This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Atscott Manufacturing Company, Inc.,


Professional Contractors, Inc.,

Architects Plus, Inc., et al.,

Filed January 11, 2000
Reversed and remanded
Klaphake, Judge

Pine County District Court
File No. C2-98-603


Lisa R. Griebel, Michael S. Rowley, Terhaar, Archibald, Pfefferle & Griebel, L.L.P., 300 First Avenue North, Suite 200, Minneapolis, MN 55401 (for appellant)

Thomas R. Thibodeau, Jerome D. Feriancek, Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Atscott Manufacturing (Atscott) challenges the grant of summary judgment to respondent Professional Contractors, Inc. (ProCon) in this breach of contract and negligence action. Atscott asserts the district court erred by concluding that (1) Atscott's property insurance carrier, rather than Atscott, was the real party in interest; (2) the statute of limitations barred Atscott's insurer from bringing a claim; and (3) this action was barred by a waiver of subrogation clause in the construction contract. Atscott also contends this matter should be remanded because the district court failed to address its negligence claim.

Because (1) Atscott has not been fully compensated by insurance and is the real party in interest; (2) the waiver of subrogation clause is unambiguous and does not bar this action; and (3) Atscott has stated a prima facie claim of negligence, we reverse and remand.


On appeal from summary judgment, the appellate court determines whether any genuine issues of material fact exist and whether the district court erred in applying the law. Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997). The reviewing court must consider the evidence "in the light most favorable to the party against whom summary judgment was granted." Id. (citation omitted).

I. Real Party In Interest

Determining the real party in interest is generally a factual question for the district court. Minnesota Educ. Ass'n v. Independent Sch. Dist. No. 404, 287 N.W.2d 666, 668 (Minn. 1980). If an insured is fully compensated for a loss by its insurer, however, the insurer is the real party in interest in any action against a third party and must bring suit in its own name. Blair v. Espeland, 231 Minn. 444, 446, 43 N.W.2d 274, 276 (1950). Suit may be brought in an insured's name if the insured is not completely compensated for its damages. Lines v. Ryan, 272 N.W.2d 896, 903 (Minn. 1978).

The parties do not dispute that Atscott's property insurance carrier paid more than $300,000 to Atscott for property damage resulting from a roof collapse, and ProCon does not dispute that Atscott paid a $1,000 deductible. The parties dispute whether Atscott sought recovery for its deductible in this suit.

Regardless of whether Atscott specifically informed ProCon of the deductible at the outset of this litigation, there is no dispute that Atscott paid the deductible and has not been reimbursed for it. Because Atscott has not been fully compensated for its loss, suit was properly brought in its name. The district court therefore erred by concluding that Atscott was not the real party in interest.[1]

II. Waiver of Subrogation Clause

Construction and effect of unambiguous contracts are legal questions. Turner v. Alpha Sorority House, 276 N.W.2d 63, 66 (Minn. 1979). Whether a contract is ambiguous is a question of law, which this court reviews de novo. State by Humphrey v. Delano Community Dev. Corp., 571 N.W.2d 233, 236 (Minn. 1997).

The Pine City Economic Development Authority (PCEDA) contracted with ProCon for the construction of an addition to an existing plant owned by Atscott, and PCEDA leased the addition to Atscott. The construction contract between ProCon and PCEDA contained the following waiver of subrogation clause: "The Owner [PCEDA] and Construction Manager [ProCon] waive all rights against each other * * *, but only to the extent covered by property insurance during construction * * *."

The waiver provision is unambiguous and states, on its face, that the waiver applies only "during construction." It is undisputed that the construction was completed in the spring of 1996 and that the roof collapsed in January 1997. Based on the plain language of the contract, the waiver does not bar Atscott's breach of contract action. See Turner, 276 N.W.2d at 66 (language of contract must be given plain and ordinary meaning). Therefore, the district court erred in granting summary judgment on this issue.

III. Negligence

Finally, Atscott asserts that because the district court did not address its negligence claim in the summary judgment order, this case should be remanded for trial.

Atscott alleges in its complaint that before the building's roof collapsed, Atscott informed ProCon about ice and snow buildup. According to Atscott, ProCon informed Atscott that the building was designed to withstand snow buildup and no other measures needed to be taken. If true, this contention may support a negligence claim against ProCon. Thus, there are material issues of fact regarding whether ProCon acted negligently. See Sauter v. Sauter, 244 Minn. 482, 486-87, 70 N.W.2d 351, 354 (1955) (error to grant summary judgment to defendant when genuine issues exist as to whether defendant acted reasonably).

We therefore reverse the grant of summary judgment to ProCon and remand for trial on Atscott’s breach of contract and negligence claims.

Reversed and remanded.

[1] Because we conclude that Atscott is the real party in interest, we need not address whether the statute of limitations would bar Atscott's insurance carrier from pursuing an action against ProCon.