Mavco, Inc. d/b/a Maverick Construction Company v. American Family Mutual Insurance Company

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1085

Mavco, Inc. d/b/a Maverick Construction Company,
Appellant,

vs.

American Family Mutual Insurance Company,
Respondent.

Filed March 9, 2015
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-CV-12-23280

Mark J. Kallenbach, Minneapolis, Minnesota (for appellant)

Kirsten J. Hansen, Jesse C. Beier, Stich, Angell, Kreidler, Dodge & Unke, P.A.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Johnson, Judge; and

Larkin, Judge.

UNPUBLISHED OPINION

HALBROOKS, Judge

Appellant construction company challenges summary judgment in favor of

respondent insurer, arguing that the district court erred by ruling that its breach-of-

contract, promissory-estoppel, and unjust-enrichment claims fail as a matter of law. We

affirm.
 FACTS

In May 2008, a hail storm caused damage to three multi-family housing

developments governed by homeowners’ associations. The losses were covered by group

casualty insurance policies issued to the associations by respondent American Family

Mutual Insurance Company. The insurance policies provided American Family with the

option of paying the value of lost or damaged property or paying for repairs.

Each association entered into a contract with appellant Mavco, Inc. to repair the

storm damage, and although Mavco disputed American Family’s adjustment of the

losses, it made the repairs. American Family made a series of payments to the

associations, which included 6% overhead and profit for Mavco. The associations in turn

paid Mavco. Mavco submitted estimates to American Family for supplemental work and

an additional 14% overhead and profit.1 American Family rejected some of the requests

for additional payments, claiming that the costs were either not covered by the policy,

were included in the 6% overhead and profit already paid, or were for unapproved costs.

The associations filed lawsuits against American Family, alleging breach-of-

contract, unjust-enrichment, and promissory-estoppel claims. E.g., Alpine Meadows

Townhome Ass’n v. Am. Fam. Mut. Ins. Co., No. A11-1328, 2012 WL 1070107, at *1

(Minn. App. Apr. 2, 2012). Mavco was not a party to that litigation, and the complaint

did not mention Mavco. Id. In preparation for trial, counsel for American Family

deposed the president of the Alpine Meadows Townhome Association’s board of

1
Mavco asserts that the industry standard is 10% overhead plus 10% profit.

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directors as well as Bryan Reitzner (Mavco’s president) and Brian Schwab (Mavco’s

estimator and salesperson).

The association board president testified that she “had no idea” that Alpine

Meadows was the plaintiff in the lawsuit, that she had not seen the complaint, and that

she was surprised that Mavco was not the plaintiff.2 Id. She also testified that all of the

money paid by American Family to Alpine Meadows had been paid to Mavco, that

American Family owed nothing to Alpine Meadows, and that Alpine Meadows had not

suffered any damages, rather “it is [Mavco] that is owed the money.” Id. The district

court granted summary judgment to American Family. Alpine Meadows appealed, and

we affirmed, concluding that

Alpine Meadows’ contract claim is based on an allegation
that American Family breached the insurance policy by
failing to pay [Mavco] an amount of money that [Mavco]
asserts it is owed for completing the repairs. Although Alpine
Meadows claims that American Family breached the policy,
Alpine Meadows did not allege that American Family denied
any part of its insurance claim and did not cite any policy
provision that American Family breached. The alleged
breach concerns American Family’s failure to pay [Mavco],
but nothing in the record establishes that American Family
entered into a contract with [Mavco] or that Alpine Meadows
assigned its rights under the policy to [Mavco]. Thus, Alpine
Meadows has not presented facts sufficient to support its
claim that American Family breached the insurance contract.

2
Reitzner testified that he had helped draft Alpine Meadows’s complaint and that there
was a written agreement between Alpine Meadows and Mavco in which Alpine Meadows
agreed to pay to Mavco anything it recovered in the lawsuit, but he was unable to identify
or produce the agreement. Alpine Meadows, 2012 WL 1070107, at *1. Reitzner also
testified that Mavco agreed not to pursue any claim against Alpine Meadows and
confirmed that Alpine Meadows had “never assigned [him] any of their insured rights.”
Id. (alteration in original).

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Id. at *2. We also affirmed summary judgment to American Family with respect to the

association’s unjust-enrichment and promissory-estoppel claims. Id. at *3.

After we released our decision in the Alpine Meadows case, all three associations

dismissed their lawsuits against American Family. Shortly thereafter, Mavco served its

complaint on American Family. The parties do not appear to have undertaken any new

discovery in the present litigation. American Family promptly moved for summary

judgment. Mavco responded that there were genuine issues of material fact based on

deposition testimony in the Alpine Meadows case,3 showing that American Family had

agreed to pay Mavco and that American Family controlled the work and a January 28,

2013 affidavit that averred generally that American Family had agreed to pay Mavco for

supplemental work and 20% for overhead and profit.

In April 2013, the district court granted partial summary judgment to American

Family, ruling that Mavco’s contract claim failed due to lack of standing and lack of

contract formation, its unjust-enrichment claim failed because American Family did not

receive anything of value from Mavco, and that detrimental reliance was not a separate

cause of action. The district court denied American Family’s motion with respect to

Mavco’s promissory-estoppel claim, ruling that there were fact questions about whether

the promises allegedly made by American Family with respect to overhead and profit and

supplemental work were clear and definite and whether American Family intended to

induce reliance.

3
An American Family adjuster testified that American Family never agreed to pay 20%
overhead and profit in these claims, that American Family doesn’t pay 20% on
commercial claims, and that a different adjuster had negotiated 6% in this case.

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 In early 2014, American Family filed a second summary-judgment motion,

attaching transcript excerpts from the 2011 Reitzner and Schwab depositions in which

one or both acknowledged that American Family never agreed to pay 20% overhead and

profit, that there was never an agreement on the total price of the project, and that

American Family never specifically authorized the supplemental work. In response,

Mavco submitted new affidavits by Reitzner and Schwab. The district court determined

that the assertions in the March 2014 Reitzner affidavit “are contrary to the deposition

testimony of both Schwab and Reitzner” and that the affidavit was “prepared for the

purpose of defeating the summary judgment motion.” Citing the “sham affidavit”

doctrine, the district court ruled that the affidavit did not create a genuine issue of

material fact.

The district court ruled that “Mavco’s promissory estoppel claim fails for lack of a

clear and definite promise,” and that the alleged promises “need not be enforced to

prevent injustice because Mavco has an adequate remedy at law by suing the

Associations for breach of contract and/or unjust enrichment.” Mavco now appeals the

district court’s grant of summary judgment on its contract, promissory-estoppel, and

unjust-enrichment claims.

DECISION

A district court’s grant of summary judgment is reviewed de novo. Savela v. City

of Duluth, 806 N.W.2d 793, 796 (Minn. 2011). On review, appellate courts “determine

whether genuine issues of material fact exist, and whether the district court correctly

applied the law.” Id. We view the record in the light most favorable to the party against

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whom summary judgment was granted, recognizing that summary judgment is a “blunt

instrument” and is improper when reasonable persons may draw different conclusions

from the evidence. Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn.

2008) (quotations omitted). Nevertheless,

there is no genuine issue of material fact for trial when the
nonmoving party presents evidence which merely creates a
metaphysical doubt as to a factual issue and 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.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). “A self-serving affidavit that

contradicts other testimony is not sufficient to create a genuine issue of material fact.”

Risdall v. Brown-Wilbert, Inc., 759 N.W.2d 67, 72 (Minn. App. 2009), review denied

(Minn. Mar. 17, 2009).

I.

The district court granted summary judgment to American Family on Mavco’s

contract claim on two grounds—because Mavco lacks standing as a third party to the

insurance contract and for lack of contract formation. With respect to standing, the

district court ruled that under Minnesota law, Mavco cannot maintain a direct action for

breach of contract against American Family in the absence of a judgment against its

insured. Mavco does not expressly challenge this ruling on appeal.

“[I]n Minnesota, it is a longstanding common-law rule that courts will not allow

third parties to maintain a direct action against an insurer until the third party has a

judgment against the insured.” Camacho v. Todd & Leiser Homes, 706 N.W.2d 49, 56

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(Minn. 2005). It is undisputed that Mavco has not pursued any claims against the

associations, nor have the associations assigned their rights under the policies to Mavco.

We therefore conclude that the district court properly determined that Mavco lacks

standing to sue American Family for breach of contract and granted summary judgment

to American Family on this claim. Because of our resolution of the standing question, we

need not reach Mavco’s contract-formation argument.

II.

“Promissory estoppel implies a contract in law where no contract exists in fact.”

Deli v. Univ. of Minn., 578 N.W.2d 779, 781 (Minn. App. 1998), review denied (Minn.

July 16, 1998). The elements of a promissory-estoppel claim are (1) a clear and definite

promise was made; (2) the promisor intended to induce reliance by the promise, and the

promisee relied to the promisee’s detriment; and (3) the promise must be enforced to

prevent injustice. Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 152

(Minn. 2001).

Mavco argues on appeal that American Family “authorized” Mavco to perform the

work, made a “clear and definite promise to pay Mavco for restoring its insureds’ storm

damaged buildings,” and “gave the ‘go ahead’ to do the work,” but fails to identify

evidence in the record to support these claims beyond the March 2014 affidavits. The

March 2014 affidavits declare that “American Family . . . instructed Mavco to complete

the work, keep track of what work was done, and bill for the same,” “Mavco’s agreement

with American Family was that Mavco would be paid . . . ‘10 and 10,’” “American

Family breached its promise to Mavco by refusing to pay 10 and 10,” and “American

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Family adjuster, [K.H.], informed me that American Family would pay for overhead and

profit.”

But in 2011, Reitzner testified that “[n]obody ever told us” that American Family

would pay 10% overhead and 10% profit. Reitzner also stated that (1) “10 and 10” was

standard in the industry, (2) an American Family adjuster told him American Family

would pay “3 and 3” and that Mavco continued to do work on the project after that,

(3) certain items were missing from American Family’s adjustment of the claim and that

he asked Schwab to write up general estimates of missing items, and (4) Schwab was

Mavco’s primary contact with American Family. Schwab testified that (1) there was

never an agreement between Mavco and American Family as to the total price of the

project, (2) American Family adjusters told him to keep track of and document any

supplemental work, (3) “the insurance company doesn’t really authorize to say go ahead

and start the work,” and (4) American Family never told Mavco not to do the

supplemental work.

Excluding the Reitzner affidavit, which the district court found was a “sham

affidavit” prepared for the purpose of defeating summary judgment,4 the district court

determined that viewing the evidence in the light most favorable to Mavco, there was no

clear and definite promise to pay Mavco for supplemental work or 20% overhead and

profit. The district court found that “[t]he failure to object to the 10% term included in

4
Although the district court did not expressly find that the Schwab affidavit was a sham
affidavit, it noted skepticism of the belated identification of the adjuster who purportedly
promised “that American Family would pay for overhead and profit when the work was
completed.”

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Mavco’s estimates does not constitute a clear and definite promise to pay it. Similarly,

the evidence of industry standard . . . does not prove that they promised to pay 10% in

this matter.”

We conclude that the district court properly applied the sham-affidavit doctrine for

purposes of the summary-judgment motion because the Reitzner affidavit contradicts the

earlier deposition testimony of Reitzner and Schwab. See Risdall, 759 N.W.2d at 72

(stating that an affidavit contradicting prior testimony is insufficient to create a genuine

issue of material fact). We also conclude that the district court properly granted summary

judgment to American Family on Mavco’s promissory-estoppel claim. Viewed in the

light most favorable to Mavco and excluding the affidavits that contradict earlier

deposition testimony, there is no genuine issue of material fact and American Family is

entitled to judgment in its favor. And as the district court observed, “there is no need to

find an implied contract because two contracts govern the relationships and obligations in

this matter.”

III.

Unjust enrichment is an equitable doctrine. Caldas v. Affordable Granite & Stone,

Inc., 820 N.W.2d 826, 838 (Minn. 2012). The standard of review of a district court’s

grant of summary judgment on an unjust-enrichment claim can be de novo or abuse of

discretion. Id. at 837-38. “[W]hen the relevant facts are undisputed the standard of

review is de novo, but a more deferential abuse of discretion standard of review might be

applicable where the district court, after balancing the equities, determines not to award

equitable relief.” Id. at 838.

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 To establish a claim for unjust enrichment, Mavco must show that American

Family knowingly received something of value for which it “in equity and good

conscience should pay.” ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544

N.W.2d 302, 306 (Minn. 1996) (quotation omitted). An action for unjust enrichment

does not lie simply because one party benefits from the efforts of others, rather “it must

be shown that a party was unjustly enriched in the sense that the term ‘unjustly’ could

mean illegally or unlawfully.” First Nat’l Bank of St. Paul v. Ramier, 311 N.W.2d 502,

504 (Minn. 1981).

The district court found that American Family “did not receive something of value

from Mavco.” Mavco argues on appeal that “American Family’s refusal to pay for

Mavco’s work which satisfies a contractual obligation that it owed to its insureds unjustly

enriches American Family.” But American Family did satisfy its contractual obligations

to its insureds. Alpine Meadows, 2012 WL 1070107, at *3 (affirming grant of summary

judgment to American Family because homeowners’ association had neither presented

facts sufficient to support breach-of-insurance-contract claim nor established any

damages). And the associations received the benefit of Mavco’s work, which was

governed by written contracts between Mavco and the associations. Because American

Family received nothing of value from Mavco, we conclude that the district court

properly granted summary judgment to American Family.

Affirmed.

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