This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A16 - 0413 Bradley Mordini, Appellant,
vs. American Family Mutual Insurance Co., et al.,

Respondents. Filed November 7, 2016 Affirmed Connolly , Judge Beltrami County District Court File No. 04

- CV

- 14

- 3864 Gary M. Hazelton, Hazelton Law Group, Bemidji, Minnesota (for appellant) Paul R. Aamodt, Minneapolis, Minnesota (for respondent)
Considered and decided by Connolly , Presiding Judge; Larkin , Judge; and Bratvold , Judge
.

U N P U B L I S H E D O P I N I O N CONNOLLY , Judge In this underinsured

- motorist (UIM) benefits action under a motorcycle polic y and an auto policy, appellant

- insure d challenges the district court’ s summary - judgment2

dismissal of his claims. Appellant argues that the UIM endorseme nt of the motorcycle policy provide s illusory coverage and v iolate d his reasonable expectations and that the UIM endorsement of the auto policy provide s recoverable UIM coverage, as written or by reformation under the no

- fault act. Because the limitations

- on - liability clause in the motorcycle policy precludes appellant’s recovery under both his motorcycle policy and his auto policy , and because the coverage is not illuso ry , we affirm. FACTS Appellant insured , Bradley Mordini , obtained a motorcycle insurance policy from respondent American Family Mutual Insurance Co. (American Family) , through its agent,
co - respondent Robert Sandbo, effective from April 25, 2012 to April 2 5, 2013. Appellant also obtained a family car insurance policy (auto policy) from American Family through Sandbo effective June 9, 2012 to December 9, 2012. On September 23, 2012, appellant was seriously injured in an accident between his motorcycle, whi ch he was operating , and
a m otor vehicle. A ppellant settled his injury claim with the driver of the motor vehicle for $50,000

. He then sought $30,000 in UIM coverage from American Family under his motorcycle policy. His claim was denied. Thereafter, ap pellant sought $30,000 of UIM coverage from American Family under his auto policy. That claim was also denied. Appellant filed a complaint against respondent s. Respondents moved for summary judgment , arguing that the UIM endorsement of appellant’s moto rcycle policy was not illusory, that the UIM endorsement of his auto policy does not apply, and that vicarious liability does not apply to make American Family liable for any negligence of Sandbo. A ppellant filed a cross - motion for summary judgment , argui ng that the UIM motorcycle3

coverage is illusory ; that because the auto policy does not exclude UIM coverage arising out of the operation of a motorcycle , his auto policy UIM coverage is applicable; and that the auto policy “Difference of Limits” language is void. T he di strict court granted respondent s ’ summary judgment motion and dismissed appellant’s complaint with prejudice. 1 D E C I S I O N “We review a district court’s summary judgment decision de novo. In doing so, we determine whether the district court properly applied the law and whether there are genuine issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v. JADT Dev . Grp., LLC , 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). No genuine issue for trial exists “[w] here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ , 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted) . “[W]e may affirm a grant of summary judgment if it can be sustained on any grounds.” Doe 76C v. Archdiocese of St. Paul , 817 N.W.2d 150, 163 (Minn. 2012). I. Does the No - Fault Act require appellant’s motorcycle insurance policy t o be reformed to provide UIM coverage using a damages - less - paid structure instead of a limits - less - paid structure? The UIM coverage in appellant’s motorcycle policy is $30,000 for each person and $60,000 for each accident. Appellant’s recovery is limite d under the UIM endorsement by a clause that states: “The limit of liability for damages caused by an accident with an underinsured motor vehicle will be reduced by any payments made by or on behalf of any

1 The district court did so in a one

- page order without a memorandum of law.4

person or organization who may be legally liable f or the bodily injury .” (Emphasis added.) 2 Because appellant received $50,000 from the motor
- vehicle driver in the accident, respondent s argue that the UIM coverage is reduced by $50,000 leaving appellant with nothing to recover. Appellant argues that the limitation

- on - liability clause viol ates the Minnesota No

- F ault Automobile Insurance Act (No

- Fault Act) and must be reformed. We disagree. We presume that appell ant is limited to the bargained for limits

- less

- paid formula, which guarantees that the limit of American Family’s liability would be reduced by any payments made by any person who may be legally liable for appellant’s bodily injury. Minn. Const. art. I, § 11 (prohibiting laws that impair contract obligations); Johnson v. Cummiskey , 765 N.W.2d 652 , 656 (Minn. App. 2009). “Judicial authority to alter private insurance contracts requires a significant basis
. . . so we will disturb a bargain only when the law requires.” Johnson , 765 N.W.2d at 656. “[A]n insurer’s liability is governed by the contract between the parties only as long as coverage required by law is not omitted and policy provisions do not contravene applicable statutes .” Am. Nat’l Prop. & Cas. Co. v. Loren , 597 N.W.2d 291, 292 (Minn. 1999) (quotation omitted) (emphasis added). “It is clear that the [No

- Fault Act] does not require insurers to provide motorcycles with UIM coverage.” Johnson , 765 N.W.2d at

2 This is a limits

- less

- paid clause , meaning that the insurer’s liability is reduced by the amount the insured has collected from a driver who is liable for the accident. Appella nt argues that this clause is contrar y to Minnesota law, which requires limitations on liability to be damages

- less

- paid. Damages

- less

- paid or “add

- on” coverage means that the amount collected reduce s the amount of total damages incurred as a result of th e accident. The insurer must pay any remaining damages to extent of the full amount of coverage
.5

656. “This could not be more obvious, sinc e the [No

- Fault Act] defines a ‘ motor vehicle ’ as a highway

- operated vehicle subject to registration requirements, ‘ other than a motorcycle or other vehicle with fewer than four wheels.’” Id. (citing Min n. Stat. § 65B.43, subd. 2 (2008 )). Further, the UIM subd ivision of the statute states t hat “[t] he uninsured and underinsured motorist coverages required by this subdivision do not apply to bodily injury of the insured while occupying a motorcycle owned by the insured.” Minn. Stat. § 65B.49, subd. 3(a)(8) (2014) . Because no UIM insurance is required for motorcycles, the limits

- less

- paid provision in the insurance agreement does not contravene the statute. “The legislature expressly declined to require insurers to include any UIM coverage in their motorcycle policies, and in doing so, it imp licitly declined to demand reformation to extend UIM coverage for motorcycles beyond what the parties bargained for.” Johnson , 765 N.W.2d at 661. Appellant relies on Mitsch v. Am. Nat’l Prop. & Cas. Co. , 736 N.W.2d 355, 358 (2007), review denied (Minn. Oct. 24, 2007) to argue that Minnesota law “mandates that all UIM coverage issued in the state be [damages

- less

- paid] ‘add

- on’ coverage.” However Johnson , a case factually similar to the case at hand, 3 explicitly addresses Mitsch and its application to UI M coverage for motorcycles. “[T he] broad language in Mitsch extends

3 Johnson involved a driver who struck a motorcyclist (the appellant), causing the motorcyclist $134,000 in damages. Johnson , 765 N.W.2d at 654. The motorcyc list recovered $34,000 from the car’s driver and the driver’s insurer. Id. The motorcyclist then sought to recover the balance from his policy’s $100,000 UIM coverage. Id. The insurance company paid $66,000, the $100,000 minus the $34,000 the motorcycli st had recovered from the car’s driver and the driver’s insurer. Id. This court determined the limits

- less

paid provision was enforceable as written
. Id. at 660
.6

beyond its analysis and its holding.” Id. T he statement that Minnesota law mandates that all UIM coverage issued in the state to be damages

- less

- paid coverage is dictum and does not con trol this court’s interpretation of the No

- Fault Act as applied to motorcycle UIM coverage. Id. Because the limits

- less

- paid UIM coverage included in appellant’s motorcycle insurance policy does not contravene the No

- Fault Act, we conclude that the policy should not be reformed and that the district court did not err in granting respondent s’ summary judgment. II. Was the UIM coverage in appellant’s motorcycle policy illusory? Appellant argues that his UIM covera ge is illusory because a policy holder could never recover the full policy amount because Minnesota requires drivers to carry a minimum of $30,000 in liability coverage. “A p olicy’s coverage is illusory if it turns out to be functionally nonexistent. ” Id
. at 662 (quotation omitted)
. A ppellant argues that “the definition of an ‘Underinsured Motor Vehicle’ in the UIM endorsements strips [the $30,000 UIM] coverage to $0 and results in a situation where [ American Family ] would never, ever, have to pay benefits under the UIM coverage it sol d.” The UIM coverage endorsement defines “Underinsured motor vehicle” as “a motor vehicle which is insured by a liability bond or policy at the time of the accident which provides bodily injury liability limits less than the limits of liability of this Un derinsured Motorist Coverage.” This does not include a vehicle “[i]nsured at the time of the accident by a liability bond or policy with bodily injury liability limits below the minimum specified by the financial responsibility law of the state in which y our insured car is principally garaged.”7

American Family argues that a claim of illusory coverage in a motorcycle policy with similar language was rejected in Johnson . In Johnson , the policy provided $100,000 in UIM coverage. Id. at 655. After d educti ng the $34 ,000 recovered from the at

- fault driver, $66 ,000 in UIM coverage was available to the insured
. Id. In this case, if the at
fault vehicle has less than $30,000 in insurance cover age, it is considered uninsured; if it has $30,000 or more, as is r equired by law, the limits

- less

- paid clause will reduce the UIM coverage to $0. Appellant argues that this makes the UIM coverage functionally nonexistent. However, appellant’s policy guarantees that , if he were injured by an underinsured motorist, he wo uld recover at least $30,000 from all sources. Like the issues in Johnson , appellant fails to consider that the full $30,000 could potentially be recovered in different circumstances. For example , if the at

- fault motor vehicle driver’s liability insuranc e had been paid entirely to an additional victim of the same accident, the $30,000 underinsured driver coverage would be paid to appellant
. See id. ; Ballanger v. Toenjes , 362 N.W.2d 2, 3 (Minn. App. 1985) (where the at

- fault motorist had liability coverag e of $50,000 per accident , of which $23,000 was paid to one victim, $2 4,000 to the second, and $3,000 to the third). B ecause there are circumstances in which appellant could recover under the UIM policy , the coverage is not functionally nonexistent and therefore not illusory
. III. Did the UIM coverage violate the reasonable expectations of the insured? Appellant argues that the motorcycle endor sement violated his reasonable expectations because appellant’s “reasonable expectation” was that coverage purch ased would actually exist. Generally, “litigants are bound [on appeal] by the theory or theories,8

however erroneous or improvident, upon which the action was actually t r i ed below [,] ” Annis v. Annis , 250 Minn. 256, 262

- 63, 84 N.W.2d 256, 261 (1957), and an appellate court will not consider matters not argued to and considered by the district court. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1 988). Appellant never raised the doctrine of reasonable expectations in its complaint or any of its briefs in supp ort for or opposition to summary judgment. Therefore the issue is not properly before this court
. IV. Does the No - Fault Act require that t he UIM coverage in appellant’s auto policy be reformed and therefore apply to this claim ? Appellant argues that the distr ict court erred in dismissing his declaratory judgment action because the No

- Fault Act requires that the UIM coverage in his auto policy be reformed to be consistent with Minnesota law and, once reformed, the coverage would apply to provide him with UIM co verage for his motorcycle accident. Appellant petitioned the district court for a declaratory judgment stating that the limits

- less

- paid language in the policy is void pursuant to Minn. Stat. § 65B.49 and therefore the auto policy is to be read without li mitation, providing $30,000 in damages

- less

- paid or “add

- on” UIM cov erage for the motorcycle crash. Appellant again relies on Mitsch which states that “Minnesota law mandates that all UIM coverage issued in the state be ‘add

- on’ coverage as expressed in M inn. Stat. § 65.49, subd. 4a.” Mitsch , 736 N.W.2d at 358. In Mitsch , the court reformed the limitation

- on - liability clause in the insurance contract from a limits

- less

- paid reduction clause to a dama ges - less

- paid reduction clause. However, appellant is seeking coverage for a motorcycle, not an automobile. As a result , Johnson applies to prohibit appellant’s recovery under this theory in the same way9

it prohibits appellant’s recovery under the motorcycle policy

. L imits

- less

- paid limitation

on - liability provisions are acceptable as applied to motorcycle coverage. Johnson , 765 N.W.2d at 660 (“So while it might be true that UIM clauses covering ‘ motor vehicles ’ using a limits

- less

- paid method are subject to reformation even in situations where the limits

- l ess - paid method would satisfy the statutory minimum UIM coverage, the analogy does not carry forward t o reach motorcycle coverage.”). We do not consider whether the auto policy would have been subject to reformation had appellant been trying to recover fr om an automobile accident. The provision need not be reformed here because appellant is attempting to recover UIM covera ge for his motorcycle accident. Because appellant received $50,000 in his settlement with the at

- fault driver, the UIM coverage in the auto policy would be reduced from $30,000 to $0 pursuant to the limitations

- on - liability provision. We conclude that , because the limitations

- on - liability provision reduces the amount appellant could recover under his motorcycle UIM provision and his auto policy to $0 and because the coverage provided was not illusory , the district court did not err in granting summary judgment to respondent s . Affirmed.