This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Western National Mutual Insurance Company,





Westling Manufacturing, Inc., et al.,



Liberty Mutual Insurance Company,

a foreign insurance company, et al.,



Allied Mutual Insurance Company,

a foreign insurance company,



Filed December 30, 2003


Gordon W. Shumaker, Judge


Hennepin County District Court

File No. 99-4682



William L. Lucas, William L. Lucas, P.A., 7456 Cahill Road, Edina, MN 55439-2728 (for appellants)


Thomas E. Peterson, Peterson & Hektner, Ltd., 145 Paramount Plaza III, 7831 Glenroy Road, Minneapolis, MN 55439 (for respondent)



            Considered and decided by Randall, Presiding Judge; Schumacher, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N




Appellants challenge the grant of summary judgment in favor of respondent insurer, contending that the district court improperly shifted to them the burden of proving the existence of coverage.  Because the district court did not shift the burden of proof and because appellants failed to show a genuine issue of material fact as to coverage, we affirm.


The undisputed facts show that appellant Donald Westling leased a parcel of real estate to appellant Westling Manufacturing, Inc. (the company).  From January to June 1972, the company used perchloroethylene (perc) to clean used automobile parts on the land.  No perc was used or stored on the property after June 1972.

Westling had insurance coverage on the leased land from June 1, 1972, to June 6, 1976, under a primary multi‑peril policy written by Employers Mutual Casualty Company, and from December 1, 1973, to December 1, 1976, under an excess policy written by respondent Allied Mutual Insurance Company.

The primary policy excluded coverage for property damage resulting from pollution, except in the case of a sudden and accidental discharge of pollutants.  The excess policy was conditioned on the existence of primary insurance and it provided that the excess coverage would not be broader than that described in the primary policy.

In July 1996, the Minnesota Pollution Control Agency (MPCA) notified Westling that the groundwater on the leased property contained a concentration of perc that exceeded the department of health’s safety limits.  The MPCA asked Westling to consider participating in the Voluntary Investigation and Cleanup (VIC) program and told him that his failure to cooperate would expose him to Superfund enforcement.

After enrolling in the VIC program, Westling tendered the defense of the MPCA’s claims to Allied Mutual and other insurers.  The insurers refused the tender, and one of them started a declaratory judgment action.  The district court granted Allied Mutual’s motion for summary judgment.  On appeal, this court reversed and remanded the action, holding that summary judgment was premature.  W. Nat’l Mut. Ins. Co. v. Westling Mfg., Inc, No C8‑01‑360, 2001 WL 1085005, at *5 (Minn. App. Sept. 18, 2001), review denied (Minn. Dec. 11, 2001).  This court also stated:  “After establishing that a triggering event occurred, the district court should have evaluated whether the Westlings had established a prima facie case of coverage and, if they had, the court should have then submitted the question of coverage and indemnification to a fact‑finder.”  Id.

On remand, Allied Mutual again moved for summary judgment.  Ruling that appellants “failed to produce any evidence that would allow a reasonable conclusion that the contamination might have resulted from a sudden and accidental release of perc into the soil during the coverage period . . . ,” the district court granted Allied Mutual’s motion.  This appeal followed.


The Allied Mutual insurance policy extended coverage from December 1, 1973, to December 1, 1976.  It excludes damage to the property caused by pollution.  There is an exception to the exclusion for pollution damage that results from a sudden and accidental discharge of a contaminant.  It is undisputed that the groundwater on the Westling property became polluted at some time.  If that pollution resulted from a sudden and accidental discharge of a contaminant during the policy period, there is coverage.

Appellants do not contend at this point that Allied Mutual is required to indemnify them against losses or damages.  Rather, they argue only that, by their tender of the defense of an arguably covered claim, Allied Mutual is obligated to defend against the MPCA claim.

Appellants do not dispute the proposition that, if there is no coverage of the MPCA claim, Allied Mutual has no duties with respect to that claim.  What is in contention here is the question of how coverage is procedurally determined.

The Allied Mutual policy contains duties of defense and indemnification as to covered claims.  These duties are different from each other.  Franklin v. W. Nat’l Mut. Ins. Co., 574 N.W.2d 405, 406 (Minn. 1998); Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822, 825 (Minn. 1980).  The duty of defense arises upon the tender of the defense of an arguably covered claim.  Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165-66 (Minn. 1986); Brown, 293 N.W.2d at 825.  As the insurance contract provides, the duty of indemnification becomes fixed when it is established that there is a covered liability.  However, neither duty exists if there is no coverage as defined by the insurance agreement.

Allied Mutual argues that coverage can be determined through a declaratory judgment action brought for that specific purpose and then through the vehicle of a summary judgment motion in that action.  Appellants do not quarrel with that argument, but they focus attention on the parties’ respective burdens in a summary judgment proceeding.

The basic rule is that a party who moves for summary judgment has the burden of demonstrating that there are no genuine issues of material fact for trial and that the moving party is entitled to judgment as a matter of law.  Ritter v. M.A. Mortenson Co., 352 N.W.2d 110, 112 (Minn. App. 1984).  Allied Mutual moved for summary judgment and produced or pointed to a record that indisputably shows that the MPCA did not allege that the groundwater contamination happened during the policy period; that the sole known incident of the discharge of a contaminant occurred in 1991 on an adjacent parcel of land; that Westling did not become aware of any pollution on the property until 1996 and has no knowledge of whether there was a sudden or accidental discharge of a contaminant during the policy period; and Westling’s expert engineer was unable to tell when the contamination occurred.

When a party moves for summary judgment and supports the assertion that there is no genuine fact issue for trial, the nonmoving party may not rest on mere averments that a fact issue exists.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  The nonmoving party must produce or point to specific facts that create a trial issue.  Rosvall v. Provost, 279 Minn. 119, 124, 155 N.W.2d 900, 904 (1968).  As the supreme court explained:

To forestall summary judgment, the nonmoving party must do more than rely on “unverified or conclusionary allegations” in the pleadings or postulate evidence which might be produced at trial.  The nonmoving party must present specific facts which give rise to a genuine issue of material fact for trial.


W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998) (citation omitted).

Viewing the summary judgment rules and procedures in the context of this case, Allied Mutual has shown that there is no evidence that a sudden and accidental discharge of a contaminant occurred on the insured land during the policy period.  Appellants agree in part, but say that “there is no evidence in the district court record that establishes that the entry of the contaminant into the groundwater either did or did not occur within the period of coverage . . . .”  They also agree that there is no evidence to show that “entry into the groundwater was, or was not, sudden; or that it was, or was not accidental . . . .”  But appellants contend that it is still arguable that the pollution was a covered event and that “it will be arguable until Allied Mutual or someone else proves otherwise.”

Appellants point to the rule that an insurer who seeks to avoid defending an insured has the burden of demonstrating that all parts of a claim against the insured fall outside the scope of coverage.  Prahm v. Rupp Const. Co., 277 N.W.2d 389, 390 (Minn. 1979).  From that rule, appellants argue that, by requiring them to show the existence of a fact issue as to a covered event occurring within the policy period, the district court improperly shifted to them the burden of proving that the claim falls within the scope of coverage.

Appellants in this argument confuse the ultimate burden of proof with the lesser burden of identifying genuine facts for trial.  Upon a summary judgment motion, no party is required to “prove” anything or to “establish” anything, even though those words might sometimes be used imprecisely by litigants and courts to describe the respective duties of moving and nonmoving parties in a summary judgment proceeding.  More accurately, the nonmoving party must show that a genuine issue of material fact for trial exists.  Minn. R. Civ. P. 56.05.  This showing might be made by producing evidence or by simply pointing out fact issues that are apparent from the moving party’s supporting materials.  Lundgren v. Eustermann, 370 N.W.2d 877, 881 (Minn. 1985).  So, the burdens are these:  The moving party identifies evidence that, if uncontroverted, demonstrates that there is nothing genuine for a trier of fact to decide.  Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988).  The nonmoving party identifies evidence to the contrary and thereby shows that there are genuine issues for the trier of fact to decide.  Id.  The party with the burden of proof retains that burden for trial if the motion is denied.  Id.  Summary judgment rules do not shift that burden.  Id.

If there is a genuine fact issue that the pollution of the groundwater occurred by a sudden and accidental discharge of a contaminant during December 1, 1973, to December 1, 1976, the matter properly is to be submitted to a trier of fact, and Allied Mutual must prove that its policy exclusion applies.

But appellants have failed to identify any evidence that would directly or inferentially show the requisite fact issue, arguing instead that nobody really knows one way or the other.  Their argument as to ultimate burden of proof is irrelevant here because the summary judgment standard requires a different and less stringent burden.

Because appellants failed to show the existence of a genuine fact issue for trial on the question of coverage, and because without coverage Allied Mutual has no duty to defend against the MPCA claim and is entitled to judgment as a matter of law, the district court properly granted summary judgment in the insurer’s favor.