Robert J. Carye, Jr., et al., Appellants, vs. USAA Casualty, a Texas corporation licensed to do business in the State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1369

 

Robert J. Carye, Jr., et al.,

Appellants,

 

vs.

 

USAA Casualty, a Texas corporation

licensed to do business in the State of Minnesota,

Respondent.

 

Filed March 23, 2004

Affirmed; respondent's motion to strike denied; appellants' motion to strike granted in part and denied in part

Harten, Judge

 

Ramsey County District Court

File No. C2-02-6483

 

Frederick R. Jacobberger, Jacobberger, Micallef & Associates, LLC, 2701 Overlook Drive, Bloomington, MN 55431 (for appellants)

 

Richard P. Wright, Mark T. Berhow, Teri Bentson, McCollum, Crowley, Moschet & Miller, Ltd., 7900 Xerxes Avenue South, Suite 1300, Minneapolis, MN 55431 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            The insurance policy issued by respondent insurer to appellants insureds provided that actions against the insurer must be started "within two years after the date of loss." Respondent was granted summary judgment because appellants delayed more than two years after the date of their claimed loss to bring this action.  Because we see no genuine issue of material fact and no error in application of the law, we affirm.  

FACTS

 

Appellants Robert and Linda Carye purchased homeowners' insurance from respondent USAA Casualty Insurance Co. for the period from 30 June 2000 to 30 June 2001.  The insurance contract provided that an action against respondent must be started "within two years after the date of loss."

Appellants had not yet moved into the home when it was struck by a storm on 7 July 2000.  On 10 July 2000, appellants reported damage to respondent, to wit: a tree hanging over the kitchen roof, trees and branches down, hail damage to the siding, and the kitchen light and one electrical outlet inoperable.  On 11 July 2000, appellants discovered sewage backup in the basement, and on 13 July 2000 they discovered additional electrical outlets and light fixtures not working.  However, they did not immediately report this damage, which they assumed resulted from the 7 July storm.

On 17 July 2000, respondent's adjuster inspected appellants' property, including the roof.  He determined that the roof had not been damaged by hail.  On 26 July 2000, respondent provided appellants with the adjuster's estimate for repairs and associated checks.  On 31 July 2000, respondent sent appellants a corrected estimate of loss that stated, "Roof Inspected.  No Wind, Hail, Or Tree Debris Damage Observed To Roof Shingles."

In August 2000, appellants discovered asphalt shingles on the ground.  They contacted two roofers, who inspected the property and told them that the roof had sustained hail damage and required replacement; one roofer noted "hail hits from 7-7-00."  On 11 August, appellants attempted to claim for hail damage to the roof.  Respondent told them that the adjuster found no roof damage.  Throughout August 2000 appellants made repeated unsuccessful attempts to recover from respondent costs of repairing the roof, the house, and the garage, of living expenses, and of tree removal.  But, although invited to do so, they filed no other notices of claim and alleged no cause of damage other than the 7 July 2000 storm.  Respondent told appellants they would receive no money for any damages not covered in the adjuster's report; appellants claim that respondent said,  "[Y]ou don't like it, go and sue."

On 10 July 2002, appellants brought the instant action.  Their complaint stated, among other things, that:

10.       On or about July 7, 2000, [appellants] suffered a loss to their property.

11.       On or after July 7, 2000,  [appellants] suffered other losses to their property.

12.       Sometime after July 7, 2000, [appellants] discovered damage to their dwelling's electrical system.

13.       Sometime after July 7, 2000, [appellants] suffered loss from sewage backup.

14.       Following the losses, [appellants'] home was uninhabitable.

15.       On July 10, 2000, [appellant] Robert Carye reported the July 7, 2000 loss to [respondent.]

 

Respondent moved for summary judgment on the ground that the loss occurred on 7 July 2000, the insurance contract prohibited suits begun more than two years after the date of loss, and appellants' suit was not brought until 10 July 2002.  The district court granted summary judgment.  Appellants challenge the summary judgment, arguing that genuine issues of material fact exist as to when their damage occurred and that some damage was "latent or progressive."

D E C I S I O N

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A genuine issue of material fact must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997).  The party resisting summary judgment must do more than rely on mere assertions.  Id. at 71.  

The district court found that

the complaint and additional documents make it clear that [appellant] alleges the damage occurred as a result of the July 7, 2000 storm.  . . .  All of the damage alleged was [known] or should have been known to [appellant] upon an inspection after the July 7, 2000 storm. . . . The date of loss for purposes of this policy is July 7, 2000.

 

 The record supports this finding.  Appellants notified respondent of only one date of loss: 7 July 2000, the date of the storm.  Appellants' complaint referred to their collective damages as "the July 7, 2000 loss."  Only after respondent had moved for summary judgment on the ground that the action was filed more than two years after 7 July 2000 did appellants assert, in their memorandum opposing summary judgment, that any of their damage might not be the result of the 7 July 2000 storm. 

Appellants reiterate their argument that genuine issues of material fact exist as to (1) when sewage damage, roof damage, and electrical damage occurred; (2) what caused the electrical damage; and (3) whether the damage was "latent or progressive."  But none of these alleged genuine issues of material fact is established by substantial evidence.

Appellants claim in their brief that "[t]he sewage back-up . . . did not occur until July 11, 2000.  Appellant Robert Carye has so affied, and no evidence to the contrary exists."  Appellants misread their own affidavit, in which Carye stated only that "[t]he factual assertions stated [in the memorandum opposing summary judgment] are true and correct to the best of my knowledge and belief."  The relevant assertion in the memorandum is that "[o]n July 11, 2000, [appellants] discovered a sewage backup."  The memorandum says nothing about when the backup occurred; contrary to appellants' argument, it does not say that it "did not occur until July 11, 2000."  Moreover, appellants offered no explanation of why or when the backup did occur to refute the assertion in their own complaint that it occurred because of the storm on 7 July 2000.  Appellants have not shown a genuine issue of material fact as to the sewage backup. 

Appellants also argue that they did not discover that some of the electrical outlets did not work until 13 July 2000, when they "attributed these problems in their own minds to the July 7 storm."  Their complaint reflected that attributionthey sued to recover for damages from "the July 7, 2000 loss."  Now they argue that, because an engineer who inspected the premises on 28 July 2000 reported that it had not been struck by lightning, there is an issue of material fact as to the cause of the non-working outlets.  But appellants presented no possible alternative cause that would result in liability to respondent.

The complaint also alleges that respondent refused to pay for roof damage.  One of the roofer's estimates that appellants submitted to respondent identified roof damage as "hail hits from 7-7-00," and appellants never gave respondent notice that the roof damage was caused by anything other than the 7 July 2000 storm.  Now they contend that the roof damage was caused by something other than the storm, but they offered no evidence in the district court of any other cause.

 "[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which . . . is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions."  Id.  Appellants presented no evidence sufficiently probative of their claim that any of their loss was not caused by the storm on 7 July 2000. 

Finally, appellants claim there is an issue as to whether their electrical problems were "latent or progressive."  The district court rejected this claim:  "Certainly this is not a case where there was such a delay between the inception of the damage and the discovery as to invoke the rule of delayed discovery."  Appellants' reliance on O'Reilly v. Allstate Ins. Co., 474 N.W.2d 221 (Minn. App. 1991), is misplaced, because that case is readily distinguishablefive years elapsed between the original claim and the discovery of much of the loss.  Here, less than a week elapsed between the storm on 7 July and the discovery that the outlets did not work on 13 July.

We conclude that appellants raised no genuine issue of material fact precluding summary judgment.[1]

Affirmed; respondent's motion to strike denied; appellant's motion to strike granted in part and denied in part.

 

[1] Both parties bring motions to strike. Respondent argues that appellants' fact statement violates Minn. R. Civ. App. P. 128.03 by failing to cite to the record.  But appellants' citation to the affidavit of appellant Robert Carye denotes compliance (albeit minimal) with Minn. R. Civ. App. P. 128.03.  We deny respondent's motion.  Appellants move to strike two documents from respondent's appendix that were not submitted to the district court until after the summary judgment hearing, when respondent disclosed the experts it planned to call at trial.  We note that appellants themselves submitted to the district court one page of the material they now want stricken, i.e., the last page of the report of expert witness Erik Anderson.  We therefore deny appellants' motion as to that page but grant it as to the remainder of the documents.