Rather, we limit this holding to those cases involving a claim for diminished value where the damage to an automobile involved in a collision has been repaired. That caselaw includes: MFA Ins. Co. v. Citizens Nat'l Bank of Hope, 260 Ark. 849, 851, 545 S.W.2d 70, 71 (1977); Delledonne v. State Farm Mut. Auto. Ins. Co. , 621 A.2d 350 (Del.Super.Ct. 1992), overruled by O'Brien v. Progressive N. Ins. Co., 785 A.2d at 287 n. 11; Rezevskis v. Aries Ins. Co., 784 So.2d 472 (Fla.Ct.App. 2001); Auto-Owners Ins. Co. v. Green, 220 So.2d 29 (Fla.Ct.App. 1969); Ciresi v. Globe Rutgers Fire Ins. Co., 187 Minn. 145, 147, 244 N.W. 688, 689 (1932); Eby v. Foremost Ins. Co., 141 Mont. 62, 374 P.2d 857 (1962); Edwards v. Maryland Motorcar Ins. Co., 204 A.D. 174, 175, 197 N.Y.S. 460, 461 (1922); Grubbs v. Foremost Ins. Co., Grand Rapids, 82 S.D. 98, 101, 141 N.W.2d 777, 779 (1966). After considering the arguments of the parties, the applicable insurance policy language, relevant Alabama caselaw, and the authority from other jurisdictions, we conclude that the provisions of the insurance policy at issue in this appeal do not require State Farm to restore an insured's collision-damaged automobile to its pre-collision value.
In Potomac Ins. Co. v. Wilkinson, 213 Miss. 520, 529-30, 57 So.2d 158, 160 (1952), the court allowed diminished value but did not acknowledge the policy limitation at issue here. In Ciresi v. Globe Rutgers Fire Ins. Co., 187 Minn. 145, 244 N.W. 688 (1932), and Edwards v. Maryland Motorcar Ins. Co., 204 A.D. 174, 197 N.Y.S. 460 (1922), the cases involved automobiles that were stolen and later recovered, but that had been driven several thousand miles while in the possession of thieves. In Senter v. Tennessee Farmers Mut. Ins. Co., 702 S.W.2d 175 (Tenn.Ct.App. 1985), the court did not disclose the language used in the insurance policy.
AMM's payment obligation is further evidenced, Schaefer claims, by the policy's failure to expressly exclude diminished value from coverage under the policy's "Exclusions" section. For cases finding coverage for diminished value, see MFA Ins. Co. v. Citizens Nat'l Bank, 545 S.W.2d 70 (Ark. 1977); Hyden v. Farmers Ins. Exch., 20 P.3d 1222 (Colo.Ct.App. 2000); State Farm Mut. Auto. Ins. Co. v. Mabry, 556 S.E.2d 114 (Ga. 2001); Venable v. Imp.ort Volkswagen, Inc., 519 P.2d 667 (Kan. 1974); Ciresi v. Globe Rutgers Fire Ins. Co., 244 N.W. 688 (Minn. 1932); Potomac Insc. Co. v. Wilkinson, 57 So.2d 158 (Miss. 1952); Eby v. Foremost Ins. Co., 374 P.2d 857 (Mont.
The Fox case indicated that the referees were still to find the amount of loss in light of their own interpretation of the terms of the policy, but the question of construction would remain open for reexamination in an action on the policy, if one should eventuate. This court relied on cases illustrative of the principle: Itasca Paper Co. v. Niagara Fire Ins. Co., 175 Minn. 73, 79 (1928);Harrington v. Agricultural Ins. Co., 179 Minn. 510, 512 (1930); Ciresi v. Globe Rutgers Fire Ins. Co., 187 Minn. 145, 148 (1932). See Jefferson Ins. Co. v. Superior Court of Alameda County, 3 Cal.3d 398 (1970).
The reasons advanced by plaintiff for this view are that failure to move for a new trial in the lower court amounts to an agreement with the rulings of the lower court and a waiver of all assignments of error which might be made in a motion for a new trial. In support of this view plaintiff cites Ciresi v. Globe Rutgers F. Ins. Co. 187 Minn. 145, 244 N.W. 688; Hagen v. Bowers, 182 Minn. 136, 233 N.W. 822; Smith v. Gray Motor Co. 169 Minn. 45, 210 N.W. 618. See, also, Olson v. Mullen, 244 Minn. 31, 68 N.W.2d 640. Other cases seem to hold the opposite.
We are under the circumstances limited to a consideration, only, of the sufficiency of the evidence to sustain the verdict of the jury. Matters involving trial procedure, evidentiary rulings, objections to instructions, and the like are subject to review only providing there has been a motion for a new trial in which such matters are assigned as error. Johnson v. Mancilman, 241 Minn. 461, 63 N.W.2d 569; Smith v. Otto Hendrickson Post 212, American Legion, 241 Minn. 46, 62 N.W.2d 354; Phelan v. Carey, 222 Minn. 1, 23 N.W.2d 10; Fidelity Cas. Co. v. Minneapolis Brg. Co. 214 Minn. 436, 8 N.W.2d 471; Ciresi v. Globe Rutgers F. Ins. Co. 187 Minn. 145, 244 N.W. 688; Hagen v. Bowers, 182 Minn. 136, 233 N.W. 822; Smith v. Gray Motor Co. 169 Minn. 45, 210 N.W. 618; see, Olson v. Mullen, 244 Minn. 31, 68 N.W.2d 640. Having come to the conclusion that there is evidence in the instant case to support the verdict, we accordingly affirm without passing upon the other assignments of error. Affirmed.
Itasca Paper Co. v. Niagara Fire Ins. Co. 175 Minn. 73, 79. Harrington v. Agricultural Ins. Co. 179 Minn. 510, 512. Ciresi v. Globe Rutgers Fire Ins. Co. 187 Minn. 145, 148. In the case at bar it would have been beyond the scope of the reference for the referees to include in their award the amount of loss or damage due to windstorm.
The finding of appraisers on the question of coverage, which would be a decision on a question of law, would not be final. Itasca Paper Co. v. Niagara F. Ins. Co. 175 Minn. 73, 220 N.W. 425; Ciresi v. Globe Rutgers F. Ins. Co. 187 Minn. 145, 244 N.W. 688. In their complaint plaintiffs alleged that the purported award and determination was illegal and void on the ground that it was so grossly inadequate as to amount to fraud, and on the further ground that the arbitrators improperly attempted to construe the policy of insurance.
The trial court, by granting plaintiffs' motion, determined that issue as one of law, not of fact. In Ciresi v. Globe Rutgers F. Ins. Co. 187 Minn. 145, 146, 147, 244 N.W. 688, 689, we had a similar problem to consider. There, as here, there was no motion for a new trial.
State ex rel. Vik v. Sivertson, 194 Minn. 380, 260 N.W. 522; State ex rel. Herniman v. Markson, 187 Minn. 176, 244 N.W. 687; State ex rel. Platzer v. Beardsley, 149 Minn. 435, 183 N.W. 956; State ex re. Mattes v. Peterson, 156 Minn. 178, 194 N.W. 326; State ex rel. Fossen v. Hitman, 164 Minn. 373, 205 N.W. 267. The language of Mr. Justice Dibell in the Herniman case, involving a small boy in similar circumstances, seems particularly appropriate here. It is as follows ( 187 Minn. 179, 244 N.W. 688): "The grandparents must accept the inevitable.