This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-2556

American Family Mutual

Insurance Company,

Appellant,

vs.

Robert E. Ketchum, et al.,

Defendants,

State Farm Mutual Automobile

Insurance Company,

Respondent,

William Brockman, as personal

representative of the Estate

of Douglas Brockman, et al.,

Defendants.

Filed August 5, 1997

Affirmed; motion granted

Schultz, Judge

[*]

Hennepin County District Court

File No. 96-6672

Louise Dovre Bjorkman, Karen Imus Johnson, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)

Peter W. Riley, Sharon L. Van Dyck, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, 81 South Eighth Street, Minneapolis, MN 55402 (for defendants Ketchum et al.)

Emilio R. Giuliani, Lori L. Jensen-Lea, Labore & Giuliani, Ltd., 10285 Yellow Circle Drive, P.O. Box 70, Hopkins, MN 55343 (for respondent)

Considered and decided by Short, Presiding Judge, Klaphake, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Robert Ketchum was injured while a passenger in an automobile driven by William Brockman and owned by Brockman's live-in fiancee, Saisunee Hagen. Ketchum recovered under Hagen's automobile insurance policy and then sued his own insurer, State Farm Mutual Automobile Insurance Company, for underinsured motorist benefits. State Farm disputed Ketchum's claim, arguing that additional coverage was available to Ketchum from Brockman's insurer, American Family Mutual Insurance Company. American Family, in turn, disputed coverage and brought this declaratory judgment action to determine its obligations under its policy. On summary judgment, the district court concluded that the American Family policy provided coverage for Ketchum. We affirm.

FACTS

Douglas Brockman lived with his fiancee, Saisunee Hagen. Brockman owned a Nissan pickup truck, insured by appellant American Family Mutual Insurance Company (American Family).

On January 25, 1993, Brockman borrowed Hagen's car to drive to a job in Wisconsin because the steering wheel on his truck had been vibrating. Hagen, who worked close to home, agreed to drive Brockman's truck to work and take it to a repair shop after work. While Hagen was at work, Brockman was involved in a car accident in Hagen's car. Brockman was killed, and Robert Ketchum, a passenger in the car, was injured.

D E C I S I O N

On appeal from a summary judgment, we review the record to decide whether there are any genuine issues of material fact and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The interpretation of an insurance contract is a question of law, which we review de novo. Kolby v. Northwest Produce Co., 505 N.W.2d 648, 650 (Minn. App. 1993).

Brockman's policy with American Family defined "your insured car" as including a temporary substitute car being used because of an insured car's "withdrawal from normal use due to breakdown, repair, [or] servicing * * * ." American Family claims that Brockman was not using Hagen's car as a temporary substitute because Brockman's truck had not been withdrawn from normal use on the day of the accident; rather, Hagen drove the truck to work that day.

The Minnesota Supreme Court has previously addressed a "temporary substitute automobile" clause in a situation where an insured had borrowed his fiancee's car because his car had stalled and wouldn't run. Holland America Ins. Co. v. Baker, 272 Minn. 473, 139 N.W.2d 476 (1965). The Holland America court cited with approval Mid-Continent Cas. Co. v. West, 351 P.2d 398 (Okla. 1959), where the court concluded that in a situation where an insured's tires were badly worn, although usable for local use, the condition of the tires was sufficient to render another vehicle a temporary substitute automobile. Id. at 400.

The Holland America court reasoned that

[u]nder the reasonable and liberal interpretation that must be given the "temporary [s]ubstitute automobile" provision, its wording does not mean that the insured's own car, or the "described automobile," must be disabled from all use.

272 Minn. at 480, 139 N.W.2d at 481 (quoting Mid-Continent, 351 P.2d at 400); see also James L. Isham, Annotation, Construction and Application of Substitution Provision of Automobile Liability Policy, 42 A.L.R. 4th 1145, 1154-55 (1985) (concluding "the greater weight of authority indicates that a described automobile need not be withdrawn from all use in order to be considered withdrawn, only from all normal use * * * The majority of courts * * * recognizes that aside from total mechanical failure, a "breakdown" may exist where due to malfunction or failure of an essential component, such as tires or front suspension, the described automobile is incapable of safe operation on public roads").

Similarly, we conclude that Brockman's truck was withdrawn from normal use due to breakdown and intended repairs. The plain language of Brockman's policy with American Family required only that his truck be withdrawn from normal use; the policy did not require that the truck be rendered "inoperable." Although the truck was not withdrawn from all use, it was withdrawn from Brockman's normal use for transportation to work. Furthermore, Hagen intended to bring the car to a repair shop, as a result of a "breakdown" of the steering system, when she finished working. Under the language of the policy, Hagen's car was a temporary substitute for Brockman's truck.

In light of our conclusion that Hagen's car was a temporary substitute automobile included within the definition of "your insured car," we need not address American Family's arguments regarding a coverage exclusion for vehicles "other than your insured car."

American Family has moved to strike a copy of an order included in State Farm's appendix, which was not part of the record below. We grant the motion to strike. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (noting that appellate court will ordinarily refuse to base a decision on matters that were not produced and received in evidence below).

Affirmed; motion granted.

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