This opinion will be unpublished and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


Kim McCallum, et al.,


Western National Mutual Insurance Company,

Filed December 13, 1999
Willis, Judge

Ramsey County District Court
File No. C9979736

Robert J. Patient, 1250 Norwest Center, 55 East Fifth Street, St. Paul, MN 55101 (for respondents)

Richard S. Stempel, Michael W. Lowden, Stempel & Associates, PLC, 41 Twelfth Avenue North, Hopkins, MN 55343 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Western National Mutual Insurance Company (Western) appeals from a judgment finding it liable for fire damage to the home of respondents Kim and Nancy McCallum. Western claims that the district court erred (1) by denying its motions for JNOV and directed verdict, (2) in its jury instructions, and (3) by allowing the McCallums to add an expert witness to their witness list after the expiration of a court-imposed deadline.

By notice of review, the McCallums appeal the district court’s denial of their request for attorney fees. Additionally, they request attorney fees on appeal and allege that the district court erred by denying respondent Nancy McCallum’s motion for a directed verdict. We affirm.


The McCallums bought a house in St. Paul in June 1994 and subsequently purchased a Western homeowner’s insurance policy with the assistance of a Western agent, who filled out the application at the house.

In January 1997, the McCallums’ house suffered extensive fire damage, and they filed a claim under their homeowner’s policy. Western denied the claim, and the McCallums sued for payment under the policy.

Western asserted at trial that the policy was void because Kim McCallum (1) failed to disclose on the policy application the results of inspections of the house, (2) failed to disclose a "prior loss" of personal items stolen from his car in California two years before the application, and (3) misrepresented the condition of the house on the application. Western also alleged that the McCallums or someone under their control intentionally set fire to the house.

The jury found that the McCallums had not willfully failed to disclose material information on their insurance application and had not intentionally set the fire. This appeal follows.


I. Issues Raised by Western

A. Denial of Motions for JNOV and Directed Verdict

Western claims that the district court erred by denying its motion for JNOV, arguing that because the evidence showed that the McCallums concealed relevant information or made misrepresentations in the application for their homeowner’s insurance, their policy is void. We will overturn the denial of a motion for JNOV only where after viewing the evidence and every legitimate inference therefrom in the light most favorable to the verdict, the "evidence as a whole manifestly and so overwhelmingly preponderates to the contrary as to be practically conclusive against the verdict." Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14-15 (Minn. 1979) (citation omitted); Beck v. American Sharecom, Inc., 514 N.W.2d 584, 587 (Minn. App. 1994), review denied (Minn. June 29, 1994).

Western alleges that the McCallums concealed relevant information regarding inspections of their home. But, absent fraud, an insurance applicant’s failure to disclose facts about which no questions were asked will not void the policy. See Parsons, Rich & Co. v. Lane, 97 Minn. 98, 111, 106 N.W. 485, 490 (1906) (citation omitted); Transamerican Ins. Co. v. Austin Farm Ctr., 354 N.W.2d 503, 507 (Minn. App. 1984). Western’s application did not request information regarding inspections, and the evidence is not practically conclusive against the jury’s finding that the McCallums did not conceal relevant information with the intent to defraud Western.

Western also alleges that the McCallums concealed relevant information regarding "prior losses" by failing to disclose a 1992 theft of clothing from Kim McCallum’s car in California. But the application form requires the applicant to disclose any insured or uninsured losses, without specifying the nature of the losses to be disclosed. And Western’s agent, who filled out the application with Kim McCallum present, testified that he did not understand that the application form required disclosure of automobile-related information. Whether such information was requested by Western is ambiguous, and all ambiguities in an application for insurance must be construed against the insurer. Hammer v. Investors Life Ins. Co., 511 N.W.2d 6, 8 (Minn. 1994). We conclude, therefore, that the application did not require disclosure of information regarding the theft of clothing from McCallum’s car and that his failure to disclose such information does not void the policy. See Transamerican, 354 N.W.2d at 507.

Western also argues that the McCallums misrepresented the "maintenance" of their house, alleging that the house had serious foundation problems. But Western’s agent inspected the house and on the application described the maintenance of the house as "average." Additionally, Kim McCallum testified that, after consulting with three different inspectors, one of whom was a foundation contractor, he felt that the foundation problem was merely "cosmetic." Where, as here, a policy is alleged to be void under a provision proscribing misrepresentation or fraud, "only willful or intentional misstatements calculated to deceive the insurer operate to void the policy." Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645, 654 (Minn. 1986). The evidence as a whole, in a light most favorable to the verdict, is not practically conclusive that the McCallums made intentional misstatements calculated to deceive Western. We affirm the district court’s denial of Western’s motion for JNOV.

Western next claims that the district court erred by denying its motion for a directed verdict, making essentially the same argument it makes regarding denial of its motion for JNOV. In reviewing the denial of a motion for a directed verdict, we conduct an independent review of the evidence as a whole, accepting as true the evidence favorable to the non-moving party. Midland Nat’l Bank v. Perranoski, 299 N.W.2d 404, 409 (Minn. 1980); Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). We will overturn the denial of a motion for a directed verdict only where the evidence must lead to an inevitable conclusion against the non-moving party. Beck, 514 N.W.2d at 587.

As we have already discussed, the McCallums’ policy is void only if they made willful or intentional misstatements in their insurance application calculated to deceive Western. See Henning, 383 N.W.2d at 654; Transamerican, 354 N.W.2d at 507. Accepting as true the evidence favorable to the McCallums, the record does not lead to the inevitable conclusion that the McCallums made such willful or intentional misstatements. The district court did not err by denying Western’s motion for a directed verdict.

B. Error in Jury Instructions

Western argues that the district court’s refusal to give Western’s five requested arson-specific jury instructions warrants a new trial. We will not grant a new trial where jury instructions fairly and correctly state the applicable law. Alevizos v. Metropolitan Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990). This court will not reverse a district court’s decision in selecting the language of jury instructions unless the decision constituted an abuse of discretion. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). Three of Western’s requested instructions are based solely on foreign law, and the court gave the substance of the remaining two. The district court did not, therefore, abuse its discretion in its disposition of Western’s requested arson-specific jury instructions.

Western also asserts that the district court erred by failing to instruct the jury on the issue of concealment. But the district court gave exactly the instruction on concealment that Western requested.

C. Error in Allowing the McCallums to Add to Their Witness List

Western argues that it is entitled to a new trial because the district court allowed the McCallums to add an expert witness to their witness list two months before trial but after the expiration of a court-imposed deadline for the disclosure of potential witnesses. Legal issues asserted by an appellant’s argument in a formal brief must be accompanied by citations to relevant authority. Minn. R. Civ. App. P. 128.02, subd. 1(d). This court will not address issues unsupported by citations to authority. Ganguli v. University of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994); see Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (Minn. 1971) (refusing to address issue alleged by "mere assertion"). Because Western cites no authority for its argument, the issue is not properly before us. But, in any event, Western has not shown that it was prejudiced by the district court’s decision to allow the addition of a witness nearly two months before trial. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (stating that appellants have burden to demonstrate that alleged error caused them prejudice), review denied (Minn. June 28, 1993).

II. Issues Raised by the McCallums

The McCallums sought attorney fees in the district court pursuant to Minn. R. Civ. P. 11 "and/or Minn. Stat. § 549.21 [(1996)] and/or Minn. Stat. § 549.211 [(1998)]." Because the cause of action arose before August 1, 1997, the district court erroneously applied Minn. Stat. § 549.211 (1998), rather than Minn. Stat. § 549.21 (1996). See Cole v. Star Tribune, 581 N.W.2d 364, 370 (Minn. App. 1998). But the grounds for an award of attorney fees under the two statutes are similar, Pfleiderer v. Pfleiderer, 591 N.W.2d 729, 734 (Minn. App. 1999), and, while the McCallums appeal from the district court’s denial of attorney fees, they do not claim that the application of section 549.211 was error or show that the erroneous application of that statute was prejudicial.

This court will affirm a district court’s decision on attorney fees in the absence of an abuse of discretion. Pfleiderer, 591 N.W.2d at 733-34 (reviewing decision under Minn. Stat. § 549.211 (1998)); Radloff v. First Am. Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991) (reviewing decision under Minn. Stat. § 549.21 (1988) and Minn. R. Civ. P. 11), review denied (Minn. July 24, 1991). Under section 549.21, a district court may award attorney fees where the court determines that "an asserted claim or defense" was "frivolous" and "costly to the other party." Minn. Stat. § 549.21 (1996); cf. Minn. Stat. § 549.211 (1998) (requiring pleadings and other papers to be warranted by existing law or by nonfrivolous argument for modification of existing law). Under Minn. R. Civ. P. 11, a party must ensure "after a reasonable inquiry" that pleadings and other papers are "well grounded in fact and [are] warranted by existing law" or by a good-faith argument for the law’s modification and are "not interposed for any improper purpose." A court "shall impose * * * an appropriate sanction" where a party has violated the rule. Minn. R. Civ. P. 11.

By denying the McCallums’ request for attorney fees, the district court must have determined that Western did not assert frivolous or otherwise improper defenses to the McCallums’ complaint. We conclude that was not an abuse of the district court’s discretion.

The McCallums also request in their brief attorney fees on appeal. But they have not followed the procedural requirements of Minn. R. Civ. App. P. 139.06, and their request for fees on appeal presently is, therefore, not properly before us.

Additionally, the McCallums argue that the district court erred by refusing Nancy McCallum’s motion for a directed verdict. But this issue is also not properly before us because the McCallums did not request review of the issue. See Minn. R. Civ. App. P. 106; City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). We note that, in any event, the issue is moot because of our affirmance of judgment for the McCallums.