



COURT OF APPEAL FOR ONTARIO

CITATION: Hartley v. Security National Insurance Company,
    2017 ONCA 715

DATE: 20170914

DOCKET: C63516

Epstein, Hourigan and Paciocco JJ.A.

BETWEEN

Glen C. Hartley
and Theresa M. Hartley

Plaintiffs (
Respondent
)

and

Security National Insurance Company

Defendant (Appellant)

William G. Woodward, for the appellant

Richard Campbell, for the respondent
[1]

Heard: June 21, 2017

On appeal from the order of Justice Gerald E. Taylor of
    the Superior Court of Justice, dated March 14, 2016, with reasons reported at
    2016 ONSC 1812.

Paciocco J.A.
:

A.

overview

[1]

Glen Hartley, the respondent in this appeal, and his wife, Theresa
    Hartley, were injured in a traffic accident while touring on a motorcycle in
    the State of Minnesota. Mr. Hartleys injuries were particularly serious. The
    accident occurred when the Hartleys motorcycle was struck by a State of
    Minnesota- owned truck, operated by a state employee. The Hartleys retained Minnesota
    counsel and sued the State of Minnesota for damages.

[2]

Even though Mr. Hartleys injuries warranted damages in excess of US$500,000
    dollars, he obtained a settlement of only US$500,000. This was the maximum
    payable by Minnesota to a tort claimant, in the circumstances. The settlement
    was inclusive of legal fees, including a 22 per cent contingency fee, and
    disbursements. After legal costs were accounted for, Mr. Hartley was left with
    approximately CAD$386,500.

[3]

Mr. Hartley looked to his Canadian insurance company, Security National
    Insurance Company, to pay him the difference between the damages he received of
    approximately CAD$386,500, and the CAD$1,000,000 underinsured motorist coverage
    ceiling provided for in an endorsement to his motor vehicle insurance policy.
    Specifically, he relied on the optional statutory Family Protection Coverage Endorsement,
    OPCF 44R, pursuant to a policy issued to Mr. Hartley by Security National.

[4]

Security National refused to pay. It said that Minnesota was not an
    inadequately insured motorist within the meaning of OPCF 44R, and that, even
    if there were coverage, the policy would not include legal expenses incurred in
    the Minnesota action.

[5]

Mr. Hartley sued. The parties agreed to have two key issues  (1)
    whether Minnesota was an inadequately insured motorist within the meaning of
    OPCF 44R, and (2) whether Mr. Hartley could recover his legal expenses 
    resolved before a motion judge under r. 21.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. Mr. Hartley won on both points. The
    motion judge held that Minnesota was underinsured or, in the words of OPCF
    44R, an inadequately insured motorist. He also held that Mr. Hartley could claim
    the legal costs he paid (U.S. fees) as special damages against Security
    National. Security National has now appealed those rulings to this court.

[6]

The first issue on appeal is therefore whether the motion judge erred in
    concluding that Minnesota was an inadequately insured motorist within the
    meaning of OPCF 44R.

[7]

The second issue on appeal is whether the motion judge erred in allowing
    Mr. Hartley to claim his U.S. fees as special damages in his Ontario action
    against Security National.

[8]

I have applied a standard of correctness in considering these grounds of
    appeal, since both turn on the interpretation of a standard form insurance
    contract that is of precedential value where there is no meaningful factual
    matrix specific to the parties:
Ledcor Construction Ltd. v. Northbridge
    Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24.

[9]

Applying this standard of review, I would deny the first ground of
    appeal. Even though the motion judge did not engage in a close exercise in contract
    interpretation, I have concluded he was correct in holding that Minnesota was an
    inadequately insured motorist within the meaning of OPCF 44R.

[10]

I would, however, allow the second ground of appeal: in my view the U.S.
    fees cannot be claimed against Security National as special damages.

B.

Did the motion judge err in Concluding that Minnesota Was an
    inadequately insured motorist?

[11]

In simple terms, OPCF 44R provides insurance against underinsurance. It
    is meant to put an eligible claimant in the same position they would have been
    in had a liable underinsured motorist carried automobile insurance in the same
    amount as the OPCF 44R policy. In Mr. Hartleys case, the OPCF 44R endorsement
    insured him to a maximum recovery of CDN$1,000,000.

[12]

Section 3 of OPCF 44 R describes what is covered:

3.       In consideration of a premium of $_____ or as stated
    on the Certificate of Automobile Insurance to which the change form is
    attached, the insurer shall indemnify an eligible claimant for the amount that
    he or she is legally entitled to recover from an inadequately insured motorist
    as compensatory damages in respect of bodily injury to or death of an insured
    person arising directly or indirectly from the use or operation of an automobile.

[13]

In order to prevent double recovery, other provisions of OPCF 44R reduce
    what the insurer must pay by any amounts that are available to the claimant
    from or through the inadequately insured motorist.

[14]

In this case, Mr. Hartleys attempt to obtain compensation from
    Minnesota for the entire damages he sustained was frustrated by the
Tort
    Claims Act
, Minn. Stat.
§
3.736. Subdivision
    9 of this statute does provide that Minnesota will pay compensation for
    property loss and personal injury caused by a state employee acting in the
    course of his or her employment. But other subdivisions cap the amount of
    damages that can be collected.

[15]

Specifically, there is a $500,000 cap under subdivision 4(c) on the
    amount that can be claimed by an individual and a $1,500,000 cap under subdivision
    4(g) on the total that is payable for any number of claims arising out of a
    single occurrence.

[16]

The Minnesota
Torts Claims Act
goes on to provide in
    subdivision 8 that state agencies may procure insurance against liability  for
    damages resulting from torts and that procurement of insurance will be a
    waiver of the limits of governmental liability  only to the extent that valid
    and collectible insurance  exceeds those limits. Minnesota did not carry
    additional liability insurance that would apply to Mr. Hartleys claim.

[17]

Faced with these provisions, which are not uncommon in the United
    States, Mr. Hartley entered into a settlement agreement with Minnesota. The
    agreement provides:

The parties to this Settlement Agreement agree and acknowledge
    that the amount paid to Plaintiff Glen Hartley and his counsel, (i.e., [US]$500,000.00)
    is the maximum amount Glen Hartley can recover against State Defendants
    pursuant to Minnesota law, including Minn. Stat. §3.736.

[18]

Mr. Hartley therefore contends that the motion judge did not err in
    holding that Minnesota was underinsured within the meaning of OPCF 44R since Mr.
    Hartley was legally entitled to receive an amount under his policy above the
    amount available to him from Minnesota.

[19]

Security National has raised three bases for refusing Mr. Hartleys
    claim for the shortfall left after his settlement agreement.

[20]

First, it argues that Minnesota is not underinsured, but self-insured,
    and therefore underinsured coverage does not apply.

[21]

Second, it urges that the shortfall in recovery is not the result of
    underinsurance, but rather the result of a statutory immunity.

[22]

Finally, Security National contends that even if a self-insured state
    enjoying statutory immunity can be an inadequately insured motorist, it is
    not accurate to say that Minnesota is underinsured. Security National urges
    that Minnesota offers single occurrence coverage up to US$1,500,000 that exceeds
    the CAD$1,000,000 coverage ceiling payable under OPCF 44R. Security National thus
    maintains that its maximum liability is zero under the terms of OPCF 44R.

[23]

I would reject all of these objections and hold that the motion judge
    was correct in concluding that Minnesota is an inadequately insured motorist.

(a)

Does Minnesotas self-insurance defeat the claim?

[24]

Security Nationals argument that there is no coverage because Minnesota
    is self-insured rests on the contention that self-insurance is conceptually
    very different from being underinsured. This is because self-insurance lacks
    the risk transfer by which traditional insurance is defined.

[25]

This argument is intuitively unappealing. OPCF 44R clearly contemplates
    coverage if a claimant is injured by someone who has no motor vehicle insurance
    at all:
Gostick (Litigation Guardian of) v. Squance Estate
, 2007 ONCA
    674, 229 O.A.C. 373, at paras. 2, 14-16. One would think that a person carrying
    no insurance is self-insured since they have not transferred their risk.

[26]

Approaching the matter more technically, the problem with Security
    Nationals argument is that it is misdirected. The material question is not
    whether self-insurance comfortably fits the usual concept of being insured.
    It is whether, as a matter of contractual interpretation, Minnesota is caught
    by the definition of inadequately insured motorist in s. 1.1.5(a) of OPCF 44R:

inadequately insured motorist means

(a) the identified owner or identified driver of an
    automobile for which the total motor vehicle liability insurance or bonds, cash
    deposits or other
financial guarantees as required by law
    in lieu of insurance
, obtained by the owner or driver is less than the
    limit of family protection coverage  [Emphasis added.]

[27]

OPCF 44R is an endorsement to a standard form insurance contract. The
    principles of interpretation that apply to such contracts are settled, and were
    recently reiterated in
Sabean v. Portage La Prairie Mutual Insurance Co.
,
    2017 SCC 7, 406 D.L.R. (4th) 632.

[28]

At the first step, language that is not ambiguous should be given its
    ordinary meaning, as [it] would be understood by the average person applying
    for insurance, not as [it] might be perceived by persons versed in the niceties
    of insurance law:
Sabean
, at para. 13. If the language is ambiguous,
    general rules of construction can be employed to resolve the ambiguity. If
    these general rules fail, courts will construe the contract
contra
    proferentem
, and interpret coverage provisions broadly and exclusion
    clauses narrowly:
Sabean
, at para. 12.

[29]

As I read his reasons, the motion judge rejected Security Nationals
    self-insurance argument by approaching the matter as if the definition in s. 1.1.5(a)
    were ambiguous. In addressing the argument, he immediately went to the purpose
    of the coverage identified in
Chomos v. Economical Mutual Insurance Co.
(2002),
    61 O.R. (3d) 28 (C.A.), at para. 20, namely to provide financial relief for
    insureds and their families from the hardships and inequities of any shortfalls
    in insurance compensation. He reasoned that, if accepted, Security Nationals
    argument would defeat that purpose.

[30]

In fact, it was unnecessary for the motion judge to take this route, as
    the material language is clear. An average person applying for insurance would
    understand that the ordinary meaning of the phrase financial guarantees as
    required by law in lieu of insurance would include a legislated obligation by
    an uninsured state to indemnify its employees by paying compensation for
    tortious damage caused by those employees. And this is what the Minnesota
Tort
    Claims Act
expressly does. It is a legislated scheme  thereby required
    by law  subdivision 9 of which guarantees that Minnesota will indemnify its
    employees for damages in connection with civil claims, which would include
    those arising from automobile accidents.

[31]

Given the definition of inadequately insured motorist, the fact that
    Minnesota chooses to self-insure is not inconsistent with it being an
    inadequately insured motorist.

(b)

Does Minnesotas statutory immunity defeat the claim?

[32]

In oral argument, Security National contended that Minnesota is not
    inadequately insured within the meaning of the policy endorsement because any
    shortfall in damage payments is the result of a statutory immunity rather than
    underinsurance. In my view, this is not an answer to the claim either. The
Tort
    Claims Act
does not remove Minnesotas liability but rather limits the
    damages that can be collected from Minnesota. Instead of assisting Security
    National, the cap on damages produces a shortfall between what Mr. Hartley is
    legally entitled to recover in damages, and what he is entitled to  receive,
    thereby triggering a right of indemnity under OPCF 44R.

[33]

The argument that Security National is now attempting was
    rejected by this court in
Craig v. Allstate Insurance Co. of Canada
(2002), 59 O.R. (3d) 590 (C.A.), leave to appeal refused, [2002] S.C.C.A. No.
    309. There, it was settled that a tortfeasor may be an inadequately insured
    motorist where there is a shortfall in damages, even where that shortfall is
    the result of a statutory cap under state tort claims immunity legislation.

[34]

Craig
involved a Florida statute that, like Minnesotas
Tort
    Claims Act
, imposed limits on the maximum sum recoverable from
    State-employed tortfeasors. The maximum amount recoverable, US$100,000, was not
    nearly enough to cover the damages sustained by a young boy who was struck by a
    State bus operated by a State employee while the boy was riding his tricycle. To
    recover the shortfall, the Craigs sued pursuant to the underinsured motorist
    coverage endorsement under their Ontario motor vehicle policy. As in this case,
    the endorsement provided for indemnification, up to the policy limit, for the
    shortfall in the amount that the insured was legally entitled to recover from
    an inadequately insured motorist.

[35]

The Craigs insurance company resisted indemnifying them by invoking the
    partial statutory immunity that the State of Florida had legislatively created.
    Justice Cronk, for this court, rejected the insurance companys argument,
    holding that the amount the insured was legally entitled to recover was
    unaffected by the statutory limit on recovery for two reasons.

[36]

First, she held that the term legally entitled to recover describes
    the amount of damages that an at-fault underinsured motorist is proved to have
    caused, rather than the amount a tortfeasor can legally be required to pay.
    Accordingly, the legal entitlement to recover that triggers the obligation to
    indemnify is not compromised by limits on the ability to recover, whether those
    limits arise from statutory bars to action or statutory or contractual immunity
    provisions:
Craig
, at para. 20, relying upon
Walker v. Allstate
    Insurance Co. of Canada
(1986), 56 O.R. (2d) 11 (H.C.J.), affirmed (1989),
    67 O.R. (2d) 733 (C.A.) (liability of tortfeasers insurance company excluded
    because of policy breach  recovery by claimant of damages under his own
    policys uninsured motorist coverage);
Johnson v. Wunderlich
(1986),
    57 O.R. (2d) 600 (C.A.) and
Chambo v. Musseau
(1993), 15 O.R. (3d) 305
    (limitation period defences available to tortfeasor  recovery by claimant of
    damages under his own policys underinsured motorist coverage);
Beausoleil
    v. Canadian General Insurance Co.
(1992), 8 O.R. (3d) 754 (C.A.), leave to
    appeal refused, [1992] S.C.C.A. No. 367 (statutory limit on state liability in
    Massachusetts  recovery by claimant of damages under his own policys underinsured
    motorist coverage);
Somersall v. Friedman
(2000), 183 D.L.R. (4th) 396
    (C.A.), affirmed, 2002 SCC 59, [2002] 3 S.C.R. 109 (settlement agreement
    compromising claim against tortfeasor voluntarily entered into  recovery by
    claimant of shortfall under his own policys underinsured motorist coverage).

[37]

Second, Cronk J.A. held that, properly characterized, the Florida
    statute did not make Florida immune from liability, nor did it bar a right of
    action, or prevent Florida from being sued and from having damages claimed and
    proved against it. What the statute did was limit the amount of compensable
    damages that Florida would be required to pay.

[38]

Not surprisingly, given its terms, this is how the Minnesota scheme has
    been interpreted in Minnesota. For example, in
Ronning v. Citizen Sec. Mut.
    Ins. Co.
, 557 N.W (2d) 363 (Minn CA 1996), the Court of Appeal for
    Minnesota rejected the argument that a claimant was only legally entitled to
    recover an amount up to the statutory ceiling. The court held, at p. 366, that
    the statute:

[A]ffords limited immunity, as it does not prohibit a party
    from bringing an action and obtaining judgment against a tortfeasor as does
    absolute immunity. Thus, the immunity defence under [the statute is] not
    absolute within the meaning of the term legally entitled to recover.

[39]

The kind of limited immunity created by Minnesotas
Torts Claim
Act
    does not, therefore, prevent the legal entitlement to recover under OPCF 44R. In
    fact, the damage limitation imposed by Minnesotas
Torts Claim Act
impedes
    the ability to recover fully against the tortfeasor, thereby triggering the
    call on the inadequately insured motorist coverage.

[40]

The fact that Minnesotas
Tort Claims Act
provides a partial statutory
    immunity, capping the amount of damages recoverable from the state, is
    therefore no answer to Mr. Hartleys claim.

(c)

Is Minnesota underinsured relative to OPCF 44Rs coverage?

[41]

Facially, Mr. Hartleys maximum coverage under his policy with Security
    National, pursuant to the OPCF 44R endorsement, is CAD$1,000,000. OPCF 44R also
    includes a formula, however, setting out the maximum coverage payable in a
    particular case under the endorsement. Security National argues that, when this
    formula is applied, the maximum payable under OPCF 44R is nothing.

[42]

The provision in question is s. 4 of OPCF 44R. In making its argument,
    Security National relies, in particular, on the words that I have underlined:

4.
The insurers maximum liability
    under this change form
, regardless of the number of eligible claimants
    or insured persons injured or killed or the number of automobiles insured under
    the Policy,
is the amount by which the limit of family
    protection coverage exceeds the total of all limits of motor vehicle liability
    insurance, or bonds, or cash deposits, or other financial guarantee as required
    by law in lieu of insurance, of the inadequately insured motorist
and of
    any other person jointly liable with that motorist.

[43]

Security National takes the position that the total of all limits
    payable by Minnesota is the US$1,500,000 single occurrence cap provided for in subdivision
    4(g) of the
Tort Claims Act
. Security National argues that since its
    maximum liability under OPCF 44R of CAD$1,000,000 does not exceed the single
    occurrence cap, its liability to Mr. Hartley is zero.

[44]

This argument is a contrivance. In identifying the limits on what
    Minnesota will cover, Security National is attempting to avoid using the US$500,000
    maximum available to Mr. Hartley under subdivision 4(c) of the Minnesota
Tort
    Claims Act
. Instead, Security National seeks to employ the maximum payable
    to multiple claimants that Mr. Hartley has no right, as an individual, to enjoy.

[45]

A similar argument was attempted in
Craig
and was flatly
    rejected. In that case, the school board that employed the tortfeasor had an
    excess insurance policy with a US$700,000 limit. The policy was not available
    to the benefit of the injured plaintiffs, the Craigs. The Craigs insurance
    company nonetheless argued that the excess insurance policy would produce a
    coverage ratio that would reduce the companys maximum liability to zero under
    an endorsement provision identical to s. 4 of OPCF 44R. With good reason, the
    motion judge took issue with the insurance companys attempt to avoid liability
    by relying on coverage not available to the Craigs. He commented that [t]he
    logic of this defeats the purpose of the  coverage, that is, to protect
    insureds from
tortfeasors
who have insurance which is inadequate to
    cover the plaintiffs damages (emphasis in original):
Craig v. Allstate
    Insurance Co. of Canada
(2001), 26 C.C.L.I. (3d) 136 (Ont. S.C.J.), at
    para. 40.

[46]

Justice Cronk agreed with the motion judges conclusion. On her reading
    of the endorsement at issue in
Craig
, the ordinary language of the provision
    was enough to defeat the insurance companys attempt to avoid liability.

[47]

The same holds true here. When the words the total of all limits of
    motor vehicle liability insurance, or bonds, or cash deposits, or other
    financial guarantee as required by law in lieu of insurance, of the
    inadequately insured motorist in s. 4 are given their ordinary meaning in
    context, it is clear that they refer to the funds available to the claimant
    bringing the claim.

[48]

Refuge from liability for the shortfall in coverage under Minnesotas
Tort
    Claims Act
cannot therefore be found in the insurers maximum liability.

(d)

Conclusion

[49]

Minnesota is an inadequately insured motorist. This is so despite the
    fact that it was self-insured, and despite the existence of partial statutory
    immunity limiting the amount of damages it must pay. The financial guarantee
    as required by law in lieu of insurance available from Minnesota is inadequate
    to cover the damages that Mr. Hartley is legally entitled to recover. The
    motion judge was therefore correct in finding Minnesota to be an inadequately
    insured motorist.

C.

Did the motion judge err in permitting Mr. Hartley to CLAIM HIS U.S.
    FEEs?

[50]

Mr. Hartley incurred U.S. fees in recovering his damage settlement from
    Minnesota, which reduced the net amount he received to approximately CAD$387,000.
    Mr. Hartley sought recovery of the U.S. fees before the motion judge, invoking
    two alternative routes.

[51]

The first route would permit Security National, when
    calculating the shortfall payable to Mr. Hartley under OPCF 44R, to deduct only
    the net amount that Mr. Hartley ultimately received from the settlement after
    deducting the amount he paid to his Minnesota lawyer. In support of this
    approach Mr. Hartley relied on
Anand v. Belanger
, 2010 ONSC 5356, 90 C.C.L.I.
    (4th) 138, a broadly analogous disability insurance case where this was done.

[52]

The second route would initially permit Security National to
    deduct the entire gross amount available through the inadequately insured
    motorist coverage in quantifying the shortfall, but then to permit Mr. Hartley
    to claim the U.S fees as special damages in the action against Security
    National. This approach was implicitly suggested in
Green v. State Farm
    Mutual Automobile Insurance Company
(2009), 75 C.C.L.I. (4th) 141

(S.C.J.),
    a case dealing with OPCF 44R.

[53]

Mr. Hartley commended both approaches as different avenues
    to the same end. Each approach prevents double recovery, and yet ensures that
    the insurer does not share the benefit of the claimants efforts in securing available
    recovery from the tortfeasor without also sharing the costs.

[54]

The motion judge accepted the
Green
approach. He
    held that Mr. Hartley was not entitled to claim the U.S. fees from the amount
    payable as compensation for a shortfall in compensatory damages under the OPCF
    44R. He was, however, entitled to claim them as special damages.

[55]

I agree with the motion judge that the U.S. fees are not recoverable as
    an insurance benefit under OPCF 44R. On the clear terms of s. 3 of the endorsement,
    what is being provided by the insurer is indemnification for the shortfall in 
compensatory damages
in respect of bodily injury to or
    death of an insured person arising directly or indirectly from the use or
    operation of an automobile (emphasis added). While the U.S. fees were clearly
    incurred in securing compensatory damages, they are not themselves
    compensatory damages.

[56]

Moreover, the words of OPCF 44R setting out the quantification of the
    amount payable by Security National are clear in preventing recovery of the U.S.
    fees as a policy benefit. Section 13 provides:

13.     In determining any amounts an eligible claimant is
    entitled to recover from an inadequately insured motorist, no amount shall be
    included with respect to costs.

[57]

Together, sections 6 and 7 of OPCF 44R underscore that insurance
    coverage does not extend to the payment of fees expended in securing
    compensatory damages:

6.       The amount payable to an eligible claimant under the
    change form shall be calculated by determining the amount of damages the
    eligible claimant is legal entitled to recover from the inadequately insured
    motorist, and deducting from that amount the aggregate of the amounts referred
    to in Section 7 of this change form, but in no event shall the insurer be
    obliged to pay an amount in excess of the limit of the coverage as determined
    under Sections 4 and 5 of this change form.

7.       The amount payable under this change form to an
    eligible claimant is excess to an amount received by the eligible claimant from
    any source, other than money payable on death under a policy of insurance, and
    is excess of the amounts that were available to an eligible claimant from

(a) the insurers of the inadequately insured motorist, and
    from bonds, cash, deposits or other financial guarantees given on behalf of the
    inadequately insured motorist;

[58]

As can be seen, s. 6 allows the amounts referred to in s. 7 to be
    deducted from the amount payable to the claimant. I agree with para. 21 of
Green
:
    the language of s. 7 is unambiguous in directing that the insurer is entitled to
    deduct all funds obtained  as compensation. No allowance is made for any costs
    incurred in pursing recovery.

[59]

Indeed, s. 7 requires the deduction not only of amounts received by
    claimants, but also the amounts that were available to the eligible claimant.
    In other words, what must be deducted is the higher of two amounts: the amount
    received, and the amount available. Even if it is accepted that Mr. Hartley
    only received US$500,000 minus the U.S. fees, he was entitled under Minnesota
    law to receive US$500,000 from Minnesota.

[60]

Simply put, the U.S fees are not covered benefits. The motion judge was
    therefore correct in finding that those fees cannot be claimed against Security
    National as compensatory damages.

[61]

I do not agree, however, with the motion judges conclusion that the U.S.
    fees can be recovered against Security National as special damages. As
    indicated, OPCF 44R does not offer coverage to Mr. Hartley for U.S. fees, and
    its terms make clear that compensation will solely be for a shortfall in compensatory
    damages caused by an inadequately insured motorist. To use the vehicle of
    special damages to provide compensation for costs incurred in securing
    compensatory damages undermines the contractual agreement of the parties.

[62]

In coming to his decision, the motion judge was attracted by the analogy
    of costs being awarded in actions over and above policy limits in standard
    Ontario automobile insurance policy litigation. That analogy, however, is
    inapt. There is a material difference between awarding legal costs to a party payable
    by another party in that same action, and awarding costs incurred in a separate
    action as special damages payable by a party who was not even involved in the
    action where those costs were incurred.

[63]

Since the U.S. fees are not an insurable benefit under OPCF 44R,
    Security National should not have to pay them. In my view, the motion judge
    therefore erred in holding that Mr. Hartley could claim the U.S. fees against
    Security National.

D.

Conclusion

[64]

For these reasons, I would allow the appeal, in part.

[65]

I would dismiss Security Nationals appeal from the motion judges order
    that Minnesota is underinsured (i.e., an inadequately insured motorist) but
    would allow its appeal from the motion judges order that Mr. Hartley may claim
    his U.S. fees as special damages in his action against Security National.

[66]

Counsel have agreed that $5,000 in costs, all inclusive, should be
    payable to the successful party. Since the appeal has been allowed only in part,
    it will be necessary to hear further costs submissions.  Written submissions of
    a maximum of three pages are invited. The deadline for the appellants
    submissions is September 22, 2017. The deadline for the respondents submissions
    is September 27, 2017.

Released: GE Sep 14 2017

D. Paciocco J.A.

I agree. Gloria
    Epstein J.A.

I agree. C.W. Hourigan
    J.A.





[1]

Ms. Hartley was a plaintiff in the action against Security
    National Insurance Company that generated this appeal. She is referred to as a
    respondent in documents filed in this appeal, but she has nothing to respond
    to. Material decisions made in the action have gone against her, effectively
    terminating her cause of action. She has not appealed those decisions and they
    are not before us.


