Aaron Wesser,

1
STATE OF MINNESOTA
IN SUPREME COURT
A21-1587

Court of Appeals Thissen, J.

Aaron Wesser,

Respondent,

vs. Filed: April 26, 2023
Office of Appellate Courts

State Farm Fire and Casualty Company,

Appellant.
________________________

Anthony A. Remick, Timothy D. Johnson, Smith Jadin Johnson, PLLC, Bloomington,
Minnesota, for respondent.

Scott G. Williams, Haws–KM, P.A., Saint Paul, Minnesota, for appellant.

Dale O. Thornsjo, Lance D. Meyer, O’Meara, Leer, Wagner & Kohl, P.A., Minneapolis,
Minnesota, for amici curiae The Insurance Federation of Minnesota and The American
Property Casualty Insurance Association.

Adina R. Bergstrom, Sauro & Bergstrom, PLLC, Oakdale, Minnesota, for amicus curiae
United Policyholders.
________________________

2
S Y L L A B U S
A fire insurance policy claim provision stating that “[n]o interest accrues on the loss
until after the loss becomes payable” is sufficient to preclude preaward interest under Minn.
Stat. § 549.09 (2022).
Reversed.
O P I N I O N
THISSEN, Justice.
Minnesota Statutes section 549.09, subdivision 1(b) (2022), states that “[e]xcept as
otherwise provided by contract or allowed by law, preverdict, preaward, or prereport
interest on pecuniary damages shall be computed . . . from the . . . time of a written notice
of claim.” (E mphasis added.) The issue in this case is whether a fire insurance policy
provision that states that “[n]o interest accrues on the loss until after the loss becomes
payable” precludes preaward interest under the statute. Because we conclude that the
policy language limits interest on a loss to amounts accruing after an appraisal award is
issued, the insured is not entitled to recover preaward interest under Minn. Stat. § 549.09
(2022).
FACTS
The Insurance Policy Issued by State Farm to Wesser
Appellant State Farm Fire and Casualty Company (State Farm) issued a
homeowner’s insurance policy (the Policy) to respondent Aaron Wesser. In the Policy,
State Farm agreed to reimburse Wesser for “all loss or damage” by fire to Wesser’s home
(minus a $1,000 deductible).
3
The Policy provides repair and replacement coverage: “[State Farm] will pay the
cost to repair or replace with similar construction and for the same use on the
premises . . . the damaged part of the property.” The repair and replacement coverage
requires that State Farm reimburse Wesser for the amount Wesser “actually and necessarily
spend[s] to repair or replace the damaged part of the property” up to policy limits. Under
the Policy, however, State Farm is not required to pay Wesser for what he actually and
necessarily spends to repair or replace the damaged part of the property until Wesser
completes the repair or replacement. Before repair or replacement is completed, State Farm
is only required to pay Wesser the “actual cash value of the damaged part of the property.”
The Policy defines actual cash value as “the value of the damaged part of the property at
the time of the loss, calculated as the estimated cost to repair or replace such property, less
a deduction to account for pre-loss depreciation.”
The Policy also addresses what happens in the event that Wesser and State Farm
disagree on the “amount of loss.” As required by Minn. Stat. § 65A.01 (2022), the Policy
includes an appraisal clause, providing that either the insurer or the insured may demand
an appraisal if they cannot agree on the amount of loss. See Minn. Stat. § 65A.01, subd. 3.
The Policy further states that the appraisal panel will issue a written report that will “state
separately the actual cash value, replacement cost, and if applicable, the market value of
each item in dispute.” The written appraisal report is “binding” on Wesser and State Farm.
Central to this appeal, the Policy includes a provision setting the time when State
Farm must pay Wesser for his loss and when interest on the loss becomes payable:
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8. Loss Payment. We will adjust all losses with you. We will pay you
unless some other person is named in the policy or is legally entitled to
receive payment.

Loss will be payable five business days after we receive your proof of loss
and:
a. reach agreement with you;
b. there is an entry of a final judgment; or
c. there is a filing of an appraisal award with us.

No interest accrues on the loss until after the loss becomes payable.1

(Emphasis added.)

Fire Damage to Wesser’s Home

A fire damaged Wesser’s home on February 5, 2020. Wesser notified State Farm
of the damage the same day and State Farm acknowledged the claim in an email. State
Farm investigated the claim immediately. State Farm estimated that it would cost
$193,721.81 to repair the damage.
2 On March 2, 2020, State Farm issued payment of
$88,657.37 for the actual cash value of the damaged property less the deductible and a
hold-back required by the City of Minneapolis.
Soon after the fire, Wesser notified State Farm that his contractor estimated it would
cost $330,213.95 to rebuild Wesser’s property. At some point after Wesser presented his
estimate, State Farm reinvestigated the claim, estimated that the repair would cost

1 State Farm added this italicized language as an amendatory endorsement regarding
interest accrual to the Policy following our decision in Poehler v. Cincinnati Insurance
Co., 899 N.W.2d 135, 141 (Minn. 2017), and before the fire here. The pre-amendment
version of the provision did not include the final sentence stating that “[n]o interest accrues
on the loss until after the loss becomes payable.”

2 State Farm’s initial repair estimate was $176,038.04.
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$242,451.45, and made additional payments . By July 10, 2020, State Farm had made
payments of $241,451.45 to Wesser—the full amount of State Farm’s estimated repair cost
less Wesser’s $1,000 deductible.
Wesser disagreed with State Farm’s updated valuation and demanded an appraisal
under the appraisal clause of the P olicy. On January 29, 2021, t he parties submitted the
claim to appraisal. The appraisal panel determined that the actual cash value of the loss
was $228,191.74 and that the loss replacement cost was $302,113.50. Because Wesser had
not completed the repairs to his house and State Farm 7 months earlier had paid Wesser
$241,451.45 (which was more than what the appraisal panel determined to be the actual
cash value of the loss), State Farm did not pay Wesser any additional amounts following
the appraisal panel award.3
On February 26, 2021, Wesser’s attorneys demanded $30,211.35 in preaward
interest on the appraisal award, citing section 549.09. Wesser calculated the amount of
preaward interest by multiplying the entire amount of his loss replacement cost as
determined by the appraisal panel —$302,113.50— by the 10 percent per annum rate set
forth in statute. See Minn. Stat. § 549.09, subd. 1(c)(2) (providing that interest on an award
greater than $50,000 shall accrue at a rate of 10 percent per year). According to Wesser,
interest accrued for a total of 365 days from the date of written notice of Wesser’s fire
claim (February 5, 2020) and until the appraisal award was issued (February 4, 2021).

3 The record does not disclose whether Wesser actually completed the repairs.
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State Farm refused to pay preaward interest on the appraisal award. State Farm
asserted that the Policy expressly provides that State Farm only owed Wesser interest if it
failed to pay Wesser the total amount due as set forth in the appraisal award within 5 days
of the award. Accordingly, because State Farm paid Wesser more than the actual cash
value for the loss (the total amount due to Wesser until he completed the repairs) before
the appraisal award was issued, State Farm maintained that there was no outstanding
amount upon which interest could accrue.
The Litigation
On March 19, 2021, Wesser filed a declaratory judgment action against State Farm
and demanded preaward interest from State Farm on the appraisal award based on
section 549.09. Both parties moved for summary judgment.
The district court examined the language of section 549.09, subd ivision 1(b). It
observed that the statute qualified its mandate that preaward interest on pecuniary damages
shall be computed from the time of a written notice of claim with the phrase “[e]xcept as
otherwise provided by contract.” Accordingly, the district court turned to the language in
the Policy. The district court read the Policy language that “[n]o interest accrues on the
loss until after the loss becomes payable” to “unambiguously preclude[] any interest until
the [loss] becomes payable.” Because the Policy, according to the district court, stated that
the loss is “payable after proof of loss and filing of the appraisal award,” the district court
concluded that “any interest that would attach before the award (‘preaward interest’) is
explicitly precluded by the [Policy] language.” Consequently, Wesser was not entitled to
preaward interest.
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The court of appeals reversed and remanded. Wesser v. State Farm Fire & Cas.
Co., No. A21-1587, 2022 WL 1920604, at *5 (Minn. App. June 6, 2022). The court of
appeals determined that the Policy language, “No interest accrues on the loss until after the
loss becomes payable,” was ambiguous because “the loss” had several meanings under the
Policy (actual cash value, replacement cost value, or repair cost value). Id. at *3. Because
the provision was ambiguous, the court reasoned, the ambiguity must be interpreted in
favor of the insured and, accordingly, the language did not preclude Wesser from
recovering preaward interest under section 549.09. Id. *3–4 (citing King’s Cove Marina,
LLC v. Lambert Com. Constr. LLC, 958 N.W.2d 310, 316 (Minn. 2021)).
The court of appeals also noted as additional support for its conclusion that in
Poehler v. Cincinnati Insurance Co. , 899 N.W.2d 135, 142 (Minn. 2017), we held
insurance policy language must “explicitly preclud[e]” preaward interest to avoid the
obligation to pay preaward interest under section 549.09, subdivision 1(b). Wesser, 2022
WL 1920604, at *4. Based on its conclusion that the no-interest-accrues -on-the-loss
language is ambiguous, the court of appeals decided that the Policy language was not
sufficiently “explicit.” Id. The court of appeals also stated that Minnesota’s standard fire
policy set forth in section 65A.01 did not apply because the Policy provided greater
coverage than the standard fire policy. Id. Accordingly, the court of appeals reversed
summary judgment for State Farm and remanded for computation of preaward interest and
entry of judgment for Wesser. Id. at *5.
We granted State Farm’s petition for review.

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ANALYSIS
This case comes to us from an order ruling on cross-motions for summary judgment
interpreting and applying a statute and an insurance policy contract. Our review is de novo.
Progressive Specialty Ins. Co. v. Widness ex rel. Widness, 635 N.W.2d 516, 518
(Minn. 2001) ( stating that we review interpretation of statutes de novo); Eng’g & Constr.
Innovations, Inc. v. L.H. Bolduc, Co., 825 N.W.2d 695, 704 (Minn. 2013) (“Interpretation
of an insurance policy, and whether a policy provides coverage in a particular situation, are
questions of law that we review de novo.”); St. Matthews Church of God & Christ v. State
Farm Fire & Cas. Co, 981 N.W.2d 760, 764 (Minn. 2022) (stating that we review summary
judgment rulings de novo).
A.
We start with section 549.09, subdivision 1(b), the statute governing the award of
preverdict, preaward, and prereport interest, which states in relevant part:
Except as otherwise provided by contract or allowed by law, preverdict,
preaward, or prereport interest on pecuniary damages shall be
computed . . . from the time of the commencement of the action or a demand
for arbitration, or the time of a written notice of claim, whichever occurs first,
except as provided herein.

Minn. Stat. § 549.09, subd. 1(b) (emphasis added).
This language is relevant here in two ways . First, although the quoted portion of
section 549.09, subdivision 1(b), does not expressly state that a person is entitled to
preverdict, preaward, or prereport interest on pecuniary damages, that conclusion is
implicit, especially in light of subsequent language in subdivision 1(b) stating that
preverdict, preaward, or prereport interest “shall not be awarded” on certain categories of
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awards and damages.4 Id. (emphasis added). And neither party disputes that conclusion.
Second, the language states when preverdict, preaward, or prereport interest begins to
accrue: the earliest of “the time of the commencement of the action or a demand for
arbitration, or the time of a written notice of claim.” Id.
We turn to the meaning of the proviso in section 549.09, subdivision 1(b): “Except
as otherwise provided by contract . . . .” Because subdivision 1(b) provides for two
things—the right to preverdict, preaward, or prereport interest and the timing of when such
preverdict, preaward, or prereport interest begins to run—the proviso means that the parties
to a contract (like an insurance policy) may state that a party is not entitled to preverdict,
preaward, or prereport interest at all or specify that such interest shall run from a different
time than that specified in the statute. If the contract so specifies, the party who obtained
a verdict or award is not entitled to preverdict, preaward, or prereport interest under

4 Section 549.09, subdivision 1(b), expressly defines the circumstances under which
preverdict, preaward, or prereport interest is not allowed:
Except as otherwise provided by contract or allowed by law, preverdict,
preaward, or prereport interest shall not be awarded on the following:
(1) judgments, awards, or benefits in workers’ compensation cases, but not
including third-party actions;
(2) judgments or awards for future damages;
(3) punitive damages, fines, or other damages that are noncompensatory in
nature;
(4) judgments or awards not in excess of the amount specified in
section 491A.01; and
(5) that portion of any verdict, award, or report which is founded upon
interest, or costs, disbursements, attorney fees, or other similar items added
by the court or arbitrator.
The exclusions suggest that preverdict, preaward, and prereport interest is to be awarded
when the other conditions of section 549.09, subdivision 1(b) are satisfied.
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section 549.09, subdivision 1(b), or is only entitled to preverdict, preaward, or prereport
interest from the time specified in the contract.
B.
With that understanding of section 549.09, subdivision 1(b), in mind, we assess
whether the Policy language that “[n]o interest accrues on the loss until after the loss
becomes payable” provides that Wesser is not entitled to preaward interest.
We generally interpret insurance policies like other contracts. Midwest Fam. Mut.
Ins. Co. v. Wolters, 831 N.W.2d 628, 636 (Minn. 2013). We construe the policy “as a
whole, and unambigu ous language must be given its plain and ordinary meaning.”
Henning Nelson Constr. Co. v. Fireman’s Fund Am. Life Ins. Co., 383 N.W.2d 645,
652 (Minn. 1986). “Language in an insurance policy is ambiguous if it is reasonably
susceptible to more than one interpretation.” King’s Cove Marina, LLC, 958 N.W.2d at
316 (citation omitted) (internal quotation marks omitted). If a policy provision is
ambiguous, we construe it in favor of the insured. See id.
The word “interest” in the Policy provision is not limited or qualified in any way.
This tells us that the parties’ agreement that “no interest accrues” until the time specified
in the contract applies broadly to all types of interest and does not exclude from its scope
any type of interest. In addition, the “no interest” provision plainly states that interest on
a loss only accrues when a loss becomes “payable.” The immediately preceding sentence
makes clear when “[l]oss will be payable” under the Policy: 5 business days after two
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things have occurred: (1) State Farm receive s Wesser’s proof of loss,5 and (2) the parties
reach an agreement on the amount of loss, final judgment is entered on the amount of loss,
or an appraisal award on the amount of loss is filed with State Farm. Accordingly, we
conclude that the only reasonable interpretation of the Policy provision is that no for m of
interest starts to accrue until 5 days after receipt of proof of loss and the loss amount is
ascertained by agreement, judgment, or appraisal award. Preaward interest under
section 549.09, subdivision 1(b), however, necessarily accrues during the time period
before an award is made. Therefore, Wesser is not entitled to statutory preaward interest
because, under the Policy, interest does not begin to accrue until after an appraisal award
is made.
Wesser argues that the provision “[n]o interest accrues on the loss until the loss
becomes payable” does not preclude preaward interest under section 549.09,
subdivision 1(b), because an award is different from a loss. In other words, Wesser argues
that to “otherwise provide” that statutory preaward interest does not apply, the contract
must specify that interest on the “award” does not accrue; it is not enough to say that
interest on the “loss” does not accrue.
We disagree. The statute authorizes interest on the pecuniary damages ultimately
awarded during a time period before the award (or verdict or report depending on the type
of case) is made. Damages are compensation for the loss suffered by the insured. The
“award” is simply the appraiser’s ultimate determination of the amount of the “loss” that

5 State Farm does not dispute that Wesser provided sufficient proof of loss.
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occurred (just as a verdict is a jury’s determination of the amount of the loss)—the amount
of compensation or damages to which the insured is entitled. The appraisal award is zero
if there is no loss. Preaward interest, then, is interest on the loss; there is nothing else it
could be.6
Our decision in Poehler does not compel a different result. In Poehler, we
considered an insurance policy that did not include any provision addressing interest; the
policy was silent on the issue. 899 N.W.2d at 142–43. In that context, we concluded that
the policy did not “explicitly prohibit” preaward interest and, accordingly, the insured
could recover interest in accordance with section 549.09, subdivision 1(b). Id. at 143. As
just discussed, the Policy between State Farm and Wesser spoke to and explicitly precluded
Wesser from recovering interest during the time before the appraisal award was issued.
The court of appeals concluded that the “no interest” provision was ambiguous
because the word “loss” in that provision was ambiguous. Wesser, 2022 WL 1920604,
at *3. The court of appeals found ambiguity because the Policy provides several ways that
the amount of the loss can be calculated depending on the circumstances. Id. For instance,
until the insured actually makes repairs, the Policy requires State Farm to pay the insured
for the actual cash value of the lost property (“the estimated cost to repair or replace such
property less a deduction to account for pre- loss depreciation”). But once the insured
completes repairs, State Farm must pay the insured the replacement cost value (the actual

6 The court of appeals also rejected Wesser’s argument that the loss under the Policy
is different from the “appraisal award.” Wesser, 2022 WL 1920604, at *4 n.2.
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cost to repair or replace the property with no deduction for depreciation). Here, the
appraisal panel determined both amounts.
In our view, the fact that the Policy provides for different loss calculations is
irrelevant to understanding the meaning of “loss” for purposes of the “no interest accrues”
provision. While the ultimate amount of th e loss may vary depending on whether the
insured completes the repair or replacement, that fact has nothing to do with answering the
questions of whether interest is owed on the loss (whatever its amount) and when interest
on the loss (whatever its amount) begins to accrue. Actual cash value and replacement cost
value—both measures of loss— are indistinguishable when it comes to resolving these two
questions. Wesser is either precluded from receiving preaward interest or he is not—the
answer is the same for either method of calculating the loss. And under the “no interest”
provision, interest on the loss starts to accrue at the same time —regardless of whether it
accrues on the actual cash value or replacement cost value. 7 Therefore, the fact that two
measures of loss may apply under the Policy do not make the word “loss” ambiguous in
the “no interest” provision.8

7 When interest on the loss starts to accrue under the Policy depends upon when proof
of loss is received and when the parties either reach an agreement, there is an entry of final
judgment, or when an appraisal award is filed. It does not depend upon the method used
to calculate loss.

8 On this point, State Farm’s reliance on Latterell v. Progressive Northern Insurance
Co., 801 N.W.2d 917 (Minn. 2011), is apt. In Latterell, the insured was in an automobile
accident while delivering books as a subcontractor. Id. at 919. His insurance contract with
Progressive had a business-use exclusion that stated that certain coverage was not available
“while using or occupying . . . [the vehicle] while being used to carry persons or property
for compensation or a fee.” Id. The insured “contend[ed] that the phrase ‘for compensation
or a fee’ [was] ambiguous because it may refer to a per-trip charge, a daily charge for use
14
Wesser also argues that State Farm cannot eliminate an insured’s right to preaward
interest because it is unconscionable. At the court of appeals, Wesser raised public policy
concerns regarding the elimination of preaward interest; however, those concerns are
separate from the specific legal issue of unconscionability. See Maslowski v. Prospect
Funding Partners LLC, 944 N.W.2d 235, 241 (Minn. 2020) (explaining that
unconscionability is a common-law defense). We conclude that Wesser forfeited his
unconscionability argument by not raising it at the district court, court of appeals, or in the
petition for review. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting that
appellate courts generally do not consider issues that were not presented to and considered
by the district court).
C.
Finally, Wesser contends that Minnesota’s standard fire policy, Minn. Stat.
§ 65A.01, precludes State Farm from denying preaward interest. We disagree. The

of the car, or a fixed hourly wage.” Id. at 920. We explained that the insured “mistakenly
equate[d] breadth with ambiguity; just because contractual language is broad does not
mean it is ambiguous. To the contrary, we have recognized that broad meanings in
insurance policies do not necessarily create ambiguity.” Id. at 921 (citation omitted)
(internal quotation marks omitted). In other words, the fact that “for compensation or a
fee” could refer to a wide variety of circumstances did not render the exclusion of coverage
when a vehicle is being used for compensation or fee ambiguous — the exclusion applied
whenever the vehicle owner carried a person or property for compensation or a fee,
whatever those words mean. A dispute over what constitutes carrying a person or property
for compensation or for a fee is different from a dispute over whether the insured is
obligated to provide coverage when an accident occurs while a vehicle owner is carrying a
person or property for compensation or a fee. So too here. A dispute over whether the
insurer is required to pay actual cash value or replacement cost value for a loss is different
from a dispute about whether the insured must pay preaward interest on that loss
(whichever value measure applies).
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standard fire policy requires that an insurer pay interest “from the time when the loss shall
become payable,” which, in a case involving an appraisal award, is 60 days after proof of
loss is received by the insurer and ascertainment of the loss is made by the filing of the
appraisal award with the insurer. Minn. Stat. § 65A.01, subd. 3; see Else v. Auto-Owners
Ins. Co., 980 N.W.2d 319, 326 (Minn. 2022) (explaining that the statutory term “award,”
in the context of the standard fire policy, refers to an appraisal award). The standard fire
policy does not contem plate interest accruing before the appraisal award is filed with the
insurer. Our decision on prejudgment interest in Else is not “analogous,” as Wesser
contends, because the insurer in Else had disclaimed all liability and there was no
ascertainment of the loss either by agreement or appraisal. See 980 N.W.2d at 329. Here,
in contrast, State Farm did not disclaim liability and engaged in the appraisal process to
resolve the parties’ dispute over the amount State Farm was obligated to pay Wesser for
his loss. Accordingly, we hold that section 65A.01 does not preclude State Farm from
denying Wesser preaward interest here.
9
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals.

Reversed.

9 Due to our resolution of the case, we need not reach the issue of whether, for the
period before repair or replacem ent is completed, preaward interest would be calculated
based on the actual cash value amount or the replacement cost value amount and we express
no opinion on the court of appeals’ resolution of that issue.