                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0712

                                        Nichole Cox,
                                        Respondent,

                                              vs.

                    Mid-Minnesota Mutual Insurance Company, et al.,
                                    Appellants.

                                   Filed January 17, 2017
                                          Reversed
                                        Reilly, Judge

                                Stearns County District Court
                                  File No. 73-CV-15-11801

Charles J. Lloyd, Rachael J. Abrahamson, Brian F. Murn, Livgard & Lloyd PLLP,
Minneapolis, Minnesota (for respondent)

Paul Wocken, Boe M. Piras, Willenbring, Dahl, Wocken & Zimmermann, PLLC, Cold
Spring, Minnesota (for appellants)

       Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and

Reilly, Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

       Appellant-insurers challenge the district court’s denial of appellants’ motion to

dismiss for insufficiency of service of process, arguing that the district court erred in ruling

that service of process was perfected under Minnesota Rule of Civil Procedure 3.01(c)
where respondent-homeowner transmitted the summons and complaint to the county

sheriffs via facsimile. Because we conclude that respondent did not effect personal

delivery and the action was therefore not properly commenced, we reverse.

                                       FACTS

      On January 9, 2014, respondent-homeowner’s home was destroyed by fire.

Respondent carried insurance policies through appellants Mid-Minnesota Mutual

Insurance Company and North Star Mutual Insurance Company. Respondent submitted a

damage claim to her insurers, which was denied. On January 11, 2016, respondent faxed

a summons and complaint to the sheriff’s departments in Benton and Lyon Counties, where

the principal place of business for each of the insurers was located.1 The Benton County

sheriff’s department personally served the summons and complaint upon Mid-Minnesota

Mutual Insurance Company on January 19, and the Lyon County sheriff’s department

personally served the summons and complaint upon North Star Mutual Insurance Company

on January 14. Appellants moved to dismiss the complaint, arguing that the court lacked

personal jurisdiction over the parties because service of process was ineffective. The

district court determined it had jurisdiction because the facsimile transmission to the

sheriff’s departments, followed by actual service within 60 days, satisfied “personal

delivery” under Minnesota Rule of Civil Procedure 3.01(c). This appeal follows.




1
 In December 2015, respondent attempted to commence an action against appellants via
substituted service pursuant to Minnesota Statutes sections 60A.19 and 45.028 (2016).
Respondent later conceded that this service was ineffective.

                                           2
                                     DECISION

      Whether service of process is effective presents a question of law that we review de

novo. Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008). Service of

process in a manner not specifically authorized by law is ineffective service. Lundgren v.

Green, 592 N.W.2d 888, 890 (Minn. App. 1999), review denied (Minn. July 28, 1999). To

be effective, service of process “must accord strictly with statutory requirements.” Id.

(quotation omitted). “It is well-settled that the ultimate burden of proving insufficient

service of process is upon the defendant.” DeCook v. Olmsted Med. Ctr., Inc., 875 N.W.2d

263, 274 (Minn. 2016). However, the plaintiff must first submit evidence demonstrating

that service was made in an effective manner. Id. “In other words, the plaintiff bears the

initial burden of production, and the defendant bears the ultimate burden of persuasion.”

Id.

      The issue presented here is whether respondent properly complied with Minnesota

Rule of Civil Procedure 3.01, as interpreted by this court in Singelman v. St. Francis Med.

Ctr., 777 N.W.2d 540 (Minn. App. 2010), in commencing a civil action against appellants

by faxing the pleadings to the sheriffs’ departments. Rule 3.01 provides that:

             A civil action is commenced against each defendant:

             (a) when the summons is served upon that defendant, or

             (b) at the date of acknowledgement of service if service is made
             by mail or other means consented to by the defendant either in
             writing or electronically; or

             (c) when the summons is delivered to the sheriff in the county
             where the defendant resides for service; but such delivery shall
             be ineffectual unless within 60 days thereafter the summons is


                                            3
              actually served on that defendant or the first publication thereof
              is made.

Minn. R. Civ. P. 3.01(a)-(c).

       Appellants argue that respondent failed to comply with rule 3.01(c) because the

facsimile transmissions to the sheriffs’ departments do not constitute personal delivery.

We agree.

       Our analysis in Singelman controls. In Singelman, the plaintiff prepared a complaint

alleging medical malpractice against a medical center. 777 N.W.2d at 541. Five days

before the four-year limitations period expired, plaintiff’s counsel sent a copy of the

summons and complaint via first-class mail to the county sheriff’s department and

requested service upon the medical center under rule 3.01. Id. The sheriff’s department

did not receive the pleadings until five days after the limitations period expired. Id. The

district court granted summary judgment in favor of the defendant and we affirmed,

concluding under the rule’s plain language that “Minn. R. Civ. P. 3.01(c) requires personal

delivery of the summons and complaint to the sheriff.” Id. at 543. We based our analysis

in part on reading and construing the rule as a whole and on interpreting section (c) in light

of the surrounding sections. Id.; see also Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d

273, 277 (Minn. 2000) (“We are to read and construe a statute as a whole and must interpret

each section in light of the surrounding sections to avoid conflicting interpretations.”).

       We observed that:

              [T]he other methods of commencing an action under rule 3.01,
              personal service upon the defendant and receipt of the
              defendant’s acknowledgment of service by mail, ensure that
              the defendant has physically received the summons and


                                              4
              complaint before the action is deemed to have commenced.
              Minn. R. Civ. P. 3.01(a), (b). Because subdivision (c) of rule
              3.01 essentially permits delivery to the sheriff to substitute for
              service on the defendant (assuming that the sheriff timely
              serves the pleadings on the defendant), it is logical to apply the
              same actual-receipt requirement. Accordingly, we conclude
              that Minn. R. Civ. P. 3.01(c) requires personal delivery of the
              summons and complaint to the sheriff.

777 N.W.2d at 543.

       Respondent argues that appellants’ reliance on Singelman is misplaced. Respondent

contends that personal delivery is not required under the plain language of rule 3.01(c), and

urges this court to hold that “actual receipt” is equivalent to personal service. See, e.g.,

Stonewall Ins. Co. v. Horak, 325 N.W.2d 134, 135-36 (Minn. 1982) (holding that actual

notice is equivalent to personal service under Minn. R. Civ. P. 4.03). Respondent’s

argument is misplaced, in that it conflates the personal service requirements of rule 3.01(c)

with those of rule 4. We stated decisively in Singelman that rule 3.01 “requires personal

delivery of the summons and complaint to the sheriff,” 777 N.W.2d at 543, and personal

delivery was not accomplished here.

       Respondent has not met her initial burden of demonstrating that service of process

was effective. DeCook, 875 N.W.2d at 274. It is uncontested that appellant faxed the

summons and complaint to the sheriff’s departments. Applying Singelman, appellant’s

action was never properly commenced because she failed to personally deliver the

summons and complaint to the sheriff’s departments. See Singelman, 777 N.W.2d at 543

(holding that because plaintiff failed to personally deliver the summons and complaint to

the sheriff’s office within the limitations period, the action was not timely commenced and



                                              5
the district court properly granted summary judgment); see also Johnson v. Husebye, 469

N.W.2d 742, 745 (Minn. App. 1991) (“An attorney relying on this method [of service under

rule 3.01(c)] must be vigilant to ensure service is effected within 60 days.”), review denied

(Minn. Aug. 2, 1991). Because respondent did not personally deliver the summons and

complaint to the sheriff’s departments, her action was not properly commenced and the

district court lacked jurisdiction. Dismissal is therefore appropriate.2

       Reversed.




2
 The parties raise public policy arguments in support of their respective positions. We do
not reach the merits of these arguments, which are better directed to other bodies. See
Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (explaining that public policy
arguments to modify existing law are within the purview of the Minnesota Supreme Court
or the legislature, rather than the court of appeals), review denied (Minn. Dec. 18, 1987).

                                              6
