Natureview Vista Twinhome Association v. Travelers Indemnity Company, The

U.S. District Court, District of Minnesota April 22, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Natureview Vista Twinhome Association, File No. 22-cv-2027 (ECT/DJF)

Plaintiff,

v. OPINION AND ORDER

The Travelers Indemnity Company,

Defendant.

________________________________________________________________________
Justice Ericson Lindell and Mihajlo Babovic, Greenstein Sellers PLLC, Minneapolis, MN,
for Plaintiff Natureview Vista Twinhome Association.
Joel T. Wiegert and Anju Suresh, Hinshaw & Culbertson LLP, Minneapolis, MN, and
Alexander J. Bialk and Matthew S. Ponzi, Foran Glennon Palandech Ponzi & Rudloff PC,
Chicago, IL, for Defendant The Travelers Indemnity Company.
________________________________________________________________________
Plaintiff Natureview Vista Twinhome Association, a homeowners’ association with
twenty-seven buildings in Brooklyn Park, Minnesota, suffered property damage in an
August 2019 hailstorm and submitted a claim to its insurer, Defendant The Travelers
Indemnity Company. Natureview brought this case to recover additional amounts it claims
Travelers owes under the policy. Before this case was filed, the parties participated in an
appraisal process to resolve their disagreement over the value of Natureview’s storm-
damage claim. Based on the appraisal award and having completed the repairs, Natureview
requests (1) payment for the recoverable depreciation1 awarded by the appraisal panel;

1 Recoverable depreciation is the difference between the actual-cash value (or
“ACV”) and replacement-cost value (or “RCV”) of the covered loss.
(2) reimbursement for the cost to replace undamaged, non-color-matching siding on the
north and south elevations of Natureview’s buildings; and (3) pre-award interest. The
parties have both moved for summary judgment.

Travelers’ motion will be mostly granted and Natureview’s motion will be denied.
Natureview will not be awarded any recoverable depreciation because there is no genuine
dispute of material fact that Natureview did not actually and necessarily spend more than
the actual-cost value of the loss, a policy requirement. And Natureview is not entitled to
pre-award interest because it filed this action more than two years after its written notice

of claim to Travelers. The parties’ summary-judgment motions will be denied as to
matching costs for the north and south elevations because the appraisal panel’s award and
subsequent clarification are ambiguous.
I
A hailstorm on August 5, 2019, caused property damage to Natureview’s buildings.
Compl. [ECF No. 1-1] ¶ 9; ECF No. 46-1 at 4.2 At the time, the buildings were insured

under a Travelers policy that covered the replacement cost of this type of loss. ECF No.
48-1 at 3 (covered locations), 7 (policy period). The policy requires Travelers to “pay for
direct physical loss of or damage to Covered Property at the premises described in the
Declarations caused by or resulting from a Covered Cause of Loss.” Id. at 34. The policy
covers Natureview’s twenty-seven buildings, containing fifty-eight individual units,

located in Brooklyn Park, Minnesota. Id. at 3.

2 Page cites are to CM/ECF pagination appearing in a document’s upper right corner,
not to a document’s original pagination.
On August 6, Natureview notified Travelers of the loss. ECF No. 49 ¶ 5. Travelers
inspected the property in August and completed an initial repair estimate for the damage
in September. Id. ¶¶ 6–10.

On September 4, Natureview entered into an agreement with Tyther Contracting to
repair or replace property damaged by the storm. ECF No. 51-1 at 1. Tyther agreed “to
complete the replacement of damaged property for the scope and price provided on the
insurance loss statement and agreed to by Tyther . . . with no additional cost to you except
for the insurance deductible.” Id.

On September 30, Tyther sent Travelers an estimate to repair the damage. ECF No.
49 ¶ 11. Travelers responded by sending a statement of loss on October 3 that estimated
the ACV of the loss at $180,812.64 and the RCV at $189,292.73. ECF No. 48-8 at 2.
Because the policy had a hail deductible for two percent of the value of the damaged
property that Travelers calculated in the amount of $469,074.90, see ECF No. 48-1 at 14–

15; ECF No. 48-8 at 3, Travelers did not make any insurance payment to Natureview in
October 2019, ECF No. 48-8 at 2.
Natureview retained a public adjuster to assist with its claim. ECF No. 48-10. On
February 6, 2020, the public adjuster sent Travelers an updated repair estimate, calculating
the RCV at $2,780,842.20. ECF No. 48-11; ECF No. 49 ¶ 13. After additional inspections,

Travelers provided Natureview with a revised statement of loss on June 15. ECF No. 49
¶ 14; ECF No. 48-12 at 2. Travelers’ revised statement of loss calculated the ACV of the
loss at $422,887.01 and the RCV at $529,397.52. ECF No. 48-12 at 2. Because the ACV
remained less than the hail deductible, Travelers did not issue an insurance payment to
Natureview in June 2020.
Because Natureview disagreed with Travelers’ estimate of the loss, it requested an

appraisal on July 15. ECF No. 48-13. Before Travelers would proceed with the appraisal,
it requested an itemized estimate, executed proof of loss, and supporting documentation.
ECF No. 48-6 at 4. The public adjuster emailed a proof of loss and final estimate to
Travelers on August 18. ECF No. 42-1.3 In October, the parties agreed to a “Memorandum
of Appraisal.” ECF No. 48-16. This memorandum directed the appraisal panel to

determine: “(a) causation (i.e. whether the alleged damage was caused by the event[)]; (b)
the cost to repair or replace the damage to the Property; and (c) Matching; as further
described below.” ECF No. 48-16 ¶ 7. The memorandum described matching as follows:
The appraisal award shall state separately whether any of the
building components are subject to Matching. For purposes of
this appraisal, “Matching” arises when the original material for
a component of the building that requires repairs is no longer
available on the market. Under those circumstances, the
appraisers are to determine whether there is material available
on the market that allow for repairs to be completed to the
undamaged area of the building component that results in a
reasonable and uniform appearance. If there is no material
available on the market that reasonably matches the
undamaged area of the building component, the appraisers are
to evaluate the extent of the mismatch between the undamaged
area of the building component and the new material used for
the repairs taking into account the existence of prior repairs
and/or mismatches.

3 It appears that Travelers made an initial payment of $7,489.08 on September 1,
2020. ECF No. 48-17 at 4. The basis for this payment is not clear from the record.
Id. ¶ 8. The appraisal panel issued a final, itemized award in January 2022. ECF No. 48-2
at 5. The appraisal panel determined the ACV of the loss to be $1,210,160.00 and the RCV
to be $1,564,992.00. Id. The award included repairs to the roofs, vents, garage doors,

gutters, windows, HVAC, decks, fascia, and siding of Natureview’s buildings. Id.
The appraisal panel issued a one-page document titled “CLARIFICATIONS” to
address matching. ECF No. 48-2 at 4. At the top of the page, the appraisal panel wrote,
“[t]his clarification is to answer questions of the [memorandum] as acknowledged by both
sides. The panel did not define coverage. The dollar amounts indicated on this page are

not a part of the award and relate to the issues of matching.” Id. The appraisal panel found
that (1) the west elevation of the buildings had been replaced with non-matching siding in
2017; (2) the 2019 hailstorm damaged siding on the west and south elevations; and (3) the
replacement of individual damaged pieces of siding on the south side would not result in a
reasonable match. Id. The appraisal panel explained that the “south elevations award

amount . . . is to replace the buildings [sic] original siding with . . . the same siding that is
on the west elevations,” and “[t]he award for the west side is based on a repair to replace
individual damaged pieces of siding that were available at the time of the loss.” Id. Finally,
the appraisal panel concluded that “[t]he remaining undamaged original siding on the east
and north elevations has a replacement cost of $502,942.00 and an ACV or [sic] $0.00.”

Id.
In May, Natureview requested further clarification from the appraisal panel, asking
the umpire if the appraisal panel’s clarification “is intended to convey that the siding on
the North and East elevations is not a reasonable match, and that the panel awarded RCV
of $502,942.00 for siding replacement on the North and East elevations if matching is
covered.” ECF No. 55-3 at 4. The umpire responded on behalf of the panel in an email as
follows:

The panel did not make coverage decisions or interoperate [sic]
case law. The panel also did not make an award for matching
the North and East elevations. Page one of the appraisal award
form represents the amount of the award. Page two represents
the clarifications. Item 4 indicates an RCV amount of
$502,942 RCV for complete replacement of the North and East
elevations if matching is considered. . . . The award allowed
for the complete replacement of the South elevation which
would then match the West elevations but would not match the
North or East elevations.
Id.
On January 31, 2022, Travelers paid $733,042.16 to Natureview’s public adjuster.
ECF No. 48-17 at 4. This amount reflected the appraisal panel’s ACV award minus the
hail deductible and the $7,489.08 payment in September 2020. Id. at 4–5. The public
adjuster retained $195,694.00 as his fee and disbursed the remaining $537,418.16 to
Natureview. Id.
Tyther is a general contractor, ECF No. 46-2 at 6, and it hired subcontractors to
perform the repairs. Id. at 5–6. Tyther repaired the windows in 2019, but only started the
rest of the repairs in early 2022 after the appraisal panel issued its award. Id. at 13.
Although the appraisal panel awarded roughly $40,000 to repair or replace fascia damaged
by the storm, Natureview decided to keep the ACV payment instead of repairing the
damaged fascia. Id. at 15. Except for the fascia, Tyther completed the repairs by the end
of 2022. Id. at 23. Tyther also replaced some, but not all, of the undamaged siding on the
north and east elevations. Id. at 28.
As Tyther completed the work, Natureview issued payments. It paid Tyther

$496.698.13 in May 2022, $24,382.00 in June 2022, $236,541.75 in July 2022,
$152,500.00 in November 2022, and $93,420.39 in April 2023. ECF No. 48-17 at 4–5.
Natureview’s payments to Tyther totaled roughly $1,000,000. In July 2022, Tyther sent
Natureview an undated invoice for the RCV amount listed in the appraisal award. ECF
No. 46 ¶ 7; ECF No. 46-2 at 24–25; ECF No. 46-5. This invoice was never paid, although

Natureview claims it owes Tyther $343,543.98. ECF No. 48-17 at 5; ECF No. 56 at 3.
Natureview brought this case on July 18, 2022, originally in state court. Travelers
removed the case to federal court based on diversity jurisdiction. ECF No. 1. Natureview
asserts two claims in its Complaint—a claim for breach of contract in Count I, Compl.
¶¶ 15–19, and a claim for a declaratory judgment in Count II, id. ¶¶ 20–25. Natureview

seeks $343,543.98, the recoverable depreciation awarded by the appraisal panel (excluding
the RCV of the damaged fascia), ECF No. 56 at 3, the $502,942.00 RCV amount described
in the appraisal panel’s clarification as the cost to replace the undamaged siding on the
north and east elevations of Natureview’s buildings, ECF No. 41 at 2, and pre-award
interest, id.

II
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if its resolution might affect the outcome
of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248

 (1986).  A dispute over a fact is “genuine” only if “the evidence is such that a 
reasonable jury could return a verdict for the nonmoving party.”

Id.

  “The evidence of the 

non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”

Id. at 255

.  A “smoking gun” is not required for the non-movant to defeat a summary 
judgment motion.  Teleconnect Co. v. Ensrud,

55 F.3d 357, 360

 (8th Cir. 1995).  But the 
non-movant must show “more than mere speculation, conjecture, or fantasy.”  Clay v. 
Credit Bureau Enters., Inc.,

754 F.3d 535, 539

 (8th Cir. 2014) (citation and quotations 

omitted); Zayed v. Associated Bank, N.A.,

913 F.3d 709, 714

 (8th Cir. 2019). 
                          III                                        
                           A                                         
Natureview  claims  that  Travelers  breached  the  policy  by  failing  to  pay  the 
recoverable  depreciation  plus  permits  awarded  by  the  appraisal  award,  totaling 

$343,543.98.  ECF No. 56 at 3.  Under Minnesota law, a breach-of-contract claim requires: 
“(1) a valid contract; (2) performance by the plaintiff of any conditions precedent; (3) a 
material breach of  the contract by  the  defendant;  and  (4)  damages.”   Russo  v.  NCS 
Pearson, Inc.,

462 F. Supp. 2d 981, 989

 (D. Minn. 2006) (citation omitted); see Park 
Nicollet Clinic v. Hamann,

808 N.W.2d 828, 833

 (Minn. 2011) (same).       

Deciding whether Travelers breached the policy requires interpreting the policy.  
“The interpretation of insurance contracts is a question of law.”  Quade v. Secura Ins.,

814 N.W.2d 703, 705

 (Minn. 2012).  “Subject to the statutory law of the state, a policy of 
insurance is within the application of general principles of the law of contracts.”

Id.

 
(quoting Bobich v. Oja,

104 N.W.2d 19, 24

 (Minn. 1960)).  “When interpreting insurance 
contracts, the policy must be construed as a whole, beginning with the plain and ordinary 
meaning of the policy’s terms, as well as ‘what a reasonable person in the position of the 

insured would have understood the words to mean.’”  Cedar Bluff Townhome Condo. Ass’n 
v. Am. Fam. Mut. Ins.,

857 N.W.2d 290, 294

 (Minn. 2014) (quoting Midwest Fam. Mut. 
Ins. v. Wolters,

831 N.W.2d 628, 636

 (Minn. 2013)).                       
The parties’ dispute concerns the following policy term:             
     (c) We will not pay more for loss or damage on a replacement    
     cost basis than the least of Paragraphs (i), (ii), or (iii) . . . : 

          (i) The Limit of Insurance applicable to the lost or       
          damaged property;                                          

          (ii) The cost to replace the lost or damaged property      
          with other property:                                       

               a) Of comparable material and quality; and            

               b) Used for the same purpose; or                      

          (iii)  The  amount  actually  spent  that  is  necessary  to 
          repair or replace the lost or damaged property.            

ECF No. 48-1 at 62.  The parties agree that the appraisal award is less than the applicable 
insurance limit and that the appraisal award establishes the “cost to replace” described in 
paragraph (c)(ii).  The parties’ disagreement concerns paragraph (c)(iii).   
Natureview contends that it “has completed the repairs and therefore is entitled to 
judgment for the replacement cash value (“RCV”) of the loss plus its permits incurred 
pursuant to the Award and the Policy.”  ECF No. 41 at 1.  Not so.  Because the appraisal 
award establishes the cost to replace described in paragraph (c)(ii), Natureview is entitled 
to “[t]he amount actually spent that is necessary to repair or replace the lost or damaged 
property,” so long as that amount is less than or equal to the RCV amount awarded by the 
appraisal panel.  ECF No. 48-1 at 62.  In other words, Natureview must “repair and replace 

the property and expend an amount in excess of the agreed cash value of the loss.”  Kolls 
v. Aetna Cas. & Sur. Co.,

503 F.2d 569, 571

 (8th Cir. 1974) (emphasis added); see also 
Jordan R. Plitt et. al, Couch on Insurance § 176:60 (3d ed. Nov. 2023 Update) (“Thus, it 
has been stated that, before replacement costs could be recovered, the insured must repair 
or replace the damaged structure and spend an amount greater than that recoverable under 

actual cash value.”); Estes v. State Farm Fire & Cas. Co.,

358 N.W.2d 123

, 124–25 (Minn. 
Ct. App. 1984) (insured who repaired a roof for $13,000 was only entitled to $13,000, not 
the full RCV).                                                            
A hypothetical is illustrative.  Suppose an insured’s roof is destroyed by a storm.  
The roof has a replacement-cost value of $40,000 and (accounting for depreciation) an 

actual-cash value of $20,000.  If the insured does not replace the roof, the insured keeps 
the $20,000 ACV payment.  If the insured replaces the roof, the insured can then request 
reimbursement for the cost of replacing the roof that exceeds the ACV, up to the RCV.  So 
if the insured paid $20,000 to replace the roof, the insurer would owe nothing; if the insured 
paid $30,000, the insurer would owe $10,000; if the insured paid $40,000, the insurer 

would owe $20,000, and if the insured paid $50,000, the insurer would still only owe 
$20,000.  Selective Ins. Co. of S.C. v. Sela,

455 F. Supp. 3d 841

, 844 (D. Minn. 2020), 
aff’d,

11 F.4th 844

 (8th Cir. 2021).  Because paragraph (c)(iii) reimburses an insured for 
money spent, the insured must ordinarily spend the money first.  But as a practical matter, 
bona fide charges for completed work would also seem sufficient.  Here, Natureview paid 
Tyther roughly $1,000,000 for repairs, less than the ACV awarded by the appraisal panel.4  
Because Natureview has not spent more than the ACV amount, it is not entitled to 

reimbursement for any recoverable depreciation.                           
Natureview counters that “pursuant to the invoice generated by Tyther, Natureview 
has incurred total costs for the work completed (excluding the matching siding) in the total 
amount of the Award of $1,564,992.00 plus permits.”  ECF No. 56 at 3.  To support its 
position, Natureview relies almost exclusively on Savanna Grove Coach Homeowners’ 

Ass’n v. Auto-Owners Ins., No. 19-cv-1513 (ECT/TNL),

2020 WL 468905

, at *5 (D. Minn. 
Jan. 29, 2020).  ECF No. 54 at 2–7.  But in that case, the insured submitted an extensive 
record showing “that [it] actually and necessarily incurred an amount greater than the 
appraisal award to repair or replace its damaged property.”  Savanna Grove,

2020 WL 468905

, at *5.  In Savannah Grove, the insurer asserted that the final invoice was simply 

pegged to the appraisal award, but didn’t “say why, or cite evidence showing this is so.”  


4    Natureview contends that its public adjuster’s fee should be included in the amount 
spent because “[b]oth Natureview and Tyther testified to their agreement that paying the 
public adjuster became Tyther’s obligation, and thus Natureview’s satisfaction of Tyther’s 
obligation was functionally no different from Natureview writing a check to Tyther for the 
same amount.”  ECF No. 56 at 4.  But it is not obvious why payments to a public adjuster 
are “necessary to repair or replace the lost or damaged property.”  Natureview cites no legal 
authority to support its conclusion that paragraph (c)(iii) requires insurers to reimburse an 
insured’s fee paid to its public adjuster.  Nor has research turned up any cases supporting 
Natureview’s position.  Based on the plain language of the insurance policy, the better 
answer is that amounts spent to resolve an insurance claim—for example, money paid to 
attorneys, public adjusters, or appraisers—are different than amounts spent to repair or 
replace  damaged  property.    Therefore,  whether  Tyther  agreed  to  absorb  the  public 
adjuster’s fee is not a material dispute.                                 
Id. at *7.  By contrast, Judge Nelson rejected a request for payment of recoverable 
depreciation based on an invoice in Maplebrook Estates Homeowner’s Association, Inc. v. 
Hartford Fire Insurance Co., No. 21-cv-1532 (SRN/DJF),

2024 WL 869069

 (D. Minn. 

Feb. 29, 2024).  In Maplebrook, Judge Nelson reasoned:                    
     [W]hile Judge Tostrud found that the record submitted by the    
     plaintiff  in  Savannah  Grove  was  “extensive,”

2020 WL 468905

at *5, the same cannot be said for Maplebrook’s record.
The December 13, 2021 invoice contains essentially no
information about what work is being invoiced, saying only
that it was for “All repair as outlined in the adjusters summary
and appraisal award[.]” (Dec. 13, 2020 Capital Invoice.) No
witnesses could identify the specific work to which the final
invoice corresponded, although Mr. Pierce believed that it
concerned “deck painting and [] HVAC” work. Mr. Muelken
stated that he did not have any involvement in coming up with
the invoice amount, even though he was the representative of
the contractor performing the work, and that “[the invoice] was
requested from Gavnat so they can have that to submit to the
carrier.” Together, the evidence suggests that, as the defendant
in Savannah Grove posited, the December 13, 2021 invoice
was not for work performed but rather simply pegged to match
the Award.

Id. at *21 (citations omitted).
This case is comparable to Maplebrook, not Savanna Grove. The date on Tyther’s
invoice is blank, although it is timestamped July 27, 2022. ECF No. 46-5; ECF No. 46-2
at 24 (“Let’s see what the date is on there. Okay. Didn’t date it.”). Tyther only generated
the invoice because “we were worried about . . . the totaling agreement running out,”5 ECF
No. 46-2 at 24, and as a Tyther employee put it, “you don’t want to leave money on the
table . . . if you’re concerned.” ECF No. 46-2 at 25. The invoice is not itemized and

5 It is not clear what “the totaling agreement” is.
describes no work performed. See ECF No. 46-5. The invoice expressly ties the amount
sought to the appraisal award, calculating the remaining amount Natureview owed as the
recoverable depreciation awarded by the appraisal panel. Id. The invoice cannot be

reasonably considered final because it was issued months before the repairs were
completed. ECF No. 46-2 at 23. And unlike the plaintiff in Savannah Grove, Natureview
offers no evidence linking the work performed to the amount sought in the invoice. To the
contrary, Natureview has not disputed Travelers’ filings demonstrating that Tyther
expended less than $800,000 on the repairs. And because Tyther performed all of its work

through subcontractors, see ECF No. 46-2 at 5–6, Tyther has been more than fairly
compensated for its work even after accounting for 10% profit and 10% overhead. Cf.
Cent. Mut. Ins. v. White Stone Props., Ltd., No. A-12-CA-275-SS,

2014 WL 1092121

, at 
*6–9 (W.D. Tex. Mar. 19, 2014) (rejecting a request for recoverable depreciation by 
examining overhead, profit, and work performed by subcontractors).        

Natureview also argues that “[t]here is no genuine dispute that Natureview agreed 
to pay the entire RCV of the Award plus permits to Tyther in exchange for completing the 
repairs.”  ECF No. 54 at 6.  But Tyther only agreed to “complete the replacement of 
damaged property for the scope and price provided on the insurance loss statement.”  ECF 
No. 51-1.  It did not agree to perform the work for a specific price.  And the contract 

expressly warrants that Natureview will be subject to no additional costs except for its 
insurance deductible.

Id.

  Moreover, the contract is subject to Travelers’ payment terms.

Id.

If a contract alone could satisfy paragraph (c)(iii), Natureview’s contract with Tyther
does not independently obligate Natureview to pay the RCV amount identified by the
itemized appraisal award. Natureview’s reliance on an affidavit and deposition testimony
does not change things. Jeff Sowden, a member of Natureview’s board of directors, stated
in an affidavit that because Tyther completed the repairs, “[Natureview] therefore owes

Tyther the remainder of the contract amount of $351,205.73.” ECF No. 48-17 at 5. And
a Tyther employee testified in his deposition that “we’re waiting on Travelers to – pay the
depreciation.” ECF No. 46-2 at 18. The affidavit and deposition testimony are opinions
about Natureview’s obligations, not evidence of facts. Because these opinions are solely
grounded in the contract, they are insufficient to create a genuine issue of material fact.

B
Natureview requests $502,942.00 (described in the appraisal panel’s clarification)
to replace undamaged siding on the north and east elevations of Natureview’s buildings.6
However, the parties disagree over how to interpret the appraisal panel’s clarification.
Travelers contends that “[the] panel intentionally and expressly excluded those costs from

the Award,” ECF No. 53 at 13, because “Natureview did not have matching siding before
the storm, and there was no basis to give it matching siding after the storm,”

id.

 at 13–14.  
According to Travelers, the appraisal panel’s decision to not award matching for the north 
and east elevations was a factual determination to which this Court should defer.  Id. at 14.  
Natureview counters that the appraisal panel “determine[ed] that the replacement siding 

was not a reasonable match for the existing siding on the north and east elevations and that, 

6    To be precise, Natureview seeks to recover $117,000 already spent on replacing 
undamaged siding and declaratory judgment “that it may recover up to $385,942.00 from 
Travelers for costs incurred to replace the remainder of the non-matching siding per page 
2 of the Award.”  ECF No. 41 at 7.                                        
if matching applies under the Policy, then the RCV for replacement of the non-matching 
siding is $502,942.00.”  ECF No. 41 at 12.  In other words, Natureview interprets the 
clarification  as  awarding  matching  contingent  on  a  court’s  subsequent  coverage 

determination.                                                            
An appraisal award is ambiguous if it “is ‘reasonably susceptible of more than one 
interpretation.’”  Herll v. Auto-Owners Ins.,

879 F.3d 293, 296

 (8th Cir. 2018) (quoting Art 
Goebel, Inc. v. N. Suburban Agencies, Inc.,

567 N.W.2d 511, 515

 (Minn. 1997)).  And the 
parties agreed at oral argument that both interpretations would be within the authority of 

the appraisal panel under the Minnesota Supreme Court’s decision in Quade v. Secura 
Insurance,

814 N.W.2d 703

, 706–08 (Minn. 2012).  Therefore, summary judgment should 
be  denied  if  both  parties’  interpretations  of  the  appraisal  panel’s  clarification  are 
reasonable.  Herll,

879 F.3d at 296

; see also Maplebrook Ests. Homeowner’s Ass’n, v. 
Hartford Fire Ins. Co., No. 21-cv-1532 (SRN/DJF),

2023 WL 5021164

, at *10 (D. Minn. 

Aug. 7, 2023).                                                            
Start with the language supporting Travelers’ interpretation.  The memorandum of 
appraisal directed the appraisal panel to “evaluate the extent of the mismatch between the 
undamaged area of the building component and the new material used for the repairs taking 
into account the existence of prior repairs and/or mismatches.”  ECF No. 48-16 at 3.  The 

appraisal panel’s itemized award included matching for the south elevation but did not 
include matching for the north and east elevations.  ECF No. 51-2 at 2–3.  And the appraisal 
panel’s clarification begins with, “[t]he dollar amounts indicated on this page are not a part 
of the award and relate to the issues of matching.”  ECF No. 51-2 at 2.  Taken collectively, 
it is reasonable to interpret the appraisal panel’s decision as awarding matching for only 
the south side because of a pre-existing mismatch.                        
However, the panel also wrote that “[t]he remaining undamaged original siding on 

the east and north elevations has a replacement cost of $502,942.00 and an ACV or [sic] 
$0.00.”  ECF No. 51-2 at 2.  And at the top of the page, the appraisal panel emphasized 
that it “did not define coverage.”

Id.

  Because replacement cost is a term of art used to 
describe  the  amount  of  loss,  Natureview’s  interpretation—that  the  appraisal  panel 
calculated  the  amount  of  the  loss  ($502,942.00)  contingent  on  a  court’s  coverage 

decision—is also reasonable.  Because both interpretations are reasonable, the appraisal 
panel’s clarification is ambiguous, and the parties’ motions for summary judgment will be 
denied as to matching.7                                                   
                           C                                         
Natureview  requests  pre-award  interest.    “Minn.  Stat.  §  549.09 provides  for 

preaward  interest  on  insurance  appraisal  awards  regardless  of  the  existence  of 
wrongdoing.”  Poehler v. Cincinnati Ins.,

899 N.W.2d 135, 141

 (Minn. 2017).  The statute 
provides for pre-award interest starting from the earliest of three triggering events: “(1) the 
action being commenced, (2) arbitration being demanded, or (3) written notice of the claim 
being made (provided that the party commences the action within two years after giving 

written notice).”  Sela, 455 F. Supp. 3d at 867.  Because insurance appraisals are not 

7    The appraisal panel’s May 2022 email does not resolve the ambiguity.  The email 
states that “[i]tem 4 indicates an RCV amount of $502,942 RCV for complete replacement 
of the North and East elevations if matching is considered.”  ECF No. 55-3 at 4.  But the 
phrase “if matching is considered” could support either party’s interpretation. 
arbitration proceedings, a demand for an appraisal is not a triggering event for pre-award 
interest under § 549.09.  Elm Creek Courthome Ass’n v. State Farm Fire & Cas. Co.,

971 N.W.2d 731

, 742 (Minn. Ct. App. 2022), review denied (May 17, 2022).      

Travelers contends that “Natureview is not entitled to interest on the ACV amount 
because it did not bring a cause of action within two years of its written notice of claim and 
no other statutory triggering event applies.”  ECF No. 45 at 24.  Natureview counters that 
“[n]othing in the statute restricts a party to only one written notice.”  ECF No. 54 at 10.  
On that basis, Natureview contends that its August 2020 proof of loss is a written notice of 

claim under § 549.09.                                                     
Natureview’s interpretation is not reasonable considering the two-year limitation 
period in § 549.09.  “[A] particular provision of a statute cannot be read out of context but 
must be taken together with other related provisions to determine its meaning.”  In re Est. 
of Nelson,

936 N.W.2d 897

, 905 (Minn. Ct. App. 2019) (quoting Kollodge v. F. & L. 

Appliances, Inc.,

80 N.W.2d 62, 64

 (Minn. 1956) (quotations omitted)).  To accomplish 
this, Minnesota courts read statutes as a whole.  Am. Fam. Ins. Grp. v. Schroedl,

616 N.W.2d 273, 277

 (Minn. 2000).  Section 549.09 requires “[t]he action [to] be commenced 
within two years of a written notice of claim for interest to begin to accrue from the time 
of  the  notice  of  claim.”

Minn. Stat. § 549.09

,  subdiv.  1(b).    Allowing  subsequent 

communication, demand letters, and settlement offers all to be successive written notices 
of claims would read this two-year limitation period out of the statute.  
A common-sense reading of the statute confirms that Natureview’s 2020 proof of 
loss was not a written notice of claim.  Although § 549.09 does not define a written notice 
of claim, in Blehr v. Anderson the Minnesota Court of Appeals concluded that a written 
notice of claim “does not require a demand for a specific amount of money; but the written 
notice must be sufficient, in light of the circumstances known to the noticed party, to allow 

the noticed party to determine ‘its potential liability from a generally recognized objective 
standard of measurement.’”

955 N.W.2d 613

, 622 (Minn. Ct. App. 2021) (quoting Indep. 
Sch. Dist. 441 v. Bunn-O-Matic Corp., No. C0-96-594,

1996 WL 689768

, at *10 (Minn. 
Ct. App. Dec. 3, 1996)).  Often this is satisfied by the insured initiating the claims process.  
See Creekview of Hugo Ass’n v. Owners Ins.,

386 F. Supp. 3d 1059, 1068

 (D. Minn. 2019); 

Sela, 455 F. Supp. 3d at 868.                                             
Here, Natureview reported a claim to Travelers on August 6, 2019.  ECF No. 49 ¶ 5.  
Consistent with Blehr, Natureview’s report functioned as a written notice of claim under 
§ 549.09.  Meanwhile, the proof of loss was not intended to be, nor did it operate as, a 
written notice of claim.  Having received a written notice of claim in August 2019, 

Travelers  was  already  on  notice  of  Natureview’s  claim.    See  Notice,  Black’s  Law 
Dictionary (11th ed. 2019) (“Legal notification required by law or agreement, or imparted 
by operation of law as a result of some fact.”).  So the proof of loss did not function to 
provide notice of Natureview’s pre-existing claim.  Nor did Natureview intend to provide 
notice of its claim, considering that it provided the proof of loss at Travelers’ request to 

proceed with the appraisal process.  It makes no difference that the proof of loss and final 
estimate were for a different amount than Natureview’s earlier estimates—the same claim 
was at issue.  Because the proof of loss was sent after more than a year of back and forth 
between Natureview and Travelers, the proof of loss cannot fairly be understood to be a 
written notice of Natureview’s insurance claim.  Cf. Dewey Hill III Townhomes Ass’n, Inc. 
v. Auto-Owners Ins. Co., No. A18-1562,

2019 WL 3000691

, at *1, *3 (Minn. Ct. App. 
July 1, 2019) (applying the two-year limitation period without mentioning the importance 

of the “considerable back-and-forth” between the parties).                
The only triggering event left is the date Natureview filed this action.  But Travelers 
paid the ACV awarded by the appraisal panel before Natureview filed this action.  And 
interest is not owed on the recoverable depreciation because Natureview is not entitled to 
any recoverable depreciation.  Nor can interest be awarded on matching costs because 

Natureview’s  motion  for  summary  judgment  as  to  matching  costs  will  be  denied.  
Therefore, Natureview is not entitled to pre-award or pre-judgment interest. 
                           *                                         
The  loose  end  is  how  the  case  proceeds  with  respect  to  the  matching  issue.  
“Minnesota Supreme Court, Eighth Circuit, and U.S. Supreme Court precedent tend to 

show that ambiguous appraisal awards should be returned to the appraisal panel for 
clarification.”  Fenske v. Integrity Prop. & Cas. Ins., No. 22-cv-679 (JRT/DJF),

2023 WL 186595

, at *3 (D. Minn. Jan. 13, 2023); see also Maplebrook,

2023 WL 5021164

, at *12 
(“The ambiguity in the Appraisal Award requires its remand to the appraisal panel for 
clarification.”).  At the hearing, the parties also discussed deposing members of the 

appraisal panel or proceeding to trial.  As described more fully below, the parties will be 
ordered to meet and confer on this issue to determine whether they are able to agree on an 
appropriate procedure for resolving the matching question.

ORDER

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             

1.   Defendant  The  Travelers  Indemnity  Company’s  Motion  for  Summary 
Judgment [ECF No. 43] is GRANTED IN PART and DENIED IN PART as explained  
in Part III above.                                                        
2.   Plaintiff  Natureview  Vista  Twinhome  Association’s  Motion  for  Partial 
Summary Judgment [ECF No. 39] is DENIED.                                  

3.   The parties are DIRECTED to meet and confer regarding how this case 
should proceed to resolve the matching issue.  The parties shall file a joint status report by 
May 6, 2024.                                                              
4.   If the parties disagree about how to proceed, either party may move to submit 
this matter to the appraisal panel for clarification, to re-open discovery, or for any other 

appropriate relief by May 20, 2024.                                       

Dated:  April 22, 2024             s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Natureview Vista Twinhome Association, File No. 22-cv-2027 (ECT/DJF)

Plaintiff,

v. OPINION AND ORDER

The Travelers Indemnity Company,

Defendant.

located in Brooklyn Park, Minnesota. Id. at 3.

477 U.S. 242, 248

 (1986).  A dispute over a fact is “genuine” only if “the evidence is such that a 
reasonable jury could return a verdict for the nonmoving party.”

Id.

  “The evidence of the 

non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”

Id. at 255

.  A “smoking gun” is not required for the non-movant to defeat a summary 
judgment motion.  Teleconnect Co. v. Ensrud,

55 F.3d 357, 360

 (8th Cir. 1995).  But the 
non-movant must show “more than mere speculation, conjecture, or fantasy.”  Clay v. 
Credit Bureau Enters., Inc.,

754 F.3d 535, 539

 (8th Cir. 2014) (citation and quotations 

omitted); Zayed v. Associated Bank, N.A.,

913 F.3d 709, 714

 (8th Cir. 2019). 
                          III                                        
                           A                                         
Natureview  claims  that  Travelers  breached  the  policy  by  failing  to  pay  the 
recoverable  depreciation  plus  permits  awarded  by  the  appraisal  award,  totaling 

$343,543.98.  ECF No. 56 at 3.  Under Minnesota law, a breach-of-contract claim requires: 
“(1) a valid contract; (2) performance by the plaintiff of any conditions precedent; (3) a 
material breach of  the contract by  the  defendant;  and  (4)  damages.”   Russo  v.  NCS 
Pearson, Inc.,

462 F. Supp. 2d 981, 989

 (D. Minn. 2006) (citation omitted); see Park 
Nicollet Clinic v. Hamann,

808 N.W.2d 828, 833

 (Minn. 2011) (same).       

Deciding whether Travelers breached the policy requires interpreting the policy.  
“The interpretation of insurance contracts is a question of law.”  Quade v. Secura Ins.,

814 N.W.2d 703, 705

 (Minn. 2012).  “Subject to the statutory law of the state, a policy of 
insurance is within the application of general principles of the law of contracts.”

Id.

 
(quoting Bobich v. Oja,

104 N.W.2d 19, 24

 (Minn. 1960)).  “When interpreting insurance 
contracts, the policy must be construed as a whole, beginning with the plain and ordinary 
meaning of the policy’s terms, as well as ‘what a reasonable person in the position of the 

insured would have understood the words to mean.’”  Cedar Bluff Townhome Condo. Ass’n 
v. Am. Fam. Mut. Ins.,

857 N.W.2d 290, 294

 (Minn. 2014) (quoting Midwest Fam. Mut. 
Ins. v. Wolters,

831 N.W.2d 628, 636

 (Minn. 2013)).                       
The parties’ dispute concerns the following policy term:             
     (c) We will not pay more for loss or damage on a replacement    
     cost basis than the least of Paragraphs (i), (ii), or (iii) . . . : 

          (i) The Limit of Insurance applicable to the lost or       
          damaged property;                                          

          (ii) The cost to replace the lost or damaged property      
          with other property:                                       

               a) Of comparable material and quality; and            

               b) Used for the same purpose; or                      

          (iii)  The  amount  actually  spent  that  is  necessary  to 
          repair or replace the lost or damaged property.            

ECF No. 48-1 at 62.  The parties agree that the appraisal award is less than the applicable 
insurance limit and that the appraisal award establishes the “cost to replace” described in 
paragraph (c)(ii).  The parties’ disagreement concerns paragraph (c)(iii).   
Natureview contends that it “has completed the repairs and therefore is entitled to 
judgment for the replacement cash value (“RCV”) of the loss plus its permits incurred 
pursuant to the Award and the Policy.”  ECF No. 41 at 1.  Not so.  Because the appraisal 
award establishes the cost to replace described in paragraph (c)(ii), Natureview is entitled 
to “[t]he amount actually spent that is necessary to repair or replace the lost or damaged 
property,” so long as that amount is less than or equal to the RCV amount awarded by the 
appraisal panel.  ECF No. 48-1 at 62.  In other words, Natureview must “repair and replace 

the property and expend an amount in excess of the agreed cash value of the loss.”  Kolls 
v. Aetna Cas. & Sur. Co.,

503 F.2d 569, 571

 (8th Cir. 1974) (emphasis added); see also 
Jordan R. Plitt et. al, Couch on Insurance § 176:60 (3d ed. Nov. 2023 Update) (“Thus, it 
has been stated that, before replacement costs could be recovered, the insured must repair 
or replace the damaged structure and spend an amount greater than that recoverable under 

actual cash value.”); Estes v. State Farm Fire & Cas. Co.,

358 N.W.2d 123

, 124–25 (Minn. 
Ct. App. 1984) (insured who repaired a roof for $13,000 was only entitled to $13,000, not 
the full RCV).                                                            
A hypothetical is illustrative.  Suppose an insured’s roof is destroyed by a storm.  
The roof has a replacement-cost value of $40,000 and (accounting for depreciation) an 

actual-cash value of $20,000.  If the insured does not replace the roof, the insured keeps 
the $20,000 ACV payment.  If the insured replaces the roof, the insured can then request 
reimbursement for the cost of replacing the roof that exceeds the ACV, up to the RCV.  So 
if the insured paid $20,000 to replace the roof, the insurer would owe nothing; if the insured 
paid $30,000, the insurer would owe $10,000; if the insured paid $40,000, the insurer 

would owe $20,000, and if the insured paid $50,000, the insurer would still only owe 
$20,000.  Selective Ins. Co. of S.C. v. Sela,

455 F. Supp. 3d 841

, 844 (D. Minn. 2020), 
aff’d,

11 F.4th 844

 (8th Cir. 2021).  Because paragraph (c)(iii) reimburses an insured for 
money spent, the insured must ordinarily spend the money first.  But as a practical matter, 
bona fide charges for completed work would also seem sufficient.  Here, Natureview paid 
Tyther roughly $1,000,000 for repairs, less than the ACV awarded by the appraisal panel.4  
Because Natureview has not spent more than the ACV amount, it is not entitled to 

reimbursement for any recoverable depreciation.                           
Natureview counters that “pursuant to the invoice generated by Tyther, Natureview 
has incurred total costs for the work completed (excluding the matching siding) in the total 
amount of the Award of $1,564,992.00 plus permits.”  ECF No. 56 at 3.  To support its 
position, Natureview relies almost exclusively on Savanna Grove Coach Homeowners’ 

Ass’n v. Auto-Owners Ins., No. 19-cv-1513 (ECT/TNL),

2020 WL 468905

, at *5 (D. Minn. 
Jan. 29, 2020).  ECF No. 54 at 2–7.  But in that case, the insured submitted an extensive 
record showing “that [it] actually and necessarily incurred an amount greater than the 
appraisal award to repair or replace its damaged property.”  Savanna Grove,

2020 WL 468905

, at *5.  In Savannah Grove, the insurer asserted that the final invoice was simply 

pegged to the appraisal award, but didn’t “say why, or cite evidence showing this is so.”  


4    Natureview contends that its public adjuster’s fee should be included in the amount 
spent because “[b]oth Natureview and Tyther testified to their agreement that paying the 
public adjuster became Tyther’s obligation, and thus Natureview’s satisfaction of Tyther’s 
obligation was functionally no different from Natureview writing a check to Tyther for the 
same amount.”  ECF No. 56 at 4.  But it is not obvious why payments to a public adjuster 
are “necessary to repair or replace the lost or damaged property.”  Natureview cites no legal 
authority to support its conclusion that paragraph (c)(iii) requires insurers to reimburse an 
insured’s fee paid to its public adjuster.  Nor has research turned up any cases supporting 
Natureview’s position.  Based on the plain language of the insurance policy, the better 
answer is that amounts spent to resolve an insurance claim—for example, money paid to 
attorneys, public adjusters, or appraisers—are different than amounts spent to repair or 
replace  damaged  property.    Therefore,  whether  Tyther  agreed  to  absorb  the  public 
adjuster’s fee is not a material dispute.                                 
Id. at *7.  By contrast, Judge Nelson rejected a request for payment of recoverable 
depreciation based on an invoice in Maplebrook Estates Homeowner’s Association, Inc. v. 
Hartford Fire Insurance Co., No. 21-cv-1532 (SRN/DJF),

2024 WL 869069

 (D. Minn. 

Feb. 29, 2024).  In Maplebrook, Judge Nelson reasoned:                    
     [W]hile Judge Tostrud found that the record submitted by the    
     plaintiff  in  Savannah  Grove  was  “extensive,”

2020 WL 468905

2014 WL 1092121

, at 
*6–9 (W.D. Tex. Mar. 19, 2014) (rejecting a request for recoverable depreciation by 
examining overhead, profit, and work performed by subcontractors).        

Natureview also argues that “[t]here is no genuine dispute that Natureview agreed 
to pay the entire RCV of the Award plus permits to Tyther in exchange for completing the 
repairs.”  ECF No. 54 at 6.  But Tyther only agreed to “complete the replacement of 
damaged property for the scope and price provided on the insurance loss statement.”  ECF 
No. 51-1.  It did not agree to perform the work for a specific price.  And the contract 

expressly warrants that Natureview will be subject to no additional costs except for its 
insurance deductible.

Id.

  Moreover, the contract is subject to Travelers’ payment terms.

Id.

the Award,” ECF No. 53 at 13, because “Natureview did not have matching siding before
the storm, and there was no basis to give it matching siding after the storm,”

id.

 at 13–14.  
According to Travelers, the appraisal panel’s decision to not award matching for the north 
and east elevations was a factual determination to which this Court should defer.  Id. at 14.  
Natureview counters that the appraisal panel “determine[ed] that the replacement siding 

was not a reasonable match for the existing siding on the north and east elevations and that, 

6    To be precise, Natureview seeks to recover $117,000 already spent on replacing 
undamaged siding and declaratory judgment “that it may recover up to $385,942.00 from 
Travelers for costs incurred to replace the remainder of the non-matching siding per page 
2 of the Award.”  ECF No. 41 at 7.                                        
if matching applies under the Policy, then the RCV for replacement of the non-matching 
siding is $502,942.00.”  ECF No. 41 at 12.  In other words, Natureview interprets the 
clarification  as  awarding  matching  contingent  on  a  court’s  subsequent  coverage 

determination.                                                            
An appraisal award is ambiguous if it “is ‘reasonably susceptible of more than one 
interpretation.’”  Herll v. Auto-Owners Ins.,

879 F.3d 293, 296

 (8th Cir. 2018) (quoting Art 
Goebel, Inc. v. N. Suburban Agencies, Inc.,

567 N.W.2d 511, 515

 (Minn. 1997)).  And the 
parties agreed at oral argument that both interpretations would be within the authority of 

the appraisal panel under the Minnesota Supreme Court’s decision in Quade v. Secura 
Insurance,

814 N.W.2d 703

, 706–08 (Minn. 2012).  Therefore, summary judgment should 
be  denied  if  both  parties’  interpretations  of  the  appraisal  panel’s  clarification  are 
reasonable.  Herll,

879 F.3d at 296

; see also Maplebrook Ests. Homeowner’s Ass’n, v. 
Hartford Fire Ins. Co., No. 21-cv-1532 (SRN/DJF),

2023 WL 5021164

, at *10 (D. Minn. 

Aug. 7, 2023).                                                            
Start with the language supporting Travelers’ interpretation.  The memorandum of 
appraisal directed the appraisal panel to “evaluate the extent of the mismatch between the 
undamaged area of the building component and the new material used for the repairs taking 
into account the existence of prior repairs and/or mismatches.”  ECF No. 48-16 at 3.  The 

appraisal panel’s itemized award included matching for the south elevation but did not 
include matching for the north and east elevations.  ECF No. 51-2 at 2–3.  And the appraisal 
panel’s clarification begins with, “[t]he dollar amounts indicated on this page are not a part 
of the award and relate to the issues of matching.”  ECF No. 51-2 at 2.  Taken collectively, 
it is reasonable to interpret the appraisal panel’s decision as awarding matching for only 
the south side because of a pre-existing mismatch.                        
However, the panel also wrote that “[t]he remaining undamaged original siding on 

the east and north elevations has a replacement cost of $502,942.00 and an ACV or [sic] 
$0.00.”  ECF No. 51-2 at 2.  And at the top of the page, the appraisal panel emphasized 
that it “did not define coverage.”

Id.

  Because replacement cost is a term of art used to 
describe  the  amount  of  loss,  Natureview’s  interpretation—that  the  appraisal  panel 
calculated  the  amount  of  the  loss  ($502,942.00)  contingent  on  a  court’s  coverage 

decision—is also reasonable.  Because both interpretations are reasonable, the appraisal 
panel’s clarification is ambiguous, and the parties’ motions for summary judgment will be 
denied as to matching.7                                                   
                           C                                         
Natureview  requests  pre-award  interest.    “Minn.  Stat.  §  549.09 provides  for 

preaward  interest  on  insurance  appraisal  awards  regardless  of  the  existence  of 
wrongdoing.”  Poehler v. Cincinnati Ins.,

899 N.W.2d 135, 141

 (Minn. 2017).  The statute 
provides for pre-award interest starting from the earliest of three triggering events: “(1) the 
action being commenced, (2) arbitration being demanded, or (3) written notice of the claim 
being made (provided that the party commences the action within two years after giving 

written notice).”  Sela, 455 F. Supp. 3d at 867.  Because insurance appraisals are not 

7    The appraisal panel’s May 2022 email does not resolve the ambiguity.  The email 
states that “[i]tem 4 indicates an RCV amount of $502,942 RCV for complete replacement 
of the North and East elevations if matching is considered.”  ECF No. 55-3 at 4.  But the 
phrase “if matching is considered” could support either party’s interpretation. 
arbitration proceedings, a demand for an appraisal is not a triggering event for pre-award 
interest under § 549.09.  Elm Creek Courthome Ass’n v. State Farm Fire & Cas. Co.,

971 N.W.2d 731

, 742 (Minn. Ct. App. 2022), review denied (May 17, 2022).      

Travelers contends that “Natureview is not entitled to interest on the ACV amount 
because it did not bring a cause of action within two years of its written notice of claim and 
no other statutory triggering event applies.”  ECF No. 45 at 24.  Natureview counters that 
“[n]othing in the statute restricts a party to only one written notice.”  ECF No. 54 at 10.  
On that basis, Natureview contends that its August 2020 proof of loss is a written notice of 

claim under § 549.09.                                                     
Natureview’s interpretation is not reasonable considering the two-year limitation 
period in § 549.09.  “[A] particular provision of a statute cannot be read out of context but 
must be taken together with other related provisions to determine its meaning.”  In re Est. 
of Nelson,

936 N.W.2d 897

, 905 (Minn. Ct. App. 2019) (quoting Kollodge v. F. & L. 

Appliances, Inc.,

80 N.W.2d 62, 64

 (Minn. 1956) (quotations omitted)).  To accomplish 
this, Minnesota courts read statutes as a whole.  Am. Fam. Ins. Grp. v. Schroedl,

616 N.W.2d 273, 277

 (Minn. 2000).  Section 549.09 requires “[t]he action [to] be commenced 
within two years of a written notice of claim for interest to begin to accrue from the time 
of  the  notice  of  claim.”

Minn. Stat. § 549.09

,  subdiv.  1(b).    Allowing  subsequent 

communication, demand letters, and settlement offers all to be successive written notices 
of claims would read this two-year limitation period out of the statute.  
A common-sense reading of the statute confirms that Natureview’s 2020 proof of 
loss was not a written notice of claim.  Although § 549.09 does not define a written notice 
of claim, in Blehr v. Anderson the Minnesota Court of Appeals concluded that a written 
notice of claim “does not require a demand for a specific amount of money; but the written 
notice must be sufficient, in light of the circumstances known to the noticed party, to allow 

the noticed party to determine ‘its potential liability from a generally recognized objective 
standard of measurement.’”

955 N.W.2d 613

, 622 (Minn. Ct. App. 2021) (quoting Indep. 
Sch. Dist. 441 v. Bunn-O-Matic Corp., No. C0-96-594,

1996 WL 689768

, at *10 (Minn. 
Ct. App. Dec. 3, 1996)).  Often this is satisfied by the insured initiating the claims process.  
See Creekview of Hugo Ass’n v. Owners Ins.,

386 F. Supp. 3d 1059, 1068

 (D. Minn. 2019); 

Sela, 455 F. Supp. 3d at 868.                                             
Here, Natureview reported a claim to Travelers on August 6, 2019.  ECF No. 49 ¶ 5.  
Consistent with Blehr, Natureview’s report functioned as a written notice of claim under 
§ 549.09.  Meanwhile, the proof of loss was not intended to be, nor did it operate as, a 
written notice of claim.  Having received a written notice of claim in August 2019, 

Travelers  was  already  on  notice  of  Natureview’s  claim.    See  Notice,  Black’s  Law 
Dictionary (11th ed. 2019) (“Legal notification required by law or agreement, or imparted 
by operation of law as a result of some fact.”).  So the proof of loss did not function to 
provide notice of Natureview’s pre-existing claim.  Nor did Natureview intend to provide 
notice of its claim, considering that it provided the proof of loss at Travelers’ request to 

proceed with the appraisal process.  It makes no difference that the proof of loss and final 
estimate were for a different amount than Natureview’s earlier estimates—the same claim 
was at issue.  Because the proof of loss was sent after more than a year of back and forth 
between Natureview and Travelers, the proof of loss cannot fairly be understood to be a 
written notice of Natureview’s insurance claim.  Cf. Dewey Hill III Townhomes Ass’n, Inc. 
v. Auto-Owners Ins. Co., No. A18-1562,

2019 WL 3000691

, at *1, *3 (Minn. Ct. App. 
July 1, 2019) (applying the two-year limitation period without mentioning the importance 

of the “considerable back-and-forth” between the parties).                
The only triggering event left is the date Natureview filed this action.  But Travelers 
paid the ACV awarded by the appraisal panel before Natureview filed this action.  And 
interest is not owed on the recoverable depreciation because Natureview is not entitled to 
any recoverable depreciation.  Nor can interest be awarded on matching costs because 

Natureview’s  motion  for  summary  judgment  as  to  matching  costs  will  be  denied.  
Therefore, Natureview is not entitled to pre-award or pre-judgment interest. 
                           *                                         
The  loose  end  is  how  the  case  proceeds  with  respect  to  the  matching  issue.  
“Minnesota Supreme Court, Eighth Circuit, and U.S. Supreme Court precedent tend to 

show that ambiguous appraisal awards should be returned to the appraisal panel for 
clarification.”  Fenske v. Integrity Prop. & Cas. Ins., No. 22-cv-679 (JRT/DJF),

2023 WL 186595

, at *3 (D. Minn. Jan. 13, 2023); see also Maplebrook,

2023 WL 5021164

, at *12 
(“The ambiguity in the Appraisal Award requires its remand to the appraisal panel for 
clarification.”).  At the hearing, the parties also discussed deposing members of the 

appraisal panel or proceeding to trial.  As described more fully below, the parties will be 
ordered to meet and confer on this issue to determine whether they are able to agree on an 
appropriate procedure for resolving the matching question.

ORDER

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             

1.   Defendant  The  Travelers  Indemnity  Company’s  Motion  for  Summary 
Judgment [ECF No. 43] is GRANTED IN PART and DENIED IN PART as explained  
in Part III above.                                                        
2.   Plaintiff  Natureview  Vista  Twinhome  Association’s  Motion  for  Partial 
Summary Judgment [ECF No. 39] is DENIED.                                  

3.   The parties are DIRECTED to meet and confer regarding how this case 
should proceed to resolve the matching issue.  The parties shall file a joint status report by 
May 6, 2024.                                                              
4.   If the parties disagree about how to proceed, either party may move to submit 
this matter to the appraisal panel for clarification, to re-open discovery, or for any other 

appropriate relief by May 20, 2024.                                       

Dated:  April 22, 2024             s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court

Reference

Status: Unknown