Aegis Insurance Services, LTD., and other interested insurers as subrogees of Northern States Power Co. and Southern Minnesota Municipal Power Agency, 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This opinion will be unpublished and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
A19-0640

Aegis Insurance Services, LTD.,
and other interested insurers as subrogees of
Northern States Power Co.
and Southern Minnesota Municipal Power Agency,
Appellants,

vs.

General Electric Company, et al.,
Respondents.

Filed February 10, 2020
Affirmed
Reyes, Judge

Sherburne County District Court
File No. 71-CV-13-1472

Sam Hanson, Leah Ceee O. Boomsma, Kirsten Pagel, Taft Stettinius & Hollister LLP,
Minneapolis, Minnesota; and

David S. Evinger, Daniel W. Berglund, Grotefeld, Hoffmann, Gordon, Ochoa & Evinger,
LLP, Minneapolis, Minnesota (for appellants)

Timothy Schupp, William M. Hart, Robert Vaccaro, Meagher & Geer, P.L.L.P.,
Minneapolis, Minnesota (for respondents)

Considered and decided by Reyes, Presiding Judge; Larkin, Judge; and Slieter,
Judge.

2
U N P U B L I S H E D O P I N I O N
REYES, Judge
This is an appeal from the district court’s judgment after a jury trial on appellants’
negligence-based claims following a remand by this court. Appellants argue that the
district court (1) improperly entered judgment for respondents despite the jury’s special -
verdict answers in favor of appellant on an ordinary-negligence assumed-duty claim;
(2) abused its discretion by denying appellants’ motion to amend its pleadings to conform
to the verdict; (3) abused its discretion by denying appellants’ motion for a new trial on
asserted errors, including granting respondents judgment as a matter of law (JMOL) on
appellants’ post-sale failure -to-warn claim and summary judgment on appellants’
fraudulent-concealment claim; and ( 4) abused its discretion by awarding respondents
excessive costs. We affirm.
FACTS
Appellants Aegis Insurance Services, LTD, and other interested insurers as
subrogees of Northern States Power Company 1 (collectively, “NSP”) appeal from
judgment for respondents General Electric Company, General Electric International, Inc.,
and GE Energy Services, Inc. (collectively, “GE”). NSP’s claims arise from the November
2011 catastrophic failure of a low-pressure steam turbine in Unit 3 of the Sherburne County
generating station, a coal-fired power-generation facility in Becker operated by Northern

1 Northern States Power Company separately settled with respondents . Only its insurers
as subrogees pursued these claims to trial.

3
States Power Company, due to stress corrosion cracking (SCC) in a rotor wheel. The
failure (the “Unit 3 incident”) caused nearly $300 million in damages.
NSP purchased the turbine from GE in 1977 under a sales contract. In 1993, GE
and NSP entered into a General Conditions Agreement (GCA) that pro vided terms
applicable to future equipment and services provided by GE to NSP . GE last performed
maintenance on the turbine in 1999. GE provided occasional “technical information
letters” (TILs) to its customers with new information about hazards and recommendations
for inspection and care of its equipment. Neither the 1977 sales contract nor the GCA
required GE to provide TILs or updated information to NSP.
In 1993, GE issued , and NSP received , TIL 1121-3AR1, which warned of SCC,
explained how to inspec t turbines for it, and recommended inspections after specified
abnormal events or operational anomalies. SCC occurs when contaminants in steam affect
components of steam-powered turbines, which can lead to turbine failure s over time. In
1999, GE issued TIL 1277-2, recommending inspections for SCC in turbines with “once -
through boilers” ten years into service, regardless of the occurrence of the anomalies
referenced in TIL 1121-3AR1. GE did not extend this TIL to “drum boiler” units, such as
the turbine in Unit 3, and it therefore did not send TIL 1277-2 to NSP. In 2013, two years
after the Unit 3 incident, GE issued TIL 1886, which recommended inspection of drum -
boiler units for SCC 22.5 years into service.
NSP filed this suit in November 2013 . NSP stated five causes of action in its
amended complaint: fraudulent concealment ( count I), willful and wanton negligence
(count II), gross negligence ( count III), professional negligence ( count IV), and post-sale

4
failure to warn ( count V). T he district court granted summary judgment to GE on all
counts, based on the economic -loss doctrine .2 NSP appealed, and we reversed and
remanded. N. States Power Co., 2017 WL 3013230, at *5. We concluded that the district
court properly barred claims based on al leged product defects, but that the economic-loss
doctrine did not bar recovery on claims that arose outside of the 1977 sales contract. Id.
We found that the 1977 contract did not encompass “the post-sale advice and lack of advice
at issues in this action” and concluded that “that alleged tortious conduct is independent of
the sales contract.” Id.
On remand, the district court granted GE summary judgment on count I, the
fraudulent-concealment claim, concluding that NSP presented no evidence on an essential
element of the claim . The case proceeded to trial on count II, willful and wanton
negligence; count III, gross negligence; and count V, post-sale failure to warn . Before
submitting the special-verdict form to the jury, the district court granted JMOL to GE on
the post-sale failure-to-warn claim, finding that no evidence supported the element that
NSP was unaware of the risk of harm. It denied GE’s JMOL motions on the two negligence
claims.
The district court created a special-verdict form on which questions 1 through 3
went to willful and wanton negligence, questions 4 through 8 went to whether GE assumed

2 The parties agreed in their prior appeal that that the common-law economic-loss doctrine
applied rather than the later codifications of it in Minn. Stat. § 604.101 (2016) or Minn.
Stat. § 604.10 (1992). See N. States Power Co. v. Gen. Elec. Co., No. A16-1687, 2017 WL
3013230, at *3 n.3 (Minn. App. July 17, 2017), review denied (Minn. Sept. 27, 2017) .
Under this doctrine, a party may not recover in tort for property damage that arises out of
a commercial transaction. Hapka v. Paquin Farms, 458 N.W.2d 683, 688 (Minn. 1990).

5
a duty to render technical information, advice, and recommendations to NSP and whether
it was grossly negligent in carrying out that duty , questions 9 and 10 asked about NSP’s
negligence, and question 11 went to allocation of comparative fault. The jury found that
GE did not act with willful and wanton negligence . It also found that, while GE had
assumed a duty to provide technical information, advice, and recommendations to NSP, it
was not grossly negligent in its provision of that information. In response to the questions
addressing comparative fault, i t found that NSP was negligent in it s operation and
maintenance of Unit 3 and that GE was 52% and NSP 48% at fault. Based on these
answers, the district court entered judgment for GE on the two remaining negligence
claims. It denied NSP’s motion for JMOL or a new trial. This appeal follows.
D E C I S I O N
I. The district court properly den ied NSP’s motion for JMOL and enter ed
judgment in favor of GE.

NSP argues that the district court improperly denied its motion for JMOL because
the jury found that GE acted with ordinary negligence in carrying out a duty to NSP that it
assumed under Restatement (Second) of Torts § 323, and NSP therefore is entitled to
judgment. We disagree.
We review a district court’s decision on a motion for JMOL de novo and view the
evidence in the light most favorable to the prevailing party. Bahr v. Boise Cascade Corp.,
766 N.W.2d 910, 919 ( Minn. 2009). A district court must “base relief on issues either
raised by the pleadings or litigated by consent.” Folk v. Home Mut. Ins. Co., 336 N.W.2d
265, 267 (Minn. 1983); see also Thorpe v. Cooley, 165 N.W. 265, 266 (Minn. 1917). We

6
review for clear error a district court’s finding of no im plied consent. See Buller v. A.O.
Smith Harvestore Prod., Inc., 518 N.W.2d 537, 541 (Minn. 1994).
The district court determined that NSP did not plead ordinary negligence regarding
an assumed duty under Restatement (Second) of Torts § 323 and “clearly abandoned” such
a claim when it clarified the remaining counts in its response to GE’s trial brief. The district
court found that this abandonment meant that GE did not consent to an ordinary-negligence
claim. It further found that the parties did not submit an ordinar y-negligence claim to the
jury, but rather a willful-and-wanton-negligence claim ( count II) and a gross-negligence
claim (count III), as wel l as q uestions to determine NSP’s negligence and allocate
comparative fault.
The record supports the district court’s finding that the parties did not impliedly
consent to try ordinary negligence and did not submit the claim to the jury. First, neither
NSP’s complaint nor amended complaint contained an ordinary-negligence claim. Second,
NSP’s response to GE’s trial brief , submitted ten days before trial, explicitly stated that
only three claims remained, none of which involved ordinary negligence. Third, GE’s trial
brief did not defend against an ordinary negligence claim. Finally, the parties did not argue
ordinary negligence in their closing arguments. In NSP’s closing, it argued why GE was
liable for willful and wanton negligence and gross negligen ce, stating that each was the
“only cause” of the Unit 3 incident.
NSP claims that special-verdict question 11 , which called for allocation of fault
between NSP and GE, combined with questions 4 through 6, comprise its ordinary-
negligence assumed -duty claim. But this would leave questions 7 through 10 as

7
comprising a third claim, gross negligence, and NSP itself described the special-verdict
questions as comprising two claims, plus a comparative-fault question.
The district court did not clearly err by finding that the parties did not litigate
ordinary negligence by consent. The record also shows that NSP did not plead ordinary
negligence. The district court therefore properly denied NSP’s motion for JMOL and
entered judgment for GE.
II. The district court did not abuse its discretion by denying NSP’s motion to
amend its pleadings to conform to the verdict.

NSP argues alternatively that the district court should have granted its request to
amend its complaint under either Minn. R. Civ. P. 15.01 or 15.02 to include an assumed -
duty claim using an ordinary-negligence standard. We are not persuaded.
We review a district court’s decision to deny amendments to pleadings for an abuse
of discretion. Johns v. Harborage I, Ltd. , 664 N.W.2d 291, 295 ( Minn. 2003). Under
Minn. R. Civ. P. 15.01, “a party may amend a pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given,” except when it would
prejudice the opposing party. See Fabio v. Bellomo, 504 N.W.2d 758, 761 ( Minn. 1993).
Minn. R. Civ. P. 15.02 allows for posttrial amendment “[w]hen issues not raised by the
pleadings are tried by express or implied consent of the parties.” See also Hohenstein v.
Goergen, 176 N.W.2d 749, 751 (Minn. 1970).
The record supports the district court’s finding that allowing NSP to amend its
complaint now would prejudice GE . Further, as explained previously, the parties did not
consent expressly or impliedly to try this claim. The district court therefore did not abuse

8
its discretion by denying appellant’s request to amend its pleadings under Minn. R. Civ. P.
15.01 or 15.02.
III. The district court did not abuse its discretion by denying NSP’s motion for a
new trial.

NSP makes several arguments as to why it is entitled to a new trial. We review each
in turn.
We will not disturb a district court’s decision to grant or deny a new trial absent a
clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905,
910 (Minn. 1990). When the district court bases this decision on an issue of law rather
than an exercise of discretion, we review that decision de novo. Id.
A. The district court properly granted JMOL to GE on NSP’s post -sale
failure-to-warn claim.

NSP argues that it is entitled to a new trial because the district court improperly
granted JMOL to GE on NSP’s post-sale failure-to-warn claim before sending it to the jury
because the district court used an overly broad definition of the risk of harm about which
GE had a duty to warn. NSP’s argument is misguided.
One element of a post-sale duty-to-warn claim is that “ those to whom a warning
might be provided . . . can reasonably be assumed to be unaware of the risk of harm.” Great
N. Ins. Co. v. Honeywell Int’l, Inc. , 911 N.W.2d 510, 520 ( Minn. 2018) (quoting
Restatement (Third) of Torts § 10 (1998)). In a comment about this element, the
Restatement provides that “even if knowledge of the risk reasonably becomes available to
the seller only after the original sale, if users and consumers are at that time generally

9
aware of the risk a post-sale warning is not required.” Restatement (Third) of Torts § 10
cmt. f (1998) (emphases added).
The district court determined that “there is no basis to establish [post-sale duty to
warn] because there’s no way a jury could find that NSP was unaware of the risk of harm.”
Here, ample evidence shows NSP ’s general awareness of the risks of SCC unrelated to
operational anomalies. For example, an NSP System Health Report stated that “[low -
pressure turbines] also experience dovetail pin cracking problems, erosion damage and
may suffer from an industry-wide problem with rotor wheel cracking. . . . Risks associated
with wheel cracking involve wheel failure and buckets departing the rotor. Resulting
collateral damage could be severe (i.e. due to mass imbalance and projectiles).”
NSP argues that, while GE informed NSP that “certain operational conditions could
cause SCC to form in the finger dovetails,” it did not inform NSP “that a different, more
substantial risk was present in these turbines: the risk of catastrophic failure due to
undetected SCC, unrelated to operational anomalies, caused by the mere passage of time.”
It argues that “GE did know NSP was unaware of [that] specific and substantial risk.” But
the relevant focus is on NSP’s awareness, not whether GE did or did not know of NSP’s
awareness. NSP further argues that the jury’s affirmative answers to questions 4 through
6 equate to a finding that NSP was unaware of the risk. But these questions again go to
GE’s knowledge, not NSP’s . The district court properly determined that no reasonable
jury could find that NSP was u naware of the general risk of SCC on Unit 3 that
materialized, and NSP is not entitled to a new trial on that basis.

10
B. The district court did not abuse its discretion by excluding certain
evidence as cumulative and confusing.

NSP argues that the district c ourt abused its discretion by excluding as cumulative
and confusing evidence about GE’s prefailure knowledge of (1) SCC incidents in its
turbine fleet and (2) the dangers associated with the design of and materials in its turbines.
We disagree.
The district court has broad discretion to make evidentiary rulings. Kroning v. State
Farm Auto. Ins. Co. , 567 N.W.2d 42, 45 -46 (Minn. 1997) . “In the absence of some
indication that the [district] court exercised its discretion arbitrarily, capriciously, or
contrary to legal usage,” we must affirm. Id. at 46.
NSP first argues that the district court’s ruling limiting evidence of other SCC -
caused turbine failures to those that occurred before the Unit 3 incident and to incidents
involving finger -dovetail turbines, rather than tangential -entry turbines, prejudiced its
negligence claims. But the district court ultimately admitted a list of other incidents of
SCC on both finger -dovetail and tangential-entry turbines, notwithstanding that NSP had
consistently argued that the two turbine types are materi ally different. The district court
did not abuse its discretion by excluding additional information about SCC incidents across
GE’s turbine fleet, because it would be cumulative.
Second, NSP argues that the district court abused its discretion by excluding
evidence of design or manufacturing defects based on the finding that NSP did not allege
product-defect claims. But the jury did hear some evidence about the design of GE’s
turbines as it relates to the risk of SCC, and the two-week trial already included significant

11
amounts of highly technical information on SCC and GE’s turbines. The distr ict court’s
determination that additional design - and manufacturing -defect evidence would have
improperly influenced the jury, and therefore should be excluded, was not an arbitrary or
capricious exercise of its discretion or contrary to legal usage. See id. The district court
therefore did not abuse its discretion by excluding this evidence.
C. The district court did not abuse its discretion by excluding certain
evidence as subsequent remedial measures.

NSP next argues that the district court abused its discretion by excluding GE’s
research into latent SCC and related recommendations , including TIL 1886 , which GE
issued two years after the Unit 3 incident. We disagree.
Under Minn. R. Evid. 407, evidence of measures a party takes after an injury -
causing event that “would have made the event less likely to occur” is inadmissible “to
prove negligence, culpable conduct, a defect in a product, a defect in a product’s design,
or a need for a warning or instruction.”
In denying NSP’s motion for JMOL or for a new trial, the district court determined
that it properly excluded evidence of TIL 1886 because the Unit 3 incident occurred in
2011, and GE released TIL 1886 in 2013. It found that GE decided to issue TIL 1886 only
after the Unit 3 incident and concluded th at “TIL 1886 is therefore a classic subsequent
remedial measure barred by Rule 407 that NSP wanted t o use to prove negligence.” It
further concluded that the Rule 407 exception for proving the feasibility of precautionary
measures did not apply, because G E did not first controvert the f easibility of those
measures.

12
NSP first argues that a pre-accident determination or “a pre-accident decision to
provide a warning negates the subsequent nature of a remedy,” making the subsequent
measure admissible. The only Minnesota state-court case to which NSP cites in support of
this theory is Beniek v. Textron, Inc. 479 N.W.2d 719, 723 (Minn. App. 1992), review
denied (Minn. Feb. 19, 27, 1992), which is not applicable here. In Beniek, we clarified that
the “event” after which Minn. R. Evid. 407 applies is the injury -causing accident, not the
earlier sale of the injury-causing item. Id. NSP also cites to Kociemba v. G.D. Searle &
Co., 683 F. Supp. 1579, 1581 (D. Minn. 1988), which applie d the federal analog to Minn.
R. Evid. 407. In Kociemba, which is not binding precedent, the federal district court
admitted evidence of a warning that the FDA required in rules it promulgated one month
before the event at issue, but which did not become effective until four months after the
event. Id. at 1580-81.
Here, the district court found that GE made the “determination” to issue TIL 1886
after the Unit 3 incident. The record supports this finding. Although GE began researching
incidents of SCC on drum-boiler units before the Unit 3 incident, it did not know at that
time what guidance it would provide on inspecting those units for SCC . GE’s
contemplation of and research toward an update wa s not a “determination” to issue the
guidance it ultimately released in TIL 1886, unlike the FDA’s promulgation of a final rule,
which required nothing more from the FDA to become effective. See id.
NSP also argues that the district court abused its discretion by concluding that TIL
1886 did not fall under the ru le 407 exception for proving the feasibility of precautionary
measures. It argues that GE claimed that issuing an additional TIL was not feasible,

13
pointing to a footnote in GE’s trial brief fol lowing this court’s reversal. But in a footnote
in NSP’s own brief, it agrees with a statement by GE that it “does not controvert t he
feasibility” of a warning. Further, in GE’s trial brief, it stated that it had “appropriate
reasons” to not issue an additional TIL applicable to Unit 3 prior to the incident, not that
doing so was infeasible. At trial, rather than controverting the feasibility of precautionary
measures, former GE employee Jim Howenstein and GE employee Joshua Bird testified
that GE had been recommending, prior to the Unit 3 incident, that customers with drum -
boiler units periodically inspect those units. The district court did not err in finding that
GE did not controvert the feasibility of remedial measures, and it therefore did not abuse
its discretion by excluding TIL 1886.
D. The district court properly granted summary judgment to GE on NSP’s
fraudulent-concealment claim.

NSP argues that it is entitled to a new trial because the district court improperly
granted summary judgment for GE on its “Count I: Fraud” claim by misconstruing the law.
NSP’s argument is misguided.
We review a grant of summary judgment de novo. Montemayor v. Sebright Prods.,
Inc., 898 N.W.2d 623, 628 (Minn. 2017). Summary judgment is proper when the moving
party shows that no genuine issue of material fact exists and that it is entitled to judgment
as a matter of law. Minn. R. Civ. P. 56.03; Sauter v. Sauter, 70 N.W.2d 351, 351 (Minn.
1955). No genuine issue of material fact exists when “the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ , 566
N.W.2d 60, 69 (Minn. 1997) (quotation omitted).

14
The district court determined that NSP “failed to provide any evidence that GE
intended [NSP] to rely on a material omission.” NSP argues that this determination was
improper because “fraud” can be inte nt-based or negligence -based. But NSP did not
broadly claim fraud. NSP claim ed fraudulent concealment. As the district court aptly
noted, “NSP attempts to now shift the fraudulent conce alment claim to a general fraud
claim.” NSP portrayed its claims before the district court at summary judgment as
fraudulent concealment. In its opposition to GE’s motion for summary judgment, NSP
argued the “fraudulent concealment” claim from its amended complaint. Despite its
reference to elements of theories other than fraudulent concealment, NSP concluded by
stating that GE’s nondisclosure “establishes fraudulent concealment.” A district court must
base relief on issues raised i n the pleadings or litigated by consent, Folk, 336 N.W.2d at
267, and a party cannot raise a new theory on appeal, Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988).
In addition to only vaguely referencing a claim of negligent misrepresentation
before summary judgment, NSP ignores that negligent misrepresentation requires some
representation. See Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 369 (Minn.
2009) (requiring a person to “suppl[y] false information ” and referring to “ the person
making the representation ”). NSP’s claim fails because it asserts no representation, but
rather only an omission. The district court therefore properly granted summary judgment
to GE on NSP’s claim of fraudulent concealment in count I.

15
IV. The district court did not abuse its discretion by awarding costs and
disbursements to GE.

NSP argues that the district court abused its discretion by awarding costs and
disbursement to GE because (1) GE did not sufficiently detail its expenses, including
expert-witness fees; (2) the lay-witness fees exceeded the statutory limit; (3) GE did not
prevail on several motions ; and (4) the district court failed to make findings to justify its
award. We address each claim in turn.
We review a district court’s judgment awarding costs and disbursements for an
abuse of discretion. Dukowitz v. Hannon Sec. Servs., 841 N.W.2d 147, 155 (Minn. 2014)
(citation omitted). A district court abuses its discretion if its decision is “arbitrary or . . .
without evidentiary support.” Smith v. Smith , 163 N.W.2d 852, 856 ( Minn. 1968). The
prevailing party “shall be allowed reasonable disbursements paid or incurred” and certain
costs. Minn. Stat. §§ 549.02, .04, subd. 1 (2018).
A. GE’s application sufficiently detailed expenses and expert-witness fees.

NSP claims that GE failed to file (1) “a detailed application for taxation of costs and
disbursements” under Minn. R. Civ. P. 54.04 and (2) the required affidavit detailing expert-
witness fees. We are not persuaded.
Minn. R. Civ. P. 54.04(b) requires a party seeking costs and disbursements to “serve
and file a detailed application for taxation of costs and disbursements. ” This does not
require receipts and invoices, but rather a breakdown of “disbursements associated with
experts, depositions, and other expenses .” Staffing Specifix, Inc. v. TempWorks Mgmt.
Servs., Inc., 896 N.W.2d 115, 135 (Minn. App. 2017), aff’d, 913 N.W.2d 687 (Minn. 2018).

16
For expert-witness fees, Minn. Stat. § 357.25 (2018) gives the district co urt discretion to
allow “fees or compensation as may be just and reasonable.” See Carpenter v. Mattison,
219 N.W.2d 625, 631 (Minn. 1974).
GE’s 200 -plus pages of support for its application for costs and disbursements
showed its expenses , including $145,387.95 in expert -witness fees. GE provided the
amount sought and the name, date of testimony, and breakdown of time for each expert.
GE’s submission satisfied the requirements of Minn. R. Civ. P. 54.04 and contained
sufficient evidentiary support to allow the district court to make an award.
Next, relying on Stinson v. Clark Equip. Co. , 473 N.W.2d 333, 336 (Minn. App.
1991), review denied (Minn. Sept. 13, 1991), NSP claims that GE failed to file an affidavit
detailing its expert-witness fees. But Stinson applies an older version of Minn. R. Civ. P.
54.04, which required an affidavit prior to 2015. Here, GE detailed the time for each expert
and signed its application under oath in accordance with Minn. Stat. § 358.116 (2018). The
district court did not abuse its discretion.
B. The district court did not abuse its discretion by awarding other witness
fees.

NSP argues that the district court violated the fee limit for any lay witness of $20
per day and 28 cent s per mile for travel within Minnesota under Minn. Stat. § 357.22
(2018). We disagree.
Section 357.22 entitles witnesses to $20 per day for court proceedings and witness
examinations as well as 28 cents per mile for travel within Minnesota to and from the
proceedings. We may also consider a witness an ex pert witness when reviewing costs if

17
they mainly “testify from a peculiar knowledge of some art or science, a knowledge of
which is requisite or of value in settling the point in issue.” State v. Alvarez, 820 N.W.2d
601, 625 (Minn. App. 2012), aff’d sub nom. State v. Castillo -Alvarez, 836 N.W.2d 527
(Minn. 2013) (quotation omitted).
Without providing specific findings, t he district court awarded GE its request ed
amount of $22,114.29 in non-expert witness expenses. GE’s application listed flight, rental
car, and hotel costs for three GE employees and one form er GE employee , who also
incurred hourly fees and nearly $17,000 of the expenses.
NSP cites to State v. Lopez-Solis to argue that section 357.22(2) does not allow for
costs for travel outside of Minnesota. 589 N.W.2d 290, 296 (Minn. 1999). GE argues that
Minn. R. Civ. P. 45 and Alvarez allow for its claimed costs.
Here, the witnesses testified about specific knowledge of GE’s turbines, technical
advice it provided to customers, and SCC, knowledge that was helpful to the jury and “of
value in settling the point in issue. ” See Alvarez, 820 N.W.2d at 625. The district court
reasonably could have assumed that these witnesses testified mainly as expert witnesses ,
beyond the scope of section 357.22. Furthermore, t he testimony of the former GE
employee also falls under Minn. R. Civ. P. 45.03 (d), which allows for “reasonable
compensation for the time and expense involved in preparing for and giving” testimony for
certain non-party, non-employee, witnesses, as he gave testimony relating to knowledge
and information obtained as a result of his work as an engineer. The district court did not
abuse its discretion by awarding GE these witness fees.

18
C. The district court did not abuse its discretion by awarding costs to GE
on motions on which it did not prevail.

NSP argues that the district court improperly awarded motion costs to GE for seven
motions on which it did not prevail. NSP’s argument is misguided.
Generally, the party that prevails on the m erits of a case is entitled to costs and
disbursements incurred in connection with all issues, even those on which it did not prevail.
Inland Prods. Corp. v. Donovan , 62 N.W.2d 211, 222 ( Minn. 1953); Elsenpeter v. St.
Michael Mall, Inc. , 794 N.W.2d 667, 673 (Minn. App. 2011) . Further, Minn. Stat.
§ 549.04, subd. 1, allows for disbursements to the “prevailing party” generally and does
not specify that the party prevail on every issue or motion. NSP cites no caselaw requiring
such a determination.3 The district court therefore did not abuse its discretion by awarding
GE, as the prevailing party in the case, costs for motions on which it did not prevail.
D. The district court did not abuse its discretion by not making specific
findings.

NSP argues that the district court’s lack of findings in approving GE’s costs requires
remand for findings of fact and an explanation of its decision. We are not persuaded.
Minn. R. Civ. P. 54.04(a) provides that “[c]osts and disbursements shall be allowed
as provided by law.” Minn. Stat. § 549.04, subd. 1, requires that the district court allow
reasonable disbursements paid or incurred by the prevailing party. See also Staffing
Specifix, Inc. , 896 N.W.2d at 134 . “[A]bsent a specific finding that the costs were
unreasonable, the [district] court shall approve recovery of disbursements.” Quade & Sons

3 NSP cites to an unpublished and distinguishable case in support of its position. That case
is not binding. See Minn. Stat. § 480A.08, subd. 3 (2018).

19
Refrigeration, Inc. v. Minnesota Min. & Mfg. Co. , 510 N.W.2d 256, 260 (Minn. App.
1994), review denied (Minn. Mar. 15, 1994) (quoting Jonsson v. Ames Const., Inc. , 409
N.W.2d 560, 563 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987)) (emphasis in
original). Here, the district court did not find GE’s requested costs and disbursements
unreasonable. GE submitted detailed documentation in support of its application, and the
parties provided thorough briefing in response to that application . GE also revised its
application following NSP’s opposition memorandum, removing $24,991 in daily trial
transcript costs.
Two of the cases NSP cites that remanded for specific findings involved the district
court finding that claimed costs were unreasonable. See Beniek, 479 N.W.2d at 723-24
(remanding for more specific findings when party seeking costs appealed district court’s
award of only $4,384.82 of its $13,867.17); Stinson, 473 N.W.2d at 334, 336 (remanding
for more findings when not clear if district court considered costs from other parties in
award following settlement agreement, in case initially involving multiple defendants, and
made no findings on denied costs). These cases are distinguishable from the facts here.
Moreover, NSP relies on Stinson’s statements that costs and disbursements must be
“reasonable and necessary” and that district courts should take a “hard look” at them. See
Stinson, 473 N.W.2d at 336, 338. But, for these propositions, Stinson quoted cases that
interpreted section 549.04 before the legislature amended it in 1983 to require award of all
reasonable disbursements and before a 2010 amendment to Minn. R. Civ. P. 5 4.04
clarifying the procedure for a district court administrator or district court judge to tax costs
and disbursements. See Larson v. Hill’s Heating & Refrigeration of Bemidji, Inc. , 400

20
N.W.2d 777, 783 (Minn. App. 1987) (discussing 1983 amendment and prior caselaw ),
review denied (Minn. Apr. 17, 1987).
NSP also relies on Illinois Farmers Ins. Co. v. Brekke Fireplace Shoppe, Inc. , 495
N.W.2d 216, 222 (Minn. App. 1993), in which we remanded to the district court for “a
hearing and appropriate findings on the reasonableness ” of challenged costs and
disbursements. But Minn. R. Civ. P. 54.04(e) now precludes district court judge s from
considering additional evidence to review awards, Staffing Specifix, Inc. , 896 N.W.2d at
135, and while we have remanded for specific findings in some cases, neither
section 549.04 nor Minn. R. Civ. P. 54.04 require such findings of the district court in all
cases. The record here supports the district court’s award, and it therefore did not abuse
its discretion.
Affirmed.