Gregg Schmaedeke, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0995

Gregg Schmaedeke, et al.,
Appellants,

vs.

All Service Plumbing, LLC,
Respondent.

Filed April 8, 2019
Reversed and remanded
Jesson, Judge

St. Louis County District Court
File No. 69DU-CV-17-2864

John H. Bray, Maki & Overom, LTD, Duluth, Minnesota (for appellants)

Nicole R. Weinand, Law Offices of Thomas P. Stilp, Golden Valle y, Minnesota (for
respondent)

Considered and decided by Ross, Presiding Judge; Johnson, Judg e ; a n d J e s s o n ,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
The central issue before us is whether appellants Greg and Tra cy Schmaedeke’s
negligence action for water damage to their building is time-ba rred under the two- year
statute of limitations in Minnesota Statutes section 541.051, subdivision 1(a) (2016), which

2
covers claims for damages arising from the conditions of improv ements to real property.
Because we conclude it is not time-barred, we reverse and remand.
FACTS
Appellants Greg and Tracy Schma edeke contracted with respondent All Service
Plumbing, LLC to replace a boiler in their Duluth rental property. The boiler is part of the
heating system of the house, whi ch includes pipes and radiators. In November 2010, All
Service Plumbing worked on replacing the boiler. After doing so, an All Service Plumbing
employee began to refill the syst em with water. But the employ ee failed to close the
“bleeder valves” on all of the radiators. The radiators were o riginal to the building. Due
to this failure to cap the radiators, water poured out and floo ded the property, damaging
the building.
Six years later, the Schmaedekes commenced a negligence lawsui t against All
Service Plumbing. All Service Plumbing filed a motion for summ ary judgment, arguing
that the boiler replacement cons tituted an improvement to real property and therefore the
Schmaedekes’ claim was time-barred by the two-year statute of l imitations found in
Minnesota Statutes section 541. 051, subdivision 1(a) (2016).
1 Conversely, the
Schmaedekes argued that the six-year statute of limitations applied because the negligence

1 Minnesota Statutes section 541.051, subdivision 1(a) was amended by the legislature in
2018. See Minn. Laws ch. 116, § 1 (modifying when the statute of limitati ons begins to
run). Because the amendment “applies to causes of action accru ing on or after”
May 9, 2018, id., and the Schmaedekes’ complaint was dismissed by the district court as
being barred by the statute of limitations before that date, we review the district court’s
decision under the former statute.

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arose from the failure to close the radiator bleeder valves, which were not an “improvement
to real property.”
The district court concluded th at the failure to cap the radia tor valves was part of
the work on the improvement to real property. As a result, the court held the case was
barred by the two-year statute of limitations. This appeal follows.
D E C I S I O N
The Schmaedekes argue that the district court erred in determining that All Service
Plumbing’s act of refilling their radiators with water—and failure to close the valves in that
process—arose from an improvement to real property, which subje cts their claim to a
two-year statute of limitations.2 The parties agree that no material facts are in dispute. And
they agree that the replacement of the boiler itself was an imp rovement to real property.
But the district court, adopting the position of All Service Pl umbing, held that the new
boiler was part of a system which included the preexisting radi ators and that, taken
together, this system constituted an improvement to real property. We review this decision,
which addresses the constructi on and applicability of a statute of limitations, de novo.
Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).
The statute limiting claims on improvements to real property pr ovides in relevant
part:
Except where fraud is involved, no action by any person in
contract, tort, or otherwise to recover damages for any injury

2 Negligence claims are generally subject to a six-year statute of limitations period. See
Minn. Stat. § 541.05, subd. 1 (2018); see also D.M.S. v. Barber , 645 N.W.2d 383, 390
(Minn. 2002) (stating “most negligence actions” are subject to a six-year statute of
limitations period).

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to property, real or personal, or for bodily injury or wrongful
death, arising out of the defectiv e and unsafe condition of an
improvement to real property , shall be brought against any
person performing . . . construction of the improvement to real
property. . . more than two years after discovery of the injury ,
nor in any event shall such a cause of action accrue more than
ten years after substantial completion of the construction.

Minn. Stat. § 541.051, subd. 1(a) (emphasis added).
3

Under this statute, the two-year limitations period applies to claims: (1) of damages
to real property; (2) arising out of the defective and unsafe c ondition; (3) of an
improvement to real property. Id.; Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 399
(Minn. App. 1997), review denied (Minn. June 11, 1997). All Service Plumbing has the
burden of establishing that this statute of limitations applies . State Farm Fire & Cas. v.
Aquila, Inc., 718 N.W.2d 879, 885 (Minn. 2006). And if these elements are satisfied, and
the claim was brought more than two years after discovery of th e injury, then the claim is
time-barred. Minn. Stat. § 541.051, subd. 1(a). The question before us is whether the final
element is met: did the negligence in not capping the radiators arise from an improvement
to real property?

3 Minnesota courts have concluded that a variety of improvements to real property fall
under Minnesota Statutes sectio n 541.051, subdivision 1(a). See Allianz Ins. Co. v. PM
Servs. of Eden Prairie, Inc. , 691 N.W.2d 79, 84 (Minn. App. 2005) (water-purification
systems); Red Wing Motel Inv’rs v. Red Wing Fire Dep’t , 552 N.W.2d 295, 297 (Minn.
App. 1996) (sprinkler system), review denied (Minn. Oct. 29, 1996); Patton v. Yarrington,
472 N.W.2d 157, 159-60 (Minn. A pp. 1991) (smoke detector), review denied ( M i n n .
Aug. 29, 1991); Citizens Sec. Mut. Ins. Co. of Red Wing v. Gen. Elec. Corp., 394 N.W.2d
167, 170 (Minn. App. 1986) (light fixtures and ballasts), review denied ( M i n n .
Nov. 26, 1986).

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The Minnesota Supreme Court defines an improvement to real prop erty as “[a]
permanent addition to or betterment of real property that enhances its capital value and that
involves the expenditure of labor or money and is designed to m ake the property more
useful or valuable as distinguished from ordinary repairs.” Sartori v. Harnischfeger Corp.,
432 N.W.2d 448, 451 (Minn. 1988) (quotation omitted). We use a common-sense
approach to this determination of whether something is an “improvement to real property.”
Siewart v. N. States Power Co., 793 N.W.2d 272, 286 (Minn. 2011).
In making this common-sense evaluation, we are guided by Brandt. In Brandt, a
carpenter was injured when he came into contact with an energiz ed electric wire that was
left over from demolition work which was performed in anticipation of remodeling work.
560 N.W.2d at 398. This court was presented with the issue of whether the subcontractor’s
negligent failure to de-energi ze the electrical wire constitute d a defective and unsafe
condition of an improvement to real property. Id. at 402. The electrical subcontractor
argued that the demolition work it performed was part of a “con tinuous remodeling
process” that was part of an improvement to real property. Id. at 399. We disagreed. There
was no evidence that the demolition work “constructed, built, or added anything new.” Id.
at 400 (quotation marks omitted). And we noted that the electr ical wire the injured
carpenter came in contact with was “apparently the same conduit that existed in the
building prior to [the] demolition work.” Id. As a result, we concluded that the preliminary

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property demolition work was not part of the later remodeling which was an improvement
to real property.4 Id. at 400-01.
Here, like the electrical conduit in Brandt, the radiators and the bleeder valves were
original to the building. They were not “a permanent addition to or betterment of real
property.” Sartori, 432 N.W.2d at 451. As in Brandt and Wiita, the Schmaedekes’
complaint appears to focus on the plumber’s individual conduct in failing to close the
bleeder valves, which is only tangentially related to the installation of the improvement to
real property. That improvement is the boiler itself.
But All Service Plumbing asserts that because the boiler was pl umbed into the
heating system (which included the radiators) the radiators were part of the improvement.
And that anything required to successfully install a boiler, su ch as filling the system with
water, would fall within the improvement. 5 We disagree. Just as demolition work
performed in anticipation of construction of an improvement to real property is not covered

4 T h e Brandt decision relied upon Wiita v. Potlatch Corp. , 492 N.W.2d 270 (Minn
App. 1992), which provides further guidance. In Wiita, two people suffered from injuries
at a construction site when cement blocks being moved by a cran e fell on them. 492
N.W.2d at 270. The blocks were being used to construct a fire wall. Id. The appellant
asserted that his injuries arose out of the negligent operation of the crane operator rather
than the condition of the wall, which they conceded was an improvement to real property.
Id. at 271. This court concluded, in part, that the injury did not arise from a defective and
unsafe condition in the improvement to real property (i.e., fir e wall). Id. at 272. Instead,
we concluded that the appellant’s injury arose from the neglige nt operation of the crane.
Id. As a result, the two-year statute of limitations did not apply. Id.
5 During oral argument, in respons e to this court’s questioning, All Service Plumbing
asserted that turning the power off to install the boiler or opening and closing the windows,
if required, would fall within the scope of the installation of the boiler.

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by the two-year statute of limitations, neither is ancillary work subsequent to construction
of the improvement. Brandt, 560 N.W.2d at 402.
All Service Plumbing further relies on the fact that the “scope of work” for the boiler
installation included filling of radiators with water, to support its position. And it cites to
Allianz to support its position. But a contract for work does not define what constitutes an
improvement to real property—Minnesota Statutes section 541.051 provides the definition.
And while in Allianz, this court determined that a water-purification system that w as
“plumbed into and thus [was] integrated into the building’s wat er system and made the
building more useful because the water was purified” was consid ered an improvement to
real property, in Allianz, the actual improvement (the water-purification system) broke,
causing the water damage. 691 N.W.2d at 84. Here, the boiler worked properly.
Because All Service Plumbing did not meet its burden of proving that the damage
to the Schmaedekes’ real propert y arose out of an improvement t o the property, we
conclude that the district court erred in determining that the two-year statute of limitations
applied here.6 See Minn. Stat. § 541.051, subd. 1(a). Therefore, we reverse and remand.
Reversed and remanded.

6 Because we conclude that the damage to the Schmaedekes’ rental house did not arise out
of an improvement to real property, we do not reach the issue of whether the damage arose
out of a defective and unsafe condition. Nor do we reach the Schmaedekes’ argument that
the two-year statute of limitations does not apply because the furnace would be considered
“machinery installed upon real property” pursuant to Minnesota Statutes section 541.051,
subdivision 1(e) (2018). See Great N. Ins. Co. v. Honeywell Int’l Inc. , 911 N.W.2d 510
(Minn. 2018) (concluding that a heat-recovery ventilator contai ning the motor
manufacturer’s motors in a home’s HVAC system was “machinery” a nd thus not barred
under Minn. Stat. § 541.051, subd. 1(a)).