Independent School District No. 477, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0564

Independent School District No. 477,
Appellant,

vs.

Midwest Asphalt Corporation,
Defendant,

Court Surfaces & Repair, Inc.,
Respondent.

Filed December 28, 2020
Affirmed in part, reversed in part, and remanded
Halbrooks, Judge *

Mille Lacs County District Court
File No. 48-CV-16-1532

Elizabeth J. Vieira, Kristin C. Nierengarten, Rupp, Anderson, Squires & Waldspurger,
Minneapolis, Minnesota (for appellant)

Nicole R. Weinand, Alex M. Halverson, Law Offices of John C. Syverson, Golden Valley,
Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Smith, Tracy M. , Judge; and
Halbrooks, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
This appeal and cross-appeal arise from alleged construction defects in high school
tennis courts. Appellant Independent School District No. 477 (the school district) sued
defendant-general-contractor Midwest Asphalt Corporation (Midwest), which brought
third-party claims against respondent-subcontractor Court Surfaces and Repair, Inc. (Court
Surfaces). Midwest settled with the school district and assigned to the school district its
contractual-indemnity claim (based on breach -of-contract and breach -of-warranty claims)
against Court Surfaces. The school district moved for summary judgment on Midwest’s
claims against Court Surfaces.
Based primarily on an admission by Court Surfaces that the court surface was not
“free of defect,” the district court granted partial summary judgment to the school district,
concluding that there was no genuine issue of material fact that Court Surfaces breached
its contract and warranty. The matter proceeded to trial on the issue of whether Court
Surfaces was responsible for the cause of the defects and therefore required to indemnify
for losses related to them.
Before the matter was submitted to a jury, the district court granted judgment a s a
matter of law (JMOL) to Court Surfaces on the contractual-indemnity claim. The school
district moved for a new trial on several grounds, which t he district court denied. On
appeal, the school district argues that the district court erred by granting JMOL, denying
its motion for a new trial, and awarding certain costs and disbursements. By notice of
related appeal, Court Surfaces argues that the district court erred by granting summary

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judgment to the school district on the element of breach (of contract and warranty) when
genuine issues of material fact existed. We affirm in part, reverse in part, and remand.
FACTS
In June 2012, the school district entered into a contract with general contractor
Midwest to reconstruct high school tennis courts. Section 3.5 of the general conditions of
the contract between the school district and Midwest warranted that Midwest’s work would
be “free from defects,” with certain exceptions.
Midwest entered into a subcontract agreement with respondent Court Surfaces to
apply a color coat to the tennis courts. The subcontract provided that Court Surfaces agreed
“to be bound to the Contractor by the terms of the General Contract.” The subcontract also
contained the following indemnification clause:
[Court Surfaces agrees] [t]o defend, indemnify and save
harmless the Contractor from any and all losses or damage
occasioned by the failure of the Subcontractor to carry out the
provisions of this Subcontract, unless such failure results from
causes not the responsibility of the Subcontractor. Loss or
damage shall include, without limiting the generality of the
foregoing, legal fees and disbursements paid or incurred by the
Contractor as part of the loss or damage or to enforce the
provisions of this paragraph, unless such f ailure results from
causes not the responsibility of the Subcontractor.

Midwest did most of the construction work on the tennis courts, including grading,
placing an aggregate base, and laying an asphalt layer that sits underneath the color coat
surface. Applying the color coat was the last step. The tennis courts were finished by
August 2012.

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The following spring, a significant number of cracks appeared on the tennis court
surface. The school district sued Midwest for breach of contract and breach of warranty,
alleging that Midwest failed to deliver tennis courts that were “free of defect” as required
by the contract. Midwest, in turn, brought third -party breach -of-contract and breach -of-
warranty claims against Court Surfaces, alleging that Court Surfaces was obligated to
indemnify Midwest.
The school district hired American Engineering Testing, Inc. (AET) to determine
the cause of the cracks. AET produced two reports in the summer of 2013 , opining that a
problem w ith the color coat applied by Court Surfaces caused the cracking. The
manufacturer and supplier of the color coat retained Chosen Valley Testing (CVT) to
analyze the defects. CVT generated a report , concluding that the cracking was caused by
the thinness of the asphalt ( which was thinner than the project specifications called for),
the fineness of subbase materials, and the presence of frost-susceptible soils underneath the
tennis courts.
The school district and Midwest settled the school district’s claims against Midwest.
The settlement agreement assigned Midwest’s claims against Court Surfaces to the school
district, and the school district took control of pursuing the third-party complaint.
Court Surfaces failed to timely respond to the school district’s requests for
admissions, and based on that failure, the district court entered an order deeming the
requests admitted. Of relevance here , Court Surfaces admitted that “t he tennis court
surface installed by [ Court Surfaces] is not ‘free of defect’ as that term is used in Section

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3.5 of the AIA General Conditions of contract, which are incorporated into the contract
between [the school district] and [Midwest].”
The school district moved for summary judgment. The district court granted partial
summary judgment to the school district on the element of breach (of contract and
warranty), concluding that , given Court Surfaces’ admission, no genuine issue of material
fact existed as to whether Court Surfaces failed to produce work that was free from defect.
But because there was conflicting evidence in the record regarding whether Court Surfaces
was responsible for the cause of the cracking, the district court denied summary judgment
on the indemnification claim as a whole.
The case proceeded to a jury trial . One of the primary issues was whether the
cracking “result[ed] from causes not the responsibility of [ Court Surfaces],” within the
meaning of the indemnification provision in the subcontract . The school district called
AET engineer David Rettner, who testified that the color coat caused the cracking. Court
Surfaces called a witness from CVT, who testified that factors beyond Court Surfaces’
control caused the cracking.
After the parties rested, but before the matter was submitted to the jury , Court
Surfaces moved for JMOL. The district court granted Court Surfaces’ motion on the
record, concluding that expert testimony was required to prove what caused the cracking
and that Rettner was “not recognized as an expert” and failed to render an expert opinio n.
The district court later issued a written order clarifying its JMOL ruling, noting that there
were “significant lapses” in the foundation for Rettner’s testimony. The district court

6
therefore concluded that the school district failed to introduce sufficient evidence to prove
that the cracking resulted from Court Surfaces’ work .
The school district moved for a new trial on the grounds that the district court
erroneously excluded Rettner’s expert testimony, erroneously assigned the burden of proof
to the school district, and erroneously granted JMOL. The district court denied the motion,
concluding that the school district properly bore the burden of proof, that it had not
excluded Rettner’s testimony , and that the school district failed to introduce expert
testimony on causation.
This appeal and cross-appeal follow.
D E C I S I O N
The school district challenges the district court’s decisions to grant JMOL and deny
its motion for a new trial, arguing that the district court erroneously excluded or we ighed
Rettner’s expert testimony in reaching its decision. The school district also maintains that
the district court erred by assigning to it the burden of proving that the cracks resulted from
a cause that was Court Surfaces’ responsibility. In its cro ss-appeal, Court Surfaces
contends that the district court erred by granting partial summary judgment on the element
of breach (of contract and warranty). We begin with Court Surfaces’ cross-appeal.
I. The district court did not err by granting partial summary judgment on
breach.

We review the grant of summary judgment de novo to determine “whether there are
genuine issues of material fact and whether the district court erred in its application of
law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotatio n

7
omitted). A district court must grant summary judgment if the “movant shows that there
is no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.” Minn. R. Civ. P. 56.01. “The moving party has the initial burden to demonstrate
an absence of genuine issues of material fact.” Hagen v. Steven Scott Mgmt., Inc. , 847
N.W.2d 847, 850 (Minn. App. 2020). “If the moving party meets its burden, the burden
then shifts to the nonmoving party to show a material fact exists to preclude summary
judgment.” Id. at 851.
In reviewing a grant of summary judgment, we view the evidence in the light most
favorable to the party against whom summary judgment was granted. STAR Ctrs., Inc. v.
Faegre & Benson, L.L.P. , 644 N.W.2d 72, 76 (Minn. 2002). “All doubts and factual
inferences must be resolved against the moving party.” Montemayor, 898 N.W.2d at 628.
Summary judgment is “inappropriate when reasonable persons might draw differ ent
conclusions from the evidence presented.” Id. (quotation omitted).
The district court concluded that summary judgment as to breach was appropriate
because Court Surfaces admitted that “the tennis court surface installed by [Court Surfaces]
is not ‘free of defect’ as that term is used in Section 3.5 of the AIA General Conditions of
Contract, which are incorporated into the contract between [ the school district ] and
[Midwest].” The warranty provision at issue states, in relevant part:
The Contractor further warrants that the Work will conform to
the requirements of the Contract Documents and will be free
from defects, except for those inherent in the quality of the
Work the Contract Documents require or permit. Work,
materials or equipment not co nforming to these requirements
may be considered defective. The Contractor’s warranty
excludes remedy for damage or defect caused by abuse,

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alterations to the Work not executed by the Contractor,
improper or insufficient maintenance, improper operation, or
normal wear and tear and normal usage.

This warranty provision was incorporated into the subcontract agreement between Midwest
and Court Surfaces through section two of the subcontract, in which Court Surfaces agreed
to be bound to the Contractor by the terms of the General
Contract, to conform and comply with the provisions of the
General Contract, and to assume toward the Contractor all the
obligations and responsibilities that the Contractor assumes in
and by the General Contract toward the Owner, insofar as they
are applicable to this Subcontract. Where any provision of the
General Contract between the Owner and the Contractor is
inconsistent with any provision of this Subcontract, this
Subcontract shall govern.

The subcontract specifically defines “Work” as the color coat.
Reading these provisions together, Court Surfaces warranted that the color coat
surface that it installed would be free from defect, except for defects “inherent in the quality
of the Work the Contract Documents require or permit” and “damage or defect caused by
abuse, alterations to the Work not executed by the Contractor, improper or insufficient
maintenance, improper operation, or normal wear and tear and normal usage.” Thus, Court
Surfaces breached the subcontract and its warranty if it delivered a color coat that was not
free from defect and no exception applied.
As the party moving for summary judgment, the school district had the initial burden
of demonstrating an absence of genuine issues of material fact. Hagen, 847 N.W.2d at
850. We conclude that the school district met that burden by identifying Court Surfaces’

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admission that the tennis court surface that it installed was not free of defect and pointing
to evidence that Court Surfaces caused the defects.1
The burden then shifted to Court Surfaces to show that a genuine issue of material
fact existed to preclude summary judgment. Id. at 851. Court Surfaces could not contest
that the color coat was not free of defect, because a matter deemed admitted is “established
for the purpose of the proceeding.” In re Welfare of J.W. , 391 N.W.2d 791, 796 (Minn.
1986). Instead, Court Surfaces attempted to demonst rate that an exception applied ,
pointing to evidence that “insufficient grading and placement of frost -susceptible soils
around and beneath the tennis court surface by Midwest” caused the cracks .
Viewing the evidence in the light most favorable to Court Surfaces, we conclude
that Court Surfaces failed to show that a genuine issue of material fact existed as to whether
a warranty exception applied. Court Surfaces argues that others’ work on the tennis courts,
which preceded installation of the color coat surface, caused the cracks to appear. But the
warranty does not exclude defects caused generally by the work of others. Rather, the
warranty excludes “alterations to the Work not executed by the Contractor. ” (Emphasis
added.) None of the evidence identified by Court Surfaces relates to alterations to the color
coat.

1 Court Surfaces argues on appeal that it only admitted that the tennis courts in general
were defective. We are not persuaded. Court Surfaces admitted that “the tennis court
surface installed by you is not ‘free of defect.’” It is clear that Court Surfaces specifically
admitted that the tennis court surface that it installed was defective, not the tennis courts
generally.

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Court Surfaces also argues that there is a genuine issue of material fact as to whether
the courts were properly maintained or that the cracks were not attributable to normal wear
and tear or usage . In the district court, Court Surfaces contended that “[o]verwhelming
evidence suggests that any alleged defects in [ the school district’s ] tennis courts were
caused by insufficient drainage and improper subsurface soils, entirel y outside the scope
of [Court Surfaces’] work.” But Court Surfaces failed to identify any evidence in the record
supporting its contention.
Because Court Surfaces admitted that the tennis court surface was not free from
defect and failed to demonstrate genuine issues o f material fact as to whether a warranty
exception applied, we conclude that summary judgment was appropriate as to the breach
element of the school district’s breach-of-contract and breach -of-warranty claims .
Consequently, we affirm the d istrict court’s grant of partial summary judgment.
II. The district court erred in granting judgment as a m atter of law.
A district court may grant JMOL if “during a trial by jury a party has been fully
heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue.” Minn. R. Civ. P. 50.01(a). JMOL should be granted
“only when the evidence is so overwhelming on one side that reasonable minds cannot
differ as to the proper outcom e.” Kedrowski v. Lycoming Engines , 933 N.W.2d 45, 55
(Minn. 2019). We review de novo a district court’s decision to grant JMOL. Overcocker
v. Solie, 597 N.W.2d 579, 581 (Minn. App. 1999). We view the evidence in the light most
favorable to the non -moving party. Christie v. Estate of Christie , 911 N.W.2d 833, 838
n.5 (Minn. 2018).

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The district court concluded, and it is undisputed on appeal, that expert testimo ny
was required to prove the cause of the cracking. The district court determined that Rettner’s
testimony lacked sufficient foundation and that no reasonable jury could rely on his
opinion. T hus, the district court reasoned that JMOL was appropriate because the school
district failed to produce expert testimony on an issue that required expert testimony.
A. The district court abused its discretion by effectively excluding Rettner’s
expert testimony.

The parties disagree as to whether the district court excluded Rettner’s tes timo ny.
The school district maintains that the district court effectively excluded Rettner’s
testimony, while Court Surfaces points to the district court’s statement that it never ruled
Rettner’s testimony inadmissible. Whe n the district court grants JMOL on the ground that
a party’s expert testimony was inherently unreliable on an issue that requires expert
testimony, we have analyzed the district court’s order for JMOL as if it had made an
evidentiary ruling that the expert testimony was inadmissible. See Knuth v. Emergency
Care Consultants, P.A. , 644 N.W.2d 106, 112 (Minn. App. 2002). Thus, we review the
district court’s decision on Rettner’s testimony for an abuse of discretion. See Reinhardt
v. Colton , 337 N.W.2d 88, 93 (Minn. 1983) (indicating tha t the exclusion of expert
testimony “lies within the sound discretion of the trial court, and its ruling will not be
reversed unless it is based on an erroneous view of the law or it constitutes and abuse of
discretion”).
Expert testimony must have “founda tional reliability.” Minn. R. Evid. 702.
“Foundational reliability is a concept that looks to the theories and methodologies used by

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an expert.” Kedrowski, 933 N.W.2d at 56 (citing Doe v. Archdiocese of St. Paul &
Minneapolis, 817 N.W.2d 150, 169 (Minn. 2012) (explaining that the “underlying
reliability, consistency, and accuracy of the theory” of an expert lie at “the heart of the
foundational reliability question”)) (other citation omitted). “[E]xpert familiarity with the
facts of a case is an essential element of reliability.” Id. (quotation omitted). To determine
whether expert testimony has a “reliable factual foundation, the question is whether ‘[t]he
facts upon which an expert relies fo r an opinion [are] supported by the evidence.’” Id.
(quoting Gianotti v. Indep. Sch. Dist. 152 , 889 N.W.2d 796, 801 -02 (Minn. 2017)).
The factual foundation of an expert’s opinion is inadequate if
(1) the opinion does not include the facts and/or data u pon
which the expert relied in forming the opinion, (2) it does not
explain the basis for the opinion, or (3) the facts assumed by
the expert in rendering an opinion are not supported by the
evidence.

Id. (quotation omitted). But an expert “need not be provided with every possible fact, but
must have enough facts to form a reasonable opinion that is not based in speculation or
conjuncture.” Gianotti, 889 N.W.2d at 802. “Alleged deficiencies in an expert’s factual
basis go more to the weight of the exp ert’s opinion than to its admissibility.” Kedrowski,
933 N.W.2d at 60 (quotation omitted).
At trial, Rettner testified that, although he did not draft AET’s 2013 reports and did
not participate in testing or data collection from the courts, he was familiar with the reports
and had reviewed them. Rettner explained that AET conducted a “petrographic analysis”
of core samples gathered from the tennis courts. Petrographic analysis is the “microscop ic
evaluation of . . . the asphalt pavement looking at the aggregate and the matrix of the

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asphalt.” Rettner observed that the cracks in tennis courts started at the surface and were
shallow. Based on this information, he opined that the cracks occurred because “there was
a problem with the surface coating.”
Rettner explained that it was his opinion that other potential causes of the cracking
identified by CVT—thermal cracking, frost heave, and drainage issues—did not cause the
tennis courts to crack in this case. He testified that thermal cracking did not cau se the
cracking because the cracks were shallow and started at the surface, but cracks caused by
thermal cracking “typically penetrate the full depth of the asphalt.” Rettner testified that
frost heave did not cause the tennis courts to crack because ther e was no evidence that the
net posts had lifted and no evidence of cracking or unevenness around them. He stated
that, if frost heave had caused the cracking, there would be fewer cracks and the cracks
would not be all over the courts. Finally, Rettner t estified that if water pooling on the
surface of the court alone caused the cracking, “then that’s a problem with the topping”
because in Minnesota’s climate, water pooling in inevitable. Rettner testified that CVT’s
report, and the data contained therein, did not alter his conclusion that a problem with the
color coat caused the cracking.
The district court concluded that Rettner’s testimony lacked a proper foundation for
his opinion on the cause of the cracking for several reasons, including: (1) Rettner testified
that the cracking was “probably” related to the color coat; (2) Rettner was never expressly
“recognized” as an expert witness; (3) Rettner lacked knowledge about the makeup of the
color coat material and how it was applied; (4) Rettner did not see the cracks in 2013, when
AET’s reports were generated; (5) Rettner did not participate in taking the AET core

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samples and could not answer questions about the testing —including whe re on the courts
the samples came from and what happened to the third core sample that was not analyzed
in the AET reports; (6) Rettner did not testify about variables that might affect cracking
such as weather; and (7) Rettner did not perform any testing on the color coat surface.
Based on these purported deficiencies, the district court concluded that Rettner failed to
render an expert opinion. The school district maintains that these deficiencies, if any, speak
to the weight of Rettner’s expert testimony and not its admissibility. We agree.
To determine whether Rettner’s testimony had an adequate foundation, the district
court should have considered whether (1) Rettner’s opinion testimony included “the facts
and/or data upon which [he] relied in formi ng the opinion” ; (2) Rettner “explain[ed] the
basis for [his] opinion ”; and (3) the facts that Rettner assumed in rendering the opinio n
were supported by the evidence. Id. at 56 (quotation omitted). Rettner’s testimony satisfies
these requirements.
Rettner identified the facts and data upon which he relied in forming his opinio n.
Namely, Rettner relied on the photographs, observations, and core sample analysis
described in AET’s reports. Rettner also testified about why the data and analysis in CVT’s
reports did not alter his conclusion that a problem with the c olor coat caused the cracking.
He explained the bas es for his opinions. He testified that the shallow surface cracks and
the lack of evidence of thermal cracking or frost heave led him to o pine that the cracks
formed as a result of a problem with the color coat that Court Surfaces applied. And the
facts that Rettner relied upon in rendering his opinion were introduced as evidence at trial.

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The fact t hat Rettner did not personally observe the cracking or participate in
gathering the data does not undermine the factual foundation of his expert opinio n
testimony. See Minn. R. Evid. 703(a) (“The facts or data in the particular case upon which
an expert bases an opinion or inference may be tho se perceived or made known to the
expert at or before the hearing.” (Emphasis added.)). That Rettner could not testify to facts
about where the core samples were taken from, or testify to what happened with the third
core sample, goes to the weight of his opinion testimony—not its admissibility. Cf.
Sentinel Mgmt. Co. v. Aetna Cas. & Sur. Co. , 615 N.W.2d 819, 824 (Minn. 2000)
(indicating that an expert witness’s extrapolation from four positive dust samples taken
from five units of an apartment building t o conclude that the entire 450 -unit building was
contaminated went to the weight, and not the admissibility, of the testimony). Similarly,
any other purported factual gaps go to the weight of Rettner’s opinion testimony. See
Kedrowski, 933 N.W.2d at 60 (concluding that perceived factual gaps and the failure to
account for certain circumstances go to weight, not admissibility, of expert opinio n
admissibility); Gianotti, 889 N.W.2d at 802 (indicating that an expert “need not be
provided with every possible fact, but must have enough facts to form a reasonable opinio n
that is not based in speculation or conjecture”). In sum, Rettner’s testimony was “properly
the subject of a detailed cross -examination and argument to the jury, rather than a
foundational-reliability determination under Rule 702.” Kedrowski, 933 N.W.2d at 60.
The district court abused its discretion by effectively excluding Rettner’s expert testimo ny.
We also observe that the district court reasoned, in part, that Rettne r’s testimo ny
could not be construed as expert testimony because the school district failed to move the

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district court to recognize Rettner as an expert witness. Neither the district court nor the
parties have iden tified any authority requiring formal rec ognition of an expert witness
during trial, and we are unaware of any such requirement in Minnesota law. The school
district properly identified Rettner as an expert witness before trial. To the extent that the
district court rejected Rettner’s testimony on this basis, the district court’s decision was
based on an “erroneous view of the law.” Reinhardt, 337 N.W.2d at 93. 2
B. The district court erred by granting JMOL when Rettner’s testimony is
properly considered.

Court Surfaces argues on appeal tha t JMOL was appropriate even when Rettner’s
expert testimony is properly considered because Rettner failed to identify a specific aspect
of the color coat or its application that caused the cracks to form. Relying on E.H. Renner
& Sons, Inc. v. Primus , 203 N.W.2d 832, 834 (Minn. 1973), Court Surfaces argues that
even considering Rettner’s testimony, a jury would only be able to speculate that Court
Surfaces was responsible for the cracking.
“This court has repeatedly held that verdicts cannot be based upon mere speculatio n
or conjecture.” E.H. Renner, 203 N.W.2d at 834. “Where the entire evidence sustains,
with equal justification, two or more inconsistent inferences so that one inference does not

2 The school district also argues on appeal that the district court erred in the timing of its
ruling—by making an evidentiary ruling on the admissibility of Rettner’s testimony when
it granted JMOL. Because we conclude that the district court abused its discretion by
excluding Rettner’s opinion testimony based on the substance of its ruling, we do not
address whether the district court erred in the timing of its ruling. See Kedrowski , 933
N.W.2d at 55 (discussing Minnesota precedent regarding whether a district court may
“reconsider rulings on the admissibility of evidence when ruling on a posttrial motio n for
judgment as a matter of law”).

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reasonably preponderate over the others, the complai nant has not sustained the burden of
proof on the proposition which alone would entitle him to recover.” Id. at 835. “It becomes
the duty of the trial court to direct a verdict because failing to do so would cause any verdict
to the contrary to be based on pure speculation and conjecture.” Id.
Although Rettner’s testimony was not particularly specific as to what failure of the
color coat caused the cracking, he testified that neither thermal cracking, frost heave, nor
drainage issues caused it. He testified that the thinner-than-specification pavement did not
contribute to the cracking. And he testified that the failure to replace the soils underneath
the court did not affect his opinion that a problem with the color coat caused the cracks to
appear. Viewing Rettner’s testimony in the light most favorable to the school district, a
reasonable jury did not need to resort to speculation to find that Court Surfaces was
responsible for a problem with the color coat that caused the courts to crack. Because a
reasonable jury could find , based on Rettner’s testimony, that Court Surfaces was
responsible for the cause of the cracking , we conclude that the district court erred by
granting JMOL. We therefore remand for a new trial.
III. The district court properly applied the burden of proof.
Although we reverse and remand for a new trial on the ground that the district court
erred by effectively excluding Rettner’s testimony and granting JMOL on that basis, we
address, in the interests of judicial economy, the school district’s argument that, under the
terms of the subcontract, Court Surfaces bears the burden of proving that it was not
responsible for causing alleged damage or loss.

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“Contract interpretation is a question of law that we review de novo.” Caldas v.
Affordable Granite & Stone, Inc. , 820 N.W.2d 826, 832 (Minn. 2012). “The primary goal
of contract interpretation is to determine and enforce the intent of the parties.” Staffing
Specifix, Inc. v. TempWorks Mgmt . Servs., Inc. , 913 N.W.2d 687, 692 (Min n. 2018)
(quotation omitted). “We look to the language of the contract to determine the parties’
intent.” Storms, Inc. v. Mathy Const r. Co. , 883 N.W.2d 772, 776 (Minn. 2016). If the
contract is clear and unambiguous, “we enforce the agreement of the par ties as expressed
in the language of the contract.” Id. (quotation omitted).
Two provisions in the subcontract address indemnification. Section 6.2 provides:
The subcontractor agrees to assume entire responsibility and
liability to the fullest extent permitted by law, for all damages
or injury to all persons, whether employees or otherwise, and
to all property, arising out of, resulting from or in any manner
connected with, the execution of the Work provided for in this
Subcontract and including, witho ut limitation, those damages
or injuries occurring or resulting from the use by the
Subcontractor, its agents or employees, of materials,
equipment, instrumentalities or other property, whether the
same be owned by the Contractor, the Subcontractor or thir d
parties. Further the Subcontractor, to the fullest extent
permitted by law, agrees to defend, indemnify and save
harmless the Contractor, its agents and employees from all
such claims including, without limiting the generality of the
foregoing, claims for which the Contractor may be or may be
claimed to be liable and legal fees and disbursements paid or
incurred in defense of such claims or to enforce the provisio ns
of this paragraph.

Section 6.3 provides that Court Surfaces agrees
[t]o defend, indemnify and save harmless the Contractor from
any and all losses or damage occasioned by the failure of the
Subcontractor to carry out the provisions of this Subcontract,
unless such failure results from causes not the responsibility of

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the Subcontractor . Loss or damage shall include, without
limiting the generality of the foregoing, legal fees and
disbursements paid or incurred by the Contractor as part of the
loss or damage or to enforce the provisions of this paragraph,
unless such failure results from causes not the responsibility of
the Subcontractor.

(Emphasis added.) The school district maintains that the italicized language in section 6.3
places the burden of proof on Court Surfaces to establish at trial that the cracks resulted
from “causes not the responsibility of” Court Surfaces. It asserts that this interpretation of
section 6.3 avoids an interpretation in which sections 6.2 and 6.3 are redundant. Court
Surfaces contends that section 6.3 merely limits the extent to which it agreed to indemnify
Midwest for damages.
Indemnification agreements seeking to indemnify for losses caused by that party’s
own negligent a cts are not favored and are strictly construed agains t the party seeking
indemnification. Braegelmann v. Horizon Dev. Co. , 371 N.W.2d 644, 646 (Minn. App.
1985), review denied (Minn. Oct. 11, 1985). Similarly, Minn. Stat. § 337.02 (2018)
provides that
an indemnification agreement contained in, or executed in
connection with, a building or construction contract is
unenforceable except to the extent that: (1) the underlying
injury or damage is attributable to the negligent or otherwise
wrongful act or omission, including breach of a specific
contractual duty, of the promisor or the promisor’s independent
contractors, agents, employees, or delegates . . . .

See also Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co., Inc. , 825 N.W.2d 695, 711
(Minn. 2013) (“Section 337.02 therefore renders unenforceable inde mnificatio n

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agreements in which a party assumes responsibility to pay for damages that are not caused
by the party’s own wrongful conduct.”).
We conclude that the language of section 6.3 unambiguously establishes a
substantive limit to the extent to which Court Surfaces agreed to indemnify Midwest. The
provision appears to track the limit established by section 337.02 so as to ensure that the
indemnification agreement is enforceable. Nothing in the contract language itself suggests
that the provision is intended to shift the burden of proof away from the party seeking to
enforce the clause. We cannot “rewrite, modify, or limit the effect” of an unambiguo us
contract provision by giving it a “strained construction.” Savela v. City of Duluth , 806
N.W.2d 793, (Minn. 2011) (quotation omitted).
We also reject the school district’s argument that section 6.3 is otherwise redundant
of section 6.2. The school district is correct that, when interpreting a contract, we “attempt
to avoid an interpretation of the contract that would render a provision meaningless.” See
Chergosky v. Crosstown Bell, Inc. , 463 N.W.2d 522, 526 (Minn. 1990). But sections 6.2
and 6.3 are not redundant —the former addresses damages or injury connected with
execution of the work, while the latter addresses losses or damage occasioned by the
subcontractor’s failure to fulfill the subcontract . O n remand, the school district will bear
the burden of proving that Court Surfaces is responsible for causing the defects and
therefore required to indemnify the school district.
In sum, we affirm the grant of partial summary judgment to the school district
because no genuine issue of mater ial fact exists regarding the element of breach. We
reverse the grant of JMOL because a reasonable jury, viewing all of the evidence, includ ing

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Rettner’s testimony, in the light most favorable to the school district, could find that Court
Surfaces is resp onsible for the cause of the cracking. We observe that, although Court
Surfaces has admitted that it breached the contract, the extent to which Court Surfaces may
be at fault for the damage to the tennis court surface, and therefore the extent to which
Court Surfaces must indemnify the school district, remains at issue for trial. On remand to
the district court for a new trial, the school district bears the burden of proving that it is
entitled to indemnification under the terms of the subcontract.3
Affirmed in part, reversed in part, and remanded.

3 The school district also challenges the district court’s decision to award certain costs and
disbursements to Court Surfaces as the prevailing party. In light of our decision to reverse
the district court’s grant o f JMOL and remand for a new trial, the award of costs and
disbursements is also reversed.