Aspenwood Condominium of Duluth, Inc., Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0719

Aspenwood Condominium of Duluth, Inc.,
Appellant,

vs.

PMA Companies, member of the Old Republic Insurance Group,
Respondent.

Filed February 14, 2022
Affirmed
Florey, Judge

St. Louis County District Court
File No. 69DU-CV-20-1611

Alexander M. Jadin, Timothy D. Johnson, Ross M. Hussey, John C. Wittmer, Smith Jadin
Johnson, P.L.L.C., Bloomington, Minnesota (for appellant)

Christopher L. Goodman, Thompson, Coe, Cousins & Irons, L.L.P., St. Paul, Minnesota
(for respondent)

Considered and decided by Reilly, Presiding Judge; Florey, Judge; and Klaphake,
Judge.*
NONPRECEDENTIAL OPINION
FLOREY, Judge
Appellant-insured challenges the district court’s dismissal under Minn. R. Civ. P.
12.03 of its breach -of-contract and declaratory -judgment claims against respondent -

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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insurer, arguing that the district court erred in dismissing the action based on appellant’s
untimely service because (1) service was rendered impracticable by the closure of
respondent’s office; (2) the principles of equitable tolling apply; and (3) equitable estoppel
applies. We affirm.
FACTS
Appellant Aspenwood Condominium of Duluth, Inc. (the Assoc iation), purchased
a commercial insurance policy (the Policy) from respondent PMA Companies (PMA) that
was in effect from March 1, 2018, through March 1, 2019.1 Among other things, the Policy
insured the Association’s property (the Property) against wind and hail. The Policy, in
relevant part, provides:
No one may bring a legal action against [PMA] under this
policy unless:
a. There has been full compliance with all of the terms of this
policy; and
b. The action is brought within two years after the date on
which the direct physical loss or damage occurred.
The Association first discovered wind and hail damage to its property in August
2020. Shortly after, a public insurance adjustor inspected the property and determined the
damage occurred on August 31, 2018. The Association reported a claim for the hail
damage to PMA on August 21, 2020. Then, on August 31, 2020, exactly two years after
the date the hail damage occurred, the Association attempted pe rsonal service on PMA

1 The Association is a Minnesota nonprofit common interest ownership community. PMA
is a foreign insurance company licensed and authorized to sell insurance and transact
business in Minnesota with a principal place of business and registered office at 380 Sentry
Parkway, Blue Bell, Pennsylvania 19422.
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during normal business hours at its corporate headquarters in Blue Bell, Pennsylvania ,
through a nationwide process server. Personal service was unsuccessful because PMA’s
registered office was closed, and no one was present to recei ve service. The parties agree
that the closure of PMA’s office was likely due to the COVID-19 pandemic.
On September 1, 2020, two years and one day after the date of loss, the Association
successfully served the Summons and Complaint by sending a copy of the process to the
Minnesota Commissioner of Commerce via certified mail pursuant to Minn. Stat. § 45.028
(2020). The parties agree that the Association did not successfully achieve timely service
and therefore failed to commence suit within the Policy’s two-year limitation.
PMA moved for judgment on the pleadings based on the Association’s untimely
service. In opposition, the Association raised three equitable arguments: (1) the doctrine
of impossibility/impracticability; (2) equitable tolling; and (3) equitable estoppel. The
district court granted PMA’s motion for judgment on the pleadings and dismissed the
Association’s claims with prejudice.
This appeal follows.
DECISION
On appeal from a grant of a motion for judgment on the pleadings under Minn. R.
Civ. P. 12.03, this court accepts the factual allegations in the complaint as true and
construes those allegations in the light most favorable to the non -moving party. Burt v.
Rackner, Inc., 902 N.W.2d 448, 451 (Minn. 2017). In determining whether a district court
properly granted judgment on the pleadings, this court reviews de novo whether the
complaint presents a legally sufficient claim for relief. Id. Equitable determinations are
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reviewed for an abuse of discretion. City of N. Oaks v. Sarpal, 797 N.W.2d 18, 24 (Minn.
2011).
For the first time on appeal, the Association argues that its time to commence suit
under the Policy was extended by the legislature’s suspension of statutory deadlines in
response to the COVID -19 pandem ic and that the Policy’s two -year limitation is
unreasonable under the unique circumstances of this case. Because this court generally
does not review issues not presented to and considered by the district court, we decline to
reach this issue.2 See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Here, the parties
agree that service was untimely and that the only issues raised to the district court were the
equitable issues of impracticability, equitable tolling, and equitable estoppel.
Impracticability
The Association argues that the closure of PMA’s office rendered personal service
impracticable.3 The district court rejected the Association’s argument because “[s]ervice

2 Even if the Association’s argument was within the scope o f this court’s review, the
legislature’s suspension of statutory deadlines has no effect on the limitation period at issue
here, which is entirely contractual in nature. See 2020 Minn. Laws. ch. 74, art. 1 § 16, at
66. (“The running of deadlines imposed by statutes governing proceedings in the district
and appellate courts, including any statutes of limitations or other time periods prescribed
by statute, is suspended.”).
3 The Association also argues that the expenses and burdens associated with service via the
Commissioner rendered substitute service impracticable. However, because the
Association failed to raise the impracticability of substitute service in the district court, it
is forfeited. See Thiele, 425 N.W.2d at 582. Even if the argument was within the scope of
this court’s review, it would fail because the “burdens” associated with substitute service
are minimal compared to the risk and expense associated with attempting personal service
under the facts of this case.
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on the Commissioner of Commerce via certified mail was always possible” an d was
accomplished the following day.
Minnesota law recognizes the defense of impossibility , or impracticability, which
can excuse performance under the terms of a contract when:
due to the existence of a fact or circumstance of which the
promisor at the time of the making of the contract neither knew
nor had reason to know, performance becomes impossible , or
becomes impracticable in the sense that performance would
cast upon the promisor an excessive or unreasonably
burdensome hardship, loss, expense, or injury.

Powers v. Siats , 70 N.W.2d 344, 348 (Minn. 1955) ( footnote omitted). Difficulty of
performance alone will not ordinarily excuse a party from his contractual obligations, “but
where a great increase in expense or difficulty is caused by a circumst ance not only
unanticipated but inconsistent with the facts which the parties obviously assumed as likely
to continue, the basic reason for excusing the promisor from liability may be present.” Id.
at 349. Impossibility will not excuse performance when t he “impossibility or
impracticability of performance is wholly attributable to the subjective inability of the
promisor.” Id. at 348. In Powers, the Minnesota Supreme Court stated:
A promisor who, after having assumed a contractual duty
without then knowing or having reason to know of a fact which
makes performance impossible or impracticable, subsequently
acquires knowledge of such fact in time to avoid the dire
consequences of nonperformance, but who despite such
knowledge proceeds without taking reaso nably prudent steps
to avoid such consequences, cannot thereafter be heard to
assert the defense of impossibility of performance. This
equitable rule . . . is sometimes referred to as an assumption of
risk.

70 N.W.2d at 349.
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Here, the Association faile d to take “reasonably prudent steps” to avoid the
consequences of ineffective and untimely service. The Association knew of the COVID -
19 pandemic and its ramifications, yet it elected to personally serve an out -of-state
corporation on the last day of the contractual period without even attempting to confirm
that PMA’s office was open. Had the Association called PMA to inquire as to whether the
office would be open, it could have timely commenced this action by serving the
Commissioner via certified mail. Moreover, had the Association taken advantage of the
alternative method of service via the Commissioner, it would have eliminated the risk of
ineffective service entirely. Accordingly, the Association assumed the calculated risk
associated with attempting personal service under these circumstances.
Because the Association failed to take reasonably prudent steps to ensure timely
service, and thus assumed the risk of attempting personal service on an out -of-state
corporation during a global pandemic, the di strict court did not abuse its discretion in
rejecting the Association’s impossibility/impracticability defense.
Equitable Tolling
The Association argues that the district court erred by declining to toll the limitation
period when the circumstances cau sing the closure of PMA’s office, which prevented
timely personal service, were out of the Association’s control.
A court may grant equitable relief by tolling a limitation period. See Jones v.
Consol. Freightways Corp. , 36 4 N.W.2d 426, 429 (Minn. App. 1985) (applying this
principle in context of Minn. Stat. § 363.14, subd. 1 (1974)). While the court must consider
whether the defendant w ould be prejudiced by tolling, the conduct of the plaintiff is also
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subject to scrutiny. Ochs v. Streater, Inc. , 568 N.W.2d 858, 860 (Minn. App. 1997).
Generally, “innocent inadvertence” is not sufficient to toll a limitation period , but
circumstances beyond the control of the plaintiff can provide a basis for equitable tolling.
Jones, 365 N.W.2d at 429.
In declining to toll the limitation period here, the district court held that “service
was not outside of [the Association’s] control” because “service of a foreign insurance
company via certified mail to the Commissioner of Commerce was always available to [the
Association], even on the tight timeline they were working with.” The Association argues
that personal service “was the only method for service that would have allowed the
Association to accomplish its goals of conserving judicial a nd party resources.” It further
argues that the district court’s holding “would have essentially required the Association to
simultaneously attempt both personal and substitute service, despite the fact that one of
those selections results in unreasonable burdens the Association specifically sought to
avoid.” However, the district court’s holding suggests no such obligation. Instead, it
correctly recognizes that equitable tolling is inappropriate here because the Association
always had the option of mailing the pleadings to the Commissioner to accomplish timely
service, regardless of the permissive nature of that method.
The Association possessed all the information necessary to commence suit before
the limitation period expired. And the fact that the Association reported the claim to PMA
ten days before the Policy’s deadline shows that it had ample time to perfect service in
compliance with the Policy. The Association’s “innocent inadvertence” is not sufficient to
toll the limitation period, even though PMA would not suffer any prejudice. Accordingly,
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the district court did not abuse its discretion in declining to toll the limitation period here,
where the Association attempted to commence suit within the two -year limitation period
but failed for reasons within its control. See Ochs, 568 N.W.2d at 860.
Because the record provides no basis for tolling the limitation period, and because
the Association has offered no evidence that circumstances beyond its control prevented it
from accomplishing service within the contractual period, the district court did not abuse
its discretion in declining to toll the limitation period.
Equitable Estoppel
The Association argues that the doctrine of equitable estoppel should prevent PMA
from asserting a time-limitation defense because PMA engaged in misrepresentation and
concealment that prevented the Association from making timely service. The district court
rejected this argument and declined to “accept that any ‘misrepresentation or concealment’
happened.”
Equitable estoppel is “addressed to the discretion of the court and intended to
prevent a party from taking unconscionable advantage of his own wrong by asserting his
strict legal rights.” Nelson v. Comm’r of Revenue , 822 N.W.2d 654, 660 (Minn. 2012)
(quotation omitted). An insurer ’s conduct can estop the assertion of a time limitation
contained in an insurance policy if the facts show that it would be “unjust, inequitable, or
unconscionable to allow the defense to be interposed.” L & H Transport , Inc. v. Drew
Agency, Inc., 403 N.W.2d 223, 227 (Minn. 1987) (citation omitted). The party invoking
the equitable-estoppel doctrine must show that it reasonably and detrimentally relied on
representations made by the other party. Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913,
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919 (Minn. 199 0). Estoppel is ordinarily a question for the jury, but “when only one
inference can be drawn from the facts, the question is one of law,” which can be addressed
by the district court. L & H Transport, 403 N.W.2d at 227.
The Association argues that PMA should be estopped from asserting a time -
limitation defense because PMA either misrepresented the address of its registered office
for purposes of service or concealed the fact that its office was closed by not notifying the
Association of the closure. However, the Association fails to allege any affirmative action
by PMA that misled appellant as to whether its office w as going to be open, and there is
nothing in the record to indicate that any such misrepresentation or concealment occurred.
Because the record does not support the Association’s assertion that PMA
represented that its office was open or concealed the fact that its office was closed, the
district court did not abuse its discretion in declining to apply equitable estoppel. See W.H.
Barber Co. v. McNamara-Vivant Contracting Co., Inc., 293 N.W.2d 351, 357 (Minn. 1979)
(stating a “representation or concealment of material fact s is an indispensable element of
equitable estoppel”).
In sum, the Association has failed to demonstrate that the dist rict court abused its
discretion in finding that the equitable doctrines of impracticability, equitable tolling, and
equitable estoppel are inapplicable under the facts of this case.
Affirmed.