This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Willmar Unclaimed Freight, Inc.,


American Family Mutual Insurance Company,


Dawn Holmes,


American Family Mutual Insurance Company,


Filed May 8, 2007


Peterson, Judge


Kandiyohi County District Court

File No. C8-04-1309


Stephen L. Wilson, Thomas A. Harder, Foley & Mansfield, P.L.L.P., 250 Marquette Avenue, Suite 1200, Minneapolis, MN  55401 (for appellant)



James M. Hamilton, Oskie, Reuter, Hamilton & Sofio, P.A., 970 Raymond Avenue, Suite 202, St. Paul, MN  55114 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N



            Appellant argues that the district court erred in allowing respondent to present evidence and argument at trial about issues that were decided in appellant’s favor on summary judgment.  We affirm.


            A building owned by appellant Dawn Holmes sustained water damage.  Alleging that the damage was caused by a storm, Holmes sought coverage under an insurance policy issued by respondent American Family Mutual Insurance Company.  The policy contains the following clause:

            1.  We will not pay for loss of or damage to property, as described and limited in this section.  In addition, we will not pay for any loss that is a consequence of loss or damage as described and limited in this section.


            . . . .


                        c.  The interior of any building or structure, or to personal property in the building or structure, caused by or resulting from rain, snow, sleet, ice, sand or dust, whether driven by wind or not, unless:

                                    (1) The building or structure first sustains damage by a Covered Cause of Loss to its roof or walls through which the rain, snow, sleet, ice, sand or dust enters . . . . 


            American Family denied coverage based on its determination that the water damage had resulted over time, rather than being caused by the storm, and Holmes brought this action seeking a declaration that the damage was a covered loss under the insurance policy and monetary damages.  Holmes moved for summary judgment, arguing that the building was a constructive total loss and, therefore, she was entitled to damages in the amount of the policy limits.  By order filed June 15, 2005, the district court granted in part and denied in part Holmes’s motion.  The district court ordered:

            a. The storm in Willmar on June 24, 2003 was a windstorm, and included rain and hail.


            b. A covered cause of loss to Dawn Holmes’[s] building occurred on June 24, 2003.


            c. The value of the building was $169,100.


            d. Holmes has not demonstrated that insured damage to her building rendered it a constructive total loss. 


            In the memorandum accompanying the summary-judgment order, the district court stated:

            American Family argues that Holmes’[s] damages do not arise from a covered cause of loss because the “wear and tear” policy exclusion applies. . . .


            It is not at all clear that the “wear and tear” exclusion applies to this case.  It is undisputed that the building was in a rather poor condition, although neither party was aware of its deficiencies before the storm.  But American Family has not demonstrated that Holmes’[s] damages were “caused by or resulting from . . . wear and tear.” . . .


            Even if the wear and tear exclusion applies, the “specified cause of loss” exception applies, so that Holmes is covered.  All admissible evidence points to the June 24, 2003 storm as having been a windstorm with rain and hail. . . .  Assuming that the wear and tear exclusion applies, Holmes would need to demonstrate that damage was caused by the windstorm or hail.  But it is clear that there was a windstorm and hail.


            . . . The only evidence in the record indicates a windstorm with rain and hail.  There is no genuine issue of material fact on this point.


            Regardless of whether the wear and tear exclusion applies, there is a covered cause of loss.  Therefore, Holmes is entitled to compensation for damages caused by that covered cause of loss.  Also, the interior damage limitation does not exclude coverage . . . . 


            Holmes interprets the order as deciding coverage issues in her favor as a matter of law.  After American Family submitted a trial brief addressing coverage issues that Holmes believed had been decided in her favor, a dispute arose between the parties about the interpretation of the June 15 order.  In its trial memorandum, American Family cited the interior-damage-limitation clause and also stated:

            The Holmes[] policy provisions give rise to the following factual issues, among others:  (1) whether the water that entered the building did so as a result of pre-storm deterioration of the building exterior or as the result of damage to the exterior of the building caused by windstorm or hail . . . .  Mere wind-driven rain which caused water to enter the building is not a covered cause under Holmes’[s] policy.


            . . . .


            The evidence in this case will show that:

·        the water which entered Holmes’[s] building did so as a result of Holmes’[s] failure to properly maintain the exterior of the building, the roof in particular; [and]

·        there was no windstorm or hail-related damage to the exterior of the building which permitted rain water to enter[.] 


The district court permitted the coverage issues to proceed to trial.  Following trial, the district court found:

            22.  American Family has proven that the interior damage coverage limitation applies.  Holmes has not proven that the exception to the limitation applies because there was no exterior storm damage to the building.  No coverage exists for damage to the interior of the building.


            23.  The policy requires that the building first sustain damage to its roof or walls through which the rain entered.  The rain entered the building because the roof was badly deteriorated, not because of storm damage.  There is not a sufficient causal link between the storm and the interior damage, as required by the policy. 


Judgment was entered, and Holmes moved for amended findings or a new trial on grounds that the district court improperly considered evidence on the coverage issues because those issues were decided in her favor on summary judgment.  Following a hearing, the district court denied Holmes’s motion in its entirety.  This appeal followed.


            The district court’s decision to grant or deny a new trial will not be disturbed on appeal absent a clear abuse of discretion.  Halla Nursery, Inc., v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

            Holmes argues that the district court erred in addressing coverage issues because those issues were decided in her favor in the June 15, 2005 order.  Under Minn. R. Civ. P. 56.04, when a case is not entirely decided on summary judgment, the district court shall

make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just.  Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.


Also, “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”  Minn. R. Civ. P. 56.03.

An interlocutory adjudication entered under rule 56.03 or rule 56.04 may be amended before the issuance of final findings of fact, conclusions of law, and order for judgment.  General Ins. Co. of Am. v. Lebowsky, 312 Minn. 370, 375-76, 252 N.W.2d 252, 255 (1977).  Thus, even if Holmes is correct that the district court ruled on summary judgment that coverage existed under the policy as a matter of law, under Lebowsky, the district court was authorized to modify the June 15 order.

            Holmes argues that American Family acted improperly in raising the coverage issues in its trial memorandum without first having moved for reconsideration of the summary judgment under Minn. R. Gen. Pract. 115.11.  Holmes’s argument is not persuasive.  Reading the June 15 order and accompanying memorandum in their entirety, American Family’s interpretation of the order -- as determining that the storm was a covered cause of loss but that fact issues regarding whether the interior-damage limitation excluded coverage remained for trial -- is reasonable.  Accordingly, until the dispute about the order’s meaning arose at trial, American Family had no cause to believe it was aggrieved by the order and, thus, no reason to seek reconsideration.  Under these circumstances, American Family acted in a timely manner in raising the coverage issues in its trial memorandum.  See id. (concluding that district court properly allowed posttrial motion to clarify and amend order entered under rule 56.04).

            Holmes also argues that the findings were inadequate under rule 56.04.  To the extent that the findings were inadequate, under Lebowsky, amendment was permitted.

            There remains the question of whether Holmes had sufficient notice to prepare for trial on the coverage issues.  For Holmes to obtain reversal based on insufficient notice, she must establish prejudice.  See Phelps v. Blomberg Roseville Clinic, 253 N.W.2d 390, 394 (Minn. 1977) (concluding that district court did not err in declining to suppress expert testimony based on late disclosure when opposing party did not seek continuance and failed to show prejudice); see also Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (noting that to prevail on appeal appellant must show error and that error caused prejudice).

            At a minimum, a trial transcript is necessary for this court to evaluate any prejudice to Holmes at trial.  The objecting party has the burden of providing a sufficient record for review.  Schmuckler v. Creurer, 585 N.W.2d 425, 429 (Minn. App. 1998), review denied (Minn. Dec. 22, 1998).  Because Holmes failed to provide a trial transcript, we cannot review this claim.


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