United States Court of Appeals

For the Eighth Circuit

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No. 13-1289

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Bradley Larson

lllllllllllllllllllll Plaintiff - Appellant

v.

Nationwide Agribusiness Insurance Company

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: November 20, 2013

Filed: January 15, 2014

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Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.

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RILEY, Chief Judge.

BradleyLarson appeals the district court’s adverse grant ofsummary judgment

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respecting the timeliness of his lawsuit against Nationwide Agribusiness Insurance

The Honorable Richard H. Kyle, United States District Judge for the District 1

of Minnesota.
Company (Nationwide) seeking coverage under Larson’s employer’s underinsured

motorist (UIM) policy with Nationwide. We affirm. 2

I. BACKGROUND

A. Collision and Underlying Lawsuit

On May 9, 2007, Robert Thompson was hauling liquid fertilizer in rural

southern Minnesota when he drove over railroad tracks. Shortly after clearing the

tracks, Thompson checked the containment tank in his mirror and noticed it was

leaking fertilizer. Thompson then stopped his truck and called Timothy Gudal,

Thompson’s employer and the truck’s owner, who arranged to have county employees

spread sand over the fertilizer and place warning flags at both ends of the spill.

Later that day, Larson was driving a grain truck for his employer, Farmers

Cooperative Company (Farmers). Larson approached the same railroad tracks from

the opposite direction Thompson had been traveling and at the same time a train

approached the crossing. As Larson passed over the stretch of road covered by

fertilizer and sand, he was unable to stop before colliding with the train.

On May 5, 2009, Larson served Thompson with a state court summons and

complaint, alleging Thompson’s negligence caused over $2 million in damages. On 3

June 16, 2009, Larson filed the summons and complaint in Minnesota state district

court. Larson later amended his complaint to add Gudal as a defendant. In February

2012, Larson settled with Thompson and Gudal for $500,000.

We have appellate jurisdiction under 28 U.S.C. § 1291. 2

Larson’s original complaint included additional defendants not relevant to this 3

appeal.

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B. Suit Against Nationwide

On May 30, 2012, Larson, a resident of Minnesota, filed this diversity suit in

the District of Minnesota against Nationwide, an Iowa corporation with its principal

place of business outside Minnesota. See 28 U.S.C. § 1332(a). Larson alleged he

was “an insured” under an Iowa insurance policy Farmers obtained fromNationwide. 

The policy included UIM coverage for covered vehicles “licensed or principally

garaged in . . . Iowa.” The policy covered payments for certain injuries to insured

parties caused by the owner or operator of an uninsured or underinsured vehicle. 

Paragraph E.3.b. of the UIM endorsement (timeliness condition) limited the period

in which an insured could bring suit as follows:

b. Any legal action against us under this Coverage Form must be

brought within two years after the date of the “accident”. However, this

Paragraph 3.b. does not apply if, within two years after the date of the

“accident”, the “insured” has filed an action for “bodily injury” against

the owner or operator of a vehicle described in Paragraph b. of the

definition of “uninsured motor vehicle”, and such action is: 4

(1) Filed in a court of competent jurisdiction; and

(2) Not barred by the applicable state statute of limitations. 

In the event that the two year time limitation identified in this condition

does not apply, the applicable state statute of limitations will govern

legal action against us under this Coverage Form.

Boiled down, the timeliness condition provided (1) a general rule requiring suit be

“brought” against Nationwide within two years of the accident, with (2) an exception

The UIM endorsement defined the phrase “uninsured motor vehicle” as a

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motor vehicle “for which the sum of all liability bonds or policies at the time of the

‘accident’ do not provide at least the amount an ‘insured’ islegally entitled to recover

as damages resulting from ‘bodily injury’ caused by the ‘accident.’”

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allowing the insured to use the “applicable state statute of limitations” asthe measure

of timeliness if the insured had “filed an action” “in a court of competent jurisdiction”

against the underinsured owner or operator within two years of the accident. 

On September 24, 2012, Nationwide moved for summary judgment, arguing,

among other things, the suit was untimely. The district court granted Nationwide’s

motion, concluding Larson’s suit was untimely under the terms of the policy. The

district court first found that Larson had not met the timeliness condition’s general

two-year limit because his action against Nationwide, filed May 30, 2012, came more

than two years after the May 9, 2007, accident. The district court then found the

exception inapplicable because Larson had not filed his complaint against Thompson

in a court until June 16, 2009, more than two years after the accident. Though

Larson’s May 5, 2009, service of process under Minnesota law commenced the

lawsuit within the two-year period, see Minn. R. Civ. P. 3.01(a) (“A civil action is

commenced against each defendant . . . when the summons is served upon that

defendant.”), the district court reasoned the policy unambiguously refers to filing in

a court rather than commencing a lawsuit. Larson timely appealed. 

II. DISCUSSION

A. Applicable Law and Standard of Review

The parties agree Minnesota substantive law governs this diversity case. See

Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). “We must predict how the Supreme

Court of Minnesota would rule, and we follow decisions of the intermediate state

court when they are the best evidence of Minnesota law.” Friedberg v. Chubb & Son,

Inc., 691 F.3d 948, 951 (8th Cir. 2012). We review de novo the district court’s grant

of summary judgment, “viewing the record most favorably to the nonmoving party

and drawing all reasonable inferences for that party.” Munroe v. Cont’l W. Ins. Co.,

735 F.3d 783, 786 (8th Cir. 2013). We also review “de novo the district court’s

construction of an insurance policy and interpretation of state law.” Id.

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B. Meaning of “Filed”

The crux of this appeal is the exception in the policy’s timeliness condition,

which only applies if we conclude Larson “has filed an action for ‘bodily injury’

against the owner or operator” of an underinsured vehicle “in a court of competent

jurisdiction” “within two years after . . . the ‘accident.’” Larson argues the term

“filed” as used in the timeliness exception reasonably should be read to require

“commencement” within the two-year period, which Larson did by his May 5, 2009,

service of process. See Minn. R. Civ. P. 3.01(a). If this interpretation is reasonable,

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Larson maintains, the doctrine of contra proferentem requires us to construe the

policy against Nationwide and in Larson’s favor.

In Minnesota, the plain language of an unambiguous insurance policy controls

its legal effect, whereas an ambiguous policy term is construed strictly against the

insurer. See Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co., 825 N.W.2d 695,

704-05 (Minn. 2013). Ambiguity exists where the policy’s language is “‘susceptible

to two or more reasonable interpretations.’” Id. at 705 (quoting Carlson v. Allstate

Ins. Co., 749 N.W.2d 41, 45 (Minn. 2008)). In making that determination, the policy

“‘[p]rovisions . . . are to be interpreted according to both plain, ordinary sense and

what a reasonable person in the position of the insured would have understood the

words to mean.’” Midwest Family Mut. Ins. Co. v. Wolters, 831 N.W.2d 628, 636

(Minn. 2013) (quoting Farmers Home Mut. Ins. Co. v. Lill, 332 N.W.2d 635, 637

(Minn. 1983)). This requires that we “not construe individual words or phrases in

insurance policiesin isolation,” but instead “read the policy as a whole.” Bolduc, 825

N.W.2d at 706. We also refrain from interpreting the policy in a way that renders any

provision meaningless. See id. at 705.

Nationwide contends Larson forfeited this ambiguity argument by failing to 5

raise it in the district court. In our review of the record, Larson sufficiently raised the

ambiguity argument during the summary judgment hearing.

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1. Definitions of “Filed”

Dictionaries, as Larson notes, define the verb “file” as having multiple

meanings, including (1) the delivery of a legal document to the court, and (2) the

commencement or initiation of a lawsuit. See, e.g., Black’s Law Dictionary 660 (8th

ed. 2004) (including in its definitions: “[t]o deliver a legal document to the court clerk

or record custodian for placement into the official record,” and “[t]o commence a

l a w s u i t . ” ( e m p h a sis a d d e d ) ) ; F i l e , M e r r i a m - W e b s t e r ,

http://www.merriam-webster.com/dictionary/file? (last visited Jan. 3, 2014)

(including in its definitions: “to place among official records as prescribed by law”

and “to initiate (as a legal action) through proper formal procedure”).

ByLarson’s reasoning, these general definitions allowus to read “commenced”

where the policy provision uses “filed.” Commencement, in turn, was accomplished

by service under specific application of Minnesota’s procedural rules. See Minn. R.

Civ. P. 3.01(a). When viewed in isolation, thisreading appearsreasonable. See, e.g.,

Fed. Land Bank of St. Paul v. Bennett, 445 N.W.2d 279, 281 (Minn. Ct. App. 1989)

(concluding the language “filing a separate action” was ambiguous as used in Minn.

Stat. § 582.30, subd. 5(a) (1988)). Nevertheless, a term’s ambiguity cannot be

definitively established by the pages of a dictionary because “[t]he sense of a word

depends on how it is being used.” Bd. of Regents of Univ. of Minn. v. Royal Ins. Co.

of Am., 517 N.W.2d 888, 892 (Minn. 1994) (“Because a word has more than one

meaning does not mean it is ambiguous.”). 

2. Context

Applying fundamental principles of Minnesota contract interpretation law, we

again reference that “we do not construe individual words or phrases in insurance

policies in isolation,” but instead “read the policy as a whole.” Bolduc, 825 N.W.2d

at 706. “[O]nly if more than one meaning applies within that context does ambiguity

arise.” Royal Ins. Co., 517 N.W.2d at 892. Here, context proves decisive.

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First, we note the policy’s timeliness exception uses the word “filed” a second

time. The exception requires that the insured’s action be “[f]iled in a court of

competent jurisdiction.” (Emphasis added). The exception, in effect, requires that

the insured’s suit be “filed in a court of competent jurisdiction” “within two years of

the accident.” (Emphasis added). See Auto-Owners Ins. Co. v. Second Chance Invs.,

LLC, 827 N.W.2d 766, 772 (Minn. 2013) (“When the same language is used

throughout a statute, we presume ‘that it is used with the same meaning until the

contrary is shown.’” (quoting Christgau v. Woodlawn Cemetery Ass’n, 293 N.W.

619, 624 (Minn. 1940))); see also 2 Steven Plitt et al., Couch on Insurance § 22:42

(3d ed. 2013) (“An expression to which a plain meaning is attached in one part of an

instrument is held to have the same meaning in other parts of the same instrument

unless a contrary purpose plainly appears.”). And by specifying the filing must be “in

a court,” the policy expressly and unambiguously adopts the filing act of initiating

such action in a court, rather than simply announcing a lawsuit to the opposing party.

Second, immediately preceding the exception isthe policy’s more general rule

for timeliness, which states, “Any legal action against us under this Coverage Form

must be brought within two years after the date of the ‘accident.’” (Emphasis added). 

The two sentences—the general timeliness rule and its exception—use different

language as between the required acts: within two years, Larson must have either

“brought” an action against Nationwide or “filed” an action against the underinsured

vehicle’s owner or operator. To “bring an action” is a generic phrase, meaning “[t]o

sue” and “[to] institute legal proceedings,” Black’s Law Dictionary 205 (8th ed.

2004), and which Larson admits is commonly used as a synonym for the act of

“commencing” an action. This contrasting language between successive sentences 6

At oral argument, Larson’s counsel responded to a question and declared:

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“‘Brought,’ I would respectfully submit, is a potentially ambiguous term, but its most

common meaning would be ‘an action was commenced,’ and we did that in

Minnesota by a timely service of process. . . . The best argument I can give on behalf

of my client is that ‘brought’ is a further suggestion that it’s suit commencement that

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again suggests the exception intends the literal meaning of “filed” as opposed to the

generic act of initiating a lawsuit. See Mauer v. Kircher, 587 N.W.2d 512, 514-15

(Minn. Ct. App. 1998) (finding different language in nearby clauses addressing

“parallel issues” expressed the parties’ “clear intention of creating different

requirements”); Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738, 744 (7th Cir. 1996)

(“[W]hen parties to the same contract use such different language to address parallel

issues . . . , it is reasonable to infer that they intend this language to mean different

things.”); cf. Dereje v. State, 837 N.W.2d 714, 720 (Minn. 2013) (“[W]hen different

words [in a court rule] are used in the same context, we assume that the words have

different meanings.”).

We are unconvinced by Larson’s proposition that Nationwide requires filing

an action against the owner or operator for the sole purpose of preserving

Nationwide’s subrogation rights. As Larson’s proposal goes, the two-year filing

requirement merely guarantees a timely suit against the owner or operator, thereby

making the action’s commencement the key date. This argument lacks merit because

the policy exception already protects Nationwide’s subrogation rights from

untimeliness by requiring in subsection (2) that the insured’s action against the owner

or operator cannot be “barred by the applicable state statute of limitations.” We could

imagine other purposes for which Nationwide would require a timely filing with the

court. Under the previous procedural rules in Minnesota, filing in a court was not

immediately necessary, and without a contract requiring filing in a court, a lawsuit

could linger privately with no guarantee it would ever appear on a court’s docket.7

this is all about.”

Minnesota now requires most cases be filed in a court within a year ofservice. 7

See Minn. R. Civ. P. 5.04. Minnesota previously required only that the complaint be

“filed with the court within a reasonable time after service.” Minn. R. Civ. P. 5.04

(2012) (amended 2013). This sometimes permitted filing years after a suit’s

commencement. See, e.g., Scheff v. Scheff, No. A05-911, 2006 WL 1073045, at *4

(Minn. Ct. App. Apr. 25, 2006) (unpublished) (finding a “more than two-year delay

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Recognizing we must view the language of a policy “as a whole” and

“‘fastidiously guard against the invitation to create ambiguities where none exist,’”

Bolduc, 825 N.W.2d at 706 (quoting Columbia Heights Motors, Inc. v. Allstate Ins.

Co., 275 N.W.2d 32, 36 (Minn. 1979)), we decide Larson’s interpretation is

unreasonable in thatsuch a reading relies on selected dictionary definitions which are

contradicted by the context of the policy. In context, the policy’s timeliness

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exception expressly establishes “filed” means “in a court,” and it does not refer to the

generic event of commencing legal proceedings. The policy plainly requires Larson

to have filed his action “in a court of competent jurisdiction” within two years of the

underlying accident, a condition which was not satisfied here.

III. CONCLUSION

For these reasons, we affirm the well-reasoned decision of the district court.

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between service and filing of the summons and petition was not unreasonable”).

In reaching this conclusion, we do not ignore Bennett, where the Minnesota

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Court of Appeals concluded a state statute, see Minn. Stat. § 582.30, subd. 5(a)

(1988), was ambiguous in its use of the language “filing a separate action.” Bennett,

445 N.W.2d at 280. The reasoning of Bennett is not persuasive here because our

interpretation must consider the words “as a whole” within the unique context of the

Nationwide policy. Bolduc, 825 N.W.2d at 706;see also Royal Ins. Co., 517 N.W.2d

at 892.

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