                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1149

                                 Richard J. Hartfiel,
                                     Appellant,

                                          vs.

                              Raymond Wilburn Allison,
                                   Respondent,

                              T. J. Potter Trucking, Inc.,
                                     Respondent,

                      Westfield Insurance Company, intervenor,
                                     Respondent.

                              Filed January 25, 2016
                 Affirmed in part, reversed in part, and remanded
                                 Schellhas, Judge

                           Sherburne County District Court
                              File No. 71-CV-11-1331

William J. Krueger, William Krueger, P.A., New Brighton, Minnesota (for appellant)

Raymond W. Allison, Becker, Minnesota (pro se respondent)

William L. Davidson, Brian A. Wood, Lind, Jensen, Sullivan & Peterson, P.A.,
Minneapolis, Minnesota (for respondent T. J. Potter Trucking, Inc.)

Deborah C. Eckland, Scott R. Johnson, Goetz & Eckland P.A., Minneapolis, Minnesota
(for respondent Westfield Insurance Company)
         Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and

Randall, Judge.*

                           UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges the summary-judgment dismissal of his claims against

respondent trucking company for negligent hiring and negligent retention of respondent

employee. Appellant also argues that the district court erred by concluding that an alleged

settlement agreement between appellant and respondent trucking company is

unenforceable and by permitting the trucking company’s insurance company to intervene

in the action. We affirm in part, reverse in part, and remand.

                                            FACTS

         Appellant Richard Hartfiel drove truck for respondent T. J. Potter Trucking Inc. as

an independent owner-operator. Respondent Raymond Allison drove truck for Potter

Trucking as an employee. On June 4, 2010, while Hartfiel was sitting in his truck at Potter

Trucking, Allison attacked him with an approximately three-and-a-half foot steel bar.1

Hartfiel suffered broken bones and other injuries and incurred over $75,000 in medical

expenses. Hartfiel sued Potter Trucking in September 2011 for negligent hiring, negligent




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
1
    Allison was convicted of third-degree assault for the attack.


                                               2
retention, and negligent supervision of Allison.2 Potter Trucking’s general liability insurer,

respondent Westfield Insurance Company (Westfield), denied coverage for Hartfiel’s

claims.

       On November 14, 2011, Potter Trucking sent a draft Miller-Shugart agreement to

Hartfiel and, on November 16, informed Westfield by telephone that it was discussing a

Miller-Shugart agreement with Hartfiel.3 On November 21, Hartfiel sent Potter Trucking

a revised draft of the Miller-Shugart agreement. On or about December 16, Potter Trucking

orally accepted Hartfiel’s revisions and informed the district court in writing that it had

reached a Miller-Shugart agreement with Hartfiel and that it anticipated that the agreement

would be executed “in the very near future.” But on January 12, 2012, as a condition to

signing the Miller-Shugart agreement, Hartfiel requested that Potter Trucking provide

written notice to Westfield regarding Potter Trucking’s intent to enter into a Miller-Shugart

agreement with Hartfiel. Potter Trucking gave written notice to Westfield on January 13.

On January 19, Potter Trucking informed Hartfiel that Westfield had not made a final

decision but would be retaining defense counsel. Westfield thereafter retained defense

counsel for Potter Trucking, and the parties’ Miller-Shugart discussions ended.


2
 Hartfiel sued Allison for assault and battery and settled those claims, which are not the
subject of this appeal. Hartfiel also asserted, but later abandoned, negligent supervision and
vicarious-liability claims against Potter Trucking.
3
  A Miller-Shugart agreement takes its name from Miller v. Shugart, 316 N.W.2d 729
(Minn. 1982). Alton M. Johnson Co. v. M.A.I. Co., 463 N.W.2d 277, 278 n.1 (Minn. 1990).
“In a Miller-Shugart settlement, the insured, having been denied any coverage for a claim,
agrees claimant may enter judgment against him for a sum collectible only from the
insurance policy. To be binding on the insurer if policy coverage is found to exist, the
settlement amount must be reasonable.” Id.

                                              3
       Hartfiel moved to enforce the Miller-Shugart agreement; Potter Trucking moved for

summary judgment on Hartfiel’s claims of negligent hiring, negligent retention, and

negligent supervision; and Westfield moved to intervene. The district court granted

Westfield’s motion to intervene for the limited purpose of opposing Hartfiel’s enforcement

motion, denied Hartfiel’s motion to enforce the agreement, and denied Potter Trucking’s

motion for summary judgment. Following additional discovery and Potter Trucking’s

second motion for summary judgment, the court granted summary judgment to Potter

Trucking.

       This appeal follows.

                                      DECISION

Miller-Shugart agreement

       Hartfiel argues that the district court erred by concluding that the Miller-Shugart

agreement between Hartfiel and Potter Trucking was unconsummated and unenforceable.

“A settlement agreement is a contract, and the court examines the language of the

agreement to determine the intent of the parties.” Curtis v. Altria Group, Inc., 813 N.W.2d

891, 901 (Minn. 2012). “Generally, the existence of a contract, as well as the terms of that

contract, are questions of fact to be determined by the fact-finder.” TNT Props., Ltd. v. Tri-

Star Developers LLC, 677 N.W.2d 94, 101 (Minn. App. 2004) (citing Bergstedt, Wahlberg,

Berquist Assocs., Inc. v. Rothchild, 302 Minn. 476, 480, 225 N.W.2d 261, 263 (1975)).

“But where the relevant facts are undisputed, the existence of a contract is a question of

law, which this court reviews de novo.” Id.




                                              4
       “[T]o constitute a full and enforceable settlement, there must be a definite offer and

acceptance with a meeting of the minds on the essential terms of the agreement.” Id. at

100–01 (citing Jallen v. Agre, 264 Minn. 369, 373, 119 N.W.2d 739, 743 (1963)). “[W]here

the offer is clear, definite, and explicit, and leaves nothing open for negotiation, it

constitutes an offer, acceptance of which will complete the contract.” Short v. Sun

Newspapers, Inc., 300 N.W.2d 781, 786 (Minn. 1980) (quotation omitted). Acceptance

consists of an act that demonstrates “a manifestation of assent when evaluated under an

objective standard.” Holman Erection Co. v. Orville E. Madsen & Sons, Inc., 330 N.W.2d

693, 695 (Minn. 1983). “‘[T]o give rise to a binding contract, [the acceptance] must . . .

comply exactly with the requirements of the offer.’” Jacobs v. Cable Constructors, Inc.,

704 N.W.2d 205, 208 (Minn. App. 2005) (alteration in original) (quoting Minar v. Skoog,

235 Minn. 262, 265, 50 N.W.2d 300, 302 (1951)).

       Hartfiel argues that the draft Miller-Shugart agreement that he sent to Potter

Trucking on November 21, 2011, was a definite offer that Potter Trucking accepted orally

and then in writing by its December 16 letter to the district court. He further argues that

Potter Trucking satisfied any condition precedent of notice on November 16, when it

informed Westfield by telephone that it was discussing a Miller-Shugart agreement with

Hartfiel. We disagree. Both drafts of the agreement exchanged by the parties in November

2011 included a paragraph providing that “notice of their intent to enter into this agreement

was provided to [Westfield] on ___________.” The parties’ agreed-upon inclusion of this

provision contradicts Hartfiel’s assertion that Potter Trucking’s November 16 telephone

call to Westfield constituted sufficient notice to Westfield. Moreover, Hartfiel’s argument


                                             5
that the November 16 telephone call to Westfield satisfied the notice requirement is

undermined by his January 2012 request to Potter Trucking, as follows:

                     In order to ensure the next steps in the process, before
              your client signs the agreement, we need any and all
              documents you’ve sent to [Westfield] saying you are in the
              process of negotiating a settlement with us and their responses.
              The law, in order for us to succeed in the next stage of this suit
              (and for us to have our client sign the agreement with Potter
              [Trucking]) requires notification to [Westfield] that you have
              entered into negotiations with us and that they have still failed
              to intervene. I know we have some letters denying the claim
              and you challenging their denial, but we do not have anything
              that says specifically that you are entering into settlement
              negotiations. If you could also resend those along with any
              other communication, it would ensure our client can sign the
              agreement as soon as your client does.

                     If you haven’t sent [Westfield] something saying they
              have X days to join into the suit or negotiations for settlement,
              please do so, let us know, and then let us know when that time
              expires what their response is. Then we can proceed with
              signing the agreement.

(Emphasis added.) In response, Potter Trucking provided Westfield written notice of its

intent to enter a Miller-Shugart agreement with Hartfiel.

       The undisputed facts show that both Hartfiel and Potter Trucking considered written

notice to Westfield of their intent to execute a Miller-Shugart agreement to be an essential

term of their settlement agreement. The November 21 draft agreement lacked this essential

term and therefore was not a definite offer exhibiting a meeting of the minds on the

essential terms of the agreement. As a result, Potter Trucking’s December 2011 oral and

written communications to Hartfiel and the district court did not operate as acceptances of

the Miller-Shugart agreement and did not result in an enforceable contract.



                                              6
       Any offer and acceptance contained in Hartfiel’s and Potter Trucking’s subsequent

communications were conditioned on Westfield’s failure to act after receiving written

notice of Hartfiel’s and Potter Trucking’s intent to enter a Miller-Shugart agreement. “A

condition precedent . . . is any fact or event, subsequent to the making of a contract, which

must exist or occur before a duty of immediate performance arises under the contract.”

Nat’l City Bank of Minneapolis v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 176

(Minn. 1989). “If the fact or event required by the condition precedent does not occur, there

can be no breach of contract.” Id. (quotation omitted). Here, the undisputed facts show that

Westfield retained counsel for Potter Trucking within the time allowed in Potter Trucking’s

written notice to it. As a result, the condition precedent was not satisfied. The district court

therefore did not err by concluding that no enforceable Miller-Shugart agreement existed.

Summary judgment

       Hartfiel argues that the district court erred by granting summary judgment to Potter

Trucking on his claims of negligent hiring and negligent retention because genuine issues

of material fact exist, the court improperly weighed the evidence, and the court failed to

properly apply the law.4 “[Appellate courts] review a district court’s summary judgment

decision de novo. In doing so, [appellate courts] 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); see also Minn. R. Civ. P. 56.03. “A fact is material if its resolution


4
  At oral argument, Hartfiel acknowledged that he had forfeited any argument that the
district court erred by dismissing his negligent-supervision claim against Potter Trucking.

                                               7
will affect the outcome of a case.” O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.

1996). “No genuine issue for trial exists when the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party.” McKee v. Laurion, 825 N.W.2d 725,

729 (Minn. 2013) (quotations omitted). “[Appellate courts] view the evidence in the light

most favorable to the party against whom summary judgment was granted.” STAR Ctrs.,

Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–77 (Minn. 2002).

       Negligent hiring

       Negligent hiring is the failure of an employer to use reasonable care in hiring

individuals who, through the employment, may pose a threat of injury to members of the

public. Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 911 (Minn. 1983). Liability for negligent

hiring is

            predicated on the negligence of an employer in placing a
            person with known propensities, or propensities which should
            have been discovered by reasonable investigation, in an
            employment position in which, because of the circumstances
            of the employment, it should have been foreseeable that the
            hired individual posed a threat of injury to others.
Id. “[A]n employer will not be held liable for failure to discover information about the

employee’s incompetence that could not have been discovered by reasonable

investigation . . . .” Id. at 912–13. In determining whether an employer conducted a

reasonable investigation, “[t]he scope of the investigation is directly related to the severity

of risk third parties are subjected to by an incompetent employee.” Id. at 913.

       Hartfiel argues that “unique questions of reasonableness and fact . . . must be

presented to a jury.” The evidence shows that Allison had some history of aggressive

behavior before Potter Trucking hired him. At age 17, Allison was arrested in Illinois for


                                              8
assaulting his stepfather.5 In 1997, he pleaded guilty to assaulting a woman in Nevada.

Hartfiel testified that a Potter Trucking employee told him that, “about ten years ago,”

Allison knocked out the other employee and left him lying on the ground in a rest area.

Hartfiel did not believe that Potter Trucking was informed of the incident. Hartfiel asserts

that, because Potter Trucking did not perform a background check on Allison, it did not

conduct a reasonable investigation when it hired Allison. Hartfiel maintains that Potter

Trucking “failed to follow its own standard procedures.”

         An employer does not have a duty, as a matter of law, to inquire about a prospective

employee’s criminal record. See Ponticas, 331 N.W.2d at 913 (“[W]e reject the contention

that, as a matter of law, there exists a duty upon an employer to make an inquiry as to a

prospective employee’s criminal record even where it is known that the employee is to

regularly deal with members of the public.”). “If the employer has made adequate inquiry

or otherwise has a reasonably sufficient basis to conclude the employee is reliable and fit

for the job, no affirmative duty rests on him to investigate the possibility that the applicant

has a criminal record.” Id. Whether the employer used reasonable care “in the totality of

the circumstances surrounding the hiring . . . is generally a jury question.” Id.

         Here, the unchallenged evidence shows that, although Allison provided Potter

Trucking a release to perform a background check, Potter Trucking checks applicants’

driving records but does not conduct criminal background checks. Typically, Potter

Trucking hires people on referral. Potter Trucking followed its standard procedures—it



5
    The record does not contain the year of the arrest.

                                                9
required Allison to submit an application, interviewed him, required him to submit to drug

testing, obtained a release for a background check, and relied on a referral from Allison’s

previous employer. Hartfiel presented no evidence to show that a genuine issue of material

fact exists about whether Potter Trucking’s inquiry of Allison was adequate or whether

Potter Trucking had a reasonably sufficient basis to conclude that Allison was reliable and

fit for the job. The record contains no evidence to suggest that Potter Trucking knew or

should have known of Allison’s violent propensities when it hired him. On this record, we

conclude that the district court did not err by granting summary judgment to Potter

Trucking on Hartfiel’s claim of negligent hiring.

       Negligent retention

       “The difference between negligent hiring and negligent retention focuses on when

the employer was on notice that an employee posed a threat and failed to take steps to

insure the safety of third parties.” Yunker v. Honeywell, Inc., 496 N.W.2d 419, 423 (Minn.

App. 1993), review denied (Minn. Apr. 20, 1993).

              Negligent hiring occurs when, prior to the time the employee
              is actually hired, the employer knew or should have known of
              the employee’s unfitness, and the issue of liability primarily
              focuses upon the adequacy of the employer’s pre-employment
              investigation into the employee’s background . . . . Negligent
              retention, on the other hand, occurs when, during the course of
              employment, the employer becomes aware or should have
              become aware of problems with an employee that indicated his
              unfitness, and the employer fails to take further action such as
              investigating, discharge, or reassignment . . . .




                                            10
Id. (quotation omitted). Both negligent hiring and negligent retention are based on the

employer’s “direct, not vicarious, liability.” Id. at 422 (citing Ponticas, 331 N.W.2d at 911

n.5).

        In this case, Hartfiel testified that, after Potter Trucking hired Allison, Allison

“worked [a Potter Trucking subcontractor] over pretty good” at a local tavern. According

to Allison’s deposition testimony, the subcontractor “had said some things” that prompted

Allison to tell him to “shut up,” the subcontractor then “slammed his drink down” and “got

right by [Allison],” and Allison thought the subcontractor was going to hit him, so Allison

“smacked [the subcontractor].” Hartfiel testified that the subcontractor did not report the

incident to Potter Trucking. But the owner of Potter Trucking acknowledged during his

deposition that the altercation was brought to his attention in the “form of gossip.” He

decided not to address it because it “[was not] work related” and because “boys are boys.”

Allison further testified that, on a different occasion, he felt that the shop foreman made a

rude comment to him on Potter Trucking premises and told the foreman that “it’s no secret

where I live, come on over there and I’ll . . . kick your ass all over the yard.” Hartfiel

testified that the foreman “was quite afraid of [Allison]” and consequently was carrying a

gun, but the foreman was deposed and denied being threatened by Allison or keeping a gun

on Potter Trucking premises.

        We conclude that genuine issues of material fact preclude summary judgment on

Hartfiel’s claim of negligent retention. The previously discussed evidence of Allison’s

violent behavior against a Potter Trucking subcontractor in a tavern and threatening

behavior toward a Potter Trucking foreman is the type of evidence on which a jury could


                                             11
find that Allison had violent propensities about which Potter Trucking knew or should have

known. We therefore conclude that the district court erred by granting summary judgment

to Potter Trucking on Hartfiel’s claim of negligent retention.

Westfield’s intervention

       The Minnesota Rules of Civil Procedure establish two types of intervention,

intervention as of right and permissive intervention. See Minn. R. Civ. P. 24.01

(intervention of right); Minn. R. Civ. P. 24.02 (permissive intervention). Westfield sought

intervention as of right and, alternatively, permissive intervention. In allowing Westfield

to intervene, the district court did not specify whether the intervention was as of right or

permissive. Hartfiel argues that the district court erred by allowing Westfield to intervene.

       “Orders concerning intervention as a matter of right, pursuant to Minn. R. Civ. P.

24.01, are subject to de novo review and are independently assessed on appeal.” State Fund

Mut. Ins. Co. v. Mead, 691 N.W.2d 495, 499 (Minn. App. 2005) (citing Norman v.

Refsland, 383 N.W.2d 673, 676 (Minn. 1986)). The rule for intervention as of right

provides:

                     Upon timely application anyone shall be permitted to
              intervene in an action when the applicant claims an interest
              relating to the property or transaction which is the subject of
              the action and the applicant is so situated that the disposition
              of the action may as a practical matter impair or impede the
              applicant’s ability to protect that interest, unless the applicant’s
              interest is adequately represented by existing parties.

Minn. R. Civ. P. 24.01. “[T]he spirit behind . . . Rule 24—that of encouraging all legitimate

interventions—requires a liberal application of the rule.” Engelrup v. Potter, 302 Minn.

157, 166, 224 N.W.2d 484, 489 (1974).


                                              12
       To intervene as of right, a nonparty must satisfy a four-part test:

              (1) a timely application for intervention; (2) an interest relating
              to the property or transaction which is the subject of the action;
              (3) circumstances demonstrating that the disposition of the
              action may as a practical matter impair or impede the party’s
              ability to protect that interest; and (4) a showing that the party
              is not adequately represented by the existing parties.

Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 1986);

accord State Mut. Fund. Ins. Co., 691 N.W.2d at 499. Hartfiel appears to argue that

Westfield lacked an interest relating to the subject of the action, that disposition of the

action would not have impaired or impeded Westfield’s ability to protect any interest it had

relating to the subject of the action, and that Westfield was adequately represented by Potter

Trucking.

       Westfield’s interest relating to the subject of the action

       Hartfiel argues that Westfield lacked an interest relating to the subject of the action

because “Westfield’s only argued interest in the claim was as a party to a future lawsuit,

should the Settlement Agreement be ruled enforceable.” Minnesota appellate courts have

not addressed whether an insurer’s interest in its insured’s liability is a sufficient interest

to satisfy the requirements for intervention as of right.

       Under a Miller-Shugart agreement, an insurer may challenge its coverage of an

insured and the reasonableness of the settlement between the insured and claimant, but the

insurer may not challenge the insured’s liability. See Alton M. Johnson Co., 463 N.W.2d

at 278 n.1 (“In a Miller-Shugart settlement, the insured, having been denied any coverage

for a claim, agrees claimant may enter judgment against him for a sum collectible only



                                              13
from the insurance policy. To be binding on the insurer if policy coverage is found to exist,

the settlement amount must be reasonable.”); Chalmers v. Kanawyer, 544 N.W.2d 795,

796 n.1 (Minn. App. 1996) (noting that supreme court held that “in the absence of fraud or

collusion, a money judgment confessed to by an insured is binding on the insurer in a

garnishment action if the settlement is reasonable and prudent” (citing Miller, 316 N.W.2d

at 734–35)).

       A claimant’s interest in an insurer’s coverage of its insured is sufficient to permit

the claimant to intervene as of right in an action concerning the insurer’s coverage of the

insured, provided the other requirements for intervention are met. See Westfield Ins. Co. v.

Wensmann, Inc., 840 N.W.2d 438, 441–43, 445–46 (Minn. App. 2013) (concluding that

district court did not err by allowing claimant’s intervention as of right in declaratory-

judgment action by insurer against insured concerning insurance coverage), review denied

(Minn. Feb. 26, 2014). We conclude that an insurer’s interest in its insured’s liability is

likewise sufficient to permit the insurer to intervene as of right in an action concerning the

insured’s liability, provided the other requirements for intervention are met. Because

Westfield had an interest in Potter Trucking’s liability for Hartfiel’s injuries, we further

conclude that Westfield had sufficient interest relating to the subject of the action.

       Westfield’s ability to protect its interest

       To intervene as a matter of right, a potential intervenor must be “so situated that the

disposition of the action may as a practical matter impair or impede the applicant’s ability

to protect [its] interest [relating to the subject of the action].” Minn. R. Civ. P. 24.01; accord

Schumacher, 392 N.W.2d at 207. “Rule 24 is specifically designed to protect a nonparty


                                               14
from having [its] interests adversely affected by litigation conducted without [its]

participation.” Nash v. Wollan, 656 N.W.2d 585, 591 (Minn. App. 2003), review denied

(Minn. Apr. 29, 2003).

       Hartfiel argues that disposition of the action would not have impaired or impeded

Westfield’s ability to protect its interest relating to the action because following

enforcement of a Miller-Shugart agreement, Westfield would have been able to dispute in

the declaratory-judgment or quasi-in-rem action its contractual liability for coverage and

the reasonableness of the damages. Indeed, after an insured and a claimant execute an

enforceable Miller-Shugart agreement, the insurer is limited to disputing whether its policy

covers the damage and whether the settlement amount was reasonable. See Alton M.

Johnson Co., 463 N.W.2d at 278 n.1 (“To be binding on the insurer if policy coverage is

found to exist, the settlement amount [of a Miller-Shugart agreement] must be

reasonable.”); Chalmers, 544 N.W.2d at 796 n.1 (noting that supreme court held that “in

the absence of fraud or collusion, a money judgment confessed to by an insured is binding

on the insurer in a garnishment action if the settlement is reasonable and prudent” (citing

Miller, 316 N.W.2d at 734–35)). Following enforcement of a Miller-Shugart agreement

between Hartfiel and Potter Trucking, Westfield would have been unable to challenge

Potter Trucking’s liability for Hartfiel’s injuries; Westfield would have been restricted to

challenging its policy coverage and whether the settlement amount was reasonable. We

conclude that Westfield’s ability to protect its interest could have been impaired or impeded

by disposition of the action. See Minn. R. Civ. P. 24.01.




                                             15
       Adequacy of Westfield’s representation

       If a potential intervenor satisfies all other intervention requirements, it may

intervene as of right “unless [its] interest is adequately represented by existing parties.”

Minn. R. Civ. P. 24.01; accord Schumacher, 392 N.W.2d at 207. Hartfiel argues that any

interest of Westfield’s was adequately represented by Potter Trucking because Potter

Trucking “argued against liability in its answer and throughout the course of the matter.”

Hartfiel also argues that the district court “wholly ignored the Miller-Shugart process when

permitting Westfield to intervene.” Regarding the latter argument, we already have decided

that the district court did not err by concluding that Hartfiel and Potter Trucking did not

enter into an enforceable Miller-Shugart agreement and will not repeat that analysis.

       As to the issue of adequate representation, at the hearing on Hartfiel’s motion to

enforce the Miller-Shugart agreement, Potter Trucking did not argue that the agreement

was unenforceable. Potter Trucking’s counsel did not present Westfield’s legal position or

arguments because that counsel did not represent Westfield. If Westfield had not been

allowed to intervene, no party to the underlying action would have opposed Hartfiel’s

motion to enforce the agreement.

       We conclude that Westfield’s interest was not adequately represented in the

underlying action and that Westfield was entitled to intervene as of right. Even if Westfield

was not entitled to intervene as of right, it was entitled to intervene permissively. The rule

for permissive intervention provides that “[u]pon timely application anyone may be

permitted to intervene in an action when an applicant’s claim or defense and the main

action have a common question of law or fact.” Minn. R. Civ. P. 24.02. Permissive


                                             16
intervention “is left to the discretion of the trial court and will be reversed only when there

has been a clear abuse of its discretion.” Norman v. Refsland, 383 N.W.2d 673, 676 (Minn.

1986). Hartfiel sought to enforce the Miller-Shugart agreement against Potter Trucking,

and Westfield sought to intervene to challenge the enforceability of the Miller-Shugart

agreement. Westfield’s defense therefore had questions of law and fact common to the

underlying action, and Westfield’s alternative permissive intervention was not an abuse of

discretion.

       In sum, the district court did not err by concluding that the Miller-Shugart

agreement was unenforceable; it did not err by granting summary judgment to Potter

Trucking on Hartfiel’s claim of negligent hiring; it erred by granting summary judgment

to Potter Trucking on Hartfiel’s claim of negligent retention; and it did not err by allowing

Westfield to intervene in the underlying action.

       Affirmed in part, reversed in part, and remanded.




                                              17
