectations of the insured with respect to coverage.” W. Bend Mut. Ins. Co., 776 N.W.2d
at 701. And because, when determining whether the expectations of the insured are
reasonable, we consider all of the facts and circumstances, we conclude that we may
consider the materials. See Hubred, 442 N.W.2d at 311.
13
Contrary to his assertion, the district court considered the marketing materials and
determined that “[t]he marketing materials outside the actual policy do not create
reasonable expectations here that are thwarted by the policy. The marketing materials
simply refer to the excess []UIM coverage providing an extra layer of protection. That
remains true.” We agree with the district court because, if the coverage available to
Benjamin had been insufficient to reach the $1 million umbrella policy limit, coverage
would have been available to him under the UIM endorsement.
Accordingly, the district court did not err in determining that t he marketing
materials did not create a reasonable expectation that was thwarted by the policy’s
unambiguous language.5
II. Canadian Universal applies only to reductions in coverage.
Benjamin urges this court to apply the holding in Canadian Universal to the facts
of this case. In Canadian Universal, the supreme court held that, when an insurer
substantially reduces prior coverage by policy renewal or endorsement to an existing

5 Benjamin also asserts that we should take into consideration whether the general public
is aware of the type of insurance provision at issue here—a reducing clause. Public
awareness of types of insurance provisions was a factor the supreme court considered in
Atwater Creamery. 366 N.W.2d at 278. He argues that consumers would expect the
UIM endorsement of the umbrella policy to conform to the Minnesota Automobile
Insurance No-Fault Act’s requirements for underlying UIM coverage. The No-Fault Act
requires an insurance policy to include a minimum of $25,000 in UIM coverage, which
must be calculated as “damages less paid” rather than limits -less-paid. Minn. Stat.
§ 65B.49, subd. 3(a)(1) (2024); Cummiskey, 765 N.W.2d at 656. Cincinnati does not
dispute that the reducing clause in the UIM endorsement is limits-less-paid coverage and
would be unenforceable if it applied to underlying UIM coverage mandated by the
No-Fault Act, which it does not. However, t o the extent that this factor is still relevant
post-Carlson, as we did in Frey, we decline to undertake the speculative task of assaying
public awareness of what is expected in an insurance policy. Frey, 743 N.W.2d at 343.
14
policy, the insurer must provide the insured written notice of the change in coverage.
258 N.W.2d at 575. If the insurer does not provide that written notice, the reduction is void
and coverage is determined in accordance with the terms of the original policy. Id.
In Copiskey v. IMT Insurance Co., we recently rejected a similar argument.
No. A22-1068, 2023 WL 2359028, at *2 (Minn. App. Mar. 6, 2023), rev. denied (Minn.
May 31, 2023).6 The appellant in Copiskey argued that an endorsement was a substantial
reduction because the declarations page referred to a $100,000 coverage limit but the
endorsement contained a provision that limited coverage to $30,000 in some
circumstances. Id. at *3. This court concluded that Canadian Universal did not apply
because the provision at issue was contained within the policy from the beginning of
coverage and therefore could not be a substantial reduction in coverage. Id. at *2-3. In the
decision, we declined the invitation to expand the rule in Canadian Universal because the
requirement of written notice applies “only when the insurer reduces an insured’s existing
coverage[, and] imposing such a requirement as a matter of public policy would exceed
our role.” Id. at *3 (citing Palmer, 413 N.W.2d at 286).
Because the umbrella policy at issue here, including the UIM endorsement, was a
new policy, there was no substantial reduction in coverage and Canadian Universal’s
notice requirement does not apply. We again decline to expand Canadian Universal to
facts that do not involve a substantial reduction in coverage.
Affirmed.

6 Nonprecedential opinions are not binding on this court but may be persuasive authority.
Minn. R. Civ. App. P. 136.01, subd. 1(c).