may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Western National Mutual Insurance Company,
Filed August 31, 1999
St. Louis County District Court
File No. CX97600431
Michael W. Haag, Magie, Andresen, Haag, Paciotti, Butterworth & McCarthy, P.A., 1000 Alworth Building, Post Office Box 745, Duluth, MN 55801 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Thoreen, Judge.[*]
Appellant Western National Mutual Insurance Company challenges the trial court's posttrial ruling precluding appraisal and denial of judgment notwithstanding the verdict (JNOV). We affirm.
Respondent Sherl Kimball was insured by Western for damages to real and personal property. Kimball's home burned to the ground. He claimed an actual cash value of $67,185 for lost personal property. After Western denied Kimball's claim, Kimball commenced this action. Western responded that material misrepresentation voided Kimball's claim, noting Kimball's 1992 bankruptcy filing indicated a market value of $700 for personal property. According to the policy, if there is a disagreement on the actual cash value of the property, the amount is to be determined by appraisal.
At trial, both Kimball and his bankruptcy attorney testified Kimball had not supplied the $700 market value figure. An expert testified there was little relationship between market value for bankruptcy and actual cash value for insurance claims. The parties planned to submit the issue of damages to the jury but were unable to agree on jury instructions. The jury was not given the issue of damages. The jury concluded Kimball did not make a material misrepresentation with intent to deceive Western. Kimball filed a posttrial motion to preclude appraisal. Western filed a motion for JNOV. The trial court denied JNOV and ruled Western had waived the right to an appraisal by denying liability.
1. A party can obtain a JNOV when the jury verdict is not supported by sufficient evidence. Minn. R. Civ. P. 50.02. On review, this court must consider the evidence in the light most favorable to the prevailing party and must not set the verdict aside if it can be sustained on any reasonable theory of the evidence. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). An insurance policy is void if the insured misrepresented a material fact with the intent to defraud the insurer. Minn. Stat. § 65A.01, subd. 3 (1998). Whether there has been an intentional misrepresentation is a question of fact. Henning Nelson Constr. Co. v. Fireman's Fund Am. Life Ins. Co., 383 N.W.2d 645, 654 (Minn. 1986).
At trial, Kimball testified he had no intention to list items that he did not own or to inflate their replacement cost. Western called no witnesses, asserting misrepresentation solely on the basis of the $700 figure used in the 1992 bankruptcy filing. Kimball testified he had not supplied that figure, and his bankruptcy attorney testified his office had supplied the figure they normally used. Determining the credibility of witnesses is the role of the jury. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Given the testimony at trial, the jury's determination that Kimball did not make a material misrepresentation with fraudulent intent has a reasonable basis in fact.
2. Waiver is the intentional relinquishment of a known right and may be inferred from conduct. Seavey v. Erickson, 244 Minn. 232, 241, 69 N.W.2d 889, 895 (1955). "A waiver of the right to an appraisal by either party to the contract releases the other from all obligation to enter into an appraisal." Schrepfer v. Rockford Ins. Co., 77 Minn. 291, 294, 79 N.W. 1005, 1006 (1899). "A denial of all liability under a policy is usually treated as a waiver of the right to an appraisal." Page v. Rollingstone Mut. Farmers' Fire Ins. Co., 166 Minn. 74, 78, 207 N.W. 24, 26 (1926) (quotation omitted). In this case, Western denied liability under the policy. Accordingly, Western waived the right to an appraisal.
The key to whether a right has been waived is the intent of the party. Bast v. Capitol Indem. Corp., 562 N.W.2d 24, 29 (Minn. App. 1997). Here the policy provides that, after either party makes a written demand for appraisal, each party will notify the other of its selected appraiser within 20 days. In December 1997, six months before trial, Kimball made a written demand that Western participate in the appraisal process. Western was unresponsive. Intent may be inferred from conduct. Seavey, 244 Minn. at 241, 69 N.W.2d at 895. Western's inaction prior to the jury verdict further supports the trial court's determination that Western waived the appraisal process.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.