This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








Alton Noland, et al.,





Allstate Insurance Company,




Filed February 27, 2001


Schumacher, Judge


St. Louis County District Court

File No. C498601486



Joseph J. Mihalek, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for respondents)


Richard S. Stempel, Bradley L. Doty, Michael W. Lowden, Stempel & Associates, PLC, 41 12th Avenue North, Hopkins, MN 55343 (for appellant)



            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Allstate Insurance Company appeals from denial of its posttrial motions, arguing that the evidence did not support the jury verdict and that the trial court erred in crafting the special verdict form and in evidentiary rulings.  We affirm.


In April 1997, respondents Alton and Barbara Noland, upon returning to their home in Duluth after a weekend away, discovered a fire in the house.  A call was placed to 911 and the fire extinguished.  The Nolands subsequently compiled a list of missing items and submitted a sworn proof of loss to Allstate under their homeowner's policy.  Allstate denied the Nolands' claim for burglary and fire loss, asserting material misrepresentations after the loss and intentional acts.

            The Nolands brought this breach of contract action.  Prior to trial, the Nolands moved to exclude evidence of Alton Noland's prior fire losses and criminal history.  The trial court granted the Nolands' motion in large part, ruling that most of the evidence was more prejudicial than probative, was too remote in time, and would not be relevant even if presented.  The court did, however, rule that it would allow evidence of a 1982 conviction for defrauding an insurer.

            At trial, the Nolands testified that they had been in the Twin Cities the entire weekend.  A law enforcement investigator testified that the fire appeared to have been set by a hand-held propane torch found on the basement floor.  Investigators testified that there were blankets covering all of the windows of the home when they arrived at the scene.  There was conflicting evidence as to whether there had been forced entry into the house.  A neighbor of the Nolands testified that when the Nolands were away he had noticed an unfamiliar vehicle in the Nolands' driveway.  There was extensive testimony at trial concerning the Nolands' two German shepherds, which had been put to sleep about a month before the fire loss after an apparent poisoning.  There was also testimony concerning Al Noland's recent unemployment and consumer debt.

            The trial court drafted a special verdict form that included jury questions as follows:

1.         Did Allstate Insurance Company breach its contract of insurance by failing to pay Alton Noland Sr. for a loss incurred at the Nolands' Schultz Lake home as a result of a burglary that occurred on April 19-20, 1997?


2.         Did Allstate Insurance Company breach its contract of insurance by failing to pay Barbara Noland for a loss incurred at the Nolands' Schultz Lake home as a result of a burglary that occurred on April 19-20, 1997?


3.         Did Allstate Insurance Company breach its contract of insurance by failing to pay Alton Noland Sr. for a loss incurred at the Nolands' Schultz Lake home as a result of a fire that occurred on April 19-20, 1997?


4.         Did Allstate Insurance Company breach its contract of insurance by failing to pay Barbara Noland for a loss incurred at the Nolands' Schultz Lake home as a result of a fire that occurred on April 19-20, 1997?


Allstate's counsel objected on the grounds that the questions were confusing, prejudicial and involved questions of law for the court to make.  The trial court overruled the objection, noting that the special verdict form was acceptable given the structure and posture of the case.  The trial court's jury instructions informed the jury that if Allstate had proved it refused to pay because of intentional misrepresentations by the Nolands, such refusal would not constitute a breach of contract. 

During deliberations, the jury asked questions regarding the special verdict form.  The jury inquired whether questions one through four were asking about a breach "up until this point," and whether answering "no" for questions one through four would mean Allstate is not responsible for paying anything on this claim.  The trial court responded that the jury was to focus on what had happened up to the date of trial and that answering "no" to questions one through four would mean Allstate would not have to pay. 

The jury returned the special verdict, answering "yes" to the questions.  Allstate moved for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a new trial.  The trial court denied the motion and entered judgment for the Nolands.  Allstate appeals.


1.         Allstate contends that it is entitled to a new trial, JNOV, or directed verdict because the jury was not justified in finding for respondents.  "On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict."  ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992) (citation omitted).  An appellate court reviews de novo a district court's decision on a motion for a directed verdict or JNOV.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (JNOV); Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983) (directed verdict).

            In reviewing an order denying a directed verdict, an appellate court will consider whether the evidence was sufficient to present a fact question to the jury.  Nemanic, 337 N.W.2d at 669.  Such a motion should be granted only

when it would clearly be its duty to set aside a contrary verdict as manifestly against the evidence or when such a verdict would not comply with the applicable law. 


Midland Nat'l Bank v. Perranoski, 299 N.W.2d 404, 409 (Minn. 1980).  Similarly, the appellate court must affirm denial of a motion for JNOV if there is any competent evidence reasonably tending to sustain the verdict.  Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984).  The appellate court must consider the evidence in the light most favorable to the nonmoving party.  See Pouliot, 582 N.W.2d at 224 (JNOV); Midland Nat'l Bank, 299 N.W.2d at 409 (directed verdict).

Considering the evidence in light most favorable to the Nolands, the trial court did not err in denying the motion for JNOV or directed verdict.  Reasonable minds can differ as to whether the evidence supports Allstate's affirmative defenses of intentional act and misrepresentation.  See Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983) (JNOV should be granted only when impossible for reasonable minds to come to different conclusions).  Allstate presented some circumstantial evidence to suggest that the Nolands were involved in staging the fire and burglary.  Law enforcement and insurance investigators testified that the circumstances were suspect.  But the Nolands presented their own testimonial account and some circumstantial evidence to support a burglary.  Ultimately, this case comes down to a credibility determination best left to the finders of fact.

2.         Allstate contends that the questions on the special verdict form were improper and failed to cover all of the issues to be determined by the jury.  A trial court has broad discretion in drafting special verdict questions.  Russell v. Johnson, 608 N.W.2d 895, 898 (Minn. App. 2000), review denied (Minn. June 27, 2000).

Not only does the trial court have the discretion to decide whether to use a special verdict, it has broad discretion as to what form that special verdict is to take.


Persgard v. Gordon C. Carroll & Sons, Inc., 362 N.W.2d 377, 379 (Minn. App. 1985) (citation omitted), review denied (Minn. April 26, 1985).

            In denying Allstate's request for a new trial based on the special verdict form, the trial court concluded that the jury instructions

made clear the relevant special interrogatories should have been answered "no" if the jury determined defendant had established an affirmative defense upon which it relied.


Allstate points to the jury questions during deliberation to suggest there was some confusion on this point.  But, as the trial court noted, the questions arose from jury concern that additional information concerning the cause of the fire might later be developed since there was still an open, although inactive, police file.  There was no abuse of discretion in the special verdict form as drafted.

3.         Allstate contends that the trial court erred by not allowing evidence of Alton Noland's prior fire history and criminal history.  Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court's discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  "Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error."  Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citation omitted).

The trial court found most of the evidence proffered was too remote to be relevant and any probative value was substantially outweighed by danger of unfair prejudice.  See Minn. R. Evid. 402, 403.  But the trial court allowed, under Minn. R. Evid. 404(b), evidence of Alton Noland's 1982 conviction for defrauding an insurer as tending to show a possible existence of a motive or common plan or scheme.  The admission of the 1982 conviction aided Allstate in arguing the likelihood that the Nolands had played a causative role in the fire and apparent break-in.  In this context, we cannot say that the trial court erred in deeming other evidence too remote and prejudicial to allow.  There was no abuse of discretion by the trial court.