Opposition Brief — Tonka Corp. v. Bituminous Casualty Corp.

Bipcers Cour, UL |

~) FILED

/ | APR 2.1 1994

No. 93-1491 | Teer OF CER

In the

Supreme Court of the United States

October Term, 1993

TONKA CORPORATION,

a Minnesota corporation,

Petitioner,

V.

BITUMINOUS CASUALTY CORPORATION,

THE TRAVELERS INSURANCE COMPANY,

NORTH RIVER INSURANCE COMPANY,

GREAT AMERICAN INSURANCE COMPANY,

INDUSTRIAL INDEMNITY COMPANY,

ZURICH INSURANCE COMPANY,

UNITED STATES FIRE INSURANCE COMPANY,

MISSION NATIONAL INSURANCE COMPANY,

TWIN CITY FIRE INSURANCE COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RESPONDENTS’ JOINT BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Sean E. Hade

Counsel of Record

JARDINE, LOGAN & O’BRIEN

2100 Piper Jaffray Plaza

444 Cedar Street

Saint Paul, Minnesota 55101-2160

(612) 290-6500

Counsel for Respondent

Twin City Fire Insurance Company

1994 — Bachman Legal Printing @ (612) 339-9518 @ FAX (612) 337-8053

Thomas E. Peterson, Esq.

PETERSON & HEKTNER LTD.

Suite 1475

8400 Normandale Lakes

Boulevard

Minneapolis, Minnesota 55437

Attorney for Respondent

Bituminous Casualty Company

Paul G. Neimann, Esq.

MOSS & BARNETT

4800 Norwest Center

90 South Seventh Street

Minneapolis, Minnesota

55402-4119

Attorney for Respondent

The Travelers Insurance

Company

Leon R. Erstad, Esq.

ERSTAD & RIEMER, P.A

950 Northland Plaza

3800 West 80th Street

Minneapolis, Minnesota 55431

Attorney for Respondents

North River Insurance Company,

Industrial Indemnity Company,

United States Fire Insurance

Company

*

Z

Donald A. Lane, Esq.

KEATING, MUETHING

& KLEKAMP

1800 Provident Tower

One East Fourth Street

Cincinnati, Ohio 56202

Attorney for Respondent

Great American Insurance

Company

Robert J. Bates, Esq.

BATES & MECKLER, LTD

8300 Sears Tower

2300 South Wacker Drive

Chicago, Illinois 60606

Attorney for Respondent

Zurich Insurance Company

Barbara M. Burke

COUSINEAU McGUIRE

& ANDERSON

600 Travelers Express Tower

1550 Utica Avenue South

Minneapolis, Minnesota

55416-1523

Attorney for Respondent

Mission National Insurance

Company

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RULE 29.1 STATEMENT

Respondent Twin City Fire Insurance Company's parent company

is Hartford Fire Insurance Company, which is owned by ITT

Hartford Insurance Group.

Respondent Bituminous Casualty Corporation is a subsidiary of

Bitco, which is owned by Old Republic International Group.

Respondent The Travelers Insurance Company is owned by The

Travelers Inc. (formerly Primerica Corp., successor to The

Travelers Corporation) Associated Madison Companies, Inc. and

The Travelers Insurance Group Inc. its’ subsidiaries are

Commercial Credit Company, Smith Barney Shearson Holdings

Inc., and Travelers Mortgage Secuntties Corporation.

Respondent Great American Insurance Company is one of the

Great American Insurance Companies, a subsidiary of American

Financial Corporation.

Respondent Zurich Insurance Company is a member of the

Zurich-American Insurance Group its’ parent company is Zurich

Insurance Company of Switzerland.

Respondent Mission Insurance Companies Trust, Trustee

California Insurance Commissioner was formerly known as

Mission National Insurance Company was a subsidiary of Mission

Insurance Group.

Respondents U.S. Fire Insurance Company, Industral Indemnity

Insurance and North River Insurance Company parent companies

and subsidiaries are: Xerox Corp., Xerox Financial Services, Inc.,

Crum & Forester, Inc., International Ins. Co., Seaboard

Underwniters, Inc., Seaboard Underwriters Agency, Inc., Premier

Ins. Co., International Marine Underwmniters of New England,

i

Inc., Crum & Forester Underwriters of Ohio, Crum & Forester

Insurance Company (Bermuda) Ltd., Westchester Fire Ins. Co.,

Mt. Airy Ins. Co., Star Ins. Co., Industrial Indemnity Co., Viking

Ins. Co. of Wisconsin, Viking General Agency, Inc., Viking

Mutual Ins. Co., Richard Whiley, Inc., International Surplus Lines

Ins. Co., Crum & Forester Managers Corp. (Fla.), Savings Ins.

Exchange Group Agency, Inc., Crum & Forester Benefit

Managers Corp., Home Underwriters, Inc., The Savings Ins. and

Retirement Plan Group, Inc., Financial Ins. Management Agency,

Inc., Industral Underwniters Ins. Co., All West Ins. Co.,

Industrial Ins. Co. of Hawaii, Ltd., Industrial Indemnity Co. of

Alaska, Industrial Indemnity Co. of the Northwest, California Ins.

Co., Industrial Indemnity of Idaho, CALPAC Holding Co., Inc.,

CALPAC Ins. Co. Ltd., Claremont Holdings, Ltd., Claremont

Ins., Ltd., Constitution Reins. Corp., Constitution Reassurance

S.A., Constitution Management Corp., The London Agency, Inc.,

Floyd West & Company, and Commonwealth Lloyd's Ins. Co.

a ee ee ee ee

TABLE OF CONTENTS

Page

el Sh) a a Ten iv

STATEMENT OF THE CASE ..0......:ccccccccccssssssssssscscsssesecseccere 2

— Came eT 2

Il. THE DISTRICT COURT DECISION... 3

Ill. THE COURT OF APPEALS DECISION .................. 4

REASONS FOR DENYING THE WRIT.............000000000000000 5

| THE COURT SHOULD NOT ATTEMPT TO

FURTHER CLARIFY THE SUMMARY

JUDGMENT STANDARD BY GRANTING

CERTIORARI IN THES CARE, o.-csecccccccssecerscsesssevessree: 5

A The Summary Judgment Standard Is Well-

Established and Needs No Further Clarification. ...5

Il CERTIFICATION TO THE STATE SUPREME

COURT WAS UNNECESSARY. .....0.0..0.00- eee 7

A. THE LOWER COURTS APPLIED SETTLED

es ncanicccuihal unpatented tien 7

B. PUBLIC POLICY WAS NOT A PROPER ISSUE

at Tet. + 14) | | Sener 9

CI ine sseseiihclitevicerd enact sand cetusnigininen 10

iil

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............5, 6

Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714

EE ERASE La eee ian eee a

Bell Lumber & Pole Co. v. U.S. FireIns Co.

F.Supp. _ (1994 WL 96753

I SUIT CRINUD ,.ciccccccarsvesosevsecsversestevensoveces Samet

Bureau of Engraving v. Federal Ins. Co., 793 F Supp 209

(D.Minn. 1992)(J. Magnuson). 222.000.0000... y

Bureau of Engraving v. Federal Ins. Co., 5 F.3d 1175

RRR Ss RNASE so NC eae ane

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) oo... 3, 5,6

City of Maple Lake v. American States, 509 N.W.2d 399

RSE ELE EEC Ae ora ee )

Dakhue Landfill v. Employers Ins., 508 N.W.2d 798

Nee ecepdauncacauveteness 9

Ene R.R. v. Tompkins, 304 U.S. 64 (1938) 0.0000, 8

Gregory v. City of Rogers, Ark., 974 F.2d 1006

a esol vupevsnvserneueierees 7

Hartnagel v. Norman, 953 F.2d 394 (8th Cir. 1992) 0000000000... 7

IV

Hicks v. Feiock, 485 U.S. 624 (1988) .....

lowa Kemper Ins Co. v. Stone, 269 N._W.2d 885

(Minn. 1978)..........

Krawczewski v. The Western Casualty & Surety Co., et al,

506 N.W.2d 656 (Minn.Ct.App. 1993),

pet. for rev. denied (1993) 000.00...

Lehman Brothers v. Schein, 416 U.S. 386 (1974).

Matsushita Elec. Indus Co. v. Zenith Radio Corp,

475 U.S. 574 (1986)...

Miller v_ U.S. Dep't of Agric., 13 F.2d 260 (8th Cir. 1993),

Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209

(Minn. 1984)...

Salve Regina College v_ Russell, 449 U.S. 225 (1991)

Street v. J.C. Bradford & Co., 886 F.2d 1472

(6th Cir. 1989)...

Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co.,

480 N.W.2d 368 (Minn. Ct. App. 1992),

pet. for rev. denied (1993) 0000,

Sylvester Bros. Dev. Co. v. Great Cent. Ins. Co.,

503 N.W.2d 793 (Minn.Ct.App. 1993),

pet. for rev. denied (1993) 0.2.0.0...

West v. American Tel. & Tel. Co., 311 U.S. 223 (1940)...

STATUTES

Minn. Stat. §480.061 (1990) 2.0000... cece iiuaeay

Minn. Stat. §480A.08 subd. 3(c) (1990) 00000. 8

Minn. Stat. §480A.10, subd. 1 (1990)..00000o ee 8

RULES

I ei ad cbiates paved: sevsldd bensonba 5

I ar oda cas tpn bcdashecs Roenhcacesadebckanneseawieliolannahteoorbin 3

Be II cr dae ic hshnpai eiicndhicvadaetencek caustinbntenecksoncndiadsconiednees i

OTHER AUTHORITIES

10A Charles A. Wright et al., Federal Practice & Procedure:

oy bare]. | ne 6

19 Charles A. Wright et al., Federal Practice & Procedure

I cicada a 8

William W. Schwarzer et al, The Analysis and Decision of

Summary Judgment Motions, 139 F.R.D. 441, 445 (1991)......... 6

vi

In the

Supreme Court of the United States

October Term, 1993

No. 93-1491

Tonka Corporation,

a Minnesota corporation,

Petitioner,

v.

Bituminous Casualty Corporation,

The Travelers Insurance Company,

North River Insurance Company,

Great American Insurance Company,

Industrial Indemnity Company,

Zurich Insurance Company

Mission National Insurance Company,

Twin City Fire Insurance Company,

Respondents,

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

RESPONDENTS JOINT BRIEF

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

I. INTRODUCTION

This case involves the straightforward interpretation of

standard form insurance policies sold by Respondents ("the

Insurers") to Petitioner, Tonka Corporation ("Tonka"), from the

1950s until 1986. The policies provide coverage for unexpected,

unintentional "accidents" or "occurrences" only. Some of the

policies contain exclusions for “occurrences” involving the

release, escape or dispersal of pollutants when such releases are

"sudden or accidental."

In 1981, Tonka learned that storm sewers at its plant site

("the Site") in Mound, Minnesota contained elevated levels of

trichlorethylene ("TCE"), a solvent that Tonka had used to

degrease toys it manufactured at the Site. In 1984, the State of

Minnesota notified Tonka that a monitoring well on its property

showed the presence of TCE in the groundwater at the Site.

Thereafter, Tonka voluntarily agreed to monitor the

contamination and notified the Insurers of a claim under the

policies.

Bituminous Casualty Corporation filed this declaratory

judgment action for the purpose of obtaining an order *hat no

coverage existed under the policies it issued to Tonka. Tonka

counterclaimed against Bituminous and made third-party claims

against the rest of the Insurers for coverage.

Both the district court and the court of appeals found that

TCE was present in the groundwater because of Tonka's practice

of intentionally dumping degreaser wastes containing TCE on the

ground at the Site. The courts both held, therefore, that Tonka

had failed to produce the requisite evidence to refute the

conclusion that no covered "accident" or "occurrence" had taken

place as required by the policies. The courts also held that the

various pollution exclusions applied to Tonka's claims since the

releases of TCE were not sudden and accidental.

2

A petition for writ of certiorari should not be granted in this

case. The case does not involve novel issues. The courts below

were merely called upon to engage in routine contract

interpretation pursuant to state law. The district court, as

affirmed by the court of appeals, properly applied the summary

judgment standard enunciated by this Court to these contract

issues. In addition, the issues addressed by the lower courts were

not the type which should have been certified to the Minnesota

Supreme Court since they involve well settled principr‘s of

insurance policy interpretation under Minnesota law. In sum,

none or the standards set forth in Supreme Court Rule 10.1 are

present in this case, and Tonka's Petition should be denied.

Il. The District Court Decision

The Insurers moved for summary judgment before the

district court citing Tonka's routine practice of disposing of TCE

waste on the ground at the Site.

The Insurers asserted that Tonka had failed to prove an

"accident" or "occurrence" under the policies. In addition, the

Insurers argued that the "sudden and accidental" pollution

exclusions applied to Tonka's claim because of these facts.

The district court agreed. The district court cited the

summary judgment standards pronounced by this Court in the

seminal case of Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

and correctly interpreted this case as requiring Tonka to "show

through specific evidence that there are material facts in dispute

creating a genuine issue for tral..." The district court then

reviewed the evidence presented by the Insurers in their Motion,

including evidence regarding Tonka's intentional dumping of

TCE at the Site during at least the 1950s,’ evidence concerning

Tonka's undisputed knowledge of the dangers of TCE during this

' The district court also recognized that at least one employee testified

that Tonka dumped waste oil on the property as late as 1983.

3

period and evidence regarding the presence of TCE in the waste

degreaser oil which was dumped on-site. The court also

recognized that Tonka had failed to present sufficient evidence to

refute the Insurers’ evidence that Tonka's dumping of wastes

resulted in groundwater contamination.

After properly interpreting Minnesota law which holds that

the policy terms "accident" and "occurrence" are unambiguous

and must be interpreted by an objective standard, the court

reviewed the above evidence and held that Tonka had failed to

provide evidence of a covered claim as a matter of law. The

court also held that Tonka had failed to produce the necessary

evidence of a "sudden or accidental" release of pollutants and

was, therefore, denied coverage under the pollution exclusions in

the relevant policies.

III. The Court of Appeals Decision

The court of appeals agreed with the district court that

Tonka had failed to produce sufficient evidence to withstand

summary judgment on the "accident" or "occurrence" issues.

The court of appeals recognized the objective standard

associated with these policy terms and held that no coverage

exists in Minnesota where the insured "knew or should have

known" that its actions would result in certain consequences,

citing Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 720 (8th

Cir. 1981).

With this standard in mind, the court of appeals reviewed the

record before the district court and concluded that the undisputed

evidence showed the following:

1. Tonka routinely disposed of hazardous waste on the

ground at the Site during the 1950s and perhaps as late as 1978.

2. Tonka knew or should have known that the hazardous

waste from its’ manufacturing operation contained hazardous

substances.

3. Tonka knew or should have known that its’ hazardous

substances or industrial waste products could harm the

environment.

The court of appeals reviewed the evidence submitted by

Tonka and agreed with the district court that this evidence failed

to create a material dispute. The court correctly concluded that

the evidence submitted did not create a material dispute about the

intentional nature of the hazardous waste discharges.

Finally, the court, citing its recent decision in Bureau of

Engraving v. Federal Ins. Co., 5 F.3d 1175 (8th Cir. 1993),

summarily held that the pollution exclusions in some of the

policies applied to the damage arising from Tonka's "ongoing and

routine" disposal of hazardous waste as a matter of law

REASONS FOR NOT GRANTING THE WRIT

Il. THE COURT SHOULD NOT ATTEMPT TO

FURTHER CLARIFY THE SUMMARY JUDGMENT

STANDARD BY GRANTING CERTIORARI IN THIS

CASE.

A. The Summary Judgment Standard Is _ Well-

Established and Needs No Further Clarification.

In 1986, this Court issued three decisions which established

the standard to be applied to motions for summary judgment

under Rule 56 of the Federal Rules of Civil Procedure. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574

(1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317 (1986). That trilogy of

5

cases "breathed new life into summary judgment practice." Street

v_ JC. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989), see

also William W. Schwarzer et al., The Analysis and Decision of

Specifically, Anderson, Celotex and Matsushita signaled the lower

courts to set aside the disfavor with which they had long viewed

motions for summary judgment and to recognize summary

judgment as a useful tool for "weeding out frivolous lawsuits and

avoiding wasteful tnals." 10A Charles A. Wright et al., Federal

Practice & Procedure. Civil 2d § 2727 (Supp. 1994). To that

end, the Celotex opinion expressly stated that summary judgment

procedure "is properly regarded not as a disfavored procedural

shortcut, but rather as an integral part of the Federal Rules as a

whole, which are designed to secure the just, speedy and

inexpensive determination of every action." 477 U.S. at 327.7

Contrary to Tonka's contentions, there is no indication that

the lower courts misunderstood the summary judgment standard

in this case“. Moreover, Tonka has failed to demonstrate that

* This is not a good case for discussing the denial of the right to a

jury trial. Neither Tonka nor any of the other parties named in the

petition ever demanded a jury trial in this declaratory judgment action.

To the extent that the Court wishes to address that issue, it should do so

in a case where that issue 1s clearly implicated and has been discussed by

the lower courts.

* Tonka unfairly chastises the lower courts for failing to detail the

summary judgment standard that they employed in this case and

improperly accuses the district court of using a “post judgment analysis.”

Cert. Petition at 16-17. The chief judge of the district court clearly,

though briefly. set forth the appropriate standard in her Memorandum

Opinion and Order. Appendix to Cert. Petition at A-24 - A-25. Though

the Eighth Circuit opinion does not specifically lay out the summary

judgment standard, the discussion in the opinion of Tonka's failure to

raise a genuine issue of material fact demonstrates that the Eighth Circuit

applied the proper standard when it affirmed the judgment of the district

court. Id. at A-9. Further, other decisions demonstrate that the Eighth

Circuit understands and applies the appropriate summary judgment

6

other courts are confused about the proper standard to be applied

{oO summary judgment motions. Tonka's fervent desire to avoid

the application of well-settled Minnesota law simply cannot justify

the complete abrogation of Rule 56 which Tonka champions in its

Petition

Il. CERTIFICATION TO THE STATE SUPREME

COURT WAS UNNECESSARY

A. TH WE JOURTS _APPLIE ETTLED

STATE LAW.

In a diversity case, a federal court applies the substantive law

of the forum state. Recognizing that Minnesota's substantive law

was Clear, Chief Judge Murphy applied it without certification as

have other courts in this district * The established substantive law

of Minnesota does not favor petitioner's position. Petitioner's

complaint that certification to the Minnesota Supreme Court was

necessary’ is without merit. It is unnecessary for this Court to

review the lower courts judicial discretion

Use of the certification process is not obligatory Salve

Regina College v_ Russell, 449 US 225 n 4 ( 1991), citing

Lehman Brothers v_ Schein, 416 US 386, 390-39] (1974). Its

use rests in the sound discretion of the federal court Id

standard. See. e.g. Miller vy. US Dep't of Agric. 13 F 2d 260. 262 (8th

Cir. 1993): Gregory v. City of Rogers, Ark., 974 F.2d 1006. 1010 (8th

Cir. 1992). Hartnagel v_ Norman. 953 F.2d 394, 395-96 (8th Cir 1992)

* See ie.. Bell Lumber & Pole Co v_ US. Fire Ins. Co. FSupp __

(1994 WL 96753 (D.Minn. 1994)J. Doty): and Bureau of Engraving v

Federal Ins. Co.. 793 F.Supp 209 (D.Minn. 1992\J. Magnuson)

, Petitioner fails to note that it has never brought a Motion for

Certification. See. Minn. Stat. §480.061 Subd.2. (1990). In essence. Petitioner

now complains that the district court and the appellate court failed to do what

it has never done

Certification to determine the meaning of the phrase "sudden

and accidental" found in the standard pollution exclusion was

unnecessary. State law had been established on point. The Erie

Doctrine® requires federal courts to apply the same state law that

would be applied if the case arose in state court. See, 19 Charles

A. Wright et al., Federal Practice & Procedure §4507 (1982). If

this case had arisen in state court, the state court would have

applied the same established law that was applied against the

petitioner by the federal district court.

The Minnesota Court of Appeals had published’ three

decisions directly on point addressing the pollution exclusions

issues Tonka sought to have certified to the Minnesota Supreme

Court. Each of these appellate decisions was followed by a

petition for review, all of which were subsequently denied review

by the Minnesota Supreme Court.* See Krawezev’:'? v. The

Western Casualty & Surety Co. et al, 506 N“¥..d 656

(Minn.Ct.App. 1993), pet. for rev. denied (1993); Sylves2er Bros.

Dev. Co. v. Great Cent. Ins Co, 503 NW2d 793

° Based on Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

” The court of appeals may publish only those decisions that: (1)

establish a new rule of law, (2) overrule a previous court of appeals’ decision

not reviewed by the supreme court, (3) provide important procedural

guidelines in interpreting statutes or administrative rules, (4) involve

significant legal issues: or (5) would significantly aid in the administration of

justice. Unpublished opinions of the court of appeals are not precedential. See

Minn. Stat. $480A.08 subd.3 (c) 1990.

* The supreme court may grant review of any decision of the court of

appeals upon the petition of any party. In determining whether to grant such a

petition, the supreme court should take into consideration whether the

question presented is an important one upon which the court has not, but

should rule. whether the court of appeals has decided a question in direct

conflict with an applicable precedent of the supreme court, or whether the

lower courts have so far departed from the usual course of justice as to call for

an exercise of the court's supervisory powers. See, Minn. Stat. §480A.10

Subdivision 1.

(Minn.Ct.App. 1993), pet. for rev. denied (1993); and Sylvester

Bros. Dev. Co. v. Great Cent. Ins. Co., 480 NW2d 368

(Minn.Ct.App. 1992), pet. for rev. denied (1992).

It is well established that where an intermediate appellate

state court rests its considered judgment upon the rule of law

which it announces, that is datum for ascertaining state law which

is not to be disregarded by a federal court unless it is convinced

by other persuasive data that the highest court of the state would

decide otherwise. West v. American Tel. & Tel Co., 311 US.

223, 236-237 (1940); See also, Hicks v. Feiock, 485 US. 624,

630 (1988).

The district court correctly characterized Minnesota case law

as "clear". The district court and the appellate court recognized

their duty and applied existing state law. Had this case arisen in

State court, the outcome would not have changed. See ie.

Dakhue Landfill v. Employers Ins., 508 N.W.2d 798 (Minn. Ct.

App. 1993); City of Maple Lake v. American States. 509 N.W 2d

399 (Minn. Ct. App. 1993). Certification of this case was

unnecessary. The district court and the appellate court properly

exercised sound judicial discretion.

B. PUBLIC POLICY WAS NOT A PROPER ISSUE

FOR CONSIDERATION.

This was a simple insurance coverage case involving the

application of facts to the insurance contracts. In Minnesota, the

interpretation and construction of an insurance policy is a matter

of law. Sylvester Bros. Dev. Co. v. Great Cent. Ins Co., 503

N.W.2d 793, 795 (Minn.Ct.App. 1993), pet. for rev. denied

(1993), citing Iowa Kemper Ins. Co. v. Stone, 269 N.W 2d 885,

887 (Minn. 1978).

The petitioner incorrectly asserts that the resolution of these

contract interpretation issues mandates public _ policy

considerations. The Minnesota Supreme Court, in an insurance

coverage case, has stated that public policy considerations more

9

properly bear on the issue of contract validity than contract

interpretation. Perl v. St. Paul Fire & Manne Ins. Co, 345

N._W.2d 209, 215 n.6 (Minn. 1984)

CONCLUSION

The Petition for Writ of Certiorani should be denied

Respectfully submitted,

Sean E. Hade

(Counsel of Record)

JARDINE, LOGAN & O'BRIEN

2100 Piper Jaffray Plaza

444 Cedar Street

St. Paul, Minnesota 55101-2160

(612) 290-6500

ATTORNEY FOR RESPONDENT

TWIN CITY FIRE INSURANCE COMPANY

10