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Malone v. Special School District No. 112/6/2005
on this appeal. Minn. R. Civ. P. 24.04; Minn. R. App. P. 144; Waldner v. Peterson, 447 N.W.2d 217 (Minn. App. 1989) (no consideration of constitutional issue when not passed on by district court and no notice given to attorney general under rule 144); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that issues not argued and considered by district court will not be considered on appeal). Second, even if the constitutional issue in Granville were before this court, the district court decision in Granville is not controlling precedent in this court and appellant cites no authority for this court to stay this proceeding pending a decision in another action. Furthermore, the record reflects that appellant produced no evidence, aside from the age of the statute, to establish that the challenged statute is arbitrary or unreasonable. See Maxwell Commc'ns v. Webb Publ'g Co., 518 N.W.2d 830, 834 n.6 (Minn. 1994) (requiring that equal protection challenge be based on evidence that there was "disparate treatment of similarly-situated entities"); In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (stating that party challenging Minnesota statute as unconstitutional bears burden of establishing beyond reasonable doubt that statute violates some constitutional provision).
II.
Appellant argues that the district court erroneously determined that the school district satisfied the statutory requirements for immunity under Minn. Stat. § 466.12, subd. 3a. "On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court erred in application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).
Minnesota school districts are required to obtain liability insurance but are granted immunity from tort liability if they are unable to do so and they meet the other statutory requirements. Minn. Stat. § 466.12, subds. 1, 2, 3a (2002). School districts must make a good faith attempt to procure insurance at a rate of "$1.50 per pupil per year for the average number of pupils," but if they are unable to do so, they must obtain from the commissioner of insurance a certification that such insurance is unobtainable. See Scott v. Ind. Sch. Dist. No. 709, 256 N.W.2d 485, 491 (1977) (in dictum, recognizing that one "possible situation is that the insurance does not comply with the requirements of § 466.04 and there has been a good faith attempt to procure it and such insurance was unobtainable at the statutory price. In this case, the school district is immune").
To survive a motion for summary judgment, a party cannot rely on mere denials or averments. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995). Rather, when opposing summary judgment, a party has the burden to produce evidence of a disputed material fact. Id. Here, appellant, who opposed summary judgment, produced no evidence regarding insurance cost or availability or the district's lack of good faith. Respondent, in contrast, provided evidence that it attempted to procure such insurance and that, in September 2001, less than two years before this suit was filed, it obtained a commerce-department certification that such insurance could not be obtained.
Nevertheless, appellant argues that a good-faith attempt under the statute requires that the school district attempt to procure insurance on an annual basis. Whether an attempt to procure insurance under the statute must be made annually is a question of statutory construction, which we review de novo. See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). Appellant provided no legal analysis or factual basis fo
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