This opinion will be unpublished and

may not be cited except as provided by

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




Eugene C. Stauber, et al.,



State Farm Mutual Automobile

Insurance Company,


Filed July 21, 1998


Harten, Judge

Hennepin County District Court

File No. PI-94-011648

Robert D. Boedigheimer, Peter J. Horejsi, McCloud & Boedigheimer, P.A., Southgate Office Plaza, Suite 201, 5001 West 80th Street, Bloomington, MN 55437 (for appellants)

Linc S. Deter, Brett W. Olander & Associates, 900 Norwest Tower, 55 East Fifth Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Holton, Judge.[*]



After suffering injuries in an automobile accident, appellants Eugene Stauber and his wife, Mary Stauber, sued the alleged tortfeasors. The Staubers entered into a settlement pursuant to Schmidt v. Clothier, 338 N.W.2d 256 (Minn. 1983), and then sued their insurer, respondent State Farm Mutual Automobile Insurance Company, seeking underinsured motorist coverage. At trial, the parties stipulated that the State Farm policy covered the loss and that the policy provided "$100,000 per person, $300,000 per occurrence of under-insured motorists' benefits." A copy of the policy was not introduced into evidence.

The jury returned a special verdict, finding that Eugene Stauber was entitled to $1,283,389 damages and that Mary Stauber was entitled to $212,500 damages for loss of consortium. The parties submitted proposed findings of fact and conclusions of law. The Staubers proposed that Mary Stauber's claim for loss of consortium entitled her to a $100,000 recovery under the policy, separate from her husband's recovery. After requesting and reviewing the policy, the district court found that Eugene and Mary Stauber together were entitled to only $100,000, and that the parties' stipulation did not change the terms of the policy. The Staubers have appealed from the judgment, claiming that pursuant to the stipulation they were each entitled to receive $100,000. We disagree and affirm.


On appeal from a judgment when there have been no post-trial motions, we are limited to determining whether the evidence sustains the findings of fact and whether the findings sustain the conclusions of law. Johnsrud v. Tri-State Sales, Inc., 353 N.W.2d 255, 257 (Minn. App. 1984).

The Staubers argue that the copy of their UIM policy that is appended to State Farm's brief is not a part of the record on appeal.

It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.

Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977).[1] This rule, however, is not without its exceptions; an appellate court, in order to sustain a judgment, may permit an omission in the record to be corrected by documentary evidence that is "of a conclusive nature." Id. (quoting Mattfeld v. Nester, 226 Minn. 106, 123, 32 N.W.2d 291, 303-04 (1948)). The Staubers have not challenged the existence, authenticity, or contents of the appended policy.

The declarations page of the Staubers' UIM policy limits coverage to $100,000 for each person and $300,000 for each accident. A policy endorsement explains the terms of coverage:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. The bodily injury must be caused by accident arising out of the operation, maintenance or use of an underinsured motor vehicle.

* * * *

The amount of coverage is shown on the declarations page * * *. Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. It includes injury and damages to others resulting from that bodily injury. Under "Each Accident" is the total amount of coverage, subject to the amount shown under "Each Person", for all damages due to bodily injury to two or more persons in the same accident.

* * *

The limits of liability are not increased because:

* * *

b. more than one person is insured at the time of the accident.

(Emphasis in original.) The policy defines "bodily injury" as "bodily injury to a person and sickness, disease or death which results from it." (Emphasis in original.)

The Staubers' complaint indicates that Mary Stauber suffered no bodily injury herself, but sought only damages for loss of consortium as a result of her husband's accident. We have previously decided, based on similar facts and policy language, that a claim for loss of consortium does not constitute a separate "bodily injury" allowing a spouse to recover more than a per-person policy limit. Sicoli v. State Farm Mut. Auto. Ins. Co., 464 N.W.2d 300, 303 (Minn. App. 1990); see also Carlson v. Mutual Serv. Ins., 494 N.W.2d 885, 887 (Minn. 1993) (noting that "Minnesota has long recognized that any derivative claim, such as loss of consortium * * * falls within the "per person" limits, not the "per accident" limits of automobile insurance"); Beukhof v. Minnesota Mut. Fire & Cas. Co., 502 N.W.2d 223, 225-26 (Minn. App. 1993) (holding that bodily injury claim included both wife's personal injury claim and husband's claim for loss of consortium), review denied (Minn. Aug. 6, 1993); Carlson v. Mutual Serv. Cas. Ins. Co., 527 N.W.2d 580, 584 (Minn. App. 1995) (holding that UIM policy per-person limit included husband's claim for loss of consortium because such claim was derivative of wife's personal injury claim), review denied (Minn. Apr. 27, 1995).

The Staubers argue that the above cases are distinguishable because the Staubers' UIM policy was not introduced into evidence at trial, and the district court's decision should have been based solely upon the parties' oral stipulation regarding the terms of coverage. At oral argument before this court, however, the Staubers' counsel conceded that if the district court properly considered the policy, the language in that policy supports the district court's decision.

We note that the district court reviewed the Staubers' UIM policy after participating in discussions with both parties' counsel and before rendering its decision. Even if the policy should have been entered into the record at an earlier time, the law supports the district court's limitation of the Staubers' recovery to $100,000. The legislature has mandated that all Minnesota automobile insurance policies provide UIM coverage for damages "because of injury to or the death of" a person involved in an accident. Minn. Stat. § 65B.49, subd. 3a(1) (1996). UIM coverage is defined as

coverage for the protection of persons * * * who are legally entitled to recover damages for bodily injury from owners or operators of underinsured motor vehicles.

Minn. Stat. § 65B.43, subd. 19 (1996) (emphasis added). Thus, the legislature has indicated its intent that a person's entitlement to recovery under UIM policies is based on a bodily injury or death. Absent any argument by the Staubers' counsel to the contrary, the district court could properly assume that the Staubers' UIM policy conformed to the legislative mandate. Because Mary Stauber suffered no bodily injury, her claim under the UIM policy is derivative of Eugene Stauber's claim. Together, rather than separately, the Staubers are entitled to the per-person policy limit of $100,000.


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

[1] This rule has been incorporated into the Rules of Civil Appellate Procedure, which state:

The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.

Minn. R. Civ. App. P. 110.01.