Distinctive Iron, LLC, Respondent,

This opinion is nonprecedential except as provided by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
A24-0355

Distinctive Iron, LLC,
Respondent,

vs.

Liberty Mutual Insurance Company, et al.,
Appellants,

vs.

Vulcraft Sales Corporation, et al.,
Respondents.

Filed April 7, 2025
Affirmed in part, reversed in part, and remanded
Smith, John, Judge*

Sherburne County District Court
File No. 71-CV-20-871

Kyle E. Hart, Richard G. Jensen, Alexander B. Athmann, Fabyanske, Westra, Hart &
Thomson, PA, Minneapolis, Minnesota (for respondent Distinctive Iron, LLC)

Janine M. Loetscher, Daniel R. Olson, Bryce D. Riddle, James C. Kovacs, Bassford
Remele, PA, Minneapolis, Minnesota (for appellants)

William A. Celebrezze, Goetz & Eckland, PA, Minneapolis, Minnesota (for respondent
Vulcraft Sales Corporation, et al.)

Considered and decided by Bjorkman, Presiding Judge; Bond, Judge; and Smith,
John, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We reverse the district court’s grant of summary judgment in favor of
respondent/cross-appellant Distinctive Iron, LLC and respondent Vulcraft Sales
Corporation because there are genuine issues of material fact that preclude summary
judgment and remand. Accordingly, we decline to address Distinctive’s claim for 18%
prejudgment interest.
We affirm the district court’s grant of summary judgment on the negligence claim
of appellant/cross-respondent RJM Construction, LLC against Vulcraft, commonly known
as the economic-loss doctrine, because the contract involved “the sale of goods between
merchants of goods of the kind, and the alleged damage is indisputably to the goods
themselves.”
We conclude that appellant/cross-respondent Liberty Mutual Insurance Company’s
surety defenses relating to whether it is required to pay Distinctive remain intact, but any
argument that Distinctive failed to comply with the statutory requirements of
Minn. Stat. § 574.31 (2024) fails.
FACTS
The City of Elk River (the city) began the Elk River Ice Arena Project in 2019 (the
project). The city hired RJM to manage the Project and the contractors and subcontractors
working on it. The city contracted with Distinctive to provide structural steel materials for
the project, which included steel joists and a roof deck. The city then assigned its rights
and obligations under the contract to RJM as the construction manager. The contract and
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bid provided that the steel joists would comply with: Section 05 2100 Steel Joist Framing,
Society for Protective Coatings Paint Specification No. 15 (SSPC-Paint 15), and Steel Joist
Institute (SJI) standards. Distinctive purchased the steel joists from Vulcraft. The purchase
agreement between Vulcraft and Distinctive provided that the joists, which were to be
shop-primed with a protective paint coating, would conform to the “Standard
Specifications of the Steel Joist Institute.” Vulcraft delivered the shop-primed joists to the
project site in mid-November 2019.
In late January 2020, the painting contractor for the project hired an inspector to
determine whether certain surfaces, including the shop-primed joists, were in an
appropriate condition to paint over. The painter’s inspector observed: that the steel joists
“had paint strings hanging from some of the bolted junctions and the film looked thick and
smeared in many spots”; debris in the paint film and under the paint surface; paint drips;
and paint that “was thick and not dry or cured in many spots,” which required additional
surface preparation work before the painter could paint the joists.
Following review of the inspector’s report, Vulcraft representative Nichole Zoz
went to the project site to see the joists. She and a colleague observed that “[t]here were
2-3 dozen places with excessive primer build up. We were able to pull off pieces of the
primer and it was like silly putty, not even close to being dry.” Zoz acknowledged that
while the painter was responsible for prepping the joists for painting, “these locations
seemed more than what a painter should anticipate for work.” Zoz stated that Vulcraft was
“trying to keep this project moving forward and avoid any delay back charges,” and would
get an estimate on touch-up costs for the uncured areas.
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Distinctive then hired Tim Williams to review the condition of the shop-primed
joists. Williams observed that the joists showed no signs of coating degradation or surface
rusting. He noted that the shop-primed coating was thicker than the manufacturer’s
specifications in some areas, ranging from 1.06 to 26 mils, with “areas of runs, drips and
sags,” but there were also “a number of areas which did not exhibit” excessive thickness
and had “a more uniform and intact primer coating.” Williams opined that the “areas of
inconsistent and excessive shop primer thicknesses . . . were most likely the result of poor-
quality workmanship exacerbated by a lack of proper” quality control oversight and
inspection.
In early February 2020, Zoz emailed Distinctive representatives objecting to
Vulcraft being charged for surface preparation, noting that Vulcraft complied with
subsections 2.01 and 2.03 of section 05 2100 and SSPC-Paint 15. Zoz noted that the
painting subcontractor was responsible for preparing the joists for painting. In March 2020,
RJM hired American Sandblasting to clean and prep the joists for painting. On March 16,
Distinctive, Vulcraft, and RJM met to discuss “any change order or back charge [that would
be] deducted from [Distinctive]’s contract” for the sandblasting. The parties did not reach
an agreement, and on March 23, RJM issued a deductive change order for costs related to
sandblasting, totaling $332,879, which Distinctive did not sign.
1
On May 21, a Vulcraft representative emailed a Distinctive representative objecting
to the March deductive change order and offering Distinctive $50,000 “as an in-good-faith

1 RJM issued a subsequent deductive change order for additional related costs of
$38,383.88 on August 4, 2020.
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measure.” The Vulcraft representative noted that if the offer was not accepted, “swift legal
action [would] follow.”
On July 1, 2020, Distinctive served an amended notice of claim on payment bond
for public work pursuant to Minn. Stat. § 574.31, on RJM, Liberty Mutual (RJM’s surety),
and the city, seeking $359,026.50 plus interest and legal fees. Following nonpayment, on
August 25, 2020, Distinctive sued RJM and Liberty Mutual alleging (1) breach of contract,
(2) payment bond foreclosure, (3) quantum meruit/unjust enrichment, and (4) promissory
estoppel. RJM counter-claimed with breach-of-contract and negligence claims. RJM and
Distinctive both filed third-party complaints against Vulcraft. Distinctive alleged claims
of indemnification or contribution, breach of contract, and quantum meruit/ unjust
enrichment. RJM alleged claims of negligence and contribution or indemnification.
Distinctive and Vulcraft moved for summary judgment and the district court held a
hearing on the motion on June 9, 2022. The district court granted summary judgment for
Vulcraft and partial summary judgment for Distinctive, dismissing: (1) all claims against
Vulcraft, including RJM’s negligence claim, Distinctive’s breach-of-contract claim, and
RJM and Distinctive’s contribution or indemnity claims ; (2) RJM’s counterclaims for
negligence and breach of contract against Distinctive; and (3) several of Liberty Mutual’s
affirmative surety defenses related to its claim that Distinctive “failed to establish a
‘[c]laim’ by failing to provide a copy of the applicable contract.”
The case went to trial on Distinctive’s claim for breach of contract against RJM;
Distinctive’s payment bond foreclosure claim against RJM and Liberty Mutual; RJM’s
affirmative defenses of waiver, estoppel, and laches; and damages. The jury returned a
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special verdict in favor of Distinctive and found that: RJM breached its contract with
Distinctive, which caused Distinctive damages; RJM would not be harmed if the contract’s
payment provisions were enforced; and RJM did not have a good-faith basis for failing to
pay Distinctive. The jury awarded Distinctive $357,743.68 in damages.
Distinctive requested that the district court award 18% prejudgment interest in
accordance with Minn. Stat. § 337.10, subd. 3 (2024). The district court determined that
neither Minn. Stat § 337.10, subd. 3, nor § 471.425, subd. 4a, were applicable to
Distinctive’s calculation of prejudgment interest because its services were not
“undisputed,” as required by both statutes.2 This appeal follows.
DECISION
I. The district court erroneously granted summary judgment on RJM’s breach-
of-contract claims, RJM’s indemnity or contribution claims against Vulcraft,
Distinctive’s indemnity or contribution claims against Vulcraft, and Liberty
Mutual’s surety defenses.

RJM makes several arguments relating to the district court’s grant of summary
judgment. It argues that the district court erred when it (1) failed to consider evidence
about whether the primer was supposed to remain on the joists long-term and whether the
primer was excessively thick and cured; (2) failed to view the facts in the light most
favorable to RJM as the nonmoving party; and (3) excluded certain evidence by RJM.
While these are each discrete arguments, the overarching issue is whether the district court

2 The district court’s subsequent order amending its May 2024 order did not affect its
determination that Minn. Stat. § 471.425, subd. 4a, was inapplicable to the circumstances
of this case.
7
erred in granting summary judgment. We conclude that the district court erred in granting
summary judgment on all claims except RJM’s negligence claim.
On appeal from summary judgment, appellate courts ask two questions: (1) whether
there are any genuine issues of material fact, and (2) whether the district court erred in
applying the law. J.E.B. v. Danks, 784 N.W.2d 741, 746 (Minn. 2010). “The question on
summary judgment is whether, when viewing the evidence in the light most favorable to
the nonmoving party, the [district] court can say that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Id. at 748. Appellate
courts review summary judgment decisions de novo, see Doe v. Archdiocese of St. Paul &
Minneapolis, 817 N.W.2d 150, 163 (Minn. 2012), and “must view the evidence in the light
most favorable to the party against whom judgment was granted,” J.E.B., 784 N.W.2d at
746. Appellate courts will affirm a grant of summary judgment if it can be sustained on
any ground but will reverse when the district court erred in concluding that there were no
disputed material facts. Id.
A. Breach-of-contract claims

The interpretation of a contract is a question of law that appellate courts review de
novo. Travertine v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004). “Under a
contract analysis, [appellate courts] first look to the language of the contract and examine
extrinsic evidence of intent only if the contract is ambiguous on its face.”
Hous. & Redev. Auth. of Chisholm v. Norman, 696 N.W.2d 329, 337 (Minn. 2005). “A
contract is ambiguous if, based upon its language alone, it is reasonably susceptible to more
than one interpretation.” Trebelhorn v. Agrawal, 905 N.W.2d 237, 242 (Minn. App. 2017)
8
(quoting Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn. 2003)). “In
interpreting a contract, the language is to be given its plain and ordinary meaning.”
Brookfield Trade Ctr., Inc. v. Cnty. of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998). But if
a contract is clear and unambiguous, “courts should not rewrite, modify, or limit its effect
by a strained construction.” Travertine, 683 N.W.2d at 271.
RJM argues that the district court failed to consider evidence it presented at
summary judgment that the primer was intended to remain on the joists long-term and that
the primer was “unacceptably excessive, thick, and uncured ,” in violation of Distinctive
and Vulcraft’s contractual obligations.
Specifically, RJM argues that the district court ignored expert testimony from Tim
Williams that Distinctive and Vulcraft failed to comply with the requirements of SSPC-
Paint 15 and the SJI standards. RJM also argues that the district court’s determination that
“the [manufacturer’s] data sheet does not identify a range of permitted primer thicknesses
or provide for a maximum thickness” contradicts both the manufacturer’s specification for
dry film thickness (DFT) in its data sheet and Williams’s testimony that the primer as-
applied “significantly exceeded” the acceptable thickness and ignores a genuine issue of
material fact. We agree with RJM that this evidence alone should have precluded summary
judgment because it raised genuine issues of material fact.
At issue on the breach-of-contract -claims is whether Vulcraft and Distinctive
fulfilled their contractual obligations. In its summary judgment order, the district court
determined that Distinctive and Vulcraft “were obligated to supply steel joists in
compliance with the SSPC-Paint 15 specification,” to apply one coat of primer, which was
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“intended to provide temporary protection to the steel joists during delivery, storage on
site, and erection . . . [and was] intended to be used as a holding primer that may or may
not be removed before or after erection or assembly.”
Notably, SSPC-Paint 15 provides in relevant part:
4.4 The dry film thickness of the primer shall be as recommended by the
manufacturer. If no recommendation is given, the dry film thickness shall
be a minimum of 20 micrometers (0.8 mils) unless indicated otherwise.

(Emphasis added.)
The joist primer manufacturer’s data sheet, under “technical data,” provides a coating
thickness range of “1.0 +/- 0.2 (0.8-1.2) mils DFT.”
The question at summary judgment was whether Distinctive and Vulcraft complied
with their contractual obligations, which include all the requirements of SSPC-Paint 15.
The district court concluded that the thickness identified in the manufacturer’s data sheet
was only a recommendation and characterized it as a “related guideline” that should be
“[i]nterpreted in the light of the function of the dip-applied primer” and in that light, “the
thickness and drainage requirements are intended as guidelines to ensure the effectiveness
of the primer as a temporary protective coating.” However, SSPC- Paint 15 is clear: the
DFT “shall be as recommended by the manufacturer.” (Emphasis added.) As the parties
conceded at oral argument, SSPC -Paint 15 is part of the relevant contracts between the
parties. Therefore, the manufacturer’s stated DFT range is incorporated into the contract.
The district court did not “view the facts in the light most favorable to the
nonmoving party” on the primer-thickness issue; instead, it interpreted the manufacturer’s
thickness specifications “in the light of the function of the dip-applied primer.” J.E.B., 785
10
N.W.2d at 748. The primer-thickness issue raises a genuine issue of material fact because
it is a contractual requirement. The evidence presented at summary judgment created a
fact issue as to whether Distinctive and Vulcraft complied with all of their contractual
obligations. Therefore, the district court erred when it granted summary judgment on the
breach-of-contract claims.
B. RJM’s negligence claim against Vulcraft3

The district court dismissed RJM’s negligence claim against Vulcraft on summary
judgment, reasoning that the claim was barred by Minn. Stat. § 604.101 (2024), which is
commonly known as the economic-loss doctrine. The district court reasoned that, because
the contract involved “the sale of goods between merchants of goods of the kind, and the
alleged damage is indisputably to the goods themselves” as opposed to other tangible
property, RJM’s claim was barred by the economic-loss doctrine. We agree, and therefore
decline to address RJM’s argument that Vulcraft had an independent duty to exercise
reasonable care in supplying and shop-priming the joists for the project.
The economic-loss doctrine “applies to any claim by a buyer against a seller for
harm caused by a defect in the goods sold or leased, or for a misrepresentation relating to
the goods sold or leased [] regardless of whether the seller and the buyer were in privity.”
Minn. Stat. § 604.101, subd. 2(1). The statute defines a product defect tort claim as “a

3 RJM also advanced a negligence claim against Distinctive before the district court. The
district court seemingly did not decide this claim on summary judgment, and it does not
appear that it proceeded to trial. However, RJM did not brief this issue on appeal, and we
therefore decline to address it. State Dep’t of Lab. & Indus. v. Wintz Parcel Drivers, Inc.,
558 N.W.2d 480, 480 (Minn. 1997).
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common law tort claim for damages caused by a defect in the goods.” Id., subd. 1(e). On
product defect claims, “[a] buyer may not bring a product defect tort claim against a seller
for compensatory damages unless a defect in the goods sold or leased caused harm to the
buyer’s tangible personal property other than the goods or to the buyer’s real property.”
Id., subd. 3 (emphases added).
Under their contract, Vulcraft would provide Distinctive with shop-primed steel
joists for the project. Because the economic-loss doctrine does not require privity, the fact
that RJM and Vulcraft were not in privity with each other and instead had a relationship
based on each party’s separate contracts with Distinctive does not prevent this doctrine
from applying. Minn. Stat. § 604.101, subd . 2(1). In its complaint, RJM alleged that
“among other things,” Vulcraft breached its duties by “providing defective materials and/or
applying excess, uncured, and otherwise inadequate primer on the joists.” RJM alleged
that Vulcraft’s breach caused RJM damages in excess of $50,000 “which include, but are
not limited to, the costs of corrective work and investigation and testing fees.”
4 RJM’s
complaint does not allege harm to tangible personal property or real property. The district

4 RJM relies on this court’s decision in Village Homes of Grandview Square II Ass’n v.
R.E.C., Inc., to support its argument that the economic-loss doctrine does not apply. No.
A19-1681, 2020 WL 4432818, at *9 (Minn. App. 2020); see Minn. R. Civ. App. P. 136.01,
subd. 1(c) (“Nonprecedential opinions . . . are not binding authority [but] . . . may be cited
as persuasive authority.”). Village Homes is not persuasive because the negligence claim
at issue was neither a product defect claim nor a misrepresentation claim; here, however,
RJM’s negligence claim is in fact a product-defect claim because, as evidenced by RJM’s
complaint, it alleged damages from defective materials provided by Vulcraft.
Village Homes, 2020 WL 4432818, at *9. Therefore, RJM’s reliance on Village Homes is
misplaced.
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court therefore correctly determined that the economic-loss doctrine applies and bars
RJM’s negligence claim.
C. Contribution and indemnity claims

Because the district court erroneously granted summary judgment on RJM’s breach-
of-contract claims, its dismissal of both RJM and Distinctive’s contribution or indemnity
claims on the basis that Vulcraft and Distinctive complied with their respective contracts
was erroneous because there is a genuine issue of material fact as to whether the companies
did in fact comply with their contractual obligations.
D. Distinctive’s quantum meruit/unjust enrichment claims

While the district court ultimately dismissed all claims against Vulcraft, it did not
specifically address Distinctive’s quantum meruit/unjust enrichment claims against
Vulcraft. However, none of the parties raise this issue on appeal and appellate courts
generally do not address issues that the parties have not adequately briefed. Wintz Parcel
Drivers, Inc., 558 N.W.2d at 480. We therefore decline to address the issue. Id.
E. Exclusion of evidence

RJM and Liberty Mutual argue that the district court erred when it excluded the
following evidence at summary judgment: (1) the declaration of RJM’s vice president-
community Brad Barickman; (2) the declaration of 292 architect Tom Betti; (3) and
evidence of Vulcraft and Distinctive’s offers to pay for joist remediation.
Because the district court erroneously granted summary judgment on multiple
claims, we decline to decide whether it also erred in excluding this evidence, as it will need
to reevaluate its admissibility on remand given the genuine issues of material fact.
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F. Liberty Mutual’s surety defenses

RJM and Liberty Mutual argue that the district court erred when it determined that
Distinctive met the surety bond requirements because “there was no valid bond claim
because no payment was due to Distinctive.” Liberty Mutual’s surety defenses relating to
whether it is required to pay Distinctive remain intact because the payment amount is
disputed. A ny argument that appellants make regarding Distinctive’s failure to comply
with the statutory requirements of Minn. Stat. § 574.31 fails as a matter of law because the
record reflects that Distinctive served its bond claim on Liberty Mutual, RJM, and the city
within 120 days of its last day of work; complied with the statutory format requirements;
and brought an action to enforce the bond claim within one year after its last day of work.
G. Claims tried by jury trial
The issues that continued to a jury trial were Distinctive’s breach-of-contract claim
against RJM, Distinctive’s payment bond foreclosure claim against RJM and Liberty
Mutual, RJM’s affirmative defenses, and damages. Because RJM’s breach-of-contract
claim directly conflicts with Distinctive’s breach-of-contract claim, and the outcome of the
breach-of-contract claims implicate the indemnity or contribution claims, we must reverse
and remand for a new trial.
Affirmed in part, reversed in part, and remanded.