Shari Weeks, Appellant, vs. American Family Mutual Insurance Company, Respondent. C7-96-2438, Court of Appeals Unpublished, June 17, 1997.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-2438

Shari Weeks,

Appellant,

vs.

American Family Mutual Insurance Company,

Respondent.

Filed June 17, 1997

Reversed

Kalitowski, Judge

Ramsey County District Court

File No. CX962106

Charles A. Cox III, Cox & Goudy, 676A Butler Square, Minneapolis, MN 55403 (for Appellant)

Mary M. Kruse, O'Connell, Flynn, Reuter, Kruse & Atkinson, P.O. Box 64885, St. Paul, MN 55164-0885 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

In this action for uninsured motorist coverage appellant Shari Weeks challenges the district court's determination that her action is time-barred under the applicable statute of limitations. We reverse.

D E C I S I O N

A motion for summary judgment shall be granted if the record shows that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal, the reviewing court views the evidence in the light most favorable to the party against whom judgment was granted and accepts as true factual allegations made by appellant. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). When a statute of limitations begins to run, however, is a legal question, which this court reviews de novo. Sargent v. State Farm Mut. Auto. Ins. Co., 486 N.W.2d 14, 16 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992).

Both parties agree that claims for uninsured motorist coverage are governed by the six-year statute of limitations for contractual actions. See Minn. Stat. § 541.05, subd. 1(1) (1996) (actions "[u]pon a contract or other obligation, express or implied, as to which no other limitation is expressly prescribed" shall be commenced within six years); Spira v. American Standard Ins. Co., 361 N.W.2d 454, 456 (Minn. App. 1985) (concluding that section 541.05, subdivision 1(1) governs uninsured motorist claims), review denied (Minn. Mar. 29, 1985). At issue here is when the six-year period begins to run. The limitation period on an action begins to run when that cause of action accrues, or stated differently, when the action thereon can be brought. O'Neill v. Illinois Farmers Ins. Co., 381 N.W.2d 439, 440 (Minn. 1986) (citing Bachertz v. Hayes-Lucas Lumber Co., 201 Minn. 171, 176, 275 N.W. 694, 697 (1937)). A cause of action for breach of contract accrues immediately on a breach, although actual damages resulting therefrom do not occur until afterwards. Bachertz, 201 Minn. at 176, 275 N.W. at 697.

The district court concluded that a cause of action for uninsured motorist coverage begins to run on the date of the accident. We disagree, based on this court's conclusion in Spira that

[a]bsent an express limitation in [the] insurance policy restricting the time in which [insured] could bring an uninsured motorist claim, [the insured's] cause of action arose on * * * the date when [the insurer] rejected [the insured's] claim for uninsured motorist benefits.

Spira, 361 N.W.2d at 457. In Spira, the insured notified the insurer of the accident within one year of the accident and demanded uninsured motorist coverage over seven years after the accident. Id. The insurer denied the claim, asserting that it was time-barred because the statute of limitations had begun to run on the date of the accident. Id. The matter was submitted to arbitration and an arbitration panel agreed with the insurer that the claim had begun to run on the date of the accident. Id. at 456. The trial court conducted a de novo review and entered judgment in favor of the insured. Id. at 456. On appeal, this court addressed the issue of whether the insured's claim for uninsured motorist coverage was time-barred. Id. Our determination that a cause of action for uninsured motorist coverage accrues when the insurer denies the claim is consistent with the conclusion of the majority of state courts that have considered the issue. See, e.g., Vega v. Farmers Ins. Co., 918 P.2d 95, 97 (Or. 1996) (statute of limitations begins to run when insurer breaches contract by denying claim); Eidemiller v. State Farm Mut. Auto. Ins. Co., 915 P.2d 161, 169 (Kan. App. 1996) (holding that earliest conceivable date that statute could begin to run was date insurer first denied coverage), rev'd on other grounds, 933 P.2d 748 (Kan. 1997).

Relying on Sargent, respondent argues the district court correctly determined that an uninsured motorist claim accrues at the time of the accident. Respondent points out that in Sargent the court of appeals declined to adopt the rule in Spira. See Sargent, 486 N.W.2d at 16 (declining to adopt rule that cause of action accrues when the insurer rejects the insured's claim). Sargent, however, was an underinsured motorist case, while Spira and this case involve uninsured motorist coverage.

Further, in Sargent, this court did not decide when a cause of action for underinsured motorist coverage accrues. Id. Rather, the court adopted the accrual date agreed upon by the parties in their insurance policy. Id. This result is consistent with the holding in Spira that allows an express limitation in the insurance policy to restrict the time in which the insured can bring an uninsured motorist claim. Spira, 361 N.W.2d at 457.

Under the facts here, appellant made a demand for uninsured motorist coverage on June 10, 1992, that was rejected by respondent. Therefore, this action, which was commenced on May 22, 1995, was within the six-year statute of limitations.

II.

For the first time on appeal, respondent contends that the applicable insurance policies contain express language that make this action time-barred. This court will not consider arguments not raised in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We therefore decline to consider respondent's argument because neither the argument nor the insurance policies at issue were presented to the district court.

Reversed.

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