United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3166
                                   ___________

Minnesota Commercial Railway         *
Company,                             *
                                     *
            Appellant,               * Appeal From the United States
                                     * District Court for the
     v.                              * District of Minnesota.
                                     *
General Star Indemnity Company,      *
                                     *
             Appellee.               *
                                ___________

                             Submitted: March 17, 2005
                                Filed: May 24, 2005
                                 ___________

Before MURPHY, HEANEY, and SMITH, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.

       This is an insurance coverage dispute arising out of a personal injury and
retaliatory discharge action brought against Minnesota Commercial Railway
Company (the Railway) in state court by former employee, Barbara Williams.
General Star Indemnity Company (General Star) insured the Railway on a claims-
made basis between February of 2000 and February of 2001. In July of 2001, five
months after the General Star policy expired, the Railway made a claim for insurance
coverage for the injury Williams had sustained. General Star denied coverage of the
claim eight months later. The Railway asserts that General Star had, in fact, accepted
coverage. The Railway sued General Star in federal court, seeking relief through the
doctrine of estoppel. The parties brought cross-motions for summary judgment. The
district court1 granted General Star’s motion, holding that under Minnesota law,
General Star is not estopped from denying coverage. It neither accepted the defense
of the state court action, nor controlled the defense through settlement or judgment.
The Railway appeals, and we affirm.

       We summarize the facts as follows. Between February 1, 2000 and February 1,
2001, the Railway held an insurance policy with General Star that covered claims
made during the policy period. On November 5, 1999, Williams sustained an injury
in the course of her employment with the Railway. She filled out a personal injury
report, and the Railway treated the claim as a work-related injury. Williams received
medical attention for her back, including surgery, and the Railway contributed
approximately $41,870 toward her medical care, and, additionally, paid voluntary
wage benefits and fringe benefits to her. On July 23, 2001, twenty-one months after
the injury, the Railway submitted the Williams claim to General Star through Railway
Claim Services, a third-party administrator for providing claims services on behalf
of General Star. Although the Railway did not notify its insurers of the Williams
injury until nearly two years after the injury, it claimed it did so because it was
exhausting its self-insured retention (SIR) under its health care plan in effect between
1999 and 2001.

      In August of 2001, Williams sued the Railway for her injury, pursuant to the
Federal Employers Liability Act (FELA). The Railway defended itself,2 eventually


      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
      2
        The Railway hired a local law firm to defend against Williams’s suit. It is
undisputed that the Railway and its attorneys controlled the defense of the Williams
action.

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settling the matter. General Star denied coverage on May 17, 2002 because a claim
for Williams’s injury was not filed during General Star’s term of coverage. After
General Star’s denial of coverage, the Railway pursued coverage against General Star
and Lloyd’s of London. Lloyd’s provided claims-made general commercial liability
coverage to the Railway from February 1, 2001 to February 1, 2002, and provided
indemnity coverage for the Williams claim under a loan receipt agreement. Lloyd’s
has refused to pay past or future defense expenses. The Railway seeks defense
expenses of $150,000 plus attorneys fees.

      The Railway concedes it submitted the claim too late to be covered by the
policy, but contends that General Star’s actions and delay in denying coverage
implied it had accepted the claim, and is therefore estopped from denying coverage.
The Railway asserts that under certain circumstances, Minnesota law permits an
insured to create insurance coverage through estoppel even if the insurer did not
control the defense in an action against the insured.

       The Eighth Circuit reviews a grant of summary judgment de novo. Nettles v.
American Tel. & Tel. Co., 

, 1362 (8th Cir. 1995). There is no dispute
that Minnesota law governs this diversity suit. Estoppel is an equitable doctrine
“intended to prevent a party from taking unconscionable advantage of his own wrong
by asserting his strict legal rights.” Northern Petrochemical Co. v. United States Fire
Ins. Co., 

, 410 (Minn. 1979). Under Minnesota law, in order for an
insured to successfully invoke the doctrine of estoppel, it must demonstrate each of
the following: (1) the insurer misrepresented a material fact (in this case, that it was
accepting coverage); (2) the insurer knew that the representation was false; (3) the
insurer intended that the representation be acted upon; (4) the insured did not have
knowledge of the true facts; and (5) the insured relied upon the representation to its
detriment. See Transamerica Ins. Group v. Paul, 

, 183 (Minn. 1978).
These factors must be established by a preponderance of the evidence, and the facts
used to prove them must be “clear, positive, and unequivocal in their implications.”

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Rice St. VFW, Post No. 3877 v. City of St. Paul, 

, 508 (Minn. Ct.
App. 1990).

       In Shannon v. Great Am. Ins. Co., 

, 78 (Minn. 1979), the
Minnesota Supreme Court held that estoppel cannot be used to expand or create
insurance coverage where it does not exist. The court explained that “[t]he policy
considerations in support of this principle are well founded, for it would be wholly
improper to impose coverage liability upon an insurer for a risk not specifically
undertaken and for which no consideration has been paid.” 

principle
has been applied consistently by the Eighth Circuit and Minnesota courts. See
Winthrop & Weinstine, P.A. v. Travelers Cas. & Sur. Co., 

, 877 (8th Cir.
1999) (citing Shannon in finding an equitable estoppel claim to be without merit);
Northwest Airlines, Inc. v. Federal Ins. Co., 

, 356 (8th Cir. 1994)
(“[W]aiver cannot be used to bring within the coverage of an insurance policy risks
not covered by its terms.”) (citations omitted)); Redeemer Covenant Church of
Brooklyn Park v. Church Mut. Ins. Co., 

, 76 (Minn. Ct. App. 1997)
(holding that the insurer did not waive its right to invoke policy exclusions by failing
to respond to insured’s notice of claim within the 60-day statutory period and instead
taking over two years); Continental Ins. Co. v. Bergquist, 

, 201
(Minn. Ct. App. 1987) (holding that an insurer was not estopped from raising
affirmative defense that insured’s loss occurred prior to policy period).

      There is a limited exception to Shannon, which permits the use of estoppel by
an insured to actually create coverage where the insurer controls the litigation by the
insured. Tozer v. Ocean Accident & Guar. Corp., 

, 511 (Minn. 1905).
The purpose of the doctrine of estoppel in such a circumstance is to prevent an
insured from being left in the untenable position of having no voice in the litigation
where the insurer is defending its own interests, not those of the insured. Patterson
v. Adan, 

, 283 (Minn. 1912); see also Mutual Serv. Cas. Ins. Co. v.
Luetmer, 

, 368 (Minn. Ct. App. 1991) (“If an insurer, with full

                                          -4-
knowledge of the facts of a claim, defends its insured without reserving its right to
deny coverage, the insurer may be estopped later to deny coverage.”). Assumption-
of-defense estoppel is narrowly applied, however, and is not applicable where the
insurer has refused the defense of the insured, Globe. Indem. Co. v. Hansen, 

, 906 (8th Cir. 1956); where the insurer gives a notice of a reservation of rights,
Faber v. Roelofs, 

, 821 (Minn. 1977); or where the insurer does not
conduct the defense with knowledge of the relevant facts, Humphrey v. Polski, 

, 812 (Minn. 1924).

       Here, the Railway is not entitled to the use of the doctrine of estoppel to expand
its coverage under its General Star policy because it controlled its own defense from
the beginning of the Williams litigation. General Star refused to defend the Railway
and denied coverage because the Williams claim was submitted after the General Star
insurance policy had been terminated. As a result, the Railway cannot expand
coverage through estoppel. See Globe Indem. 

.

      Appellee cites Transamerica Ins. Co. v. Int'l Broad. Corp., 

, 1207
(8th Cir. 1996) to support its contention that an insured may expand the scope of
coverage by showing prejudice. Because Transamerica involves the late reservation
of rights, something not at issue here, it fails to support the Railway’s claim for
equitable relief. Even if late reservation of rights were relevant here, the insured must
demonstrate prejudice and an assumption of defense to expand the scope of coverage.
This the Railway cannot do.

      For the reasons cited above, we affirm the district court.
                      ______________________________




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