This opinion will be unpublished and

may not be cited except as provided by

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






Gerald Swanson, et al.,





Minnesota FAIR Plan, et al.,



Filed May 7, 2002

Reversed and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No. CT0117403


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


Bradley J. Ayers, Lori D. Semke, Flynn, Gaskins & Bennett, L.L.P., 333 South Seventh Street, Suite 2900, Minneapolis, MN 55402 (for respondents)


Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*                  


U N P U B L I S H E D   O P I N I O N


            Appellants challenge the district court’s ruling on summary judgment that a purportedly improper assignment of a casualty insurance policy voided the policy and deprived appellants, as assignees, of standing to prosecute a fire-loss claim under the policy.  Because the district court erred in its application of law and because several fact-dependent issues exist, summary judgment was improper, and we reverse.


            Appellants Gerald and Eleanor Swanson sold four parcels of real estate to James Byron on March 31, 1999.  One parcel was located at 250 Irving Avenue North in Minneapolis.  After his purchase, Byron obtained a policy of homeowners’ insurance from respondent Minnesota FAIR Plan.

In the insurance application, Byron stated that the property was not being purchased and that it was not more than 50% vacant or unoccupied.

After the parties closed the Irving sale, they learned that the real estate agent had committed fraud.  The Swansons then told Byron that they did not want to complete the sale of the remaining three parcels.  Because Byron wanted to buy all four properties, he agreed to cancel the sale of the remaining three parcels and to convey by quitclaim deed the Irving property to the Swansons and to transfer the homeowners’ policy to them.  On July 1, 1999, Byron executed an assignment of the insurance policy to the Swansons.  The policy provided that an assignment would not be valid unless the insurer consented.  Minnesota FAIR Plan did not consent to the assignment.  Byron and the Swansons scheduled the closing on the reconveyance of the Irving property for July 6, 1999.

On July 5 or 6, 1999, a fire damaged the Irving property, and the parties rescheduled the closing for July 9, 1999.  Byron delivered the quitclaim deed on July 9.

On November 18, 1999, Byron waived all rights he had to insurance proceeds, declared that he had no interest in the Irving property at the time of the fire, and directed that the proceeds be paid to the Swansons.  Minnesota FAIR Plan declined to pay the proceeds to the Swansons on the ground the assignment was invalid.

On December 7, 1999, Byron told the insurer that the property was not transferred to the Swansons until after the fire and, thus, he was still the insured owner and was entitled to the insurance proceeds.  Minnesota FAIR Plan continued to deny payment, informing Byron that he had no insurable interest in the property, that the assignment was invalid, and that Byron made material misrepresentations in his insurance application.

Claiming entitlement to the insurance proceeds, the Swansons sued Minnesota FAIR Plan.  On May 10, 2001, Byron executed an amended assignment revoking the original assignment and assigning the insurance proceeds to Eleanor Swanson.

Minnesota FAIR Plan moved for summary judgment and the Swansons moved for partial summary judgment.  The district court denied the insurer’s motion and granted the Swansons’ motion.

Alleging conflicts between the court’s order and memorandum, various omissions, and errors of law, Minnesota FAIR Plan moved for reconsideration.  Over the Swansons’ objection, the court granted that motion, reconsidered the prior order, and granted the insurer’s motion for summary judgment and denied the Swansons’ motion for partial summary judgment.  The Swansons now appeal.



1.         Motion for Reconsideration


The Swansons first contend that the district court erred by granting the motion for reconsideration because the rules of civil procedure do not recognize such motions.  They acknowledge that the rules of general practice authorize motions for reconsideration only in compelling circumstances.  They argue that “compelling circumstances” means changed circumstances and that there were none here.

Minn. R. Gen. Pract. 115.11 prohibits motions for reconsideration “except by express permission of the court, which will be granted only upon a showing of compelling circumstances.”  The district court has discretion to hear a motion for reconsideration, and this court will not reverse unless it is shown that the district court abused its discretion. 

The district court is likely to exercise its discretion to reconsider a prior ruling “only where intervening legal developments have occurred * * * or where the earlier decision is palpably wrong in some respect.”  Minn. R. Gen. Pract. 115.11 1997 advisory comm.  In its request for reconsideration, the insurer raised issues of conflicts, omissions, and error.  It was within the district court’s discretion to reconsider its prior rulings in light of the possibility that they were palpably wrong in some respect.

2.         Amended Summary Judgment

On appeal from summary judgment, we ask whether there are any genuine issues of material fact for trial and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We are also guided by Donnay v. Boulware:

Summary judgment is a “blunt instrument” and should not be employed to determine issues which suggest that questions be answered before the rights of the parties can be fairly passed upon.  It should be employed only where it is perfectly clear that no issue of fact is involved, and that it is not disirable [sic] nor necessary to inquire into facts which might clarify the application of the law.


Donnay v. Boulware, 275 Minn. 37, 44, 144 N.W.2d 711, 716 (1966) (citation omitted).

We hold that there are several fact-dependent issues in this case that are not properly determinable on summary judgment.  Among them are questions of the materiality of Byron’s alleged pre-fire and post-fire representations; the validity of the amended assignment, which the insurer contends lacked consideration, a mixed question of fact and law; whether the parties intended the “interest in and to” language in the original assignment to be broad enough to reach future proceeds, if any; and when, if ever, the Swansons acquired an insurable interest in the property.  Additionally, the district court erred in ruling that the attempted assignment voided the policy.  Nothing in the policy provides that assignment will invalidate the policy; rather, only the assignment is invalid.

Finally, the Swansons have asserted a consumer fraud claim against Minnesota FAIR Plan.  There is nothing in the record to raise a genuine issue of material fact as to that claim.  Furthermore, the district court was correct in adopting the insurer’s position that the consumer fraud act does not apply to this situation.

            Reversed and remanded.


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