This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-485

Kelso Farmers Mutual Fire Insurance Company,
Appellant,

vs.

Massop Electric, Inc.,
Respondent.

Filed January 4, 2000
Affirmed
Holtan, Judge[*]

Sibley County District Court
File No. C19871

Paul Wocken, Willenbring, Dahl, Wocken & Zimmermann, Red River at Main, P.O. Box 417, Cold Spring MN 56320-0417 (for appellant)

Noel L. Phifer, Gislason & Hunter LLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073-0458 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Davies, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

Appellant insurer challenges trial courtís determination that appellant failed to prove a breach and causation under either an express warranty or an implied warranty of merchantability theory. We affirm.

FACTS

Grain dryers heat grain, removing the moisture, so that it can be stored. In December 1995, appellantís (Kelso) insureds (the Doehlings) purchased two dryers from respondent Massop Electric. Respondent offered an express warranty on the dryers. The dryers were delivered to appellantís insureds in May 1996, and then were repaired after damage from a windstorm. The dryers were returned and reassembled on appellantís insuredsí property in August 1996. After repair and reassembly, respondent serviced the dryers repeatedly. During one of these service calls, after a small fire in one dryer, an employee of respondent noticed a buildup of "fines," a waste product from the grain drying process, and informed appellantís insureds of this buildup.

On October 22, 1996, appellantís insureds ran the dryer at issue in this case. Respondent told the insureds they could continually run the dryer in manual mode. Appellantís insureds let the dryer run through the night, and on October 23, 1996, the dryer caught fire and was substantially damaged. Appellant paid insurance proceeds to the insureds for the fire loss, and this litigation ensued. After a court trial, the trial court concluded that while appellant proved where the fire originated and was localized, appellant had failed to prove either breach of a warranty claim or causation from any breach.

D E C I S I O N

In reviewing a case tried by the court without a jury, this court is limited to determining whether the trial courtís findings are clearly erroneous, and whether the trial court erred in its conclusions of law. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729 (Minn. 1990). The trial courtís findings of fact are clearly erroneous when they are not "Ďreasonably supported by evidence in the record considered as a whole.í" Thuma v. Kroschel, 506 N.W.2d 14, 18 (Minn. App. 1993) (quoting Hubbard v. United Press Intíl, Inc., 330 N.W.2d 438, 441 (Minn. 1983)), review denied (Minn. Dec. 14, 1993). This court reverses the trial courtís factual findings only if it is left with a "definite and firm conviction that a mistake has been made." Thuma, 506 N.W.2d at 18 (citation omitted). The appellate court "need not give deference to a trial courtís decision on a legal issue." Frost-Benco Elec. Assín v. Minnesota Pub. Utils. Commín, 358 N.W.2d 639, 642 (Minn. 1984) (citation omitted).

To establish any breach of warranty claim, the plaintiff must prove (1) the existence of a warranty; (2) a breach; and (3) proximate cause (a causal link between the breach and the alleged harm). Peterson v. Bendix Home Sys., Inc., 318 N.W.2d 50, 52-53 (Minn. 1982). Mere proof of a warranty and a breach is not sufficient; if the plaintiff fails to prove the element of causation, an otherwise valid action for a breach of warranty will fail. International Fin. Servs., Inc. v. Franz, 534 N.W.2d 261, 266 (Minn. 1995); Heil v. Standard Chem. Mfg. Co., 301 Minn. 315, 323, 223 N.W.2d 37, 42 (1974).

Circumstantial evidence can be used to prove the causation element in an action for breach of the implied warranty of merchantability. International Fin., 534 N.W.2d at 266. However, while no specific defect need be alleged, the causation element must still be proved. See id. If the evidence was such that the factfinder "would have had to speculate among possible causes" for the loss, for one of which the respondent was not responsible, appellant fails to prove causation and their claim for breach of warranty fails. Nelson v. Wilkins Dodge, Inc., 256 N.W.2d 472, 475-76 (Minn. 1977).

The state of the evidence was such that the trial court was left with two possible causes for the fire--a defect in the dryer or a failure by appellantís insureds to properly maintain or run the dryers. Appellant contends a breach and causation was proved because the dryer burned up when appellantís insureds made "ordinary use" of the dryer. However, this argument ignores the evidence that suggests appellantís insureds did not make "ordinary use" of the dryer.[1] Such evidence suggests an inference that the insureds did not clean the fines out of the dryers properly; the insureds had previously experienced a fire with a buildup of fines, the insureds knew they were supposed to clean the fines out at least daily, a sign instructed that the dryers be cleaned daily and as necessary, and one of respondentís employees told the insureds to clean the fines out more often. The dryer had been run at least overnight without any checking for or cleaning out of fines. Appellant presented no evidence as to what extent the dent in the column restricted the flow of grain through the dryer, and no evidence was presented as to why a larger obstruction in an otherwise identical column of the dryer did not cause a fire. While circumstantial evidence is not required to exclude every single other theory, "the theory adopted" by the circumstantial evidence must outweigh any conflicting inferences. Schweich, 463 N.W.2d at 729-30; Republic Natíl Life Ins. Co. v. Marquette Bank & Trust Co., 312 Minn. 162, 168, 251 N.W.2d 120, 124 (1977). Because appellantís theory of causation did not preclude conflicting inferences from other evidence, the trial court would have had to speculate as to which was the actual cause of the loss. The trial court did not err in concluding that appellant failed to prove the required element of causation.

The trial court also concluded that appellant failed to prove respondent breached an express warranty, or that any such breach was the proximate cause of appellantís losses. When circumstantial evidence is used, the circumstantial evidence must support a theory that outweighs any conflicting inferences. Republic Natíl, 312 Minn. at 168, 251 N.W.2d at 124. While appellant did present expert testimony that supports its theory of the cause of the fire, there was evidence presented that rebuts this theory. This court gives due regard to the trial courtís opportunity to judge the credibility of witnesses, particularly when expert testimony was very important to the findings in the case. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). When the evidence is such that the factfinder has to speculate between two possible causes for the harm, for one of which the defendant was not responsible, the plaintiff has failed to prove a breach caused the injury. Nelson, 256 N.W.2d at 475-76. Because there is evidence rebutting appellantís theory of causation, and because this court gives deference to the trial courtís assessment of the credibility of the witnesses, the trial court did not err in concluding appellant did not meet its burden to prove either a breach or causation for an express warranty claim.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant's brief asserts that the trial court made a finding of fact that appellant's insureds "were making ordinary use of the product" at the time of the fire. In fact, the trial court made no such finding.