Shardlow Townhomes Association, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1264

Shardlow Townhomes Association,
Respondent,

vs.

Midwest Family Mutual Insurance Company,
Appellant.

Filed April 10, 2023
Affirmed
Bryan, Judge

Olmsted County District Court
File No. 55-CV-22-967

Justice Ericson Lindell, Greenstein Sellers PLLC, Minneapolis, Minnesota (for
respondent)

Mark R. Bradford, Mark D. Covin, James C. Kovacs, Bassford Remele P.A., Minneapolis,
Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Segal, Chief Judge; and
Bryan, Judge.
SYLLABU S
A property loss notic e generated by a third-party insurance agent at the insured’s
direction and on the insured’s behalf constitutes a “written notice of claim” sufficient to
start the accrual of preaward interest under Minnesota Statutes section 549.09, subdivision
1(b) (2022).
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OPINION
BRYAN, Judge
In this insurance -coverage appeal, appellant-insurer argues that the district court
erred in granting summary judgment to respondent -insured when it concluded that a
property loss notice generated by a third -party insurance agen cy was a “written notice of
claim” for purposes of com puting preaward interest under Minnesota Statutes section
549.09, subdivision 1(b). Because the property loss notice was sent to the insurer by a
third-party insurance agen cy at the insured ’s direction and on the insured’s behalf , we
affirm.
FACTS
The par ties do not dispute the following relevant facts . Respondent Shardlow
Townhomes Association (Shardlow) obtained an insurance policy from appellant Midwest
Family Mutual Insurance Company (Midwest Family) through the WA Group, an
independent agency that se lls insurance for various insurance companies. In June 2019,
Shardlow’s properties suffered hail and wind damage from a storm. Shardlow reported the
damage to the WA Group. On July 26, 2019, S.E., a claim specialist with the WA Group,
generated a “property loss notice” regarding Shardlow’s claim and submitted it to Midwest
Family. The property loss notice contained Shardlow’s policy number and contact
information for both S.E. and Shardlow’s property manager. It also contained a brief
“description of l oss & damage”: “Hail and wind damaged building roofs, fascia, siding.
Damage to ALL BUILDINGS in association. Insured had a contractor inspect for damage
after storm. Contractor cited damage to roofing, siding, fascia, [indiscernible].” The notice
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also indicated that Shardlow ’s property manager had reported the damage to S.E. In a
subsequent email, S.E. informed Shardlow’s property manager the property loss notice was
submitted to Midwest Family , and S.E. offered to “call the insurance company on
[Shardlow’s] behalf” if Shardlow did not hear back from an adjuster promptly.
On July 29, 2019, a senior claim representative from Midwest Family sent Shardlow
a letter “acknowledg[ing] receipt of a notice of claim” and providing a claim number.
Midwest Family then retained an engineer to evaluate the damage. Based on the engineer’s
report, Midwest Family generated a repair estimate and paid Shardlow $108,498.70.
Shardlow engaged a n adjuster and disputed the amount of the loss , claiming $820,901.18
in a “sworn statement in proof of loss” sent to Midwest Family on October 7, 2020. The
parties eventually participated in an appraisal, and in 2021, Midwest Family paid Shardlow
$620,128—the replacement cost value of the loss as determined by the appraisal pan el.
The parties disagreed on the amount of preaward interest due. In February 2022,
Shardlow initiated this lawsuit, seeking a declaratory judgment that it was entitled to
preaward interest beginning July 26, 2019—the date that S.E. submitted the property loss
notice to Midwest Family. Midwest Family agreed that Shardlow was entitled to preaward
interest but argued that the interest accrued beginning October 7, 2020—the date that
Shardlow sent Midwest Family its sworn proof of loss. Thus, Shardlow sought
$100,199.19 in preaward interest, while Midwest Family believed the proper amount was
$34,313.24. The parties brought cross motions for summary judgment, and the district
court granted summary judgment in favor of Shardlow. Midwest Family appeals .

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ISSUE
Does a property loss notice sent to the insurer by a third-party insurance agency at
the insured’s direction constitute a “written notice of claim” under Minnesota Statutes
section 549.09, subdivision 1(b)?

ANALYSIS
The issue presented requires this cou rt to apply section 549.09 in light of a recent
precedential decision, Elm Creek Courthome Ass’n, Inc. v. State Farm Fire & Cas. Co.,
971 N.W.2d 731 (Minn. App. 2022) , rev. denied (Minn. May 17, 2022). Midwest Family
argues that under the holding in Elm Creek, only the claimant can submit a written notice
of claim within the meaning of section 549.09. Applying that interpretation of Elm Creek
to this case, Midwest Family urges us to conclude that the co rrect date for purposes of
determining preaward interest is October 7, 2020, because the July 26, 2019 property loss
notice was sent by a third -party insurance agency , not Shardlow. We conclude that this
argument overstates the holding in Elm Creek and affirm the district court. 1

1 To the extent that portions of Midwest Family’s brief can be construed as a separate
challenge to the sufficiency of the notice provided in the July 26, 2019 property loss notice,
we remain unpersuaded to reverse. The July 26, 2019 property loss notice s atisfies the
sufficiency requirements established in Blehr v. Anderson, 955 N.W.2d 613, 618-22 (Minn.
App. 2021), and applied in Elm Creek. Although the July 26, 2019 property loss notice
did not contain a formal demand for a specific amount of money, the notice need not do so
to satisfy section 549.09. Blehr, 955 N.W.2d at 622. The July 26, 2019 notice notified
Midwest Family that Shardlow had suffered a loss and would be making a claim, permitting
Midwest Family “to determine its potential liability fr om a generally recognized objective
standard of measurement.” Blehr, 955 N.W.2d at 622 (quotation omitted).
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Subdivision 1(b) of section 549.09 provides that preaward interest “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 f irst.” Under this section, the
party requesting preaward interest bears the burden of proving it is entitled to that interest.
Elm Creek, 971 N.W.2d at 741 n.7. We apply a de novo standard of review to a decision
on summary judgment when the facts are undisputed. E.g., Caldas v. Affordable Granite
& Stone, Inc., 820 N.W.2d 826, 838 (Minn. 2012); see also Elm Creek, 971 N.W.2d at 739
(“Preaward interest decisions are reviewed de novo.” (quotation omitted)) .
In Elm Creek, this court addressed the issue of who m ay send an effective written
notice of claim under the preaward interest statute . 971 N.W.2d at 739- 41. In that case,
upon learning of the insured’s loss, the insurer internally generated a “notice-of-loss report”
and sent it to the insured. Id. at 735. The insured argued that this report was a written
notice of claim sufficient to commence the accrual of preaward interest. Id. at 740. Our
opinion addre ssed “whether a notice -of-loss report generated solely by an insurer
constitutes a written notice of claim by the insured.” Id. This court held that it does not,
reasoning that “a party responsible for issuing payment cannot announce a demand for
payment to the party making the claim,” and that the insurer’s report was “simply
acknowledging the initiation of a claim under its own insurance policy.” Id. at 740-41.
Midwest Family’s argument relies on a portion of the Elm Creek opinion in which
this court stated that “only the claimant may demand payment from the noticed party under
the plain meaning of written notice of claim. [Section 539.09] requires a written notice be
sent from the claimant to the party from whom the claimant is demanding payment.” Id.
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at 740 (quotation marks omitted). Midwest Family maintains that this statement means
that only Shardlow may send a valid written notice of claim. However, this does not
accurately capture the reasoning in the Elm Creek decision. As noted above, this court
identified the specific issue in Elm Creek as whether a form generated solely by an insurer
can constitute a writ ten notice of claim to an insurer . 971 N.W.2d at 740. We did not
identify the question presented in terms that focused on the claimant, and the holding in
Elm Creek is properly limited by the facts of that case. More substantively, the Elm Creek
holding relied on a discussion of the purpose of a written notice of claim: to put the insurer
“reasonably on notice that the injured party was making a claim .” Id. at 740 (quotation
omitted). Based on that discussion, this court concluded that a self-generated form cannot
constitute notice because a party cannot notify itself of a claim. Elm Creek , 971 N.W.2d
at 740-41.
We decline to extend Elm Creek in the manner requested by Midwest Family. Given
the narrow issue presented, the particular facts, and the reasoning undertaken, the holding
in Elm Creek is properly construed as concerning a self-generated statement of loss and is
limited to those circumstances. It does not contemplate a notice generated by a third party
or an insurance agency, as in this case.2 Importantly, S.E. explained to Shardlow’s property
manager that S.E. submitted the property loss notice to Midwest Family and offered to

2 We note that Midwest Family does not dispute that the WA Group was not acting as a
representative of Midwest Family when S.E. submitted the prope rty loss notice. The
parties, however, do dispute whether under agency law, S.E. was an “agent” of Shardlow.
We need not address this issue because under the Elm Creek holding, it is sufficient to
conclude that neither S.E. nor the WA Group was acting as an agent of Midwest Family.
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contact Midwest Family on Shardlow’s behalf to discuss the claimed loss. We also observe
that, after receiving the property loss notice from the WA Group, Midwest Family
responded directly to Shardlow ,3 acknowledging “receipt of a notice of claim” and
providing a claim number. For these reasons, Elm Creek does not compel reversal, and the
July 26, 2019 property loss notice constitutes a written notice of claim under section
549.09, subdivision 1(b).
DECISION
The property loss notice in this case was not self-generated by Midwest Family, was
sent to Midwest Family at Shardlow’s direction, and was sufficient to apprise Midwest
Family of its liability. Thus, the July 26, 2019 notice sent by the WA Group to Midwest
Family was a written notice of claim for purposes of starting accrual of preaward interest.
Affirmed.

3 How an insurer responds to a purported notice is not necessarily dispositive of whether a
written notice of claim was provided, and such a holding could “discourage insurers from
communicating with their insureds.” See Elm Creek, 971 N.W.2d at 741. However, the
undisputed fact that Midwest Family responded by contacting the claimant directly and
acknowledging “receipt of notice of claim” supports our conclusion that the July 26, 2019
notice was submitted on Shardlow’s behalf.