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United States Court of Appeals 1
THE HONORABLE RICHARD H. BATTEY, United States District Judge for
the District of South Dakota, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1754
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Lila Lederman,
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Appellant,
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Appeal from the United States
v.
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District Court for the

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District of Minnesota.
Cragun's Pine Beach Resort; Cragun
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Corporation; Cragun Enterprises, Inc.;
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Cragun Golf Management, Inc.; Cragun *
Properties, Inc.; Cragun Shoreline
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Corporation; Brad Clark, doing business *
as Clark Excavating,
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Appellees.
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Submitted: December 14, 2000
Filed: April 23, 2001
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Before LOKEN and MAGILL, Circuit Judges, and BATTEY,
1
District Judge.
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MAGILL, Circuit Judge. 2
The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota.
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On August 23, 1995, a pathway at Cragun's Pine Beach Resort collapsed beneath
Lila Lederman, causing her to fall into a trench and break her ankle. On June 4, 1998,
Lederman sued the various owners and operators of Cragun's Pine Beach Resort
(together, "Cragun's"), as well as Brad Clark, the contractor who dug the trench,
claiming that Clark negligently excavated the trench and Cragun's negligently failed to
protect Lederman from harm. The district court
2
granted the summary judgment
motions of Clark and Cragun's, holding that a Minnesota statute of limitations bars
Lederman's claim. Lederman appeals, but we affirm.
I.
Cragun's Pine Beach Resort is a vacation resort near Brainerd, Minnesota. In
the summer of 1995, Cragun's began the Shoreline Suites construction project, which
involved the destruction of an existing building and the erection of a four-story complex
consisting of suites and conference rooms. As part of the project, Cragun's hired Brad
Clark to dig a trench so that U.S. West workers could lower existing communications
cable that served other Cragun's buildings, and relay the cable to serve the Shoreline
Suites as well. The communications cable had to be lowered to make room for the
construction of the Shoreline Suites. The trench was about four and one-half feet deep,
eight to ten feet wide, and thirty to forty feet long.
About thirty minutes after Clark left the trench area, Lederman walked along a
pathway adjacent to the trench. The trench caved in, causing the pathway to collapse
underneath Lederman, who fell into the trench and broke her ankle. There -3-
were no warnings that the pathway was unsafe. Later that day, after U.S. West
workers completed the lowering of the communications cable, Clark refilled the trench.
On June 4, 1998, Lederman sued Cragun's and Clark in district court under
diversity jurisdiction, claiming that Clark negligently excavated the trench and Cragun's
negligently failed to protect Lederman from harm. The district court granted Clark's
motion for summary judgment, holding that Minnesota's two-year statute of limitations
for actions to recover damages for injuries arising out of an unsafe condition of an
improvement to real property barred Lederman's claim because the trench was an
improvement to real property. See Minn. Stat. § 541.051 (2000). Subsequently, the
district court granted Cragun's motion for summary judgment, holding that § 541.051
also barred Lederman's claims against Cragun's. Lederman appeals the district court's
judgments. This court has jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review the district court's grant of summary judgment de novo. Clark v.
Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000). Summary judgment is appropriate
when the evidence, viewed in the light most favorable to the non-moving party,
demonstrates that there is no genuine issue of material fact, and that the moving party
is entitled to judgment as a matter of law. Id. In this diversity case, we apply the
substantive law of Minnesota. See id. We review de novo the district court's
application of Minnesota law, and, if Minnesota law is ambiguous, we do our best to
predict how the Minnesota Supreme Court would resolve the issue. See id. -4-
A.
In Minnesota, a six-year statute of limitations applies to most personal injury
claims alleging negligence. Minn. Stat. § 541.05, subd. 1(5) (2000). However, a two-
year limitations period applies to actions for injuries arising out of "improvements to
real property":
Except where fraud is involved, no action by any person in contract, tort
or otherwise to recover damages . . . for bodily injury . . . arising out of
the defective and unsafe condition of an improvement to real property . . .
shall be brought against any person performing or furnishing the design,
planning, supervision, materials, or observation of construction or
construction of the improvement to real property . . . for more than two
years after discovery of the injury.
Minn. Stat. § 541.051, subd.1(a) (2000). The Minnesota Supreme Court defines an
"improvement to real property" as a "permanent addition to or betterment of real
property that enhances its capital value and that involves the expenditure of labor or
money and is designed to make the property more useful or valuable as distinguished
from ordinary repairs." Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d
548, 554 (Minn. 1977).
The Shoreline Suites itself is an "improvement to real property" under the Pacific
Indemnity test, as it: (1) is a permanent addition of real property; (2) enhances the value
of the property; (3) involved the expenditure of labor and money; and (4) required work
going well beyond mere repair. The district court reasoned that since the Shoreline
Suites is an "improvement to real property," "it follows that excavation, which was an
indispensable part of the process of building those suites, is an improvement to real
property under Minn. Stat. § 541.051." We agree that the excavation was an
"indispensable part" of building the Shoreline Suites. Construction of the Shoreline
Suites required U.S. West workers to lower existing communications cable to make -5-
room for the construction and to relay the cable to connect the Shoreline Suites;
lowering the communications cable necessitated the trench at issue here.
Lederman, however, argues that the district court should have focused its
analysis exclusively on the excavation of the trench rather than on the overall
construction process. Since the trench was temporary, Lederman asserts that it cannot
constitute an "improvement." We disagree.
Minnesota case law suggests that a temporary trench that is integral to a
construction project constitutes an "improvement to real property" under § 541.051.
In Fiveland v. Bollig & Sons, Inc., 436 N.W.2d 478 (Minn. Ct. App. 1989), the
Minnesota Court of Appeals held that § 541.051 applied to bar a claim brought by a
plaintiff who fell into an unguarded excavation that the defendant had dug to build a
basement. Id. at 479-81. The Fiveland court never specifically addressed the issue of
whether the excavation in that case was an "improvement to real property," apparently
because the parties "conceded that the temporary excavation site was part of an
improvement to the property." Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 401
(Minn. Ct. App. 1997). However, the Fiveland court at least assumed that the
temporary excavation constituted an "improvement to real property."
Furthermore, the Minnesota Court of Appeals subsequently stated that the
excavation at issue in Fiveland, "although temporary, was an integral part of the
construction of an improvement to real property." Brandt, 560 N.W.2d at 401-02.
Therefore, the Brandt court accepted, at least in dicta, that a part of an improvement
need not be permanent to be covered by § 541.051, as long as it is an "integral part of
the construction." Id. (defining the word "construction" in § 541.051 to mean "the act
or process of building, or of devising and forming; fabrication, erection"). In addition,
in an unpublished opinion, the Minnesota Court of Appeals has held that a temporary
trench dug to install sewer and water pipes is an improvement to real property. Lutz
v. J.R. Bruender Constr., Inc., No. C5-93-2097, 1994 WL 121636, at *2 (Minn. Ct. 3
Lederman notes that Lutz is an unpublished decision and that Minnesota law
provides that "[u]npublished opinions of the court of appeals are not precedential."
Minn. Stat. § 480A.08, subd. 3(b). Section 480A.08, subd. 3(b) is identical in all
relevant respects to 8th Circuit Rule 28A(i), which this court, in a scholarly opinion
authored by Judge Richard Arnold, held to be unconstitutional. Anastasoff v. United
States, 223 F.3d 898, 905, vacated, 235 F.3d 1054, 1056 (8th Cir. 2000) (en banc).
The en banc court vacated the panel decision as moot, simply noting that "[t]he
constitutionality of that portion of Rule 28A(i) which says that unpublished opinions
have no precedential effect remains an open question in this Circuit." 235 F.3d at 1056.
We need not address the constitutionality of Minn. Stat. § 480.08, subd. 3(b) in this
case, because we find sufficient support for our holding in published Minnesota case
law. Therefore, we leave for another day the constitutionality of rules prohibiting the
use of unpublished opinions for precedential value. In the meantime, we have no doubt