                          This opinion will be unpublished and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
                                     A15-1420

                         North Star Mutual Insurance Company,
                                     Respondent,

                                            vs.

                       Julie Joy Kruger, as trustee for the heirs and
                           next of kin of Todd Michael Kruger,
                                        Appellant,

                         Michael Allen Dahl, et al., Defendants.

                                  Filed May 2, 2016
                                Reversed and remanded
                                  Klaphake, Judge *

                             Pipestone County District Court
                                 File No. 59-CV-13-463


Daniel Stahley, Provo-Petersen & Associates, P.A., Lake Elmo, Minnesota (for
respondent)

Lance Redlinger, Redlinger Law Firm P.A., St. Paul, Minnesota; and Gregory J. Johnson,
G Johnson Law PLLC, Apple Valley, Minnesota (for appellant)


         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Klaphake,

Judge.



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                          UNPUBLISHED OPINION

KLAPHAKE, Judge

       In this appeal from summary judgment in favor of respondent North Star Mutual

Insurance Company, appellant Julie Joy Kruger, as trustee for the heirs and next of kin of

Todd Michael Kruger, argues that the district court erred by determining as a matter of law

that (1) the minor driver was not a “resident relative” insured under the terms of his father’s

policy; and (2) an exclusion for “regular use” of a nonowned vehicle barred coverage. In

the alternative, she argues that there are genuine issues of material fact. Because there are

genuine issues of material fact as to whether the driver was a resident of his father’s

household and whether the vehicle was available for his regular use, we reverse and

remand.

                                       DECISION

       Summary judgment is appropriately granted when the record demonstrates “that

there is no genuine issue as to any material fact and that either party is entitled to a judgment

as a matter of law.” Minn. R. Civ. P. 56.03. “When hearing motions for . . . summary

judgment, [district] courts are not asked to weigh evidence, determine credibility, resolve

factual disputes, and decide the merits of a plaintiff’s case. Instead, a court’s duty . . . is

simply to determine whether genuine issues of material fact exist, not how such issues

should be resolved.” Foley v. WCCO Television, Inc., 449 N.W.2d 497, 506 (Minn. App.

1989) (quotation and emphasis omitted), review denied (Minn. Feb. 9, 1990), cert. denied,

497 U.S. 1038 (1990). A genuine issue of material fact exists if reasonable persons might




                                               2
draw different conclusions based on the evidence. DLH, Inc. v. Russ, 566 N.W.2d 60, 69

(Minn. 1997).

       Appellate courts “review a district court’s grant of summary judgment de novo to

determine whether any genuine issue of material fact exists and whether the district court

erred in applying the law.” Larson v. Nw. Mut. Life Ins. Co., 855 N.W.2d 293, 299 (Minn.

2014). “[W]e view the evidence in the light most favorable to the nonmoving party . . .

and resolve all doubts and factual inferences against the moving part[y].” Rochester City

Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661 (Minn. 2015). “Because summary

judgment is a blunt instrument, its use should be limited to cases in which it is perfectly

clear that no issue of fact is involved.” Foley, 449 N.W.2d at 506 (quotations omitted).

I.     Resident Relative

       Kruger contends that there is a genuine issue of material fact as to whether the driver

was a resident relative under his father’s policy because a fact-finder could reasonably find

that the driver was a resident of his father’s household, and that the district court erred

when it weighed the evidence. We agree.

       When determining whether someone is a “resident” for insurance purposes, we

consider three factors: (1) whether the individual and the insured are living together under

the same roof; (2) whether the individual and the insured have a close, intimate, and

informal relationship; and (3) whether “the intended duration is likely to be substantial,

where it is consistent with the informality of the relationship, and from which it is

reasonable to conclude that the parties would consider the relationship in contracting about

such matters as insurance or in their conduct in reliance thereon.” Firemen’s Ins. Co. of


                                              3
Newark, N.J. v. Viktora, 318 N.W.2d 704, 706 (Minn. 1982) (quotation omitted). Here,

the district court concluded that as a matter of law the driver was not a resident of his

father’s household. The district court reasoned that (1) “the weight of the evidence is that

[the driver] and [his father] did not ‘dwell together under the same roof,’” (2) “[t]here was

not a consistent schedule set up in which [the driver] knew he would be at his father’s

house,” and (3) “[the father] made a conscious decision not to insure his son.” (Emphasis

added).

       Our review of the district court’s memorandum suggests that, in concluding whether

the driver was a resident of his father’s household, the district court engaged in fact finding

by weighing the conflicting evidence presented. In its memorandum, the district court

specifically stated that its conclusion was based on the “weight of the evidence.” It also

did not address the facts most favorable to Kruger. See Carlson v. SALA Architects, Inc.,

732 N.W.2d 324, 329 (Minn. App. 2007) (“In selecting certain evidence over conflicting

countervailing evidence; in ruling that [defendant’s] countervailing evidence was either not

believable or not reasonable; and in giving more weight to some evidence than other

evidence, the court usurped the precise functions reserved to the jury under our system of

jurisprudence.”), review denied (Minn. Aug. 21, 2007). For example, the district court did

not address that there was deposition testimony that the driver had a bedroom at his father’s

house with a bed and a dresser, and that he kept some clothes and other personal items at

his father’s house. Viewing the evidence in the light most favorable to Kruger, we

conclude that there is a genuine issue of material fact as to whether the driver was a resident




                                              4
of his father’s household because reasonable persons might draw different conclusions

based on the evidence.

II.    Regular-use Exclusion

       Kruger contends that there is a genuine issue of material fact as to whether the

exclusion for regular use of a nonowned vehicle barred coverage because a fact-finder

could reasonably find that the vehicle was not available for the driver’s regular use, and

that the district court erred by not considering the driver’s mother’s affidavit testimony.

We agree.

       To determine whether a vehicle was available for regular use, we consider (1) any

“agreement between the insured and the owner of the involved vehicle,” (2) “the actual use

of the vehicle by the insured,” and (3) “the purpose for including nonowned automobile

provisions in insurance policies.” Grinnell Mut. Reinsurance Co. v. Anderson, 427 N.W.2d

274, 276 (Minn. App. 1988). Here, the district court concluded that as a matter of law the

vehicle was available for the driver’s regular use. The district court reasoned that “[t]he

deposition testimony indicates that” although “the vehicle primarily belonged to [the

driver’s mother], . . . [the driver] could use it with his mother’s permission, and that he

preferred to use that vehicle because it got better gas mileage.”

       Our review of the district court’s memorandum suggests that, in concluding

whether the vehicle was available for the driver’s use, the district court engaged in fact

finding by only relying on certain evidence and not considering conflicting evidence

presented. In its memorandum, the district court stated that “no evidence [was] presented

. . . suggest[ing that the driver] did not have access to the vehicle on a regular basis.” But


                                              5
the driver’s mother’s supplemental affidavit presented such evidence. In her affidavit, the

driver’s mother specifically stated that the vehicle “was not available for [the driver’s]

regular or frequent use,” and that “[i]t was [her] vehicle and [she] actually preferred he did

not drive it.” She also stated that she “had the [vehicle] most of the time at work or for

personal driving so it . . . was not available for [the driver] to drive as a practical matter,”

and that the driver “did not have a key to [the vehicle], nor did he have access to the spare

key.” Viewing the evidence in the light most favorable to Kruger, we conclude that there

is a genuine issue of material fact as to whether the vehicle was available for the driver’s

regular use because reasonable persons might draw different conclusions based on the

evidence.

       In sum, because there are genuine issues of material fact as to whether the driver

was a resident relative of his father’s household and whether the vehicle was available for

his regular use, summary judgment for North Star Mutual Insurance Company was

improperly granted.

       Reversed and remanded.




                                               6
