This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A13-2284

Lowell Tietz,

Appellant,

vs.

United Rentals (North America), Inc.,

Respondent,

General Equipment Company, et al.,

Defendants.

Filed July 21, 2014

Affirmed

Reilly, Judge

Ramsey County District Court

File No. 62-CV-12-7014

Dominique J. Navarro, Larry B. Stevens, Larry B. Stevens & Associate, Roseville, 

Minnesota (for appellant)

Michael S. Ryan, Christian A. Brandt, Murnane Brandt, St. Paul, Minnesota (for 

respondent)

Considered and decided by Worke, Presiding Judge; Stauber, Judge; and Reilly, 

Judge. 

U N P U B L I S H E D O P I N I O N

REILLY, Judge

Appellant general contractor brought action against respondent equipmentsupplier asserting claims for negligence, failure to warn, and res ipsa loquitur. The 
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district court granted respondent’s motion for declaratory judgment against appellant, 

concluding that the rental agreement did not constitute a “building and construction 

contract” under chapter 337. We affirm. 

FACTS

The present action arises out of personal injuries sustained by appellant Lowell 

Tietz caused by equipment rented from respondent United Rentals (North America), Inc. 

Appellant was a carpenter working in residential construction and home improvement. In 

June 2009, appellant agreed to remove a deck from the back of his neighbor’s house and 

rebuild a larger one in its place. Appellant was the general contractor on the job and had 

two employees working for him. On June 8, appellant entered into a rental agreement 

with respondent for a skid steer loader, a bucket, a skid steer auger power unit, and an 18-

inch skid steer auger bit. The equipment was scheduled to be delivered to appellant’s 

residence in Roseville on June 9 and returned on June 10. 

The agreement contained a number of provisions related to indemnification and 

insurance as follows:

INDEMNITY/HOLD HARMLESS. TO THE FULLEST 

EXTENT PERMITTED BY LAW, CUSTOMER AGREES 

TO INDEMNIFY, DEFEND AND HOLD UNITED 

HARMLESS FROM AND AGAINST ANY AND ALL 

LIABILITY, CLAIM, LOSS, DAMAGE OR COSTS 

(INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ 

FEES, LOSS OF PROFIT, BUSINESS INTERRUPTION OR 

OTHER SPECIAL OR CONSEQUENTIAL DAMAGES, 

DAMAGES RELATING TO BODILY INJURY, 

DAMAGES RELATING TO WRONGFUL DEATH) 

CAUSED BY OR IN ANY WAY ARISING OUT OF OR 

RELATED TO THE OPERATION, USE, MAINTENANCE, 

INSTRUCTION, POSSESSION, TRANSPORTATION, 
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OWNERSHIP OR RENTAL OF THE EQUIPMENT, 

INCLUDING, BUT NOT LIMITED TO, WHENEVER

SUCH LIABILITY, CLAIM, LOSS, DAMAGE OR COST 

IS FOUNDED, IN WHOLE OR IN PART, UPON ANY 

NEGLIGENT OR GROSSLY NEGLIGENT ACT OR 

OMISSION OF UNITED OR THE PROVISION OF ANY 

ALLEGEDLY DEFECTIVE PRODUCT BY UNITED. 

THIS INDEMNITY PROVISION APPLIES TO ANY 

CLAIMS ASSERTED AGAINST UNITED BASED UPON 

STRICT OR PRODUCT LIABILITY CAUSES OF 

ACTION, BREACH OF WARRANTY OR UNDER ANY 

OTHER THEORY OF LAW. 

. . . 

LIMITATION OF LIABILITY. In no event shall United be 

responsible to Customer or any other party for any loss, 

damage or injury caused by, resulting from or in any way 

connected with the Equipment, its operation or its use, 

United’s failure to deliver the Equipment as required 

hereunder, or United’s failure to repair or replace nonworking Equipment. Customer acknowledges and assumes 

all risks inherent in the operation, use and possession of the 

Equipment from the time the Equipment is delivered to 

Customer until the Equipment is returned to United and will 

take all necessary precautions to protect all persons and 

property from injury or damage from the Equipment. 

. . . 

CUSTOMER’S INSURANCE COVERAGE. Customer 

agrees to maintain and carry, at its sole cost, adequate 

liability, physical damage, public liability, property damage 

and casualty insurance for the full replacement cost of the 

Equipment, including, but not limited to all risks of loss or 

damage covered by the standard extended coverage 

endorsement, to cover any damage or liability arising from 

the handling, transportation, maintenance, operation, 

possession or use of the Equipment during the entire Rental 

Period. When requested, Customer shall supply to United 

proof of such insurance by Certificate of Insurance clearly 

setting forth the coverage for the equipment and naming 

United as loss payee and additional insured; such insurance 
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and evidence thereof to be in amounts and form satisfactory 

to United. The Certificate of Insurance and policy shall 

provide that United shall receive not less than 30 days’ notice 

prior to any cancellation of the insurance required hereunder. 

Appellant executed the agreement on June 8. On June 9, respondent’s employee 

delivered the equipment to appellant in accordance with the terms of the agreement. The 

equipment had been loaded on a roll-back flatbed truck. The auger power unit was 

loaded toward the front of the flatbed, and the skid steer with bucket attached and auger 

bit were loaded toward the back of the flatbed. Respondent delivered the equipment to 

appellant’s address and unloaded it alongside the curb in front of his house. The skid 

steer was unloaded first, with attached bucket and auger bit in the bucket. The auger 

power unit was unloaded last. In the process of unloading the auger power unit, the 

mounting plates on the front of the skid steer were maneuvered into position under the 

mounting brackets of the auger power unit and lifted off the flatbed. During this 

unloading process, respondent’s employee stated that he did not push the two latch 

handles down or engage the pins in the slots on the back of the auger power unit because 

he did not know which attachment—the bucket or the auger power unit—appellant 

intended to use on the job first. The two latches were in the up position when 

respondent’s employee left the job site. Appellant did not recall whether the latches were 

secured or not, but one of his employees testified that the latches were in the down 

(secured) position. Before beginning work, one of appellant’s employees testified that he 

shook the equipment to ensure it was properly assembled and secured. The employee 

repeated this process again just before appellant was injured. 
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At the time of the delivery, an operator’s manual for the skid steer was in the 

compartment immediately behind the operator’s seat. A skid steer safety manual was 

also on the skid steer in a pocket compartment immediately to the right of the operator’s 

seat. Both manuals provided instructions for the safe use of the attachment mounting 

system. Appellant did not remember receiving or reviewing these manuals. The auger 

power unit also carried a warning label that stated in bold letters: !DANGER—STAY 10 

FEET FROM AUGER. 

Appellant remained outside near respondent’s truck and watched the unloading 

operation. Respondent demonstrated for appellant how to connect the hydraulic hoses of 

the auger power unit to the skid steer. Before leaving, respondent asked appellant to 

review the equipment and sign the rental agreement and the skid steer quality condition 

report. In the quality condition report, appellant acknowledged that he understood the 

correct operation and function of the controls and that he received adequate instruction to 

operate the equipment safely. 

Appellant began to connect the auger bit to the unit. When the equipment was 

started, the auger came off the rig and struck appellant on the side of his face, neck, and 

scalp. As a result, appellant suffered injuries including vocal cord paralysis, nose 

deviation and nasal problems, left vertebral artery damage, eye and vision problems, 

facial nerve damage, and permanent scarring, among others. 

Appellant initiated suit by serving a complaint against respondent, General 

Equipment Company, and Deere & Company, Inc., asserting in relevant part claims for 

negligence, failure to warn, and res ipsa loquitur. Respondent asserted a counterclaim 
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seeking declaratory relief for contractual indemnity and later filed a motion for summary 

judgment. The district court granted summary judgment on the res ipsa loquitur claim, 

denied summary judgment on the negligence and failure-to-warn claims, and granted the 

motion for declaratory judgment with respect to indemnification. 

In its factual findings, the district court determined that the auger came off the unit

because it was not properly attached. Appellant admitted that if he had conducted a 

proper investigation of the equipment before starting to work, the accident would not 

have happened. The district court found that appellant had not received training with 

respect to the operation of the equipment and did not know how to operate the equipment 

or secure the attachments. The district court further found that appellant was standing 

within ten feet of the auger at the time the accident occurred. The district court rejected 

appellant’s argument that the rental agreement was a building and construction contract 

and determined that the rental agreement was “an agreement to rent equipment.” The 

district court continued that, “[e]ven if it were deemed a building and construction 

contract, under Minn. Stat. Sec. 337.05, [appellant] must still indemnify [respondent] 

based upon the indemnification provision in the rental contract.” The district court 

concluded its analysis as follows: “Under common law, then, [appellant] is obligated to 

indemnify [respondent] because: (1) The agreement is a valid contract; (2) The 

indemnification provision applies to the claims alleged; and (3) The agreement is not 

against public policy.” This interlocutory appeal of the declaratory judgment portion of 

the order followed.
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D E C I S I O N

Rule 56 of the Minnesota Rules of Civil Procedure is 

designed to implement the stated purpose of the rules—

securing a just, speedy, and inexpensive determination of an 

action—by allowing a court to dispose of an action on the 

merits if there is no genuine dispute regarding the material 

facts and, a party is entitled to judgment under the law 

applicable to such facts.

DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). Accordingly, summary judgment is 

appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. 

Civ. P. 56.03. On appeal, the reviewing court applies a de novo standard of review to a 

grant of summary judgment. Kratzer v. Welsh Cos., LLC, 771 N.W.2d 14, 18 (Minn. 

2009). The evidence is viewed in the light most favorable to the party against whom 

judgment was granted. Id. “The judgment will be affirmed, however, if no genuine 

issues of material fact exist and if the court below properly applied the law.” Id. Even if 

an appellate court disagrees with the district court’s analysis of some issues, “summary 

judgment will be affirmed if it can be sustained on any grounds.” Allianz Ins. Co. v. PM 

Servs. of Eden Prairie, Inc., 691 N.W.2d 79, 82-83 (Minn. App. 2005). 

Indemnification provisions are construed narrowly and are generally not favored 

under Minnesota law. See Nat’l Hydro Sys., a Div. of McNish Corp. v. M.A. Mortenson 

Co., 529 N.W.2d 690, 694 (Minn. 1995) (holding that, absent certain exceptions, 

“[a]greements seeking to indemnify the indemnitee for losses occasioned by its own 

negligence are not favored by the law and are not construed in favor of indemnification”). 
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Indeed, “[a]n indemnification agreement contained in, or executed in connection with, a 

building and construction contract” is generally unenforceable. Minn. Stat. § 337.02 

(2012). Minnesota law recognizes an exception to this rule to the extent that “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.” Id. 

Appellant argues that because the rental agreement was executed in connection 

with a building and construction contract, the indemnification provision contained therein 

is statutorily unenforceable. The district court rejected appellant’s argument, concluding:

It is clear that is not the case. A building and construction 

contract, as defined by statute is a contract for the design, 

construction, alteration, improvement, repair or maintenance 

of real property, highways, roads or bridges. This was nothing 

of the sort: it was an agreement to rent equipment.

Determining whether the parties’ agreement for the rental of equipment arose “in 

connection with” a business and construction contract under chapter 337 ultimately turns 

on a question of statutory interpretation. Statutory interpretation presents a question of 

law reviewed on a de novo basis. Hoekstra v. Comm’r of Pub. Safety, 839 N.W.2d 536, 

540 (Minn. App. 2013). “The object of all interpretation and construction of laws is to 

ascertain and effectuate the intention of the legislature.” Minn. Stat. § 645.16 (2012). 

The plain language of a statute is the “touchstone” of statutory interpretation. ILHC of 

Eagan, LLC v. Cnty. of Dakota, 693 N.W.2d 412, 419 (Minn. 2005). Thus, where the 

statutory language is “clear, explicit, unambiguous, and free from obscurity, courts are 

bound to expound the language according to the common sense and ordinary meaning of 
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the words.” Krueger v. Zeman Const. Co., 758 N.W.2d 881, 885 (Minn. App. 2008),

aff’d, 781 N.W.2d 858 (Minn. 2010) (citations omitted); Minn. Stat. § 645.08(1) 

(“[W]ords and phrases are construed according to rules of grammar and according to 

their common and approved usage[.]”). “When a statute’s meaning is plain from its 

language as applied to the facts of the particular case, a judicial construction is not 

necessary.” ILHC of Eagan, LLC, 693 N.W.2d at 419. When possible, a law should be 

construed “to give effect to all its provisions,” Minn. Stat. § 645.16 (2012), and “no 

word, phrase, or sentence should be deemed superfluous, void, or insignificant.” ILHC of 

Eagan, LLC, 693 N.W.2d at 419. 

The Minnesota statute invoked in this case defines a “building and construction 

contract” as:

a contract for the design, construction, alteration, 

improvement, repair or maintenance of real property, 

highways, roads or bridges. The term does not include 

contracts for the maintenance or repair of machinery, 

equipment or other such devices used as part of a 

manufacturing, converting or other production process, 

including electric, gas, steam, and telephone utility equipment 

used for production, transmission, or distribution purposes.

Minn. Stat. § 337.01, subd. 2 (2012). 

The court is presented with two separate agreements in this case: an oral contract 

between a nonparty homeowner and appellant for the construction of a residential deck, 

and a written contract between appellant and respondent for the rental of equipment. 

Appellant contends that the rental of the skid loader, auger, and related equipment was 

done “in connection with” the oral building contract and therefore qualifies as a building 
10

and construction contract under a broad reading of the statute. However, appellant has 

not cited to any persuasive authority to support this position. Chapter 337 generally 

applies to construction-industry projects. Target Corp. v. All Jersey Janitorial Serv., Inc., 

916 F. Supp. 2d 909, 913 (D. Minn. 2013). Indeed, appellate-court analysis of section 

337.02 has mainly arisen in contracts between general contractors, subcontractors, and 

their employees. See, e.g., Katzner v. Kelleher Constr., 545 N.W.2d 378 (Minn. 1996) 

(analyzing Minn. Stat. §§ 337.02, 337.05 in context of construction contract between 

designer/builder of construction project and its contractors); Van Vickle v. C. W. Scheurer 

& Sons, Inc., 556 N.W.2d 238 (Minn. App. 1996) (performing chapter 337 analysis on 

subcontract agreement between general contractor and subcontractor for expansion and 

renovation of university library); Holmes v. Watson-Forsberg Co., 488 N.W.2d 473 

(Minn. 1992) (involving injuries sustained by subcontractor’s employee while engaged in 

roofing activity at construction site).

Appellant argues that the equipment rental contract and its attendant indemnity 

provision was executed “in connection with” a building and construction contract. 

Appellant’s argument is strained. Appellant does not cite to any binding Minnesota 

caselaw or statutory authority extending “building and construction” contracts to 

encompass an agreement between a party to a construction contract and a remote 

nonparty for the rental of equipment. The legislature could have included rental 

equipment in its definition of a building and construction contract if that had been its 

intent. See Minn. Stat. § 337.01, subd. 2. As drafted, however, the statute does not apply 

under these circumstances and this court “cannot add language that is not present in the 
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statute or supply what the legislature purposely omits or inadvertently overlooks.” 

Semler v. Klang, 743 N.W.2d 273, 280 (Minn. App. 2007), review denied (Minn. 

Feb. 19, 2008). We decline to broaden existing law to the extent appellant suggests. The 

district court did not err in determining that the agreement for rental equipment was not a 

“building and construction contract” as that term is defined by Minn. Stat. § 337.01.

Affirmed.