This opinion will be unpublished and

may not be cited except as provided by

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







Reynold Mattson, et al.,





CSC Insurance Agency, Inc.

n/k/a RJF Agencies, Inc., et al.,



West Bend Mutual Insurance Company,




Filed February 5, 2002

Klaphake, Judge


Hennepin County District Court

File No. 999969


Britton D. Weimer, Hagglund, Weimer & Speidel, 4000 Water Park Place, 5101 Olson Memorial Highway, Minneapolis, MN  55422 (for appellants)


Dale M. Wagner, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN  55402-3787 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Mulally, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants Reynold and Patricia Mattson brought this action against respondent West Bend Mutual Insurance Company after it declined to defend them in an underlying action brought by tenants of a rental home they own in Minneapolis.  Respondent provided insurance coverage on the property.  The district court granted respondent’s motion for summary judgment on the ground that the policy did not cover the claims made in the underlying action.  Because we see no error in the district court’s determination, we affirm.


            Interpretation and application of an insurance policy and the existence of an insurer’s duty to defend or indemnify are legal questions, which this court reviews independently.  Franklin v. W. Nat’l Mut. Ins. Co., 574 N.W.2d 405, 406-07 (Minn. 1998).  Doubts as to coverage must be resolved against the insurer issuing the policy and the burden rests with the insurer to prove the claim is not covered.  Prahm v. Rupp Constr. Co., 277 N.W.2d 389, 390 (Minn. 1979).


            Appellants argue that respondent had a duty to defend in the underlying action brought by their tenants.  In general, the duty of an insurer to defend its insured arises when any part of the claim against the insured is arguably within the scope of coverage provided by the insurance policy.  Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822, 825-26 (Minn. 1980).  In order to decline the duty to defend, respondent has the burden of establishing that all parts of the cause of action against appellants are clearly outside the scope of coverage of its policy.  Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165-66 (Minn. 1986); Atlantic Mut. Ins. Co. v. Judd Co., 380 N.W.2d 122, 126 (Minn. 1986).  The duty to defend is generally determined by comparing the allegations of the complaint to the coverage afforded by the policy.  Meadowbrook, Inc. v. Tower Ins. Co., 559 N.W.2d 411, 415 (Minn. 1997).  If the complaint alleges several causes of action and one of the claims, if established, would require the insurer to indemnify, the insurer must provide a defense against all claims.  Franklin, 574 N.W.2d at 406.

            Respondent’s insurance policy provides coverage as follows:

We will pay all sums arising out of any one loss which an insured person becomes legally obligated to pay as damages because of bodily injury or property damage arising out of the ownership, maintenance, or use of the insured premises.


            The policy further defines bodily injury as “bodily injury, sickness, or disease.”  Appellants argue that the underlying complaint alleged four claims of bodily injury with physical manifestations:  (1) emotional distress with physical manifestations; (2) bodily injury; (3) carbon monoxide poisoning; and (4) care of a physician.  The claim for emotional distress asserts that appellants “caused the [p]laintiff to suffer severe emotional distress with physical manifestations.”  The only references in the complaint explaining this claim state that the tenants sought the care of a physician “for depression, anxiety and sleeping problems.”

            In general, emotional distress is defined as an emotional injury, rather than a bodily injury.  Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 257 (Minn. 1993); see Clemens v. Wilcox, 392 N.W.2d 863, 866 (Minn. 1986) (finding bodily injury does not include nonphysical harm such as mental suffering and emotional distress).  In Garvis, the court concluded that “emotional distress with appreciable physical manifestations can qualify as a ‘bodily injury’ within the meaning of the insurance policy.”  Garvis, 497 N.W.2d at 257.

            Here, however, appellants’ claims of depression, anxiety, and sleeping problems constitute only emotional injuries.  These injuries do not satisfy the physical manifestations test, “a test designed to assure the genuineness of the alleged emotional distress.”  Leaon v. Washington County, 397 N.W.2d 867, 875 (Minn. 1986) (citation omitted) (holding weight loss, depression and feelings of fear, anger and bitterness do not satisfy physical manifestations test).  The district court found that anxiety, as listed in the complaint, was similar to fear, as noted in Leaon.  We agree, especially because sleeplessness was included among other claimed injuries that are purely emotional in nature.  While inability to sleep may be a physical manifestation of emotional distress, it is not sufficient to demonstrate bodily injury in this case.  See Meadowbrook, 559 N.W.2d at 419 (analyzing duty to defend emotional distress claim as bodily injury; insurer declined to defend suit because claim did not include “sufficient physical manifestations to fit within the policy’s bodily injury coverage”).

            Appellants next argue that the underlying complaint includes a claim for carbon monoxide poisoning.  The complaint alleges that

[a]ppellants have violated the Covenants of Habitability by not keeping the premises within reasonable repair, specifically including but not limited to their failure to maintain the furnace in an operable condition.


The factual allegations supporting the claim include that (1) the gas company and Minneapolis Housing Inspectors “red tagged” the furnace; (2) appellants were given a deadline to fix the furnace to avoid condemnation; and (3) the tenants moved in with a friend because the level of carbon monoxide leaking from the furnace was excessive.

            Appellants argue that for purposes of summary judgment, we should infer that because the tenants moved out of the house, they were exposed to carbon monoxide.  The facts alleged in the complaint, however, do not show any physical harm to the tenants from the leaking carbon monoxide.  Thus, we decline to infer that they suffered harm from carbon monoxide.

            Appellants also contend that respondent, at the least, had a duty to investigate the tenant’s claims.  In Garvis, however, the supreme court stated that

where the pleadings do not state a claim arguably within the scope of coverage, the insurer has no duty to defend or investigate further to determine whether there are other facts present which trigger such a duty.


497 N.W.2d at 258 (citation omitted).  Because the pleadings do not state a claim within the scope of respondent’s coverage, there was no duty to investigate.  The district court did not err in declining to a claim for bodily injury.

            Appellants next challenge the district court’s determination that respondent did not breach its duty to defend property damage claims.  The tenants’ complaint alleges conversion arising out of appellants’ removal of the tenants’ personal property from the rental property.  Appellants argue that removal of the property amounted to loss of use of the property, which should be covered under the policy.  Respondent argues that the conversion exception negates any duty to defend this claim.  The policy states, “theft or conversion of property by an insured is not considered to be property damage.”

            Appellants contend that the qualified and hypothetical language of the complaint, which is based on “information and belief,” removes the claim from the conversion exclusion because it is uncertain whether appellants actually converted the property.  The complaint, however, alleges a claim for conversion and respondent’s policy contains an exclusion for conversion.  There is no obligation to defend when there is no coverage because of an exclusionary clause.  Reinsurance Ass’n of Minn. v. Hanks, 539 N.W.2d 793, 796 (Minn. 1995) (holding that where exclusionary clause unambiguously excludes coverage, no duty to defend or indemnify exists).  Regardless of the language used in the complaint to explain the disappearance of the property, the claim is for conversion.  We conclude that respondent does not have a duty to defend against a property damage claim for conversion.


            Appellants further claim they are entitled to all attorney fees and expenses incurred in connection with this lawsuit.  “When an action leads to a determination that an insurer breached its duty to defend, the insured may recover from the insurer the legal fees incurred in bringing the action.”  Redeemer Covenant Church of Brooklyn Park v. Church Mut. Ins. Co., 567 N.W.2d 71, 82 (Minn. App. 1997), review denied (Minn. Oct. 2, 1997).  Appellants must succeed in their appeal in order to be granted attorney fees.  Because we find that the district court did not err, we do not award attorney fees.


            Finally, appellants contend that appellant Patricia Mattson is covered individually under respondent’s policy, and that respondent has a duty to defend her against the tenants’ claims.  Appellants argue that she was sued vicariously for Reynold Mattson’s conduct and for her negligence in failing to oversee his activities.  Our reading of the complaint, however, fails to convince us that there were any claims against Patricia Mattson for vicarious liability or negligence.  We therefore conclude that respondent does not have a separate duty to defend Patricia Mattson. 

            The district court did not err in granting respondent’s motion for summary judgment.



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