Samuel E. ESTES, et al., Respondents,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Appellant.
No. CX-84-1133.
Supreme Court of Minnesota.
April 12, 1985.*770 Hugh J. Cosgrove, Minneapolis, for appellant.
Robert D. Stoneburner, Paynesville, for respondents.
Considered and decided by the court en banc without oral argument.
AMDAHL, Chief Justice.
The plaintiffs-petitioners Samuel E. and Jean A. Estes seek further review of a decision of the Court of Appeals reversing the trial court and concluding that a provision contained in the policy of insurance issued by the defendant State Farm Fire and Casualty Company was unambiguous. 358 N.W.2d 123. We grant the petition and modify the decision of the Court of Appeals.
It is our view that the Court of Appeals went beyond the record in directing the trial court to modify the judgment to return to State Farm any "excess amounts paid." While the parties did stipulate that the actual cost of full replacement of the Estes' damaged roof was $13,000 and while the record does demonstrate that State Farm had paid $18,142.40 toward the repairs based upon two estimates, State Farm did not raise the issue of overpayment in its pleadings. State Farm did not counterclaim for a return of the alleged overpayments, and its answer states only that the payments "constitute an accord and satisfaction and full performance by the defendant." Further, the record does not indicate that the issue was tried by the express or implied consent of the parties. Minn.R.Civ.P. 15.02. We therefore grant the petition for further review for the limited purpose of modifying the decision of the Court of Appeals.
Petition granted; decision of the Court of Appeals modified.