(dissenting):
I respectfully dissent. This matter involves a dispute over two policies of rain insurance. Appellants promoted an outdoor concert. They insured themselves against loss in the event the concert was cancelled, postponed, or abandoned in consequence of rainfall in an amount in excess of .10 inches. The policies were “valued form” policies in a total amount of $120,-000.00.
Tickets were sold, the concert was held, it rained in excess of .10 inches, but the concert was fully performed. It was not cancelled, postponed, or abandoned.
Appellants made claim to respondents for the entire value of the policies. Respondents refused payment on the basis that its policy language required as a condition precedent to recovery that the concert be cancelled, postponed, or abandoned due to rain.
Appellants then brought this action against respondents, alleging that they had requested a rain insurance policy that would pay regardless of any loss to the insured if the requisite amount of rain fell. Appellants contend that the policies as issued, requiring cancellation, postponement, or abandonment, did not conform to their order and should be reformed to provide for payment regardless of loss. Both appellants and respondents agreed that there were no material fact issues in dispute, since both parties moved for summary judgment. The trial court found that, as a matter of law, appellants could riot recover under either the policies that were issued or the policies which appellants contend they sought, and the trial court granted summary judgment to respondents.
As pointed out by respondents, while appellants’ contentions create a factual dispute as to which form of policy should have been issued, there are no material fact issues, and summary judgment was properly granted to respondents because, as found by the trial court as a matter of law, appellants were not entitled to recover under either the policy form as issued, or the policy form appellants contend that they requested.
Insurance contracts are contracts of indemnity intended to indemnify the insured against loss sustained by reason of the occurrence of some disaster. These policies were not contracts to insure against rain; they were to insure against loss in the event the concert was cancelled, postponed, or abandoned, solely and directly in consequence of rainfall in excess of .10 inches.
There is no dispute but that it rained in excess of .10 inches during the concert. There is no dispute but that the concert continued and was fully performed. It was not cancelled, postponed, or abandoned as a result of the rain. Under the terms of the policy as purchased and issued, appellants sustained' no loss.
The policies do not indemnify appellants against all losses caused by rain; only against losses caused by cancellation, postponement, or abandonment, none of which occurred. There may be policies of insurance that indemnify an insured against the types of partial loss which appellants now contend they sustained, and which the majority finds create issues of material fact; but that is neither the type of policy appellants claim to have sought nor the type they actually purchased. Appellants cannot recover totally or partially under the terms of either the policies that were issued, or those which they claim they requested.
The form of policy that appellants contend they requested (i.e. full payment of *447the stated amounts without regard to actual loss if it rained) cannot exist in Minnesota. Appellants had no insurable interest in the limited concept of whether or not it rained. The insurable interest they had was in the concert and any loss they directly sustained by reason of the concert’s cancellation, postponement, or abandonment because of the requisite rain. See Nathan v. St. Paul Mutual Insurance Co., 243 Minn. 430, 440, 68 N.W.2d 385, 392 (1955).
Such a policy as appellants contend they sought is merely a wagering contract. It would be contrary to public policy, and appellants could not recover under such a policy. Christenson v. Madson, 127 Minn. 225, 227, 149 N.W. 288, 289 (1914); see 3 G. Couch, Cyclopedia of Insurance Law § 24:1, at 6-11 (2d ed. 1984).
[I]t is now almost universally held * * * that an insurable interest is necessary to the validity of a policy, no matter what may be the subject matter, and that if no insurable interest exists, the contract is void. Stated differently, wagering contracts, no matter what may be the subject matter of the insurance, are void and unenforceable.
Id. at 8-11 (footnotes omitted).
In this court, appellants for the first time have alleged damages based on additional expenses and/or certain intangible losses which they contend resulted from holding the concert in the rain. Also, for the first time appellants seek recovery of the premiums paid in the event the policy that they contend should have been issued is determined to be a wagering contract. Neither issue was asserted nor litigated in the trial court and should not be considered here.
I would affirm the decision of the trial court.