Timothy Albert Collins v. EMC Insurance Companies

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0183
Timothy Albert Collins,
Appellant,
vs.
EMC Insurance Companies,
Respondent.
Filed August 4, 2014
Affirmed
Connolly, Judge
Ramsey County District Court
File No. 62-CV-13-4035
Timothy A. Collins, Shoreview, Minnesota (pro se appellant)
Joseph F. Lulic, Hanson, Lulic & Krall, LLC, Minneapolis, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and
Schellhas, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Pro se appellant challenges the district court’s order granting summary judgment
to respondent, arguing that the district court erred in determining that there is no genuine
issue of material fact. We affirm.
FACTS
Appellant Timothy Albert Collins carried automobile and homeowner’s insurance
policies with respondent EMC Insurance Companies. In 2012 and 2013, respondent
raised appellant’s insurance premium rates. Thereafter, appellant began investigating the
reasons for the increase but continued to pay his premiums until he could find a different
insurance provider. Through his investigation, appellant discovered that the increased
rates were based on his insurance score, which is calculated using information regarding
his claims history obtained from the third-party source, LexisNexis. He also discovered
that the LexisNexis reporting system had incorrectly attributed other clients’ insurance
claims to his claim history. These errors have since been corrected. In January 2013,
appellant cancelled his insurance policies with respondent and found replacement policies
though another insurance provider.
On May 28, 2013, appellant filed this action in district court, claiming that
respondent’s underwriting of appellant’s insurance policies was unreasonable because it
was based on incorrect information. His cause of action included a claim for damages for
infliction of emotional distress and punitive damages. Respondent moved for summary
judgment and submitted the affidavit of one of its underwriters who is familiar with
respondent’s underwriting policies and appellant’s insurance score. Her affidavit
explained that the increases in appellant’s premiums were not based on his claims history.
The district court granted respondent’s motion for summary judgment, concluding
that there was insufficient evidence to state a cause of action and that appellant’s general
assertions were insufficient to withstand a motion for summary judgment.
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DECISION
Appellant argues that the district court erred by granting respondent’s motion for
summary judgment because appellant submitted evidence which creates a genuine issue
of material fact and respondent’s evidence has “no merit against [a]ppellant’s evidence as
stated in appellant’s brief.” We disagree.
“On appeal from summary judgment, we must review the record to determine
whether there is any genuine issue of material fact and whether the district court erred in
its application of the law.” Dahlin v. Kroening, 796 N.W.2d 503, 504-05 (Minn. 2011).
“[T]here is no genuine issue of material fact for trial when the nonmoving party presents
evidence which merely creates a metaphysical doubt as to a factual issue and which is not
sufficiently probative with respect to an essential element of the nonmoving party’s case
to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566
N.W.2d 60, 71 (Minn. 1997). The appellate court may not weigh the evidence or make
factual determinations, but it must consider the evidence in the light most favorable to the
nonmoving party. McIntosh Cnty. Bank v. Dorsey & Whitney, LLP, 745 N.W.2d 538,
545 (Minn. 2008).
Appellant claims that he is entitled to relief because his insurance premiums
increased based on respondent’s reliance on incorrect information that was reported on
LexisNexis. The district court construed appellant’s complaint as alleging either a claim
of negligence or breach of contract. To the extent that appellant is alleging a negligence
claim, respondent is entitled to summary judgment when there is a complete lack of proof
on any one of the four negligence elements: (1) existence of defendant’s duty of care to
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plaintiff, (2) defendant’s breach of that duty, (3) plaintiff’s injury, and (4) causation of
that injury by the breach. Schaefer v. JLE Food Sys., Inc., 695 N.W.2d 570, 573 (Minn.
2005). To the extent that appellant is alleging some sort of breach-of-contract claim, “[a]
claim of breach of contract requires proof of three elements: (1) the formation of a
contract, (2) the performance of conditions precedent by the plaintiff, and (3) the breach
of the contract by the defendant.” Thomas B. Olson & Assocs., P.A. v. Leffert, Jay &
Polglaze, P.A., 756 N.W.2d 907, 918 (Minn. App. 2008), review denied (Minn. Jan. 20,
2009).
The evidence shows that appellant’s insurance premiums were based, in part, on
his insurance score, which is calculated using information provided by LexisNexis. Each
insurer has its own method for interpreting the information provided by sources like
LexisNexis and for developing insurance scores. Appellant’s insurance score was not
based on his claims history, and appellant was informed of this fact. Appellant
voluntarily cancelled his insurance policies with respondent and the mistake in
appellant’s LexisNexis report has been corrected. He obtained and is satisfied with
replacement insurance policies. Appellant has not presented specific facts to contradict
this evidence, nor has he submitted evidence to support the elements of a negligence or
breach-of-contract claim. A party opposing summary judgment “may not rest upon the
mere averments or denials of the adverse party’s pleading but must present specific facts
showing that there is a genuine issue for trial.” Minn. R. Civ. P. 56.05. Because
appellant has not presented evidence to create a genuine issue of material fact, we
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conclude that the district court did not err in granting respondent’s motion for summary
judgment.
Appellant also argues that the district court made impermissible credibility
determinations by relying on respondent’s evidence and noting that appellant is pro se.
Appellant is correct that “[w]eighing the evidence and assessing credibility on summary
judgment is error,” but here, the district court did not assess the credibility of appellant as
a witness but instead determined that his claim was insufficient to withstand summary
judgment. See Hoyt Properties, Inc. v. Prod. Res. Grp., L.L.C., 736 N.W.2d 313, 320
(Minn. 2007). We therefore conclude that the district court did not err in this respect.
Affirmed.
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