STATE OF MINNESOTA
IN COURT OF APPEALS
Dennis A. Heimer,
Larson Siding, Inc.,
Filed November 9, 1999
Olmsted County District Court
File No. CX-99-11
George F. Vogel, Holst, Vogel, Erdmann & Vogel, Masonic Building, Fourth and East Ave., P.O. Box 39, Red Wing, MN 55066-0039 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
Appellant Dennis Heimer challenges summary judgment on his claims related to respondent Larson Siding's poor work in re-siding his barn. Heimer argues on appeal that the two-year statute of limitations for claims involving improvements to real property under Minn. Stat. § 541.051 (1998) does not bar his action because he alleged fraud and because the re-siding work was "defective" but not "unsafe," as required by the statute. We affirm because (1) the fraud reference in the statute pertains only to fraud in the discovery of the cause of action, and (2) the terms "unsafe" and "defective" are to be read jointly, and the problems associated with the work constituted "unsafe and defective" work within the meaning of the statute.
Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought against any person performing or furnishing the * * * construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury.
Minn. Stat. § 541.051, subd. 1(a).
Heimer contends that the statute of limitations does not apply because there has been no showing that the condition of the improvement is "unsafe," as well as "defective." The supreme court has construed the phrase, "defective and unsafe" "as a collective, with its individual terms often interchanged depending upon the facts or circumstances in which the statute has been invoked." Griebel v. Andersen Corp., 489 N.W.2d 521, 523 (Minn. 1992) (citations omitted). The word "unsafe" has been defined to include not only "something that imposes a risk of bodily injury" but also something that is "insecure." Id.
The defective barn siding and other window defects in this case fall within the current definition of "unsafe." The siding is insecure because it is attached to old boards and is loose and buckling. The improperly installed and missing windows are insecure because they do not serve their proper purpose to allow in light and to keep out the elements. See id. (defective patio door that admitted flies construed as "unsafe" for purposes of application of the statute of limitations on improvements to real property); Metropolitan Life Ins. Co. v. M.A. Mortensen Co., 545 N.W.2d 394, 400 (Minn. App. 1996) (defects in windows designed to be opaque but which lost opacity construed as "unsafe" for purposes of the statute of limitations on improvements to real property), review denied (Minn. May 21, 1996).
Heimer also contends that the statute of limitations does not apply because he alleged fraud. This interpretation of the statute is contrary to existing law, which construes the "[e]xcept where fraud is involved" language to pertain to discovery of the underlying cause of action, not the legal basis for the cause of action itself. Mutual Serv. Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989). Here, as there is no allegation of fraudulent concealment of the defective and unsafe condition, the statute of limitations was not tolled for fraud and the two-year limit for filing an action should apply.
Because there are no issues of material fact and the district court properly applied the law in construing the statute, we affirm. See Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997) (setting forth standard of review on appeal from summary judgment).