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STATE OF MINNESOTA IN SUPREME COURT A07-929

Court of Appeals

Dietzen, J. Took no part, Magnuson, C.J.

Sergey Oganov, Appellant, vs. American Family Insurance Group, Respondent. ________________________ Bryce J. Johnson, Griffel & Dorshow, Chartered, Minnetonka, Minnesota, for appellant. James M. Hamilton, David Oskie, Oskie, Hamilton & Sofio, P.A., Saint Paul, Minnesota, for respondent. ________________________ SYLLABUS When a tortfeasor's insurer is judicially declared insolvent within six years of the date of the accident, a claim for uninsured motorist benefits accrues and the limitations period begins to run on the date the tortfeasor's insurer is declared insolvent. Reversed and remanded. Filed: June 25, 2009 Office of Appellate Courts

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OPINION DIETZEN, Justice. In October 2006, appellant Sergey Oganov filed a lawsuit against respondent American Family Insurance Group (American Family) alleging that he was entitled to uninsured motorist (UM) benefits that arose from a January 1999 automobile accident. American Family moved for summary judgment, arguing among other things that Oganov's claim was time-barred by the six-year statute of limitations. Oganov

responded that his UM claim did not accrue until the tortfeasor's insurer became insolvent, either when the insurer was placed in "rehab" in April 2002, or when it was declared insolvent and liquidated in July 2003, and that his lawsuit was commenced within six years of that date. The district court dismissed Oganov's UM claim as timebarred because the action was not commenced within six years of the date of the accident. The court of appeals affirmed, and subsequently we granted review. We reverse. On January 18, 1999, Oganov was seriously injured when his vehicle collided with a snowplow-truck owned by his employer, Bob Ryan Oldsmobile (Ryan Oldsmobile), and operated by a co-worker. At the time of the accident, Oganov was insured by American Family. Ryan Oldsmobile was insured by Legion Insurance Company

(Legion). Oganov submitted a claim to Legion in 1999. In October 2001, Oganov's attorney sent a letter to Legion updating it on Oganov's liability claim. Legion denied the claim on the ground that Oganov's injuries predated the accident. Oganov later retained a new attorney to represent him and pursue his claim. In May 2003, Oganov's new attorney sent a letter to Legion informing it of his 2

representation of Oganov. Legion responded by letter and reiterated its denial of the claim. Legion also notified Oganov that it had been placed into "Rehab" by a

Pennsylvania court, effective April 1, 2002, and that all negotiations and litigation were stayed until June 30, 2003. Subsequently, on July 25, 2003, the Pennsylvania court declared Legion insolvent and ordered the company liquidated effective July 28, 2003. Oganov claims that he was notified of Legion's liquidation by a letter from a thirdparty claims administrator dated December 9, 2004. On June 23, 2005, Oganov filed his UM claim with American Family. After reviewing the claim, American Family tendered a settlement offer of $2,400. Oganov rejected the offer and commenced an action against American Family on October 17, 2006. American Family moved for summary judgment on the grounds that: (1) the statute of limitations barred the claim, and (2) the snowplowtruck was not an "uninsured motor vehicle" under the American Family policy, because the policy excluded from its coverage an "uninsured" claim caused by an insolvency of tortfeasor's insurance that occurred more than one year after the accident. The district court granted summary judgment in favor of American Family based on the statute of limitations and did not reach the issue of whether Oganov's UM claim was excluded under the policy. The court of appeals affirmed in an unpublished decision. Oganov v. Am. Family Ins. Group, No. A07-0929, 2008 WL 2020487 (Minn. App. May 13, 2008). Applying our decision in Weeks v. American Family Mutual Insurance Co., 580 N.W.2d 24 (Minn. 1998), the court of appeals determined that the six-year statute of limitations for Oganov's UM claim began to run on the date of the accident. Id. at *2-3. Therefore, the court of appeals concluded that Oganov's claim was untimely. The court 3

of appeals did not reach the question of whether Oganov's claim was excluded under the policy.1 I. Oganov argues that the district court and the court of appeals erred by dismissing his UM claims as barred by the six-year statute of limitations. He argues that the statute of limitations began to run on the date of the liability insurer's insolvency, and not on the date of the accident. When reviewing a decision to grant summary judgment, we examine whether there are genuine issues of material fact and whether a party is entitled to judgment as a matter of law. Metro. Airports Comm'n v. Noble, 763 N.W.2d 639, 643 (Minn. 2009). In this case, the material facts are undisputed. Id. The date a claim accrues and the statute of limitations begins to run is a question of law that we review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998). Generally, a claim accrues and the statute of limitations begins to run on the date the injured party suffers some damage that is sufficient to survive or successfully defend against a motion to dismiss. Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999). In this case, it is undisputed that a UM claim is subject to a six-year
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American Family argued to the district court that the definition of an uninsured motor vehicle in the policy bars Oganov's claim. This argument was not addressed by either the district court in its order granting summary judgment or subsequently by the court of appeals. Furthermore, Oganov did not address this issue in his petition for review or brief to this court. Consequently, we decline to reach this issue for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that this court will generally not consider matters not argued and considered by the court below). On remand, this issue is properly before the district court. 4

statute of limitations. See Minn. Stat.

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