This opinion will be unpublished and

may not be cited except as provided by

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






Tobin Chiles, et al.,





 Guillermo Orozco Hernandez, et al.,

defendants and third party plaintiffs,





Triple A Farms,

Third party defendant,



Filed March 9, 2004


Harten, Judge


Anoka County District Court

File No. C9-01-2002


Robert L. McCollum, Teri E. Bentson, Brian P. Farrell, Cheryl Hood-Langel, McCollum, Crowley, Moschet & Miller, Ltd., Suite 1300, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)


Nicholas L. Klehr, LaBore, Guiliani, Cosgriff & Viltoft, Ltd., 10285 Yellow Circle Dr., Hopkins, MN 55343 (for respondents)


Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N




            Respondents were granted summary judgment holding appellant liable to defend and indemnify them pursuant to a contract between the parties.  Appellant claims that respondents are not entitled to summary judgment pursuant to the contract and that genuine issues of material fact preclude summary judgment.  Because we conclude that appellant is obligated to defend and indemnify respondents and see no genuine issue of material fact, we affirm.      



            Respondent C.S. McCrossan, a road construction company, entered into a subcontract with appellant Triple A Farms for laying sod adjacent to a road that respondent was building.  Under the subcontract, appellant agreed “to conform to and comply with all the terms of the General Contract and to assume toward the Contractor all the duties and obligations that the Contractor assumes in the General Contract . . . .”  Among the duties appellant assumed was replacing any sod not viable after 30 days, or, implicitly, maintaining the viability of the sod for 30 days.

The subcontract also provided that

[t]he Sub-Contractor agrees to assume entire responsibility and liability, to the fullest extent permitted by law, for all damages or injury to all persons, whether employees or otherwise, and to all property, arising out of, resulting from, or in any manner connected with the execution of the work provided for in this Sub-Contract or occurring or resulting from the use by the Sub-Contractor, his agents or employees, of materials, equipment, instrumentality’s [sic] or other property, whether the same be owned by the Contractor, the Sub-Contractor or third parties.  The Sub-Contractor, to the fullest extent permitted by law, agrees to indemnify and save harmless the Contractor, his agents and employees, the Owner, the Engineer and other Sub-Contractors from all such claims including, without limiting the generality of the foregoing, claims for which the Contractor may be, or may be claimed to be, liable, and legal fees and disbursements paid or incurred to enforce the provisions of this paragraph.  The Sub-Contractor further agrees to obtain, maintain and pay for such general liability insurance coverage and endorsements as will insure the provisions of this paragraph.


For reasons that are disputed, the actual watering of the sod was performed by respondent.  The subcontract did not specifically mention watering the sod. 

Tobin Chiles’s car rear-ended respondent’s watering truck as it was being driven by respondent Guillermo Hernandez, an employee of respondent McCrossan.  Chiles and his wife brought an action against respondents, who, on the basis of the Sub-Contract Agreement, tendered the defense to appellant.  Appellant declined the defense, and respondents brought a third-party action against it.  Chiles’s claims against respondents were settled, and respondents obtained summary judgment against appellant.

Appellant challenges the summary judgment, arguing that, as a matter of law, appellant is not obligated to indemnify respondents and that fact issues preclude the summary judgment.


            In reviewing a summary judgment, this court asks whether the district court erred in its application of the law and whether there are any genuine issues of material fact.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

1.         Indemnification

            Appellant was obligated to indemnify respondent for damages “arising out of, resulting from, or in any manner connected with the execution of the work provided for in this Sub-Contract.”  That work included laying sod and keeping it viable for 30 days.  Appellant claims first that its obligation was only to ensure the viability of the sod, not specifically to water it, because “[t]he means for keeping the sod viable was not set forth in the Agreement.”  But while watering sod newly laid in 90-degree heat may not be sufficient to keep it viable, appellant does not dispute the necessity of watering to viability of sod; and the subcontract clearly indicates that appellant has the “entire responsibility and liability . . . for all damages or injury to all persons . . . in any manner connected with the execution of the work” provided in the subcontract. 

Appellant argues in the alternative that the contractual duty to water the sod was assumed by McCrossan through an oral modification of the parties’ contract.  But nothing in the record supports the existence of an oral modification.  Moreover, the deposition testimony of appellant’s president indicates that the duty to water remained with appellant.  He testified, “It was my understanding that [McCrossan] would water for the 30 days, but it would still be my responsibility to . . . pass the test [of viability of the sod].”  When asked if it would be appellant’s obligation to replace dead sod in an area McCrossan had watered, he responded, “Correct.”

Appellant’s president later submitted a page of corrections to his deposition.  These included adding “unless the cause of the failure of the sod to survive was due to McCrossan watering” at the end of the first sentence quoted above and “unless dead sod results of McCrossan watering” after “Correct.”  We agree with the district court that these corrections indicate an “after-the-fact analysis of a deposition transcript.”  We note also that the corrections are procedurally unauthorized.  Minn. R. Civ. P. 30.05 provides that deponents wanting to make changes must so request and are “to sign a statement reciting such changes and the reasons given by the deponent for making them.”  The record does not reflect compliance with this rule.[1]               

2.         Genuine Issues of Material Fact

            Appellant claims that genuine issues of material fact preclude summary judgment.  There is no genuine issue of material fact when the record, taken as a whole, could not lead a rational fact finder to find for the nonmoving party.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  No genuine issue of material fact results when a nonmoving party prevents evidence that creates no more than a metaphysical doubt as to a fact issue and that is not sufficiently probative to permit reasonable persons to draw different conclusions.  Id. at 71. 

            Appellant argues that genuine issues of fact exist as to causation of the accident.  Although proximate cause is generally a question of fact for the jury, “where reasonable minds can arrive at only one conclusion,” proximate cause becomes a question of law and may be disposed of by summary judgment.  Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995).  Reasonable minds could conclude only that the accident was proximately caused by the watering of the sod, not, as appellant suggests, by the opening of the highway.            Appellant also claims that the corrections to the deposition create a genuine issue of material fact.  But the purported “corrections” are in fact substantive additions to the testimony, sworn statements not subject to cross-examination, or de facto affidavits.  “A self-serving affidavit that contradicts earlier damaging deposition testimony is not sufficient to create a genuine issue of material fact.”  Banbury v. Omnitrition Int’l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995) (citing Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983) (allowing a party who had been deposed to raise an issue of fact simply by contradicting earlier testimony in an affidavit would diminish the utility of summary judgment)).  Appellant cannot create a genuine issue of material fact to defeat summary judgment by adding “corrections” to deposition testimony.                      

            No genuine issue of material fact precluded summary judgment, and the contract between the parties requires appellant to indemnify respondents.


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

[1] Appellant also argues that the injuries were not caused by its duty but by the negligent performance of respondent’s employee.   Respondents claim that this argument is raised for the first time on appeal, a claim that appellant does not refute.  This court does not consider matters not presented to the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  “Nor may a party obtain review by raising the same general issue litigated below but under a different theory.”  Id.   Whether respondent negligently performed duties related to the watering of the sod is not an issue properly before this court.