                          This opinion will be unpublished and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                         UNPUBLISHED OPINION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




                                             4
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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