Aid Insurance Co. v. Continental Western Insurance Co. ( 1985 )

357 N.W.2d 403 (1984)

AID INSURANCE COMPANY (Mutual), Respondent,
v.
CONTINENTAL WESTERN INSURANCE COMPANY, Appellant.

No. C7-84-859.

Court of Appeals of Minnesota.

November 13, 1984. Review Granted January 14, 1985.

Mark N. Stageberg, Lommen, Nelson, Sullivan & Cole, Minneapolis, for respondent.

Robert E. Salmon, Thomas L. Adams, Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Minneapolis, for appellant.

Heard, considered and decided by WOZNIAK, P.J., and FORSBERG and LESLIE, JJ.

OPINION

FORSBERG, Judge.

This is an appeal from judgment entered against Continental Western on a subrogation claim under the No-Fault Act, and from an amended judgment awarding prejudgment interest. The no-fault issue involves the liability of an insurer for first party basic economic loss benefits paid to its nonresident policyholder for injuries occurring in Minnesota while the insured's vehicle is outside of the state. We affirm.

ISSUES

1. Does the Minnesota No-Fault Act obligate a licensed insurer to provide basic economic loss benefits for an accident in Minnesota even though the insured is a nonresident, and her vehicle is not in Minnesota at the time of the accident?

2. Was prejudgment interest properly granted?

ANALYSIS

This is the same issue decided in Western Nat. Mutual Ins. Co. v. State Farm Ins., 353 N.W.2d 169 (Minn.Ct.App. 1984). In that case, relying on Petty v. Allstate Ins. Co., 290 N.W.2d 763 (Minn. 1980), we held an insurer licensed to do business in Minnesota is required to afford basic economic loss benefits to a non-resident policyholder on an accident that occurs in Minnesota even though her vehicle was not present in Minnesota at the time of the accident. We adhere to our interpretation of Petty in Western Nat. Mut., and affirm the trial court on this issue.

The court also held that respondent was entitled to prejudgment interest. Prejudgment interest is not allowed where the amount of damages is contingent or uncertain, or depends upon jury discretion. Potter v. Hartzell Propeller, Inc., 291 Minn. 513, 189 N.W.2d 499 (1971).

In this subrogation action for nofault benefits paid out, respondent's damages are not uncertain. Because any interest allowed may be subtracted from the insured's recovery against her insurer, however, we do not believe that prejudgment interest is appropriate.

DECISION

Affirmed as modified.