                         This opinion will be unpublished and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
                                    A14-1489

                                   Dominic Gemelli,
                                     Appellant,

                                           vs.

                                 Lindsey Haugen, et al.,
                                     Respondents,

                         Hartford Casualty Insurance Company,
                                     Respondent.

                                  Filed May 26, 2015
                                       Affirmed
                                  Rodenberg, Judge

                               Clay County District Court
                                File No. 14-CV-13-999

Gary M. Hazelton, Nathan T. Cariveau, Brooks M. Hazelton, Hazelton Law Firm, PLLC,
Bemidji, Minnesota (for appellant)

Ronald H. McLean, Serkland Law Firm, Fargo, North Dakota (for respondents Lindsey
Haugen, et al.)

Amy J. Woodworth, Erin Doran, Meagher & Geer, P.L.L.P., Minneapolis, Minnesota (for
respondent Hartford Casualty Insurance Company)

      Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Klaphake, Judge.*



*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, § 10.
                          UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant Dominic Gemelli challenges the district court’s grant of summary

judgment determining non-coverage under a professional liability insurance policy issued

by respondent Hartford Casualty Insurance Company to debtors Lindsey Haugen and

Legal Professionals, Ltd. We affirm.

                                        FACTS

       Attorney Lindsey Haugen and Legal Professionals, Ltd. (attorneys), represented

appellant, Dominic Gemelli, on a criminal assault charge that was tried on April 29

through May 1, 2008. The jury convicted appellant, and he was thereafter sentenced to

prison. Appellant directly appealed his conviction. On October 20, 2009, we held that

the jury instructions given by the trial judge in appellant’s criminal case were plainly

erroneous. We reversed the conviction and remanded the case to the district court. See

State v. Gemelli, No. A08-1605 (Minn. App. Oct. 20, 2009). On remand, appellant was

retried and acquitted on November 4, 2010, after having spent 17 months incarcerated as

a result of the earlier conviction.

       Respondent Hartford Casualty Insurance Co. (Hartford) issued a professional

liability policy to attorneys for a one-year period beginning on December 5, 2009, with a

retroactive coverage date of December 5, 2008.

       In November 2011, appellant sued attorneys alleging legal malpractice and

vicarious liability. The complaint alleged damages occurring “[a]s a direct result of

[attorneys’] malpractice,” and alleged a series of acts and omissions by attorneys


                                           2
including failures to object, failures to investigate, and a failure to preserve evidence,

among other failures.     Attorneys notified Hartford of appellant’s claim.        Hartford

informed attorneys that it would provide neither indemnity nor defense for the legal

malpractice claim because the errors alleged in the complaint occurred before the policy’s

retroactive date of December 5, 2008.

       In September 2012, appellant and attorneys settled appellant’s legal malpractice

lawsuit by way of a Miller-Shugart agreement.1 The settlement agreement provided that

appellant would be entitled to a $400,000 judgment against attorneys, recoverable from

the Hartford policy. In an effort to collect on the judgment, appellant served Hartford

with a garnishment summons and later a supplemental complaint, alleging that Hartford

was legally obligated to indemnify attorneys. Hartford appeared and denied coverage

under the policy. The district court found that the plain language of the insurance policy

did not provide coverage for appellant’s malpractice claim against attorneys, and the

court granted summary judgment in favor of Hartford. This appeal followed.

                                     DECISION

       Appellant challenges the district court’s conclusion that because there was no act,

error or omission on the part of attorneys that occurred during the policy period, the

1
  When an insured has been denied coverage for a claim and the insurer declines to
provide a defense, the insured may settle a lawsuit for a stipulated sum by stipulating to a
judgment recoverable only from the insurer. See Miller v. Shugart, 316 N.W.2d 729, 735
(Minn. 1982). The unique feature of such an agreement is that, while there is a judgment
entered against the insured, it can only be recovered from the insured’s policy and the
settling plaintiff assumes the risk of non-coverage. The settling plaintiff must establish
coverage to obtain any recovery. See Jorgensen v. Knutson, 662 N.W.2d 893, 904
(Minn. 2003).


                                             3
policy did not provide coverage for appellant’s claim.         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 (Minn. 2011). “Interpretation of an insurance policy and

application of the policy to the facts in a case are questions of law that [are reviewed] de

novo.” Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn. 2001).

       The policy provision at issue here provides:

              [T]he [Hartford] shall pay on behalf of the “insured” all sums
              in excess of the deductible which the “insured” shall become
              legally obligated to pay as “damages” by reason of any act,
              error, or omission, including “claims” arising out of
              “personal injury[,”] committed or alleged to have been
              committed prior to the end of the “policy period” and
              subsequent to the “retroactive date[,”] provided always that:

              1.      The “insured’s” liability arises out of the “insured”
              performing or failing to perform “professional services” for
              others;

              2.     Such “damages” result from a “claim” that is first
              made against the “insured” during the “policy period” and is
              reported in writing to the [Hartford] immediately but in no
              event later than sixty (60) days after the expiration of the
              “policy period”;

              3.      With respect to an act, error, omission, or “personal
              injury” committed or alleged to have been committed prior to
              the “policy period[,”] no other valid and collectible insurance
              is available; and

              4.     As of the effective date of this Coverage Form, no
              “insured” knew or could have foreseen that such act, error,
              omission, or “personal injury” could result in a “claim[.”]

(Emphasis added.)



                                             4
       The policy defines “personal injury” to mean:

              a. False arrest, detention, or imprisonment;

              b. Malicious prosecution or abuse of process;

              c. The wrongful eviction from, wrongful entry into or other
              invasion of the right of private occupancy; or

              d. The publication or utterance of a libel or slander or other
              defamatory or disparaging material or a publication or
              utterance in violation of an individual’s right of privacy.

       Where the language of a policy is clear and unambiguous, we must adopt the

policy’s plain and ordinary meaning. Henning Nelson Constr. Co. v. Fireman’s Fund

Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn. 1986).            Language in a policy is

ambiguous “if it is susceptible to two or more reasonable interpretations.” Eng’g &

Constr. Innovations, Inc. v. L.H. Bolduc Co, Inc., 825 N.W.2d 695, 705 (Minn. 2013)

(quotation omitted). Ambiguous terms in an insurance policy are resolved against the

insurer, but “a court should avoid reading an ambiguity into a contract in order to provide

coverage if the plain language is clear.” Illinois Farmers Ins. Co. v. Coppa, 494 N.W.2d

503, 506 (Minn. App. 1993).

       The insuring provision here is unambiguous.            The policy requires, as a

precondition to coverage, that the insured must have committed an “act, error, or

omission” after the retroactive date of December 5, 2008 and prior to the end of the

policy period.    Appellant’s complaint alleges legal malpractice by attorneys in

representing appellant at the criminal trial that ended on May 1, 2008. The Miller-

Shugart agreement echoes the complaint and recites that attorneys are liable for a breach



                                            5
of the applicable standard of care at the criminal trial. The criminal trial occurred months

before the retroactive date of this policy. Appellant alleged no commission of any act,

error or omission after December 5, 2008. Under the unambiguous terms of the policy,

the district court properly found that appellant’s coverage claim was properly denied.

       Appellant argues that the policy is ambiguous, pointing to the policy language

“including ‘claims’ arising out of ‘personal injury.’” Appellant would have us find

coverage under the policy because his incarceration amounted to a “personal injury,” and

because part of his incarceration was after the retroactive coverage date of the Hartford

policy. But the malpractice that resulted in appellant’s incarceration occurred before the

policy period, and appellant made no allegation to the contrary. Because the policy

language plainly requires an “act, error, or omission” during the policy period, the

reference to “personal injury” identifies that claims such as false arrest, malicious

prosecution and other arguably intentional torts are covered only if they arise from a

covered act, error or omission.

       Coverage under this policy is unambiguously triggered by acts, errors or omissions

related to malpractice as well as the acts enumerated under the definition of “personal

injury,” any of which must take place after the policy’s retroactive date. 2             The

unambiguous language of the policy forecloses appellant’s proposed interpretation of the


2
   This interpretation of the “personal injury” provision is consistent with our
interpretation of a similar provision in Hamlin v. Western Nat’l Mut. Ins. Co., 461
N.W.2d 395, 398 (Minn. App. 1990). In Hamlin, we stated that an insurance policy had a
specific “personal injury” definition that listed affirmative acts to be covered by the
policy and coverage was not extended beyond those acts enumerated in the definition. Id.


                                             6
term “personal injury” as expanding the coverage period to include torts committed

before the policy incepted when damages occur during the policy period.

       For appellant to recover under the policy for a “personal injury” claim, he must

have alleged in his complaint that the attorneys committed one of the acts listed as

constituting a “personal injury” during the policy period. Attorneys would be covered for

an act of false imprisonment, wrongful eviction, or slander occurring some time after

December 5, 2008. Here, all of the claimed tortious acts and omissions, as alleged in

appellant’s complaint and in the Miller-Shugart agreement, involved only breach of the

attorneys’ standard of care during the trial ending in May 2008. Moreover, neither false

imprisonment nor any of the acts that could constitute “personal injury” are alleged in the

complaint. Appellant’s claims were only of malpractice occurring before the policy

period. Since all of the complained-of “acts, errors, or omissions” of attorneys were

before the retroactive date of December 5, 2008, this policy does not provide coverage.

       Appellant also urges us to apply caselaw concerning occurrence policies in our

interpretation of the Hartford policy. He argues that the presence of a retroactive date in

the Hartford policy renders it a hybrid of a claims-made and an occurrence policy. The

Hartford policy in effect at the time appellant sued attorneys had a coverage period from

December 5, 2009 to December 5, 2010 with a retroactive date of December 5, 2008.

Identical effective and retroactive dates are common for an initial claims-made policy.

N.K.K. by Knudson v. St. Paul Fire & Marine Ins. Co., 555 N.W.2d 21, 25 (Minn. App.

1996), review denied (Minn. Dec. 23, 1996). Because renewal policies generally retain

the retroactive date of the initial policy, they are claims-made policies. Id. Therefore, the


                                             7
Hartford policy is properly characterized as a claims-made policy. Appellant’s reliance

on occurrence policy caselaw is misplaced.

       Appellant’s claims against attorneys rest entirely on “acts, errors, or omissions”

alleged against attorneys before the retroactive coverage date of Hartford’s policy

insuring attorneys. As such, the claims do not fall within the policy’s insuring provisions

which plainly require an “act, error, or omission” to occur within the coverage period.

The district court properly granted summary judgment in favor of Hartford.

       Affirmed.




                                             8
