This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Levine & Son, Inc.,
Travelers Property Casualty Insurance Co.,
Filed December 24, 2002
St. Louis County District Court
File No. C201601949
Mark L. Knutson, Agnew, Dryer, Storaasli, Knutson & Pommerville, Ltd., 200 Sellwood Building, 202 West Superior Street, Duluth, MN 55802 (for appellant)
Mark S. Brown, Murnane, Conlin, White & Brandt, P.A., 444 Cedar Street, Suite 1800, Saint Paul, MN 55101 (for respondent)
Considered and decided by Minge, Presiding Judge, Willis, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
In a dispute over insurance coverage, appellant Levine & Son, Inc. argues that the district court erred by (1) denying its motion for summary judgment, (2) granting the motion for summary judgment of respondent Travelers Property Casualty Insurance Company, and (3) denying its motion for leave to amend its complaint. Because the district court did not err, we affirm.
In June 1999, appellant Levine & Son, Inc. entered into a contract with the City of Duluth that required Levine to replace storm- and sanitary-sewer pipes. The contract also required that Levine provide liability-insurance coverage for the project and that Levine indemnify the city for any costs or damages arising from Levine’s work on the project.
By July 1999, Levine had completed approximately 50% of the project, including the replacement of underground pipes on Rendle Avenue. The pipes from Rendle Avenue were connected to a partially constructed underground structure designed to be a junction of pipes of varying sizes from different directions. To prevent water and debris from entering the completed sections of pipe, Levine built a berm around the structure and placed steel plates over the exposed pipe openings.
Despite the precautions, a September 1999 rainstorm eroded the berm and apparently dislodged a steel plate that covered the opening of a pipe running under Rendle Avenue. A large amount of mud and other material entered the pipe, causing an obstruction. Levine discovered that it did not have the proper equipment to remove the obstruction and requested that the city use its equipment to do so. The city agreed, removed the obstruction using its specialized equipment, and charged Levine $4,984.07 for labor and equipment costs.
Levine submitted a claim under its commercial general-liability (CGL) insurance policy with respondent Travelers Property Casualty Insurance Company (Travelers) for the expense of removing the obstruction. The president of Levine stated at his deposition that the pipe itself was not damaged, that the material entered the pipe because of a rainstorm, and that the obstruction was not caused by Levine’s negligence. Travelers denied the claim on the grounds that the obstruction was not the result of an “occurrence,” defined by the policy as an accident, nor did it cause “property damage,” defined by the policy as physical injury to tangible property, both of which are preconditions to coverage under the policy.
Levine brought an action in conciliation court seeking recovery under the policy and claimed as damages $4,984.07 for the city’s charges and $2,966.46 for its own labor and equipment costs. The conciliation court found for Levine and awarded it the jurisdictional maximum of $7,500. Travelers removed the case to district court. Five months later, Levine moved for leave to amend its complaint by increasing the amount of its claimed damages; the district court denied the motion. Both parties subsequently moved for summary judgment; the district court denied Levine’s motion and granted summary judgment to Travelers. Levine appeals.
D E C I S I O N
Levine argues that the district court erred in its application of the law by granting Travelers’ summary-judgment motion. On appeal from summary judgment, we examine two issues: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). But an insured bears the burden of establishing a prima facie case of coverage. SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 311 (Minn. 1995). Interpretation of an insurance policy and application of the policy to the facts of a case is a question of law, which this court reviews de novo. Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 886-87 (Minn. 1978).
Levine argues that the cost of removing the obstruction from the pipe is covered by the policy because both preconditions to coverage are met: the pipe was “damaged” because the obstruction diminished the pipe’s capacity and the obstruction was the result of an “occurrence,” defined by the policy as an accident, because Levine did not intend for the material to enter the pipe. Travelers argues, inter alia, that Levine’s claim is subject to a policy exclusion and that CGL policies generally are not intended to provide coverage for this type of claim.
We first address Travelers’ exclusion argument. In section I(A)(2)(j), entitled “Damage to Your Work,” Travelers’ CGL policy excludes from coverage property damage to or the “service, maintenance, correction, repair or replacement” of work that the insured has completed. Here, it is uncontested that the obstruction was removed from a pipe that Levine had installed, that is, from Levine’s work, and Levine concedes that the obstruction was in a section of the project that had been completed, paid for, and turned over to the city. Because words of an insurance policy “are to be given their natural and ordinary meaning,” Am. Family Ins. Co. v. Walser, 628 N.W.2d 605, 609 (Minn. 2001), and because the “Damage to Your Work” exclusion precludes coverage for Levine’s claim, the district court did not err by concluding that the cost of removing debris from the pipe is not a risk covered by the CGL policy.
Our conclusion is consistent with Minnesota caselaw regarding coverage under CGL policies generally. The supreme court has described the types of risks that a CGL policy is intended to insure against as
[t]he possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than to the product or completed work itself, and for which the insured may be found liable. * * * The coverage is for tort liability for physical damage to others * * * .
Bor-Son Bldg. Corp. v. Employers Commercial Union Ins. Co. of Am., 323 N.W.2d 58, 63 (Minn. 1982) (quotation omitted). There is no claim that Levine caused bodily injury or property damage to another, and Levine does not assert that the Travelers policy is distinguishable from the CGL policies discussed in Bor-Son and T.E. Ibberson. Because the Travelers policy does not insure against damage to or service, maintenance, correction, repair, or replacement of the insured’s own completed work, the district court did not err by granting Travelers’ motion for summary judgment. We therefore do not address Levine’s argument that it should have been granted summary judgment because the preconditions to coverage were met.
Levine also contends that the district court abused its discretion by denying Levine’s motion to amend its complaint. When reviewing a decision on a party’s motion to amend a complaint, this court will reverse only if the district court abused its broad discretion. Fabio, 504 N.W.2d at 761.
In August 2001, after Levine had prevailed in conciliation court, Travelers removed the case to district court for a trial de novo. Five months later, Levine moved for leave to amend its complaint. The district court denied the motion on the ground that Levine failed to comply with Minn. R. Gen. Pract. 522, which requires any amendments to pleadings in a case removed from conciliation court to be made within 30 days after the removal is perfected.
It is uncontested that Levine failed to comply with rule 522, but Levine argues that the district court erroneously applied rule 522 instead of Minn. R. Civ. P. 15.01, which does not impose the same time limitation as rule 522 on the amendment of pleadings. Both the Minnesota Rules of General Practice, which include the conciliation court rules, and the Minnesota Rules of Civil Procedure were promulgated by the Minnesota Supreme Court and therefore have equivalent authority. Minnesota Rule of General Practice 523 provides that the rules of civil procedure apply to conciliation court cases only when the general rules of practice do not expressly provide otherwise. Rule 522 expressly provides that pleadings in a case removed from conciliation court must be amended within 30 days after the removal is perfected, and therefore it, rather than Minn. R. Civ. P. 15.01, applies to Levine’s proposed amendment to its complaint.
The district court did not err by applying rule 522 and denying Levine’s motion to amend its complaint.