                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 06-1166
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Source Food Technology, Inc.,             *
                                          *
             Appellant,                   *
                                          *       Appeal from the United States
      v.                                  *       District Court for the District of
                                          *       Minnesota.
United States Fidelity and                *
Guaranty Company,                         *
                                          *
             Appellee.                    *

                                ________________

                             Submitted: October 5, 2006
                                 Filed: October 13, 2006
                                ________________

Before SMITH, HEANEY1 and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.


       Source Food Technology, Inc. (“Source Food”) appeals the order of the district
court2 granting summary judgment to United States Fidelity and Guaranty Company

      1
       The Honorable Gerald W. Heaney resigned while this matter was pending.
Accordingly, this opinion is being filed by the remaining judges of the panel pursuant
to 8th Cir. Rule 47E.
      2
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
(“USF & G”) on Source Food’s claim for breach of contract for denial of insurance
coverage based on “direct physical loss to” its property. For the reasons discussed
below, we affirm the judgment of the district court.


I.    BACKGROUND


       Source Food is a Minnesota company that sells cooking oil and shortening
containing beef tallow from which the cholesterol has been removed (“beef product”).
The United States Department of Agriculture (“USDA”) prohibited the importation
of ruminants or ruminant products from Canada on May 20, 2003, after a cow in
Canada tested positive for bovine spongiform encephalopathy, commonly known as
“mad cow disease.” At the time the border was closed to the importation of beef,
Source Food’s sole supplier of beef product was Hubbert’s Industries in Ontario,
Canada. Hubbert’s Industries manufactured and packaged the beef product in Canada
using Source Food’s patented manufacturing process for removing cholesterol from
beef tallow. Just prior to the embargo, Source Food placed an order for beef product
with Hubbert’s Industries. The beef product was manufactured, packaged and loaded
onto a truck for shipping to Source Food but was not shipped due to the USDA’s
order. Although the parties dispute whether at this point Source Food owned the beef
product, we assume, as did the district court, that the beef product inside the truck in
Canada was the property of Source Food.3 The parties agree that there is no evidence
that the beef product was contaminated by mad cow disease.


     When the border was closed to the importation of beef products, Source Food
was unable to fill orders and was forced to find a new supplier of beef product.

      3
      Source Food contends that when the beef product was loaded onto a truck in
Canada to be shipped to Source Food in the United States, “[u]nder the understanding
between [Source Food] and its Canadian supplier, the product was at that point
[Source Food’s].” Appellant’s Brief at 3. However, according to USF & G, Source
Food did not own the beef product and therefore had no insurable interest in it.

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Source Food’s best customer, Casey’s General Store, Inc., terminated its contract with
Source Food seven months early because Source Food was unable to deliver the
required one or two truckloads of beef product per week after May 20, 2003.


      Source Food submitted a claim under its insurance policy with USF & G,
which included property and business interruption coverage. Source Food claimed
damages for extraordinary operating expenses, loss of profits based on the early
termination of its contract with Casey’s General Store, Inc., and the cost of obtaining
from a new supplier in Arkansas an alternative product with cholesterol and later,
when the necessary manufacturing equipment was installed, the beef product without
cholesterol.


       The insurance policy provides coverage for the loss of business income where
there is direct physical loss to the insured’s property:


      (1) “Business income.” We will pay the actual loss of “business
      income” you sustain due to the necessary suspension of your
      “operations” during the “period of restoration.” The suspension must be
      caused by direct physical loss to Property (other than those items listed
      in SECTION I.A.2.), including Property Off Premises, and result from
      any Covered Cause of Loss . . . .

      (4) Action by Civil Authority. We will pay for the actual loss of
      “business income” you sustain and necessary “extra expense” caused by
      action of civil authority that prohibits access to the described premises
      due to direct physical loss to property, other than at the described
      premises, caused by or resulting from any Covered Cause of Loss.


Section I.A.4(b)(1) and (4) (emphases added). However, the insurance policy does
not define the phrase “direct physical loss to property.”



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       The insurance claim was denied. Source Food then sued St. Paul Fire &
Marine Insurance Company and The St. Paul Travelers Companies, the parent
companies of USF & G, for breach of contract in Minnesota state court. Source Food
later added USF & G to the suit. USF & G moved to dismiss the other two insurers
and to dismiss the suit for failure to state a claim upon which relief can be granted
because there was no direct physical loss to Source Food’s property. Source Food
filed a cross-motion for summary judgment, contending that the loss of function of
the beef product due to the USDA order constituted direct physical loss to its
property. The Minnesota state court dismissed St. Paul Fire & Marine Insurance
Company and The St. Paul Travelers Companies from the case and held that Source
Food had set forth a legally sufficient claim for relief, but it declined to grant
summary judgment to Source Food.


      With the dismissal of the two Minnesota insurance companies, USF & G
removed the action to federal court on the basis of diversity of citizenship between
the remaining parties. USF & G filed a motion for summary judgment, again
claiming that Source Food did not satisfy the direct physical loss to property
requirement of the insurance policy. The district court rejected Source Food’s
argument that the court was prohibited from ruling on the issue of direct physical loss
to property under the “law of the case” doctrine because the state court had already
decided the issue.4 The district court determined that Source Food suffered no direct
physical loss to property and granted summary judgment in favor of USF & G.
Source Food appeals the district court’s order.




      4
       At oral argument, Source Food abandoned its argument that the district court
erred in not holding that the “law of the case” doctrine precluded the district court
from ruling on the issue of whether impairment of function can constitute direct
physical loss to property.

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II.   DISCUSSION


       We review the district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. Cordry v. Vanderbilt
Mortgage & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir. 2006). We also review the
district court’s interpretation of an insurance policy provision de novo. State Farm
Fire & Cas. Co. v. Nat’l Research Ctr. for Coll. & Univ. Admissions, 445 F.3d 1100,
1102 (8th Cir. 2006). In this diversity case, we apply Minnesota law. See id.


       On appeal, Source Food argues that the closing of the border caused direct
physical loss to its beef product because the beef product was treated as though it
were physically contaminated by mad cow disease and lost its function. Source Food
principally relies upon Gen. Mills, Inc. v. Gold Medal Ins. Co., 622 N.W.2d 147
(Minn. Ct. App. 2001), and Marshall Produce Co. v. St. Paul Fire & Marine Ins. Co.,
98 N.W.2d 280 (Minn. 1959), to support its position that the impairment of function
and value of a food product caused by government regulation is a direct physical loss
to insured property.


       Both of the Minnesota cases that Source Food relies on, as well as Sentinel
Mgmt. Co. v. New Hampshire Ins. Co., 563 N.W.2d 296 (Minn. Ct. App. 1997), are
distinguishable from this case. The insurance policy provisions in General Mills and
Sentinel are comparable to the provisions at issue here. However, coverage was
found to be triggered in those two cases by actual physical contamination of insured
property. The insurance policy in General Mills required “direct physical loss or
damage to property.” 622 N.W.2d at 151 (internal quotations omitted). Sixteen
million bushels of General Mills’s raw oats were treated with a pesticide not
approved by the FDA for use on oats. Id. at 150. Although consumption of the
contaminated oats was not hazardous to human health, the oats were in violation of
FDA regulations and could not be used in General Mills’s oat-based products. Id. at
150. Because the contamination rendered the oats unusable, General Mills was

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entitled to coverage for “direct physical loss or damage to property.” Id. at 151–52.
The insurance claim in Sentinel was brought under a policy covering “direct physical
loss to building(s)” and was based on the release of asbestos fibers and resulting
contamination of apartment buildings. 563 N.W.2d at 298. The Minnesota Court of
Appeals held that the asbestos contamination constituted direct physical loss to the
properties because “a building’s function may be seriously impaired or destroyed and
the property rendered useless by the presence of contaminants.” Id. at 300 (emphasis
added). As opposed to these two cases in which actual physical contamination was
established, Source Food concedes that the beef product inside the truck in Canada
was not physically damaged or contaminated in any manner.


       The insurance policy at issue in Marshall Produce did not cover just “direct
physical loss” as in Source Food’s insurance policy, but rather it covered “all loss or
damage by fire.” 98 N.W.2d at 285 (internal quotations omitted). The supplier in
Marshall Produce manufactured drums of egg powder and other goods for the army.
After smoke from a nearby fire penetrated the manufacturing plant, the army rejected
the drums because they violated the sanitation requirements of the government
contract that the “processing and storing of eggs and egg products must be done in
an area free from odors, dust, and smoke-laden air.” Id. at 296. Shortly after the fire,
an inspector “examined the packaging around the cans [and] . . . found smoke
contamination, a very strong odor from the smoke throughout the package and around
the border of the package.” Id. Although it was not established that the egg powder
inside the drums was physically contaminated by the smoke, the Minnesota Supreme
Court determined that the supplier was entitled to insurance coverage because the
insurance policy covered “all loss or damage by fire” and the rejection of the goods
was a loss caused by the smoke from the fire. Id. at 296-97. By contrast, the portions
of Source Food’s insurance policy at issue only provide coverage when there is direct
physical loss to property, and Source Food’s beef product suffered no physical
contamination.




                                          -6-
       In Pentair, Inc. v. Am. Guarantee & Liab. Ins. Co., 400 F.3d 613 (8th Cir.
2005), a case applying Minnesota law and discussing the same Minnesota insurance
cases, we rejected an argument very similar to that made by Source Food. When an
earthquake caused a loss of power to two Taiwanese factories, the factories could not
supply products to a subsidiary of Pentair for two weeks. Id. at 614. Pentair argued
that the property of the Taiwanese factories suffered “direct physical loss or damage”
when the power outages prevented the factories from performing their function of
manufacturing products. Id. at 615. We distinguished Sentinel and General Mills,
explaining that “in those cases, insured property was physically contaminated—a
building by the release of asbestos fibers in Sentinel, and grain by application of an
unapproved pesticide in General Mills.” Id. at 616. Although we noted that “[o]nce
physical loss or damage is established, loss of use or function is certainly relevant in
determining the amount of loss, particularly a business interruption loss,” we refused
to adopt the position that “direct physical loss or damage is established whenever
property cannot be used for its intended purpose” and noted that our holding was also
consistent with Marshall Produce. Id.


      Although Source Food’s beef product in the truck could not be transported to
the United States due to the closing of the border to Canadian beef products, the beef
product on the truck was not—as Source Foods concedes—physically contaminated
or damaged in any manner. To characterize Source Food’s inability to transport its
truckload of beef product across the border and sell the beef product in the United
States as direct physical loss to property would render the word “physical”
meaningless. Moreover, the policy’s use of the word “to” in the policy language
“direct physical loss to property” is significant. Source Food’s argument might be
stronger if the policy’s language included the word “of” rather than “to,” as in “direct
physical loss of property” or even “direct loss of property.” But these phrases are not
found in the policy. Thus, the policy’s use of the words “to property” further
undermines Source Food’s argument that a border closing triggers insurance coverage
under this policy.


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       Source Food did not experience direct physical loss to its property. Therefore,
Source Food cannot recover the loss of business income resulting from the embargo
on beef products under insurance policy provisions requiring direct physical loss to
its property.


III.   CONCLUSION


     We conclude that the district court did not err in granting summary judgment
to USF & G and affirm the judgment of the district court.


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