1

STATE OF MINNESOTA

IN SUPREME COURT

A13-1302

Court of Appeals Anderson, J.

Robert Meeker, et al.,

Respondents,

vs. Filed: April 8 , 2015

Office of Appellate Courts

IDS Property Casualty Insurance Company,

 Appellant.

________________________

E. Curtis Roeder, Roeder Smith Jadin, PLLC, Bloomington, Minnesota, for respondents.

Randall E. Gottschalk, Gottschalk Law, PLLC, Saint Louis Park, Minnesota, for 

appellant.

S Y L L A B U S

An action is commenced under Minn. Stat. § 45.028, subd. 2 (2014), when a 

plaintiff makes substituted service on the Commissioner of Commerce by either sending 

a copy of the process by certified mail to, or leaving a copy of the process at, the 

Commissioner’s office. To preserve the effectiveness of the service, a plaintiff must 

fulfill the other statutory requirements, including filing an affidavit of compliance in the 

district court, before the return day of the process.

Affirmed.
2

O P I N I O N

ANDERSON, Justice.

We have before us a question of statutory interpretation in which the sole issue is 

whether substituted service of process under Minn. Stat. § 45.028, subd. 2 (2014), is 

effective when a plaintiff makes service before the limitations period in an insurance 

policy has expired, but then files the affidavit of compliance after the period has expired. 

Respondents Robert and Jacqueline Meeker brought an action against appellant IDS 

Property Casualty Insurance Company after the insurer denied their claim for property 

damage. It is undisputed that the Meekers served IDS, but the district court dismissed the 

action as untimely because the Meekers filed the affidavit of compliance after the 

policy’s 2-year limitations period had expired. The court of appeals reversed, concluding 

that filing the affidavit of compliance before the expiration of the limitations period was 

not required for effective substitute service. Because the plain language of section 

45.028, subdivision 2, requires only that process be served on the Commissioner of 

Commerce to commence an action, we affirm the court of appeals.

I.

The Meekers held property insurance through IDS, and filed a claim with the

insurance carrier in July 2010, alleging damage to their home as a result of a June 17, 

2010, storm. IDS denied the claim in January 2011 for failure to provide appropriate 

documentation, and denied the claim for a second time in October 2011. The IDS 

insurance policy stated that any lawsuit challenging a denial of a claim “must be brought 

within two years after the date of loss or damage occurs.” Because IDS is a nonresident 
3

insurance company that conducts business in Minnesota, the Meekers were authorized to 

commence an action against IDS under the substituted-service statute, Minn. Stat. 

§ 45.028, subd. 2, which allows the Commissioner of Commerce to accept service of 

process for foreign companies. Minn. Stat. § 60A.19, subds. 3-4 (2014). Section 45.028, 

subdivision 2, provides that service of process may be made by either mailing or leaving 

a copy of the process with the Commissioner, and is not effective unless the plaintiff 

sends notice of the service and a copy of the process to the defendant and files an 

affidavit of compliance with the court on or before “the return day of the process.”

On June 13, 2012, 4 days before the expiration of the limitations period in the 

insurance policy, the Meekers sent copies of the summons and complaint by certified 

mail to both the Commissioner of Commerce and IDS. On June 28, the Meekers’ 

attorney signed an affidavit of compliance attesting to service of the complaint by 

certified mail, and, on June 29, filed the affidavit in the district court.

IDS moved for summary judgment in March 2013, claiming that the suit was 

untimely because the Meekers did not file their affidavit of compliance until after the 2-

year limitations period in the insurance policy had ended. The district court granted 

summary judgment to IDS, concluding that service of process under Minn. Stat. § 45.028, 

subd. 2, is not effective until all of the requirements of the statute are satisfied, including 

filing the affidavit of compliance with the district court. It is undisputed that the affidavit 

was filed outside of the 2-year limitations period.

The court of appeals reversed and remanded, holding that under the plain language 

of the statute the affidavit of compliance may be filed after a limitations period has 
4

expired, so long as it is filed on or before the return day of process. Meeker v. IDS Prop. 

Cas. Ins. Co., 846 N.W.2d 468, 472 (Minn. App. 2014). We granted IDS’s petition for 

review to decide whether the Meekers’ suit was untimely based on their failure to file the 

affidavit of compliance before the expiration of the contractual limitations period.

II.

Whether the Meekers’ service of process under Minn. Stat. § 45.028, subd. 2, was 

effective to commence their suit against IDS is a question of law that we review de novo. 

Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008). And specifically, the 

issue of whether, under the plain language of the statute, a plaintiff must file an affidavit 

of compliance within the contractual limitations period in order to obtain effective service 

of process presents a question of statutory interpretation, which we review de novo. See

City of Moorhead v. Red River Valley Coop. Power Ass’n, 830 N.W.2d 32, 36 (Minn. 

2013). The text of the substituted-service statute provides:

Service of process under this section may be made by leaving a copy of the 

process in the office of the commissioner, or by sending a copy of the 

process to the commissioner by certified mail, and is not effective unless: 

(1) the plaintiff, who may be the commissioner in an action or proceeding 

instituted by the commissioner, sends notice of the service and a copy of 

the process by certified mail to the defendant or respondent at the last 

known address; and (2) the plaintiff’s affidavit of compliance is filed in the 

action or proceeding on or before the return day of the process, if any, or 

within further time as the court allows.

Minn. Stat. § 45.028, subd. 2 (emphasis added). If the Legislature’s intent is clear from 

the statute’s plain and unambiguous language, then we interpret the statute according to 

its plain meaning. State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013). When construing a 

statute, we “give words and phrases their plain and ordinary meaning.” Premier Bank v. 
5

Becker Dev., LLC, 785 N.W.2d 753, 759 (Minn. 2010) (citing Minn. Stat. § 645.08 

(2008)).

There is no dispute that the Meekers performed the three acts necessary to 

effectuate service of process under the substituted-service statute, Minn. Stat. § 45.028, 

subd. 2, and there is also no dispute that they completed the last act after the limitations 

period in the policy had expired. That is, the Meekers sent copies of the process to the 

Commissioner of Commerce and to IDS before the expiration of the limitations period, 

but they did not file the affidavit of compliance until after the limitations period had 

expired. There also is no dispute, however, that the Meekers filed the affidavit before the 

return day of the process under the Minnesota Rules of Civil Procedure.1 IDS argues that 

the Meekers were required to complete all three acts before the limitations period 

expired. The Meekers contend that so long as the three statutory requirements are met, 

the affidavit of compliance need not be filed before the limitation period ends for the 

substituted service to be timely.

A.

Typically, to determine if a civil action has been timely commenced, we look to 

Minnesota Rule of Civil Procedure 3.01, which generally provides that an action is 

commenced against each defendant “when the summons is served upon that defendant.” 

 

1

Section 45.028 does not define the “return day of the process,” but Minn. R. Civ. 

P. 12.01 states that a defendant must serve an answer to a complaint within 20 days after 

service of the summons. The parties agree that the return day of process was 23 days 

after sending the summons and complaint to the Commissioner, because Minn. R. Civ. 

P. 6.05 provides for an additional 3 days when, as here, the Meekers served the summons 

and complaint on the Commissioner by mail.
6

Minn. R. Civ. P. 3.01(a); see also Minn. R. Civ. P. 3.02 (providing that a copy of the 

complaint also must be served with the summons). We have said that “in the absence of 

a clear intention to the contrary . . . the ordinary rules of civil procedure apply [to a 

claim] unless clearly inconsistent with the statute.” In re Civil Commitment of Lonergan, 

811 N.W.2d 635, 641 (Minn. 2012) (quoting Thunderbird Motel Corp. v. Cnty. of 

Hennepin, 289 Minn. 239, 242, 183 N.W.2d 569, 571 (1971)) (alterations in original). 

Because Minn. Stat. § 45.028, subd. 2, does not address when an action is commenced, 

the ordinary rules of civil procedure apply; namely, an action is commenced when the 

summons and complaint are served. The statute is consistent with the Rules of Civil 

Procedure; the statute simply provides an alternative mechanism for how process may be 

served on certain out-of-state defendants.

We look to the language of the statute to determine whether the Meekers timely 

served IDS. The first clause of subdivision 2 states that “[s]ervice of process under this 

section may be made” by delivering or sending by certified mail a copy of the process to 

the Commissioner of Commerce. Minn. Stat. § 45.028, subd. 2 (emphasis added). As 

used in this provision, the common and approved usage of the word “made” is “[t]o cause 

to exist or happen.” The American Heritage Dictionary of the English Language 1059

(5th ed. 2011). Thus, under the plain meaning of the first clause of subdivision 2, service 

of process exists—it has been made—at the point at which a plaintiff delivers or mails a

copy of the process to the Commissioner of Commerce. This means that a plaintiff 

serving process under subdivision 2 commences litigation by providing the 

Commissioner of Commerce with a copy of the summons and complaint.
7

In addition, the very existence of the affidavit-of-compliance requirement assumes 

that an action had already been commenced by the service of process on the 

Commissioner. Specifically, the last clause of subdivision 2 states that a “plaintiff’s 

affidavit of compliance is filed in the action or proceeding on or before the return day of 

the process.” Minn. Stat. § 45.028, subd. 2 (emphasis added). If a lawsuit were not 

commenced through service of process, then there would be no “action or proceeding” in 

which to file the affidavit of compliance. In other words, the references to “is filed” and 

“the action or proceeding” in relation to the affidavit of compliance presuppose that an 

action has been commenced and that there is an existing case.

Therefore, as related to the limitations period governing a cause of action, the 

plain language of section 45.028, subdivision 2, provides that service of process is made, 

and therefore, an action is commenced, when a plaintiff sends a copy of the process to the 

Commissioner of Commerce by certified mail. Fulfillment of the other statutory 

requirements—sending notice to the defendant and filing the affidavit of compliance—is

necessary only to preserve the effectiveness of the service. It is clear that service of 

process under section 45.028, subdivision 2, is no longer effective to commence an action 

if the affidavit of compliance is not filed by the return day of process, or such other 

period as the court allows. But, the requirement for effective service is separate from a

limitations period. In other words, service of a complaint on the Commissioner is 

sufficient to commence an action for purposes of a limitations period, but a lawsuit can 

still be dismissed due to a plaintiff’s failure to file an affidavit of compliance before the 

return day of process.
8

Here, the Meekers commenced the lawsuit when they “made” service under Minn. 

Stat. § 45.028, subd. 2, by sending, via certified mail, a copy of the complaint and 

summons to the Commissioner of Commerce 4 days before the contractual limitations 

period ended. Because the Meekers then sent a copy of the process to IDS and filed their 

affidavit before the return day of that process, they satisfied the statutory conditions for 

effective substitute service under Minn. Stat. § 45.028, subd. 2.

2

B.

Our conclusion, under the plain language of Minn. Stat. § 45.028, subd. 2, that the 

Meekers timely filed their action against IDS is consistent with Carlson v. Hennepin 

County, 479 N.W.2d 50 (Minn. 1992), in which we analyzed a similar, although not 

identical, service-of-process provision. Carlson considered the timeliness of the 

commencement of a civil action under Minn. R. Civ. P. 3.01(c), which provides that a 

civil action is commenced when “the summons is delivered to the sheriff in the county 

 

2

The court of appeals emphasized the Legislature’s use of the word “unless,” rather 

than “until,” in section 45.028, subdivision 2, in concluding that filing the affidavit of 

compliance before the expiration of the limitations period was not required for effective 

substitute service. See Meeker, 846 N.W.2d at 471. The plain language of the statute 

provides that service of process, once made, is “not effective unless” the plaintiff sends 

notice of the service and a copy of the process by certified mail to the defendant and files 

the affidavit of compliance on or before the return day of process. Minn. Stat. § 45.028, 

subd. 2. The district court concluded that the phrase “not effective unless” means that 

service is not effective until all three requirements of the statute are satisfied. The court 

of appeals determined that the word “unless” cannot be equated with the word “until,” the 

latter of which includes a temporal component. See Meeker, 846 N.W.2d at 471.

We need not resolve whether the court of appeals’ distinction between “unless” 

and “until” is dispositive, because the plain language of the statute makes clear that the 

Meekers commenced the litigation before the limitations period expired.
9

where the defendant resides for service; but such delivery shall be ineffectual unless

within 60 days thereafter the summons is actually served on that defendant or the first 

publication thereof is made.” Minn. R. Civ. P. 3.01(c) (emphasis added).

In Carlson, the issue was whether two related entities shared an identity of interest 

such that a complaint served on one would be effective as to the other if served before the 

expiration of the limitations period. 479 N.W.2d at 55-56. One day before the 2-year

statute of limitations expired on a medical malpractice claim, the plaintiff “commenced 

[the] action” by delivering to the Hennepin County Sheriff a summons and complaint to 

be served upon one defendant. Id. at 52. The summons and complaint were served on a 

second defendant, a related entity, 16 days after the statute of limitations had expired. Id.

at 53-54. Despite the fact that the service of process on the second defendant was 

completed only after the limitation period had ended, we determined that the plaintiff’s 

suit was timely commenced as to the second defendant because the plaintiff had timely 

delivered the summons and complaint to the county sheriff before the limitations period 

expired, even if the remaining requirements of process under the rule were not completed

before the period expired. Id. at 56. We imputed the service of process on one defendant

to the other, holding that both “received notice of the . . . action within the period 

provided by law.” Id. We stated:

Under Rule 3.01(c), an action is commenced when the summons and

complaint are delivered to the county sheriff, who then has 60 days to serve

them. As a result of the grace period, it is possible for a plaintiff to

commence an action on the final day of the limitations period and for the

defendant to hear nothing of it until 60 days later. The lateness of notice

does not invalidate the lawsuit, so long as the action is commenced within

the limitations period. 
10

Id. at 55 (emphasis added).

To be sure, Rule 3.01(c) and Minn. Stat. § 45.028, subd. 2, provide for different 

types of service (the former allowing for the commencement of an action by delivering 

the complaint and summons to the county sheriff), but the provisions use nearly identical

language—a negative phrasing of “effective” and use of the word “unless”—to describe 

the service requirements. Thus, our reasoning in Carlson that litigation was commenced 

so long as the complaint and summons were delivered to the county sheriff before the 

statute of limitations ended, applies with equal force to the delivery of process to the 

Commissioner under Minn. Stat. § 45.028, subd. 2. See 479 N.W. 2d at 56; see also

Johnson v. Soo Line R.R. Co., 463 N.W.2d 894, 898 (Minn. 1990) (describing Rule 

3.01(c) as “plainly [stating that] the action is commenced when the summons is delivered

to the sheriff of the proper county for service, not when the sheriff subsequently serves 

the papers”). We have determined that delivery to the defendant within the grace period 

“is necessary to preserve the effectiveness of the delivery date as the date of 

commencement of the action.” Johnson, 463 N.W.2d at 898. Just as a lawsuit brought 

under Rule 3.01(c) does not become untimely if the sheriff serves the summons and 

complaint during the 60-day grace period, but after the limitations period has expired, a 

lawsuit does not become untimely under Minn. Stat. § 45.028, subd 2, when the affidavit 

of compliance is filed after the end of the limitations period, but on or before the return 

day of process.
11

IV.

We therefore hold that an action is commenced under Minn. Stat. § 45.028, subd.

2, when a plaintiff leaves a copy of the process in the office of the Commissioner of 

Commerce or sends a copy of the process to the Commissioner by certified mail. The

service is effective so long as a copy of the process is sent to the defendant and the 

plaintiff’s affidavit of compliance is filed in the action on or before the return day of 

process. Because the Meekers filed the affidavit of compliance before the return day of 

the process, the service of process was effective, and the Meekers’ suit is not barred by 

the 2-year limitations period in the IDS insurance policy.

Affirmed.