Kyle Wendell Else, Appellant,

This opinion will be unpublished and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
A19-0650

Kyle Wendell Else,
Appellant,

vs.

Auto-Owners Insurance Company,
Respondent.

Filed January 27, 2020
Affirmed in part and remanded
Cochran, Judge

Blue Earth County District Court
File No. 07-CV-17-460

Jacob M. Birkholz, Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Brock P. Alton, Timothy P. Tobin, Gislason & Hunter LLP, Minneapolis, Minnesota (for
respondent)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
In this insurance-coverage dispute rega rding fire damage to appellant-insured
Kyle Wendell Else’s dwelling an d personal property, Else appeals following a jury trial
and the district court’s denial of his motion for a new trial. Else argues that the district

2
court (1) erred as a matter of law in requiring expert testimony to prove that the dwelling
was a total loss; (2) erred in granting judgment as a matter of law to respondent-insurer
Auto-Owners Insurance Company (Auto-Owners) as to his claim for damages to the
dwelling; (3) erred as a matter of law in dete rmining that Auto-Owners did not admit, in
its answer, that the dwelling wa s a total loss and in denying on that basis his motion for
judgment as a matter of law; (4) abused its discretion in denying his motion for a new trial
based on alleged irregularities in the proceedings that prejudiced him; (5) erred as a matter
of law by offsetting the jury’s award of personal property damages by amounts already
paid; (6) abused its discretion by reducing his award of costs and disbursements; and
(7) erred as a matter of law by failing to award prejudgment interest. We affirm in part and
remand to the district court to make a determination regarding prejudgment interest.
FACTS
Kyle Wendell Else had an insurance policy with Auto-Own ers effective from
January 1, 2015, until July 18, 2015. The policy covered Else’s dwelling and personal
property. On February 11, 2015, there was a fire at Else’s property that caused damage to
Else’s dwelling. A week later, on February 18, 2015, there was a second fire that destroyed
a significant portion of the dwelling. 1 Fire investigators determ ined that the second fire
was intentionally set. With some exceptions discussed in more detail below, Auto-Owners
did not pay policy benefits that would have applied had the fires been accidental.

1 The dwelling was never repaired or replaced, and in fact was destroyed in a third fire that
Else admittedly set.

3
The state charged Else with arson. Else was ultimately acquitted of the criminal
charge after a jury trial in November 2016. Despite the acquittal, Auto-Owners maintained
its position that Else was involved with starting the fires and still refused to pay Else policy
benefits.
In January 2017, Else served a summons and complaint on Auto-Owners. The
complaint sought a declaratory judgment acknowledging that Else was entitled to coverage
under the insurance policy. The complaint also alleged a claim of breach of contract based
on Auto-Owners’ failure to pay for covered losses under the policy, and a claim of breach
of the implied covenant of good faith and fair dealing.
In anticipation of a June 2018 trial da te, Auto-Owners filed a trial memorandum
that, among other topics, asserted that Else had the burden to prove the nature and extent
of his damages. The parties also each filed proposed special verdict forms which
contemplated that the jury wo uld determine the extent of da mages. The jury trial was
continued to September 2018.
At a pretrial hearing the week before the September trial, the issue of damages was
raised as the parties discussed proposed jury instructions. Auto-Owners asserted that, even
if the jury concluded that Else was not involved in starting the fires, Else would be unable
to prove damages to the dwelling because he failed to disclose any expert witnesses to
testify to the extent of the da mages to the dwelling caused by either fire. Else’s attorney
responded that he did not believe any test imony as to the damages to the dwelling was
necessary because, in his view , Auto-Owners had previously agreed that the second fire
resulted in a total loss of the dwelling and as a result, Auto-Owners was required to pay the

4
full amount of the policy limit with respect to th e dwelling. Else’s attorney stated that he
came to that understanding based on extrajudicial discussions that he previously had with
Auto-Owners’ attorney. But Else’s attorney conceded that Auto-Owners had not stipulated
to the fact that the fires resulted in a total loss. Else’s attorney also represented that one of
the witnesses on his witness list could testify to dwelling damages because the witness had
expertise in fire restoration.
Later that week, Auto-Owners filed a “Memorandum of Law Regarding Plaintiff’s
Failure to Prove Damages.” In the memorand um, Auto-Owners asserted that Else could
prove damages under the policy in one of two ways: (1) prove that the dwelling was a total
loss, or (2) prove the replacement cost of the property damaged by the fires. Auto-Owners
asserted that both theories of damages requ ired expert witness te stimony. Auto-Owners
also noted that, under the po licy, Auto-Owners would only pay the replacement cost of
damaged property once the residence had actua lly been repaired or replaced. If the
property was not repaired or replaced, the insured could recover the “actual cash value” of
the damaged property. The po licy defined “actual cash valu e” as “the cost to replace
damaged property with new property of similar quality and features reduced by the amount
of depreciation[ 2] applicable to the damaged property immediately prior to the loss.”
(Emphasis omitted). The memorandum asserted that Else had not properly disclosed any
expert witnesses as required by the Rules of Civil Procedure and the district court’s
scheduling order. The memorandum further asserted Auto-Owners’ belief that Else might

2 “Depreciation” is defined in the policy as “a decrease in value because of age, wear,
obsolescence or market value.”

5
attempt to introduce expert testimony despite the lack of expert disclosures. Auto-Owners
requested that the district court preclude any expert testimony by Else’s witnesses
regarding damages based on Else ’s failure to make expert disclosures required under the
Rules of Civil Procedure.
The district court held a hearing. Au to-Owners reiterated its position that Else
should not be allowed to call any expert w itnesses because no expert disclosures were
made. Else explained his position that Auto-Owners’ attorney “essentially conceded,” but
admittedly had “not legally conceded,” the issue of total loss. The district court later issued
a written order precluding Else’s witnesses fro m providing expert testimony. The order
also precluded Else himself from testifying to replacemen t cost less depreciation—the
“actual cash value” as defined by the policy—because he was not qualified as an expert.
After trial began, the district court ruled that Auto-Owners was entitled to judgment
as a matter of law on the issue of total loss because expert testimony was required to prove
that the dwelling was a total loss. The distri ct court, however, reconsidered its pretrial
ruling that Else himself was precluded from testifying to replacement cost or depreciation,
and indicated that Else was allowed to testify to the “repair [or] replacement value” of the
property damaged by the fire. The district court also ruled that Else could give his opinion
on depreciation and the “actual cash value” of the damaged property.
A significant amount of the evidence introduc ed at trial was dedicated to the issue
of whether the fires were caused by, or at the direction of, Else with the intent to cause a
loss. The jury ultimately foun d that they were not—a findi ng that is not contested on
appeal.

6
The issues that Else contests on appeal relate to the evidence that Else submitted to
prove damages resulting from the fires. Else presented evidence to support his claim for
damages to his dwelling, for damages related to his personal property, and for additional
living expenses caused by the necessity of living elsewhere after the fires. The policy
includes coverage for each of these categories.
With regard to his dwelling, Else attemp ted to prove the “actual cash value” and
replacement cost of his dwelling—alternativ e coverage amounts provided for under the
insurance policy where there is no total loss. Photographs of the dwelling after the fires
were admitted. The photographs showed that the dwelling was significantly damaged but
not entirely destroyed. Else testified that the “value” of his house (including the first floor,
second floor, basement, and breezeway) was $305,000. He testified that it would cost this
same amount to replace the entire house. He also testified to the “value” and replacement
cost of the patio, deck, and attached garage. Else did not provide an estimate of the cost to
repair or replace only the fire-d amaged portions of the dwelling. Nor did he provide any
testimony as to depreciation.
Before the case was submitted to the jury , Auto-Owners moved for judgment as a
matter of law on the issue of damages to the dwelling. Auto-Owners argued that the policy
provided coverage only for the damaged portions of the dwelling and that Else failed to
provide evidence that would suppo rt a jury’s finding on that question. The district court
agreed and granted the motion for a directed verdict as to the dwelling. The district court
concluded that a reasonable jury could not make a finding as to the replacement cost or
“actual cash value” of the damaged portion of the dwelling.

7
During trial, Else also presented evidence showing the extent of damage to his
personal property from the fires. Two co mpanies—ServiceMaster and Evans Garment
Restoration—separately took items of persona l property damaged in the first fire and
restored them. Else testified that the valu e of the items restored by ServiceMaster was
approximately $12,500 and that the value of the items restored by Evans Garment
Restoration was $33,000. Else also testified that the items that th ese companies serviced
were not adequately restored. After the se cond fire, a company called Enservio created a
report that itemized the remaining items of personal property at Else’s dwelling (which did
not include the ServiceMaster or Evans Garment Restoration items) and estimated both the
“actual cash value” and the replacement cost of the lost or damaged items. Else introduced
the Enservio report and presented testimony from an Enservio representative regarding
how the report was created. The special verdict question form asked the jury to determine
the “actual cash value” and the replacement cost of the personal property damaged in both
fires. The jury returned speci al verdict answers finding that the total “actual cash value”
of the personal property lost or damaged during both fires was $1 22,713.19 and that the
replacement cost of the property was $153,667.70.
Else also presented evidence of additional living expenses—defined in the policy as
“the reasonable increase in [Else’s] living e xpenses necessary to maintain [his] normal
standard of living while [he] live[s] elsewhere.” The jury determined that the reasonable
amount of additional living expe nses that Else incurred as a result of the fires was
$10,988.32.

8
After trial, the parties filed several postv erdict motions. Else filed a motion for
judgment as a matter of law on the issue of damages for the dwelling—arguing for the first
time that Auto-Owners conceded in its answer to the complaint that the fires resulted in a
total loss of the dwelling an d that Auto-Owners was bound by the admission. Else
maintained that as a result, he was entitled to damages for the total loss of his dwelling.
Else also sought a new trial under Minn. R. Civ. P. 59.01 on several bases. Auto-Owners
filed a motion for a new trial, arguing that the district court erred by excluding evidence
purportedly relevant to whether Else started the fires. The district court denied all
postverdict motions.
Auto-Owners then filed proposed findings an d a proposed order for judgment that
reduced the amounts reflected in the jury’s special verdict answers by amounts that Auto-
Owners previously paid directly to Else, Se rviceMaster, Evans Garment Restoration, and
another company called ALE Solu tions, Inc. Else opposed the offset, arguing that the
jury’s special verdict answers already reflected the payments. The district court’s judgment
offset the prior payments as Auto-Owners requested.
Else also requested prejudgment interest and certain costs and disbursements. The
district court did not address the request for prejudgment interest. It awarded costs and
disbursements to Else as the prevailing party, but reduced so me of the costs sought as
unreasonable.
Else appeals.

9
D E C I S I O N
Else asserts a number of errors by the distri ct court. He contends that the district
court erroneously granted judgment as a matter of law in Auto-Owners’ favor on the issue
of dwelling damages and also argues that the district court erred in failing to grant judgment
as a matter of law in his favor on this same issue. He maintains that the district court erred
in its evidentiary rulings and abused its di scretion by failing to grant a motion for a new
trial based on those errors. He asserts that th e district court erred by offsetting the jury’s
special verdict answers by amount s that Auto-Owners previously paid to Else in relation
to the fires. Else argues that the district court abused its discretion by reducing certain
costs and disbursements that he sought after trial. Finally, Else conten ds that the district
court erred by failing to include an award of prejudgment interest in its final judgment. We
address each issue in turn.
I. The district court did not err by granti ng judgment as a matter of law in favor
of Auto-Owners on the issue of damages to the dwelling.

As the plaintiff, Else had the burd en of proving damages at trial. N. State. Power
Co. v. Fidelity and Cas. Co. of New York, 523 N.W.2d 657, 664 (Minn. 1994). There were
two measures of damage at issue in the trial. The first was “total loss”—a term defined by
Minnesota case law which, if proved, would require Auto-Owners to pay the limit of the
insurance policy. See Minn. Stat. § 65A.08, subd. 2(a) (2018). The second was the amount
that would be owed under the insurance policy if the loss was not a total loss. The district
court granted judgment as a matter of law on both measures and did not submit the issue
to the jury. The district court concluded that expert testimony was required to prove total

10
loss, and that Else’s failure to introduce expe rt testimony was fatal to his efforts to prove
total loss. The district court also concluded that the evidence that Else submitted to prove
the benefits owed under the policy relating to the dwelling was insufficient to support a
finding on damages because the evidence could only prove the cost to replace the entire
dwelling, which was not an appropriate measure of damages under the policy. Moreover,
the district court concluded that Else’s eviden ce failed to establish the cost to repair or
replace the damaged property with “equivalent construction for equivalent use.” We are
not persuaded that the district court erred in granting judgment as a matter of law.
A. Total Loss
Else first argues that the district court erred in concluding that expert testimony was
required to prove a claim of to tal loss to the dwelling and that Else presented insufficient
evidence on the issue to submit it to the jury. Thus, he argues that the district court erred
by granting judgment as a matter of law ba sed on the lack of e xpert testimony. We
conclude that expert testimony was required to prove total loss in this case and that
judgment as a matter of law was appropriate.
If a party has been fully heard on an i ssue and there is “no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue,” the district court
may grant judgment as a matter of law against that party with respect to a claim. Minn. R.
Civ. P. 50.01(a). Appellate courts review de novo a distri ct court’s decision regarding
whether to grant judgment as a matter of law, viewing the evidence in a light most favorable
to the non-moving party. Overocker v. Solie, 597 N.W.2d 579, 581 (Minn. App. 1999).

11
The legislature has enacted a standard fire insurance po licy known as the
“Minnesota standard fire insurance policy. ” Minn. Stat. § 65A.01 (2018). All fire
insurance policies in Minnesota must conform to the specified coverages and provisions of
the Minnesota standard fire insurance policy. Id., subd. 1. The legislature has also
provided that if a fire results in a total loss of a covered building, the insurer must pay “the
whole amount mentioned in the policy.” Minn. Stat. § 65A.08, subd. 2(a). The supreme
court has defined “total loss”:
A building is not a total loss . . . unless it has been so far
destroyed by the fire that no subs tantial part or portion of it
above ground remains in place capable of being safely utilized
in restoring the building to the condition in which it was before
the fire. . . . There can be no total loss of a building so long as
the remnant of the structure left standing above the ground is
reasonably and safely adapted for use (without being taken
down) as a basis upon which to restore the building to the
condition in which it was immedi ately before the fire; and
whether it is so adapted depends upon the question [of]
whether a reasonably prudent owner of the building, uninsured,
desiring such a structure as the one in question was before the
fire, would, in proceeding to re store the building, utilize such
standing remnant as such basis. If he would, then the loss is
not total.

Auto-Owners Ins. Co. v. Second Chance Invs. LLC , 827 N.W.2d 766, 770 (Minn. 2013)
(emphasis added) (quoting Nw. Mut. Life Ins. Co. v. Rochester German Ins. Co. ,
88 N.W. 265, 267 (Minn. 1901)). “In applying this standard, we have said that it is
necessary to adopt a standard of human conduct, and that is, what would a prudent person
do under such circumstances?” Id. (quotation omitted).
The district court granted judgment as a ma tter of law on the issue of total loss in
Auto-Owners’ favor, concluding that Else di d not prove total loss because he did not

12
introduce expert testimony to support a finding that the fires resulted in a total loss. Expert
testimony is required when a matter is “outsi de the common knowledge of the jury.”
Bauer v. Friedland, 394 N.W.2d 549, 555 (Minn. App. 1986).
To determine whether the fires resulted in a total loss to Else’s dwelling, the jury
was required to determine both whether the still-standing portions of the dwelling could be
“reasonably and safely adapted for use (without being taken down) as a basis upon which
to restore the building to the condition in wh ich it was immediately before the fire,” and
“whether a reasonably prudent owner of the building, uninsured, desiring such a structure
as the one in question was before the fire, wo uld, in proceeding to restore the building,
utilize such standing remnant as such basis.” Second Chance Investments, 827 N.W.2d at
770 (quoting Nw. Mut. Life Ins. Co., 88 N.W. at 267).
Else argues that the district court erre d by concluding that expert testimony was
required to prove total loss, and asserts that he submitted sufficient evidence to prove total
loss. He maintains that the photographs of the damage and his own testimony regarding
the features of his home and his own estim ated cost to replace the entire home were
sufficient to establish total lo ss and preclude judgment as a ma tter of law. We are not
persuaded on either point.
While there may be cases in which a jury can determine whether a fire resulted in a
total loss without the a ssistance of expert testimony, perh aps because the damage is so
extensive, we agree with the district court that this is not such a case. Photographs of Else’s
dwelling introduced at trial showed that significant portions of the house remained standing
after the second fire. Whethe r or not the remaining portions of Else’s dwelling could be

13
safely utilized to rebuild the structure is not within the “common k nowledge of the jury”
given the fire damage to the house. Bauer, 394 N.W.2d at 555. To determine this issue,
the jury would need expertise in the structural integrity of buildings damaged by fire and
expertise in fire restoration. In the absence of expert testimony, we conclude that judgment
as a matter of law on the issue of total lo ss was appropriate because there was no legally
sufficient evidentiary basis for a reasonable jury to find that the fires resulted in a total loss
to Else’s dwelling.
B. Benefits Owed Under the Policy

The second possible measure of damages in this case was the amount owed under
the terms of the policy in absence of a total loss. Generally, the insurance policy provides
that Auto-Owners must pay (1) the full cost to repair or re place the damaged property if
the insured actually repairs or replaces the da maged property, and if not, (2) the “actual
cash value” of the damaged property at the time of a covered loss. As noted above, “actual
cash value” is defined in the policy to mean “t he cost to replace damaged property with
new property of similar quality and featur e reduced by the amount of depreciation
applicable to the damaged property immediately prior to the loss.” (Emphasis omitted).
At the close of the evidence, the district court granted judgment as a matter of law
on the issue of this measure of damages, concluding that Else failed to present evidence of
the “actual cash value” or the replacement or re pair cost of the damaged portions of the
dwelling. The district court noted that Else had only presented evidence regarding the cost
to replace the dwelling entirely, and not just the damaged part s of the dwelling. Because
the evidence presented by Else could only prove the replacement cost of the entire dwelling

14
and there was no evidence regarding the “actua l cash value” or replacement cost of the
damaged parts of the dwelling, the district c ourt granted judgment as a matter of law on
the issue of damages with respect to Else’s dwelling in Auto-Owners’ favor.
Else argues that the district court’s decisi on to grant judgment as a matter of law on
this issue was erroneous because he presen ted testimony about the “value” of his house
and the “value” of the garage, deck, and patio.3 But, according to the evidence introduced
at trial, Else’s dwelling was significantly damaged but was not entirely destroyed. And,
Else did not present any testimony on the total cost to replace or repair only the damaged
portions of the dwelling. Nor did he present any testimony on depreciation. We agree with
the district court’s conclusion that given the evidence presented at trial, the jury would be
unable to find the replacement co st or the “actual cash value” of the damaged portion of
the dwelling without speculation. Even considering the evidence introduced at trial in the
light most favorable to Else, we conclude that there is no legally sufficient evidentiary basis
for a reasonable jury to find for Else on the issue of the da mages to the dwelling because
Else’s testimony was insufficient to prove either the replacement cost or the “actual cash
value” of the damaged portions of his dwelling.

3 Relying on Wilcox v. State Farm Fire & Cas. Co. , 874 N.W.2d 780, 784 (Minn. 2016),
and Brooks Realty, Inc. v. Aetna Ins. Co. , 149 N.W.2d 494, 500- 01 (Minn. 1967), Else
argues that the “broad evidence rule” adopt ed by the Minnesota Supreme Court to
determine actual cash value of damaged propert y compels the conclusion that there was
sufficient evidence to establish “actual cash value” in this case. But Wilcox made clear that
“insurers have the option of identifying methods of calculating actual cash value . . . in the
plain language of their policies.” 874 N.W.2d at 785. Here, the policy at issue did define
“actual cash value,” and consequently, the c ontract definition of “actual cash value”—
replacement cost less depreciation—controlled.

15
II. The district court did no t err in denying Else’s pos ttrial motion for judgment
as a matter of law on the issue of total loss based on the theory that
Auto-Owners admitted to a total loss in its answer to the complaint.

Else next argues that the district court erred in denying his post-trial motion for
judgment as a matter of law on the issue of total loss. Else maintain s that Auto-Owners
made a legally binding admission in its answer to the complaint that the second fire resulted
in a total loss. We are not persuaded.
“Once a matter is deemed admitted, it is established for purposes for the proceeding.
Any effort to submit adverse evidence on the matter or to attempt to contradict an admitted
fact would be irrelevant because the issue is no longer [in] dispute.” In re Welfare of J.W.,
391 N.W.2d 791, 796 (Minn. 1986); see also Sclawr v. City of St. Paul, 156 N.W. 283, 284
(Minn. 1916) (“The defendant, having admitted the ultimate facts pleaded in the complaint,
cannot insist that the plaintiff must either plead or prove th e subsidiary matters which go
to make up the ultimate facts.”). But, “[a] statement is not conclusive as a judicial
admission upon the party making it unless it is intentionally made as a waiver of the
requirement that the other party submit proof on that point.” Kelmar Corp. v. Dist. Ct. of
Fourth Judicial Dist., Hennepin Cty. , 130 N.W.2d 228, 233 (M inn. 1964). And, “[a]
party’s extrajudicial admissions, absent an estoppel to deny their truth . . . are not
conclusive against him and may be explaine d, limited, qualified and contradicted.”
Aide v. Taylor, 7 N.W.2d 757, 759-60 (Minn. 1943).
Else argues that Auto-Owners’ answer to the complaint contained a binding
admission to the issue of total loss. Else filed his complain t in January 2017, almost two
years after the fires in question. Paragraph 35 of Else’s comp laint reads, “[b]ased on the

16
second fire, the home is a ‘total loss’ under the policy as the replacement cost exceeds the
limits of the policy.” In its answer, Auto-Owners stated that it “[a]dmits that the insured
premises currently constitutes a ‘total loss,’ but otherwise denies the allegations contained
in Paragraph 35 of such Complaint.” (Em phasis added). Auto-Owners’ answer did not
admit that the second fire caused a total loss. Auto-Owners’ answer only admitted that the
dwelling was “currently”—i.e., two years after the second fire—a total loss, but denied any
other allegation in the paragraph. Thus, Auto-Owners denied th at the total loss was
“[b]ased on the second fire” an d that “the replacement cost exceeds the limits of the
policy.”
Else cites to several extrajudicial representations by Auto-Owners’ attorney during
this litigation to further support his argument that Auto-Owners is bound by an admission
that the second fire resulted in a total loss to the dwelli ng. But these extrajudicial
admissions “are not conclusive” and may be “explained, limited, qualified and
contradicted.” Id. at 759-60. And Auto-Owners reiterated its denial that the second fire
resulted in a total loss in subsequent filings. For example, during discovery, Else requested
that Auto-Owners admit that the second fire resulted in a total loss. Auto-Owners declined
to make the admission. Based on the filings and pleadings in the record, we conclude that
the district court did not err by denying Else’s motion for judgment as a matter of law on
this theory.4

4 Because we conclude that Auto-Owners did not admit that the second fire resulted in a
total loss of Else’s dwelling, we do not reach Else’s argument that the district court erred
by concluding, alternatively, that the parties litigated total loss by consent under Minn. R.
Civ. P. 15.02.

17
III. The district court did not err by ex cluding evidence of debris removal and
“mileage” expenses incurred while Else was living elsewhere.

Else further contends that the district cour t erred by excluding (1) evidence that Else
paid $9,000 to remove debris from his property after the fires, and (2) evidence regarding
the mileage that Else incurred on his father’s vehicle, whic h he borrowed while he lived
elsewhere after the fires. Else sought to introduce the evidence to prove expenses covered
by the policy. The policy provided that Au to-Owners would “pay reasonable necessary
expenses [Else] incur[red] to remove debris of covered property following a loss caused
by a peril [Auto-Owners] insure[d] against.” The policy also provided that Auto-Owners
would pay “the reasonable increase in [Else’s] living expenses necessary to maintain [his]
normal standard of living while [he] live[d] elsewhere” in the event that a covered loss
made Else’s residence uninhabitable. The di strict court excluded the evidence because
Else did not remove the debris until late 2017, following a third fire that Else admittedly
started. The district court excluded evidence of the mileage incurred on Else’s father’s
vehicle because the claim was “vague”—in that it was unclear how the claim related to the
insurance policy—and because the claim was based, in part, on a claim that Auto-Owners
did not timely pay for damage to Else’s vehicle under a diffe rent policy that covered the
vehicles.
“Evidentiary rulings concer ning materiality, foundation, remoteness, relevancy, or
the cumulative nature of the evidence are within the [district] court’s sound discretion and
will only be reversed when that disc retion has been clearly abused.”
Johnson v. Washington County, 518 N.W.2d 594, 601 (Mi nn. 1994) (quotation omitted).

18
Evidence is relevant if it “logically tends to pr ove or disprove a material fact in issue.”
Boland v. Morrill, 132 N.W.2d 711, 719 (Minn. 1965 ). “Damages which are remote and
speculative cannot be recovered. There is no general test of re mote and speculative
damages, and such matters should usually be left to the judgment of the [district] court.”
Jackson v. Reiling, 249 N.W.2d 896, 897 (Minn. 1977) (citations omitted).
We discern no abuse of discretion in the di strict court’s evidentiary rulings. Given
that the debris removal occurred nearly two years after the 20 15 fires at issue, and after a
third fire not at issue, evidence of the debris removal does not appear to be relevant to the
dispute over the 2015 fires. The district c ourt’s exclusion of ev idence of the mileage
incurred on Else’s father’s vehicle was also within its discretion. We agree with the district
court that the claim for “mileage” or depreciation to Else’s father’s vehicle was not relevant
to this insurance policy.
IV. The district court did not abuse its di scretion in denying Else’s motion for a
new trial.

Else next argues that the district cour t abused its discretion by denying his motion
for a new trial under Minn. R. Civ. P. 59.01. Else moved for a new trial based on an alleged
irregularity in the procedure by which ex pert testimony was excluded and an alleged
irregularity in the evidentiary rulings made at trial. The district court denied the motion.
A new trial may be grante d based on “[i]rregularity in the proceedings of the
court . . . whereby the moving party was deprived of a fair trial.” Minn. R. Civ. P. 59.01(a).
To obtain a new trial based on a procedural irregularity, the movant must demonstrate
“(1) an irregularity occurred and (2) th ey were deprived a fair trial.” Boschee v. Duevel,

19
530 N.W.2d 834, 840 (Minn. App. 1995), review denied (Minn. June 14, 1995). “An
irregularity is a failure to adhere to a prescribed rule or method of procedure not amounting
to an error in a ruling on a matter of law.” Id. (quotation omitted). This court reviews the
district court’s decision on whether to grant a new trial for an abuse of discretion. Id.
Else argues that a new trial is warrant ed because the district court granted
Auto-Owners’ request to exclude expert testimony without requiring Auto-Owners to
comply with Minn. R. Civ. P. 7.02. Rule 7.02 requir es all motions ma de outside of a
hearing or trial to be submitte d in writing, and further requires written notice to the other
party and a hearing before an order can issue. We need not decide whether the manner in
which Auto-Owners sought the exclusion of expert testimony constituted an irregularity
because Else failed to demonstrate that the alleged irregularity deprived him of a fair trial.
Else makes no argument that the district court’s substantive decision to exclude the expert
testimony was erroneous, 5 or that the district court would have reached a different
conclusion on the issue of expert testimony had the request complied with Rule 7.02. Thus,
we conclude that any procedural irregularity relating to the exclusion of Else’s expert
testimony did not deprive Else of a fair trial and is therefore harmless error. See Palladium
Holdings, LLC v. Zuni Mortg. Loan Trust 2006—OA1 , 775 N.W.2d 168, 178 (Minn.

5 At oral argument, Else claimed that he rais ed a direct challenge to the district court’s
decision to exclude expert testimony. But Else’s appellate brief does not directly challenge
the decision. At best, the issu e is tangentially raised in co nnection to other challenges to
district court decisions and is inadequately brie fed. An issue that is inadequately briefed
on appeal is waived. See State Dep’t. of Labor & Indus. v. Wintz Parcel Drivers, Inc. ,
558 N.W.2d 480, 480 (Minn. 1997).

20
App. 2009) (“An appealing party bears th e burden of demonstrating both error and
prejudice.”), review denied (Minn. Jan. 27, 2010).
On appeal, Else also argues that the dist rict court’s evidentiary rulings concerning
debris removal and mileage constitute irregularities warranting a new trial. But as
discussed above, we discern no abuse of discretion in the district court’s evidentiary
rulings. Therefore, we also conclude that th e district court did not abuse its discretion in
denying the motion for a new trial on these grounds.
V. The district court did not err by deducting amounts that Auto-Owners
previously paid to Else from the jury’s special verdict answer.

Else next maintains that the district c ourt erred by entering judgment that deducted
amounts that Auto-Owners previously paid to, or on behalf of, Else from the jury’s special
verdict answers relating to pe rsonal property damaged in the fires and additional living
expenses caused by the fires.
At trial, Else submitted proof of three di stinct groups of personal property damaged
by the fires: (1) items not properly restored af ter the first fire by ServiceMaster, (2) items
not properly restored after the first fire by Evans Garment Restoration, and (3) items
damaged or destroyed by the second fire. After the first fire, Auto-Owners paid
ServiceMaster and Evans Garment Restoration to remove items of personal property from
Else’s dwelling to restore them. The items were eventually restored and returned to Else,
but Else claimed at trial that the items were still damaged when they were returned to him.
Else claimed that the ServiceMaster items th at were damaged and not properly restored
were worth approximately $12,500. He testified that the Evans Garment Restoration items

21
that were damaged and not properly restored were worth $33,000. After the second fire, a
company called Enservio went to Else’s dw elling and created an itemized list of items
damaged or destroyed in the fire and estimated the replacement cost and “actual cash value”
of all of the items. The report was introduc ed in its entirety and a representative from
Enservio testified to the method of creating the report. The Enservio property is the third
group of personal property. Else also in troduced evidence to prove additional living
expenses incurred as a result of the fires.
The special verdict questions asked the ju ry to determine the reasonable cost to
repair or replace Else’s personal property that was damaged in the fires. The special verdict
form asked the jury to provide an “actual cash value” and a replacement cost value for the
property. The jury found that the “actual cash value” of the personal property destroyed in
both fires was $122,713.19 and that the replacement cost of the same was $153,667.70.
The district court ultimately entered a ju dgment that reduced the amounts reflected
in the jury’s special verdict by amounts that Auto-Owners had already paid to, or on behalf
of, Else. As discussed above, Auto-Own ers paid ServiceMaster and Evans Garment
Restoration to have Else’s property restor ed. Auto-Owners also paid Else a $10,000
advance following the first fire. And Auto-Owners paid a company called ALE Solutions
Inc. in relation to additional living expens es incurred by Else. The total amount that
Auto-Owners paid to or on behalf of Else was $23,287.85.
Else argues on appeal that the district court erred as a matter of law by reducing the
special verdict by the amounts Auto-Owners previously paid. He asserts that the jury took

22
those payments into account in determining its answers to the special verdict questions and
that no reduction is necessary. We conclude that the district court did not err.
To prevent double recovery, this court has endorsed the application of Restatement
(Second) of Torts, 920A(1) (1979), which provides that “[a] payment made by a tortfeasor
or by a person acting for him to a person whom he has injured is credited against his tort
liability, as are payments made by another who is, or believes he is, subject to the same tort
liability.” Leamington Co. v. N onprofits’ Ins. Ass’n , 661 N.W.2d 674, 679 (Minn.
App. 2003); see also VanLandschoot v. Walsh, 660 N.W.2d 152, 155 (Minn. App. 2003).
Here, the special verdict form clearly aske d the jury to determ ine the “actual cash
value” and replacement cost of all of the personal property damaged in the fires. Although
evidence of Auto-Owners’ pa yments to Else, ServiceM aster, and Evans Garment
Restoration were introduced at trial, the special verdict instructions did not ask the jury to
consider payments that Auto-O wners made to, or on behalf of, Else. A special verdict
constitutes a conclusion of fact as established by the evidence. Minn. Stat. § 546.19 (2018).
Because the special verdict questions unambiguously did not contemplate payments made
by Auto-Owners, we cannot specula te that the jury’s answers to the questions reflect the
prior payments. 6 Consequently, it was appropriate for the district court to credit

6 In his appellate brief, Else argues that the jury necessarily considered the payments in its
special verdict answer because the sum of the amounts he claimed for the Evans Garment
Restoration items, the “ServiceMaster bill,” and the “Enservio bill,” add up precisely to the
deficiency between his total cl aim and the jury’s special verd ict answer. We do not find
this argument persuasive because there is nothing in the record to support the existence of
an “Enservio bill” for the amount claimed by Else. Thus, the figures Else uses to make this
argument lack factual support in the record.

23
Auto-Owners for undisputed payments it made . We discern no grounds to reverse the
district court on this basis.
VI. The district court did not abuse its discretion by reducing Else’s claim for
costs and disbursements without first conducting a hearing.

Else next argues that the district court erred by awarding only a portion of his claim
for costs and disbursements without first holding a hearing. As the prevailing party, Else
submitted a request for costs and disbursements incurred in bringing this lawsuit after the
trial was complete. The cost s sought included, among other items, the cost of service,
expert witness travel expenses and fees, and the costs of reproducing trial exhibits. Without
first conducting a hearing, the district court re duced or denied some of the costs that Else
sought because it found that they were unreasonably expensive.
A prevailing party is entitle d to “reasonable disburse ments paid or incurred,
including fees and mileage paid for service of process by the sheriff or by a private person.”
Minn. Stat. § 549.04, subd. 1 (2018); see also Minn. R. Civ. P. 54.04(a) (“Costs and
disbursements shall be allowed as provided by law.”). The district court must award costs
and disbursements, but a determination of what costs and disbursements are reasonable “is
left to the discretion of the [district] court.” Quade & Sons Refrigera tion, Inc. v. Minn.
Mining & Mfg. Co. , 510 N.W.2d 256, 260 (Minn. App. 1994), review denied (Minn.
Mar. 15, 1994). A district cour t abuses its discretion “when its decision is against logic
and facts on the record.” Posey v. Fossen, 707 N.W.2d 712, 714 (Minn. App. 2006). A
district court also abuses its discretion if its decision is “arbitrar y or unreasonable or
without evidentiary support.” Smith v. Smith, 163 N.W.2d 852, 856 (Minn. 1968).

24
It is often appropriate for the district court to conduct a hearing to allow the parties
to present evidence supporting or opposing the prevailing party’s application for costs or
disbursements. See Quade, 510 N.W.2d at 260. But our supreme court has held that a
hearing is not required if the district court’s findings and c onclusions are based on
sufficient evidence in the record. Buller v. A.O. Smith Ha rvestore Prods. Inc. ,
518 N.W.2d 537, 543 (Minn. 1994).
Here, the district court considered the supporting documentation that Else filed and
determined that the costs were unreasonably expensive. Based on the finding that the costs
were unreasonably expensive, the district court reduced or excluded the unreasonably high
costs and therefore reduced the overall costs and disbursements award. The district court’s
factual findings related to the costs and disbursements are supported in the record and the
findings support the district court’s determina tion that the costs were unreasonably high.
Consequently, we conclude that the district court did not abuse its discretion in awarding
Else only the reasonable amount of costs and disbursements sought.
VII. We remand to the district court to make a determination on the issue of
prejudgment interest.

Finally, Else maintains that the district court erred by failing to award prejudgment
interest under Minn. Stat. § 549.09 (2018), which he requested. Auto-Owners conceded to
the district court and in its appellate brief that Else is entitled to prejudgment interest. But
the district court did not address the request for prejudgment interest.
On appeal, the parties agree that Else is entitled to some prejudgment interest, but
disagree over whether the district court may award prejudgment interest that exceeds the

25
liability limits of the insuranc e policy at issue. Because we agree with the parties that
prejudgment interest is appropriate and that the district court appears to have overlooked
the issue in entering judgment, we remand to the district c ourt for a determination of the
appropriate amount of prejudgment interest to award to Else. “[A]n undecided question is
not usually amendable to appellate review.” Hoyt Inv. Co. v. Bloomington Commerce &
Trade Ctr. Assocs., 418 N.W.2d 173, 175 (Minn. 1988 ). Consequently, we do not reach
the parties’ dispute over whether prejudgment interest may exceed the policy limits in this
case.
Affirmed in part and remanded.