This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Evelyn Schluter,


American Family Insurance Company,

Filed November 9, 1999
Holtan, Judge[*]

Hennepin County District Court
File No. CT 98-7103

David A. Singer, 601 Carlson Parkway, #1050, Minnetonka, MN 55305 (for appellant)

Katherine A. McBride, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Harten, Presiding Judge, Short, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N


In challenging the district court's summary judgment award against her, appellant claims that the language of her insurance policy with respondent established an accrual date for the running of the statute of limitations on an underinsured motorist (UIM) claim. Alternatively, she asserts that respondent should be barred from asserting a statute-of-limitations defense because respondent's actions contributed to the delay in filing suit. We disagree, and affirm the judgment of the district court.


Appellant Evelyn Schluter was injured in an automobile accident on January 18, 1992, when her vehicle was struck while she was attempting to make a left turn from I-35W onto Burnsville Parkway in Dakota County. Schluter reached a settlement with the other driver in March 1997, after her own insurance company, respondent American Family Insurance Company (American Family), declined to intervene. Schluter notified American Family of her intent to claim UIM benefits in October 1997, and, at that time, requested a certified copy of her policy. American Family provided Schluter with the certified policy in March 1998, and Schluter filed suit that month. The district court dismissed the claim as barred by the statute of limitations.


1. Statute of Limitations

Construction of a statute of limitations is a legal question reviewed de novo. Cattnach v. State Farm Ins. Co., 577 N.W.2d 251, 252 (Minn. App. 1998), review denied (Minn. July 17, 1998). When no facts are in dispute, the reviewing court must examine whether the trial court erred in applying the law regarding the accrual of the cause of action and the running of the statute of limitations. See Hermeling v. Minnesota Fire & Cas. Co., 548 N.W.2d 270, 273 (Minn. 1996).

The parties do not dispute that underinsured motorist claims are governed by the six-year limitations period for contracts under Minn. Stat. § 541.05, subd. 1(1) (1998). They do, however, dispute when the statute begins to run.

In an action involving implied-in-law UIM coverage, the statute of limitations begins to run from the date of the auto accident giving rise to the injury. O'Neill v. Illinois Farmers Ins. Co., 381 N.W.2d 439, 441 (Minn. 1986). A recent Minnesota Supreme Court decision concluded that the same accrual date applies to uninsured motorist (UM) and UIM claims that are specified by contract. Weeks v. American Family Mut. Ins. Co., 580 N.W.2d 24, 26-27 (Minn. 1998); see also Nelson v. State Farm Ins. Co., 567 N.W.2d 770, 771 (Minn. App. 1997) (declining to distinguish cases in which UIM coverage is implied from those in which coverage is provided by contract), review denied (Minn. Oct. 31, 1997).

This court recognized an exception to the principle fixing the accrual date at the time of the accident, where an insurance policy specifically provides for an alternate accrual date. Sargent v. State Farm Mut. Auto. Ins. Co., 486 N.W.2d 14, 16 (Minn. App. 1992) (distinguishing O'Neill where UIM coverage was implied as a matter of law), review denied (Minn. Aug. 4, 1992). The policy reviewed in Sargent stated that

[t]here is no coverage until the limits of liability of all bodily injury liability bonds and policies that apply have been used up by payments of judgments or settlements.

Id. (emphasis added). Subsequent cases have limited Sargent's application. See Cattnach, 577 N.W.2d at 253 (limiting application to policy language similar to that of Sargent); Nelson, 567 N.W.2d at 772 (finding that "[a]bsent a `no coverage until' clause like that in Sargent, there is no `contractual accrual date' for this court to adopt").

Schluter asserts that her policy falls under the Sargent exception for alternative accrual dates provided by contract. The American Family policy provides that

The limit of liability for damages caused by an accident with an underinsured motor vehicle will be reduced by any payments made by or on behalf of any person or organization who may be legally liable for the bodily injury.

Schluter argues that this policy language is similar to that found in an unpublished opinion of this court. See Anderson v. Auto-Owners Ins. Co., No. C2-96-614, 1996 WL 495064, at *3 (Minn. App. Sept. 3, 1996). Anderson concluded that the policy language reviewed fit within the Sargent exception, so that the insureds' claims were not barred by the statute of limitations. Id.

We disagree. Anderson is not precedential[1] and is of arguable validity following Weeks. Recent caselaw supports assigning the accrual date to the time of the accident, arguably leaving a narrow exception for policies that contain a "no coverage until" clause. Policies such as American Family's are distinguishable. An insured that has "no coverage" has a different contract than one that agrees to limit liability.

As the courts have recognized, policy considerations support this outcome.

[I]f a cause of action accrues only after a claimant has demanded payment and the insurance company has rejected the claim, a plaintiff would be allowed to indefinitely postpone the running of the statute of limitation.

Weeks, 580 N.W.2d at 26; see also O'Neill, 381 N.W.2d at 440. Schluter failed to pursue the alternative she had available, namely, to commence her UIM action within the six-year period and request that trial be stayed. See Cattnach, 577 N.W.2d at 254.

Schluter also asserts that the language of her policy is ambiguous and, as such, should be construed against the insurer. She points to the absence of a provision for a specific accrual date for UIM benefits in contrast to a specific provision for UM benefits. The absence of a provision, however, does not by itself make a policy ambiguous. The policy does not provide an alternative accrual date. Where there is no alternative accrual date specified by contract, the statute of limitations runs from the date of the accident. O'Neill, 381 N.W.2d at 441. Schluter's failure to calculate the accrual date of her cause of action should not equate to a conclusion that the policy is ambiguous.

2. Estoppel

Schluter argues in the alternative that American Family should be estopped from asserting a statute-of-limitations defense because the insurance company failed to respond to her request for a certified copy of her policy for nearly five months. Schluter claims she needed this policy to determine whether to pursue remedies of arbitration or a court trial.

Tolling the statute of limitations on the basis of fraud requires that "`the very existence of the facts which establish the cause of action * * * are fraudulently concealed.'" Cattnach, 577 N.W.2d at 254 (citation omitted). In this case, the fact establishing Schluter's cause of action for UIM benefits is that she was injured by an underinsured motorist. The record does not show that American Family concealed this or any other material fact. Schluter does not claim that critical information, available only in a certified copy of the policy, was unavailable in Schluter's own, uncertified copy. Further, Schluter failed to exercise her right to apply to the court for an order to compel. The statute of limitations on Schluter's UIM claim did not run for nearly ten months from the time she settled her tort suit, allowing time for Schluter to take action. Failure to respond in a timely fashion to a request for documents, while regrettable, does not rise to the level of fraud. In the absence of fraud, ignorance of a cause of action does not toll the running of the statute of limitations. Hermeling, 548 N.W.2d at 276 (citing O'Neill, 381 N.W.2d at 440 n.1). Courts have no authority to alter the limitations period because that power rests with the legislature. Id.

The district court did not err in concluding that American Family was not estopped from asserting a statute-of-limitations defense.


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

[1] See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that unpublished opinions are of persuasive value "[a]t best" and not precedential).