2019 minnesota automobile law september …...2019/09/26 · common tactics of plaintiff attorneys,...

500 Young Quinlan Bldg, 81 S 9th St, Minneapolis, MN 55402 811 1st Street, Suite 201, Hudson, WI 54016 Telephone 612 339‐3500 Fax 612 339‐7655 Telephone 715 386‐9000 Fax 612 339‐7655

www.ArthurChapman.com

2019 MINNESOTA AUTOMOBILE LAW SEMINAR SEPTEMBER 26, 2019 | METROPOLITAN BALLROOM – GOLDEN VALLEY, MINNESOTA

AGENDA 9:00 a.m. – 9:15 a.m. Welcome and Introductions

Shayne M. Hamann 9:15 a.m. – 9:45 a.m. Case Law Update

Steven J. Erffmeyer and Beth A. Jenson Prouty Steve and Beth will discuss the practical implications of many recent decisions of the Minnesota state and federal courts that may impact liability, UM, and UIM automobile coverage. They will also discuss emerging insurance coverage issues that may impact insurance companies in the future.

9:45 a.m. – 10:15 a.m. A Road‐Map to No‐Fault Arbitration Success Shayne M. Hamann and John C. Wittmer No‐Fault arbitration in Minnesota is a path governed by statutory rules, but successfully reaching a positive outcome at the hearing is often the result of taking a series of correct steps along the way. Shayne and John will discuss important strategies and best practices to employ across the stages of handling a No‐Fault claim – from early investigation and discovery, through independent medical examinations and continuing collection of medical bills and records, to the final arbitration hearing or settlement of the claim.

10:15 a.m. – 10:30 a.m. Refreshment Break 10:30 a.m. – 11:00 a.m. The Current State of Bad Faith Litigation in Minnesota and Techniques to Combat It

Mark S. Brown Mark will discuss the current status of bad faith law in Minnesota. He will discuss common tactics of plaintiff attorneys, ways insurers can monitor files for bad faith, district court versus federal court on bad faith issues, and how to stay ahead of this challenging emerging trend.

11:00 a.m. – 11:30 a.m. Combating Plaintiff Attorney Trends William J. McNulty and Gregory J. Duncan Plaintiff attorneys can be crafty in their quest for information in personal injury cases. Will and Greg are going to discuss various scenarios and strategies for handling such trends, including dealing with Medicare, rocket‐docket counties, and difficult plaintiff attorneys. There will also be a helpful discussion of adjusters being deposed and strategies for dealing with these scenarios, and how state and federal courts may differ in the process for adjuster depositions.

See reverse for continued agenda…

500 Young Quinlan Bldg, 81 S 9th St, Minneapolis, MN 55402 811 1st Street, Suite 201, Hudson, WI 54016 Telephone 612 339‐3500 Fax 612 339‐7655 Telephone 715 386‐9000 Fax 612 339‐7655


11:30 a.m. – 12:00 p.m. No‐Fault Related Panel Discussion

William J. McNulty and Gregory J. Duncan – Moderated by Shayne M. Hamann A panel of experienced No‐Fault attorneys will discuss a myriad of No‐Fault issues including the following: coverage scenarios, priority scenarios, subrogation and indemnity, out‐of‐the box No‐Fault issues, and other issues that arise from time to time.

12:00 p.m. – 1:00 p.m. Lunch 1:00 p.m. – 2:00 p.m. Emergency Medicine and Defending Personal Injury Claims Guest Speaker, Dr. Randal Wojciehoski Dr. Wojciehoski, an emergency medicine doctor, will discuss what emergency medicine

doctors look for when treating patients in the emergency room following a motor vehicle accident. He will also discuss what key information to be mindful of in medical records, as well as signs and symptoms to look for in injured individuals, who are seeking treatment for secondary gain. Come ready with your questions!

2:00 p.m. Questions and Answers and Closing Remarks

Arthur Chapman Automobile Team

Good Litigators | Good People | Good Counsel

Shayne’s TeamPatricia A. Jones, Paralegal612 [email protected]

Josh T. Klumb, Paralegal612 [email protected]

Nicolle M. Piette, Legal Administrative Assistant612 [email protected]

Shayne M. HamannPractice Group Chair612 [email protected]

Arthur ChapmanKettering Smetak & Pikala, P.A.

attorneys at law

Blake’s TeamTamara K. Grafsgaard, Paralegal612 [email protected]

Kara L. Smith, Legal Administrative Assistant612 [email protected]

Blake W. Duerre612 [email protected]

500 Young Quinlan Building81 South Ninth Street

Minneapolis, MN 55402-3214Ph: 612 339-3500

Fax: 612 339-7655

811 First StreetSuite 201

Hudson, WI 54016Ph: 715 386-9000Fax: 612 339-7655


Greg’s TeamSteven J. Gansen, Paralegal612 [email protected]

Shanda L. Wimberger, Legal Administrative Assistant612 225-6770 [email protected]

Gregory J. Duncan612 [email protected]

Steve’s TeamSteven J. Gansen, Paralegal612 [email protected]

Barbara L. Kelsey, Legal Administrative Assistant612 [email protected]

Steven J. Erffmeyer612 [email protected]

Brad’s TeamBarbara L. Kelsey, Legal Administrative Assistant612 [email protected]

Bradley L. Idelkope612 [email protected]


Kafi’s TeamKatherine R. Holm, Paralegal612 375-5941 [email protected]

Tracy S. Stromberg, Legal Administrative Assistant612 [email protected]

Kafi C. Linville612 [email protected]

Will’s TeamKathleen A. Adofo, Paralegal612 [email protected]

Linda M. Melcher, Legal Administrative Assistant612 [email protected]

William J. McNulty612 [email protected]




Fax: 612 339-7655


Hudson, WI 54016Ph: 715 386-9000Fax: 612 339-7655



attorneys at law

Colby’s TeamKellie R. Klein, Paralegal612 [email protected]

Katherine R. Holm, Paralegal612 [email protected]

Tracy S. Stromberg, Legal Administrative Assistant612 [email protected]

Colby B. Lund612 [email protected]

Allison’s TeamKathleen A. Adofo, Paralegal612 [email protected]

Shanda L. Wimberger, Legal Administrative Assistant612 225-6770 [email protected]

Allison V. LaFave612 [email protected]

Lee’s TeamShari A. Williams, Paralegal612 375-5909 [email protected]

Ann M. Vars, Legal Administrative Assistant612 [email protected]

Lee A. Miller612 [email protected]


Beth’s TeamBarbara L. Kelsey, Legal Administrative Assistant612 [email protected]

Beth A. Jenson Prouty612 [email protected]




Fax: 612 339-7655


Hudson, WI 54016Ph: 715 386-9000Fax: 612 339-7655



attorneys at law

John’s TeamPatricia A. Jones, Paralegal612 [email protected]

Nicolle M. Piette, Legal Administrative Assistant612 [email protected]

John C. Wittmer612 [email protected]

Gene’s TeamKaren R.S. Tulk, Paralegal612 [email protected]

Linda M. Melcher, Legal Administrative Assistant612 [email protected]

Eugene C. Shermoen612 [email protected]

Paul’s TeamVirginia L. Hefty, Paralegal612 [email protected]

Kara L. Smith, Legal Administrative Assistant612 [email protected]

Paul J. Rocheford612 [email protected]

Steve’s TeamTeri A. Inderieden, Paralegal612 [email protected]

Ann M. Vars, Legal Administrative Assistant612 [email protected]

Stephen M. Warner612 [email protected]

*Graphics added by Arthur Chapman. This information is provided for general informational purposes only and is not intended as legal advice. To speak with an Arthur Chapman attorney, please call 612-339-3500.

Use voice commands or single-touch activation to:• Make calls*• Use GPS

You may not hold your phone in your hand or use your phone for:• Talking• Texting• Reading or responding to emails• Checking Facebook or Instagram• Video calling or viewing • Live-streaming• Snapchat• Gaming• Viewing photos• Using non-navigation apps

Minnesota’s hands-free bill became law on August 1, 2019. Here are some important highlights:

Minnesota Hands-Free Law

PenaltyThe first ticket is $50 plus court fees and the second and later tickets are $275 plus court fees.

GPSYes. GPS and other systems that can only be used for navigation are exempt from the Hands-Free law. In-car screens and systems are also exempt.

Hijab, Headscarf or WrapHaving a cell phone tucked into a headscarf or head wrap is not against the hands-free cell phone law. The phone, however, must be securely situated to remain hands-free and must not block the driver’s vision in any way.

Smart WatchesDrivers can use them as a conventional watch to check time, but smart watches are considered an electronic communication device under the hands-free law.

500 YOUNG QUINLAN BUILDING 81 SOUTH NINTH STREET MINNEAPOLIS, MN 55402-3214 PHONE 612 339-3500 FAX 612 339-7655 www.ArthurChapman.com

AUTOMOBILE NO-FAULT PRACTICE GROUP

SHAYNE M. HAMANN, CHAIR GREGORY J. DUNCAN ALLISON V. LAFAVE

WILLIAM J. MCNULTY STEPHEN M. WARNER

JOHN C. WITTMER

© 2019 Arthur, Chapman, Kettering, Smetak & Pikala, P.A. | All Rights Reserved | ArthurChapman.com

HAND-FREE LAW GOES INTO EFFECT

AUGUST 1, 2019 IN MINNESOTA A new state law that allows a driver to use their cellphone only with voice commands or single-touch activation without holding the phone became law on August 1, 2019.

Here is a summary of the changes under the new Minnesota law, according to the Minnesota Department of Public Safety.

Drivers may not:

Hold their phone in their hand.

Use their phone at any time for video calling, video live-stream, gaming, looking at videos or photos stored on the phone, using non-dash navigation applications, reading text and scrolling or typing on the phone.

Drivers may use their phone to:

Make calls, text, listen to music or podcast and get directions, but only by voice commands or single touch activation without holding the phone.

Obtain emergency assistance, if there is an immediate threat to life and safety, or when in an authorized emergency vehicle while performing official duties.

Use GPS and other systems that can only be used for navigation as they are exempt from the hand-free law. In-dash car screens and systems are also exempt. In both cases, most of these systems lock when the vehicle is moving.

For more information about the hands-free law, visit the Minnesota Department of Public Safety website at www.dps.mn.gov.

♦ MINNESOTA PHYSICIANS LIST ♦

6465 Wayzata Boulevard Suite 900 Minneapolis MN 55426

(p) 952.229.8500 (p) 800.365.3926 (f) 952.229.8510

www.examworks.com

March 2019

MINNESOTA PHYSICIANS LIST 2019

Allergy Phillip Halverson, MD

Scott Nicholas, MD

Cardiology David Berman, MD

Richard Brody, MD

Thomas Davis, MD (File Review Only)

Chiropractic Tom Boisen, DC*

Brian Garrity, DC

Michael Kohout, DC*

Perry Kranz, DC*

Susan Kranz, DC*

Dana Martin, DC*

Michael Novak, DC*

CrystalPfisterer,DC Jesse Ternus, DC*

Thomas Triden, DC*

John Wildenauer, DC*

Colorectal Surgery Isaac Felemovicius, MD

Dermatology Steven Prawer, MD

Elyse Scheuer, MD

Erin Warshaw, MD

Ear, Nose & Throat Michael Hopfenspirger, MD

Barry Kimberley, MD

(File Review Only) Philip Rapport, MD Robert Silver, MD

Emergency Medicine Mary Carr, MD

(File Review Only) Rocklin Shir, MD

James Sturm, MD*

Andrew Topliff, MD

Randal Wojciehoski, DO, DPM*

Gastroenterology Daniel McKee, MD*

General Surgery Jon Gayken, MD

John Shearen, MD

James Sturm, MD

Hand/Upper Extremity William Call, MD*

L.T. Donovan, DO

David Falconer, MD

Charles Hartz, MD*

Jeffrey Husband, MD

Daniel Marek, MD

Steven Meletiou, MD

Stephen Olmsted, MD

Thomas Walsh, MD

Mark Wilczynski, MD

Hematology Anna Schorer, MD

Infectious Disease Elliot Francke, MD

Gary Kravitz, MD

Internal Medicine Patrick Arndt, MD

Beth Baker, MD, MPH

David Berman, MD

David Bonham, MD

Merlin Brown, MD*

Elliot Francke, MD

Jared Frazin, MD

Philip Halverson, MD

Guilford Hartley, MD

Gary Kravitz, MD

Daniel McKee, MD*

Anna Schorer, MD

Ronald Vessey, MD

Randal Wojciehoski, DO, DPM*

Life Care Planning Nancy Mitchell, OTR/L, CLCP,

ATP, FIALCP

Nephrology Jonathan Tolins, MD

Neurology Rajiv Aggarwal, MD

James R. Allen, MD*

Irfan Altafullah, MD Ivan Brodsky, MD

Joseph Burgarino, MD*

Charles V Burton, MD, FACS Khalafalla Bushara, MD*

Donald Chadwick, MD

Joel Gedan, MD Jack Hubbard, MD

Bruce Idelkope, MD

Praful Kelkar, MD

Mark Larkins, MD*

Moeen Masood, MD*

Suraj Muley, MD

Donald Starzinski, MD, PhD

Steven Stein, MD

Frederick Strobl, MD Yelena Usmanova, MD

Alexander Zubkov, MD

Neuro-Ophthalmology Alan Weingarden, MD

Michael Lee, MD

Neuropsychology Tom Beniak, PhD

Robin Brown, PhD

Maida Gunther, PhD

Cris Johnston, PhD*

Kerri Lamberty, PhD

Susan McPherson, PhD

Nathaniel Nelson, PhD, LP

David Tupper, PhD, LP

Neuroradiology Blake Johnson, MD

Neurosurgery Daniel B. Ahlberg, MD

Anthony Bottini, MD Charles V. Burton, MD, FACS

Hart Garner, MD

Mark Larkins, MD*

Albert (Bert) Meric III, MD

Obstetrics & Gynecology Kenneth Crabb, MD

Russell Wavrin, MD

Occupational Medicine Beth Baker, MD, MPH

Sean Flood, MD

Thomas Jetzer, MD*

John Kipp, MD, JD

Orrin Mann, MD

Oncology Gail Bender, MD

Anna Schorer, MD

Ophthalmology Jonathan Engman, MD

Gunnar Erickson, MD

Neal Sher, MD

Steven Thom, MD

Alan Weingarden, MD

Orthopedic Surgery Stephen Barron, MD*

Jason Barry, MD Jack Bert, MD Brian Bjerke, MD Joel Boyd, MD Paul Cederberg, MD* Thomas Comfort, MD Michael D’Amato, MD John Dowdle, MD Patrick Ebeling, MD Mark Engasser, MD Colin Fennell, MD* Mark Friedland, MD Timothy Gabrielsen, MD Mark Gregerson, MD* Julie Happe, MD Robert Hartman, MD Charles Hartz, MD* Edward Kelly, MD Jeffrey Mair, DO Christopher Meyer, MD Jeffrey Nipper, MD* Randall Norgard, MD Patrick O’Keefe, MD Ross Paskoff, MD Thomas Raih, MD Richard Reut, DO*

Thomas Rieser, MD*

Harry Robinson, MD*

Richard Salib, MD

Nolan Segal, MD*

John Sherman, MD

Orthopedic (Continued) Lance Silverman, MD William Simonet, MD Edward Szalapski, MD Mark Thomas, MD* Loren Vorlicky, MD Corey Welchlin, DO* Paul Wicklund, MD

Gary Wyard, MD

Paul Yellin, MD

Pain Management Paul Biewen, MD Teresa Gurin, MD Jack Hubbard, MD Lon Lutz, MD, DAPBM Nadine Maurer, MD Matthew Monsein, MD Frank Wei, MD Kristen Zeller, MD

Pathology Shannon Mackey-Bojack, MD Bradley Randall, MD Lindsey Thomas, MD

Pediatric David Estrin, MD

Pharmacology Scott Nelson, PharmD Donald Starzinski, MD, PhD

Physiatry (PM&R) Paul Biewen, MD Thomas Cesarz, MD Teresa Gurin, MD George Kramer, MD Nadine Maurer, MD Frank Wei, MD

Physical Therapy (FCEs) Oliver Ang, PT Sandra Ohlenschlager, RPT* Jonathan Reynolds, MSc, PT, PhD*

Plastic Surgery Brian Kobienia, MD Gregory Mesna, MD James Wire, MD

Podiatry/Foot & AnkleSurgeon Timothy Felton, DPM Michael Joyce, DPM James Mazzuca, DPM Desiree Scholl, DPM Russel Sticha, DPM Randl Wojcieski, DO, DPM

Prosthetics Chris Boosalis, CPO Jason Clayton, CPO

Prosthodontics Donna Hecker, DDS, MS Joseph Burgarino, MD* Karen Dickson, MD Ronald Groat, MD Scott Yarosh, MD*

Psychology Patricia Aletky, PhD, LP James Alsdurf, PhD Paul Arbisi, PhD James Boscardin, PhD Daniel Dossa, PhD* Christopher Erbes, PhD Gary Fischler, PhD Mary Kenning, PhD Marvin Logel, PhD Mary Mullenbach, PhD John O’Neil, PhD, LP Leesa Scott-Morrow, PhD, JD* Lisa Squire, PhD Thad Strom, PhD

Pulmonary David Bonham, MD Steven Brown, MD

Radiology Mark Myers, MD George Young, MD

Rheumatology Asim Khan, MD

Spine Surgery Richard Davis, MD Eric Deal, MD Jeffrey Dick, MD Paul Hartleben, MD David Holte, MD Bryan Lynn, MD Thomas Rieser, MD* Richard Salib, MD John Sherman, MD Michael Smith, MD

TMJ/Dental James Fricton, DDS Jon Moren, DDS Michael Perpich, DDS Eric Schiffman, DDS Bradley Sundick, DDS

Toxicology Beth Baker, MD, MPH

Urology Michael Ehlert, MD Mark Fallen, MD James Meyer, MD Steven Siegel, MD Irving Thorne, MD

Vascular Surgery M. Mark Melin, MD

Vocational Expert Jan Lowe, MS, QRC L. David Russell, CRC, CDMS, QRC, MBA

*Denoted physicians that travel outside of the 7 county metro area

PHYSICIAN TREATING CLINIC

Barron, Stephen, MD Minnesota Orthopedics, PA ♦ ♦ ♦ ♦ ♦ ♦ ♦

Barry, Jason, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦ ♦

Bert, Jack, MD MN Bone & Joint Specialists ♦ ♦ ♦ ♦ ♦ ♦ ♦

Bjerke, Brian, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦

Boyd, Joel, MD TRIA, Park Nicollet, Healthpartners ♦ ♦

Call, William, MD Private Practice ♦ ♦

Cederberg, Paul, MD Minnesota Orthopedics, PA ♦ ♦ ♦ ♦ ♦ ♦ ♦

Comfort, Thomas, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦ ♦

D’Amato, Michael, MD MN Bone & Joint Specialists ♦ ♦ ♦

Davis, Richard, MD Twin Cities Orthopedics ♦ ♦

Deal, Eric, MD Twin Cities Orthopedics ♦ ♦

Dick, Jeffrey, MD Twin Cities Orthopedics ♦ ♦

Donovan, LT, MD Summit Orthopedics ♦ neck ♦ ♦

Dowdle, John, MD Summit Orthopedics ♦

Ebeling, Patrick, MD Twin Cities Orthopedics ♦

Engasser, Mark, MD Private Practice ♦ ♦ ♦ ♦ ♦ ♦ ♦

Falconer, David, MD Summit Orthopedics ♦ ♦

Fennell, Colin, MD Riverview Orthopedic Clinic ♦ ♦ ♦ ♦ ♦ ♦

Friedland, Mark, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦

Gabrielsen, Timothy, MD TRIA, Park Nicollet, Healthpartners ♦ ♦ ♦ ♦ ♦ ♦ ♦

Gregerson, Mark, MD Advanced Orthopedic Surgery, P.A. ♦ ♦ ♦ ♦ ♦ ♦ ♦

Happe, Julie, MD Veteran’s Administration ♦ ♦ ♦ ♦ ♦ ♦

Hartleben, Paul, MD Twin Cities Orthopedics ♦ ♦

Hartman, Robert, MD Twin Cities Orthopedics ♦ ♦

Hartz, Charles, MD Fargo VAH ♦ ♦ ♦ ♦ ♦ ♦ ♦

Holte, David, MD Twin Cities Orthopedics ♦

Husband, Jeffrey, MD TRIA, Park Nicollet, Healthpartners ♦ ♦

Joyce, Michael, DPM Roseville Podiatry Clinic ♦

Kelly, Edward, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦

Lynn, Bryan, MD Summit Orthopedics ♦ ♦

Mair, Jeffrey, DO Twin Cities Orthopedics ♦ ♦ ♦

MINNESOTA ORTHOPEDIC GUIDEPODIATRY GUIDE

This is a quick referece tool only. Our orthopedic physicians see patients with a variety of orthopedic injuries and conditions. Contact our SchedulingDepartmentoryourAccountManagerforhelpindeterminingthebestphysicianforyourspecificcase.

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PHYSICIAN TREATING CLINIC

Marek, Daniel, MD Twin Cities Orthopedics ♦ ♦

Mazzuca, James, DPM TRIA, Park Nicollet, Healthpartners ♦

Meletiou, Steven, MD Twin Cities Orthopedics ♦ ♦ ♦

Meyer, Christopher, MD Twin Cities Orthopedics ♦ ♦ ♦

Nipper, Jeffrey, MD MN Bone & Joint Specialists ♦ ♦ ♦ ♦ ♦ ♦ ♦

Norgard, Randall, MD Orthopedic Partners ♦ ♦ ♦ ♦ ♦ ♦ ♦

O’Keefe, Patrick, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦

Olmsted, Stephen, MD Twin Cities Orthopedics ♦ ♦

Paskoff, Ross, MD TRIA, Park Nicollet, Healthpartners ♦ ♦ ♦ ♦ ♦ ♦

Raih, Thomas, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦

Reut, Richard, DO Hennepin County Medical Center ♦ ♦ ♦ ♦ ♦ ♦

Rieser, Thomas, MD Midwest Spine & Brain Institute ♦ ♦ ♦

Robinson, Harry, MD Veteran’s Administration ♦ ♦ ♦ ♦ ♦ ♦ ♦

Salib, Richard, MD Summit Orthopaedic ♦ ♦

Scholl, Desiree, DPM Western Wisconsin Health ♦

Segal, Nolan, MD Western Orthopaedics ♦ ♦ ♦ ♦ ♦ ♦ ♦

Sherman, John, MD Twin Cities Orthopedics ♦ ♦

Silverman, Lance MD Silverman Orthopedics, P.C. ♦

Simonet, William, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦ ♦

Smith, Michael, MD Twin Cities Orthopedics ♦ ♦

Sticha, Russell, DPM Heartland Orthopedic Specialists ♦

Szalapski, Edward, MD Twin Cities Orthopedics ♦ ♦ ♦

Thomas, Mark, MD TRIA, Park Nicollet, Healthpartners ♦ ♦ ♦ ♦ ♦ ♦ ♦

Vorlicky, Loren, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦

Walsh, Thomas, MD TRIA, Park Nicollet, Healthpartners ♦ ♦ ♦

Welchlin, Corey, DO Center for Specialty Care ♦ ♦ ♦ ♦ ♦ ♦ ♦

Wicklund, Paul, MD Private Practice ♦ ♦ ♦ ♦ ♦ ♦ ♦

Wilczynski, Mark, MD TRIA, Park Nicollet, Healthpartners ♦ ♦

Wyard, Gary, MD Twin Cities Orthopedics ♦ ♦ ♦ ♦ ♦ ♦

Yellin, Paul, MD Summit Orthopedics ♦ ♦ ♦

MINNESOTA ORTHOPEDIC GUIDEPODIATRY GUIDE

ANKL

E/FO

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EE/H

IP

SHOUL

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SOFT

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BACK

(NON S

URGI

CAL)

HAND/

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L SPI

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This is a quick referece tool only. Our orthopedic physicians see patients with a variety of orthopedic injuries and conditions. Contact our SchedulingDepartmentoryourAccountManagerforhelpindeterminingthebestphysicianforyourspecificcase.

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RANDAL F. WOJCIEHOSKI, D.P.M., D.O.

Curriculum Vitae

PERSONAL DATA

Permanent Address: 1066 Martin Island DriveStevens Point, Wisconsin 54481(715) 341-0239 FAX: (715) 341-0239E-Mail: [email protected]

Occupation: Emergency Physician, Ministry Medical Group - St. Michael’s HospitalMedical Director, Ministry/Affinity Employer Solutions-Occ. MedMedical Director, Ministry/Affinity Associate HealthMedical Director, Ministry Door County Mem. Hospital-Occ. MedMinistry Saint Michael's Hospital-Ministry Health Care/AscensionMinistry Medical Group (MMG)- Central Region900 Illinois AvenueStevens Point, Wisconsin 54481(715) 346-5101 FAX: (715) 346-5578Email: [email protected]

President, Medical Topics Unlimited, L.L.C.1066 Martin Island DriveStevens Point, WI 54481(715) 341-0239 FAX (715) 341-0239www.drwojo.com

OwnerMaple Ridge/Memory Care of Plover2831 Maple DrivePlover, WI 54467715.498.4949www.tanglewoodassistedliving.org

BOARD CERTIFICATION (AAPS)Internal Medicine (1995-2006, Recertified 2006-2014, Recertified 2014-2022)Emergency Medicine (1996-2006, Recertified 2006-2014, Recertified 2014-2022)Emergency Medicine Oral Board Examiner (2004-present)

9-19-2016�

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PROFESSIONAL LICENSURES (Medicine and Surgery)DEA Number: BW1479244Florida Number OS10638Illinois Number 036.124160Iowa Number 3802Minnesota Number 50469Missouri Number 2015043929South Dakota Number 8248Wisconsin Number 31414-21Wisconsin Number 606-25 (Podiatric Medicine and Surgery)

STAFF APPOINTMENTSMinistry Saint Michael's Hospital, Emergency Medicine-Stevens Point, Wisconsin 07/1990-PresentMinistry Saint Clare’s Hospital, Emergency Medicine (Courtesy)-Weston, Wisconsin 01/2005-PresentMinistry Good Samaritan Hospital, Emergency Medicine (Courtesy)-Merrill, Wisconsin 01/2005-PresentMinistry Sacred Heart Hospital, Emergency Medicine(Courtesy)-Tomahawk, Wisconsin 01/2005-PresentMinistry St. Mary’s Hospital, Emergency Medicine (Courtesy)-Rhinelander, Wisconsin 01/2005-PresentMinistry Door County Memorial Hospital, Occ.Med (Courtesy)-Sturgeon Bay, Wisconsin 09/2015-Present

VISITING PHARMACEUTICAL FACULTYBristol-Myers-Squibb Company - Princeton, New Jersey 08543Genentech, Inc. - South San Francisco, California 94080Institute of Continuing Healthcare Education, Philadelphia, PA 19355Orphan Medical - Minneapolis, Minnesota 55305Roerig-Pfizer - New York, New York 10012Schering-Plough, Kenilworth, NJ 07033

MEDICAL-LEGAL CONSULTANTCourt appearances in cases involving domestic violence, criminal actions, infectious disease, internalmedicine, medical malpractice, personal injury, toxicology, trauma, worker’s compensation, and wrongfuldeath. Plaintiff and Defense Expert. Disability and competency examiner for alcohol, drug, and toxicologycases, as well as mental health commitments.

MEDIA CONSULTANTTelevision, radio, and print appearances focusing on a variety of current medical topics. Syndicatednewspaper columnist.

SENIOR AVIATION MEDICAL EXAMINERFAA certified medical examiner performing Class I, II and III pilot medical examinations.

INDEPENDENT MEDICAL EXAMINERSpecial interest in independent medical exams and medical record review on various conditions.

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CLINICAL PHYSICIAN INVESTIGATOR01/1993-12/2003 National Registry of Myocardial Infarction (1,2,3,4)

ACADEMIC BACKGROUNDDiploma: Internal Medicine Residency --University of Wisconsin

Marshfield Clinic Program—06/1992 Marshfield, WisconsinDegree: Doctor of Osteopathy – 05/1989

University of New England - Biddeford, MaineDegree: Doctor of Podiatric Medicine – 05/1986

New York College of Podiatric Medicine, New YorkDegree: Marquette University, Milwaukee, Bachelor of Arts (Psychology) -

(05/1982), Milwaukee, WIDiploma: Pacelli High School-05/1978

Stevens Point, WisconsinDiploma: WI Registered Emergency Medical Technician-05/1978

Fox Valley Technical Institute, Appleton, Wisconsin

UNITED STATES NAVAL RESERVES ACTIVE DUTYDirect Commissioned Officers Program, NAS-Pensacola, FL - 02/1990Emergency Physician, Naval Hospital, San Diego, CA – 03/1991Lieutenant Commander, Medical Corps, Individual Readiness Reserve (09/1989-09/2003)

CERTIFICATIONSABA-Advanced Burn Life Support – 01/1996(Current)ACEP Advanced Pediatric Life Support – 01/1995(Current)ATLS-Advanced Trauma Life Support – 031/90,03/1995, 03/2006(Current)AHA Advanced Cardiac Life Support Instructor – 01/1989AHA Advanced Cardiac Life Support – 05/1978(Current)AHA CPR Instructor – 09/1978

EMPLOYMENT RECORD04/2015-Present: Medical Director, Consumer Health Connections, Milwaukee, WI03/2015-Present: Medical Director-Berkshire Hathaway Travel Protection, Stevens Point,WI01/2016-Present: Medical Consultant-BTE, Harley-Davidson, Milwaukee, WI04/2012-12/2015: Medical Director-Premise Health, Harley-Davidson Milwaukee, WI05/2012-Present: Medical Director, Rosholt Public School System01/2010-Present: Adventure 212º, Medical Director03/2007-Present: Encore Unlimited, Ltd. Medical Director092007-Present: Stevens Point Area Catholic Schools, Medical Director09/2007-Present: Maple Ridge Assisted Living, Owner

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06/2004-12/2012: AIG-TravelGuard Insurance-Medical Consultant01/2006-12/2012: MedEvent, Inc. Medical Director01/2004-12/2009: U.S. Bank-Stevens Point, WI Board of Directors01/2000 – 12/2002: Travel Care International-Flight Physician01/1992 – 12/2002: Midstate Technical College - Emergency Services Instructor04/1994: American Hawaii Cruise Lines - Cruise Physician01/1991: Riverview Hospital - Emergency Physician07/1990-Present: St. Michael’s Hospital-Emergency Physician07/1990 – 12/1998: Novus - Emergency Physician07/1990 – 06/1992: National Emergency Services - Emergency Physician08/1986 – 12/1987 CMPMC, Lewiston, ME - Podiatric Physician/Surgeon01/1984 – 06/1986: LaGuardia Community College, New York, NY - EMT01/1983: Bloomingdale's, New York, NY - Sales Associate01/1982 – 12/1983: Waupaca Area Ambulance, Ltd., Waupaca WI - EMT01/1981 – 05/1982: Curtis-Universal Ambulance, Milwaukee, WI - EMT05/1980 – 01/1982: A.J.Holly&Sons, Ltd. Waupaca, WI - EMT/Funeral/Assistant08/1979 – 05/1981: Marquette University, Milwaukee, WI - Resident Advisor01/1977 – 12/1984: Sentry Insurance, Stevens Point, WI - Fitness Assistant01/1977 – 06/1978: Mid-State Technical Institute, Stevens Point, WI - Instructor01/1976 – 12/1983: Free Lance Rescue Squad, Stevens Point, WI - Proprietor01/1976 – 08/1978: YMCA, Stevens Point, WI - Cardiac Rehabilitation Specialist01/1976 – 05/1977: Saint Michael's Hospital, Stevens Point, WI - Orderly

LECTURES“Abdominal Wall Hernias,” WI Worker’s Compensation Seminar, Brookfield, WI (2012)"ACC/AHA Guidelines for UA and NSTEMI," Green Bay Area Physicians, Green Bay, WI (2000)“Acute Coronary Syndrome.” Riverview Hospital, Wisconsin Rapids, WI (1999), CME, Green Bay, WI(1999, 2000), Stoughton Hospital, Stoughton, WI (2000), Dade Behring Seminar, Pewaukee, WI (2001).“ACS and CQI in Emergency Medicine.” Lake Region Hospital, Fergus Falls, MN (2002); ACEP, Seattle,WA (2002); Webcast (2002), St. Agnes Hospital, Fond du lac, WI (2003)"Antimicrobial Resistance in Common Respiratory Pathogens". Michigan Health Care Center, Detroit, MI(1993), Bay City Medical Center, Bay City, MI (1992)“Antibiotic Resistance in Streptococcus Pneumonia". St. John's Hospital, Detroit, MI; St. Joseph'sHospital, Fort Wayne, IN; UWSP Health Center, Stevens Point, WI (1994), Saint Michael'sHospital, Stevens Point, WI (1994); Sentry World, Stevens Point, WI (1994); Bay City Medical Center, BayCity, MI (1994); Toll-Free Memorial Hospital, West Branch, MI (1994); Portage View Hospital, Hancock, MI(1994); Marion Medical Society, Marion, IN (1994); Riverside Medical Center, Waupaca, WI (1994);Wisconsin Association of Osteopathic Physicians, Fall Seminar, Milwaukee, WI (1994); Fort WayneMedical Society, Fort Wayne, IN (1995); Tri-County Medical Society, Peru, IN (1995); Cook CountyMedical Society, Chicago, IL (1995); Tri-County Medical Society, Lancaster, WI (1995); Iron MountainMedical Society, Iron Mountain, MI(1995); Eau Claire Registered Nurses, Eau Claire, WI(1996); CentralWisconsin Mid level Providers, Stevens Point, WI(1996) St. Joseph’s Hospital, Minot,ND, County MedicalMeeting,Williston, ND(1997) , Fox Valley Family Practice Conference, Appleton,WI(1997), Winona Clinic,Winona, MN(1997), Pediatric Residents, Marshfield Clinic, Marshfield, WI(1998)"Atrial Fibrillation: New Emergency Treatment". Marshfield Clinic (1992), St Michael's (1992)

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“Back Pain: Causes and Treatment.” Milwaukee, WI (2003), InMedical Seminar, Brookfield, WI (2004),Milwaukee, WI (2005), Chicago, IL (2005)“Carbon Monoxide: The Silent Killer.” Stevens Point Fire Department, (2000)“Cervical Spine Injuries and Emergency Treatment.” Sports Medicine Conference, St. Pt, WI (1995.96)“Cocaine Abuse and Cardiac Manifestations”. NCCCU Nurse Association, Stevens Point, WI (1996)“Complementary/Alternative Medicine.” WI Risk Management Conference, Madison, WI (2004)“Complex Regional Pain Syndrome.” Sedgwick Risk Management, Milwaukee, WI. (2011), Twin CitiesInsurance Adjusters Association, Minneapolis, MN (2015)"Crohn's Disease". Marshfield Clinic (1991)“Cost-Effective Radiology.” AMEX, Green Bay; American Family Insurance, Milwaukee, Wausau, WI(2004), American Family Insurance, Appleton, WI (2006), Work Comp Forum, Milwaukee, WI (2006)"Current Trends in Thrombolysis of Pulmonary Emboli". St Michael's Hospital, Stevens Point (1993)“Depression in Emergency Medicine.” Central WI Physician Assistants, Stevens Point (1998)“Domestic Violence in the Emergency Department". St. Agnes Hospital, Fond du Lac, WI (1995)”“Effective IME’s and Record Reviews.” Corvel Seminar, Waukesha, WI (2005), Arthur Chapman Seminar,

Milwaukee, WI (2015)“Emergency Ethylene Glycol Treatment.” Orphan Medical, Minneapolis, MN (1997)“Evidence Based Treatment of Back Pain.” Medical Systems WC seminar, Milwaukee, WI (2007), WCPresentation, Dubuque, IA (2008), GB WC Presentation, Milwaukee (2008), EBTSeminar, Minneapolis(2008), American Family Insurance Seminar, Rochester, MN (2008), West Bend Mutual, West Bend, WI(2009), Sentry Insurance, Stevens Point, WI (2009), American Family Insurance, Wausau, WI (2009), CMI,Bartlesville, AK (2009), Wisconsin Safety Council, WI Dells, WI (2013)“Evidence Based Treatment of Carpal Tunnel”, Secura Insurance Seminar, Appleton, WI (2008), NISSeminar, Madison, WI (2008)“Fetal Trauma in MVA’s.” Am Family, Madison, WI (2005), Wausau, WI (2005)“Foot and Ankle Injuries in the Workplace.” WI Workers Compensation Seminar, Brookfield, WI (2012)“GP IIb/IIIa Inhibitors: Current Therapy.” ACEP, Chicago (2001), IL. ACOI, Orlando, FL (2001)."Hepatic Abscess". American College of Physicians State Conference, Lake Geneva, Wisconsin (1991)"Hypertension: Current Trends and Treatments". Neilsville Hospital, Neilsville, WI (1992)“Hypothermia Treatment.” Stevens Point Fire Department, Stevens Point, WI (1994)“Humor in the Emergency Department". WI Emergency Nurses Association - Waupaca, WI (1992)“Introduction to Rapid Sequence Intubation.” St. Michael’s Hospital, Stevens Point, WI (2007)“Low Impact Trauma.” Acuity Insurance, Sheboygan, WI (2004)“Motor Vehicle Trauma.” General Casualty Insurance; UW-Madison, Madison, WI (2003, 2004), NorthernWI Adjusters Association, Wausau, WI (2005)"Migraine Headache: What's New?" Saint Michael's Hospital (1993)“Medical Conditions manifesting in the Workplace.” Workers Compensation Conference, Milwaukee (2006)Integrity Insurance, Appleton, WI (2007)“MRSA-Current Trends and Treatments.” University of WI/State of WI Claims Dept. Madison (2011)“Occupational Allergies and Sick Building Syndrome.” WI Voc Rehab Conference, Madison, WI (2009)“Occupational Lung Disease.” Risk Management Services, Minneapolis, MN (2011)“Portage County EMS and You.” Mended Hearts Group, St. Michael’s Hospital, Stevens Point, WI (2000)"Perspective on Thrombolytics: t-PA vs. APSAC". Marshfield Clinic (1990)“Podiatric Medicine and Liability.” WI Claims Council, Brookfield, WI (2009)"Pneumonia and Chronic Disease". Marshfield Clinic (1990)

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"Practical Podiatry for the Non-Podiatrist". Grandview Medical Center, Dayton, OH (1988); MarshfieldClinic, (1989); Good Samaritan Medical Center, Merrill Wisconsin (1991); St. Joseph’s Hospital FortWayne, IN (1994); Riverview Hospital, Wisconsin Rapids, WI (1995), Worker’s Compensation Conference,Milwaukee, WI (2005), St. Paul Traveler’s Insurance, (2006)"Pre-Hospital Defibrillation". Adams Hospital, Adams, WI (1993); Plover Fire Dept., Plover, WI (1994);Portage County First Responders, (1994), Waushara County EMI-I program (1997)“Prescription Drug Fraud.” Midwest Worker’s Compensation Forum, Pewaukee, WI (2010), SecuraInsurance, Appleton, WI (2011), Central WI Claims Adjusters, Wausau, WI (2011), WI Voc Rehab AnnualConference, Stevens Point, WI (2011), Wisconsin Safety Council, WI Dells, WI (2013), WI WorkCompensation Seminar, Milwaukee, WI (2013), Integrity Legal Seminar, Minneapolis, MN(2016)“Radiology: Cost-Effective Testing.” (2004), American Express Casualty, Green Bay, WI“Shoulder Exam and IME,” Evalumed Seminar, Wausau, WI (2008)"Skin Infections and Antimicrobial Treatment". Good Samaritan Medical Center, Merrill, WI (1992); SaintJoseph's Hospital, Fort Wayne, IN (1994)“Slip and Fall Injuries and Liability.” WI Claims Council, Brookfield, WI (2009)“State of the Heart,” Nashville Area Physicians, Nashville, TN (2003), Janesville, WI (2003)“Status Epilepticus: Current Treatment.” Midstate Epilepsy Conference, Stevens Point, WI (1995)“Teens, Drugs, and Alcohol in Emergency Medicine.” Keynote, Pacelli High School, St Pt, WI (2001)“The Reduction of Hospital Medication Errors,” PA Hospital Pharm. Assoc, Atlantic City, NJ (2003)"Thrombolysis of the Pulmonary Embolism". Marshfield Clinic (1990)Thrombolytic Therapy and the Acute Myocardial Infarction". Wisconsin Physician Assistants StateConference (1994); Waupaca County Medical Society (1994); Emergency Physicians; Lincoln, NE (1994);Riverside Medical Center, Waupaca, WI (1995)Thrombolytic Update: MI and CVA.” Fox Valley Critical Care and EMS, Appleton, WI (1998)“Thrombolytics, AMI, and Emergency Medicine.” Genentech, Inc. South San Francisco, CA (2000)“Timely Treatment of the Acute MI”. Theda-Clarke Medical Center Neenah, WI (1995); WI Association ofOsteopathic Physicians, Fall Seminar, Milwaukee, WI (1995); Vernon Community Memorial Hospital,Viroqua, WI (1996); St Mary’s Hospital, Detroit Lk, MN (1996); Community Hospital, Decorah, IA (1996)“Timely Treatment of ACS.” CME Programs, Marinette, WI (2001), Green Bay, WI (2001)“Trauma and Pregnancy.” American Family Insurance, Madison, WI (2004)"Treatment of Supraventricular Tachycardia and Adenosine". Marshfield Clinic (1991)

PUBLICATION AND RESEARCHTo Your Health with Dr. Wojo, Randal F. Wojciehoski, DPM, DO Publications, (2007)Fetal Trauma and Motor Vehicle Accidents. Emergency Medical Services, Vol. 34, No. 7, July 2005.Nosebleeds. Emergency Medical Services, Vol. 34, No. 8, August 2005.Unusual Resuscitations. Emergency Medical Services. Vol. 34, No. 8, September 2005.Open Reduction of Lisfranc's Dislocation. Journal of the American Podiatric Med. Assn, Feb. 1989Lupus Erythematosus: Systemic & Podiatric Manifestations. Journal of Current Podiatric Medicine, (7/85)Ankle Sprains: Mechanism and Treatment. New York College of Podiatric Medicine, NY, NY (1984)Chronic Mentally Ill and Ambulance Personnel. Marquette University, Milwaukee, WI (1982)Sudden Infant Death Syndrome and Ambulance Personnel. Marquette University, Milwaukee, WI (1981-82)Sentry Insurance CPR Program. Co-Author and Instructor.Sentry Insurance, Stevens Point, WI – 1977

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TO YOUR HEALTH WITH DR. WOJO SYNDICATED NEWSPAPER COLUMN TOPICSAAA, ACL injury, Achilles Tendonitis, Adult ADD, AEDs, Alcoholism, Alcohol Poisoning, Allergies,Alzheimer’s Disease, Ankle Sprains, Annual Physicals, Antibiotic Resistance, Appendicitis, Asthma,Athletic Sudden Deaths, Atrial Fibrillation, Aspirin Benefits, Avian Flu, Aviation Medicine, AVM, BabyBoomer Exercise, Back Pain Injuries, Back Pain, Bariatric Surgery, Bee Stings, Berry Benefits, Bird Flu,Blastomycosis, Boating Safety, Botox, Breast Implants, Bronchitis, Brugada Syndrome, Burns, Caffeine,Capsule Endoscopy, Carbon Monoxide Poisoning, Carpal Tunnel Syndrome, Cerebral Aneurysm, CHF,Cholesterol, CLL, Cocaine Abuse, Cold Injuries, Cold Injuries 2008, College Alcohol Abuse, ComplexRegional Pain Syndrome, Conjoined Twins, Colon Cancer, COPD, Coronary Artery Disease/Women, CoreFitness, Coughing, Coumadin, Croup, Current Lyme Disease Treatment, Dehydration, Diabetes 2007,Dignified Death, Diverticulitis, Dizziness, DKA, DVT, Dysphagia, Ear Infections, Eating Disorder, EctopicPregnancy, Eczema, Ehrlichiosis/Lyme Disease, Elderly Exercise, Emergencies, Emergency MedicalServices, Energy Drinks, ER Visits, Ephedra, Emphysema, Evidence Based Medicine, Excessive DaytimeSleepiness, Falls, Febrile Seizures, Femur Fractures, Fentanyl Patches, Fever, Fibromyalgia, Foodpoisoning, Flu, Flu Vaccine Shortage, Freshman 15, Fructose Intolerance, Gardening Injuries,Gastroenteritis, GHB Poisoning, Golf Exercise, Golf Injuries, Golf Injuries 2, Gout, Hand-Foot-MouthDisease, Head Injuries, Heat Injuries, Heat Illness, Hemorrhagic Shock, Hepatitis, Hiatal Hernia, HolidayHeart, Holiday Illnesses, HUS, Hyperlipidemia, Hypertension, Hypertension 2008, Hypothermia,Hypothyroidism, IBS, ICD,Immune System Health, Immunizations, Influenza Vaccine 06,Insomnia,Interstitial Cystitis, Intracranial Hemorrhage, iPods/Hearing Loss, Kidney Stones, Lactose Intolerance,LASIK, Leg Ulcers, Lightening Injuries, Low Carb Diets, Lung Cancer, Lyme Disease, MacularDegeneration, Male Breast Cancer, Malignant Hyperthermia, Medication Reconciliation, MediterraneanDiet, Melamine Toxicity, Meniere’s Disease, Meningitis, Monkeypox Virus, Mononucleosis, MotionSickness, MRSA, Multiple Sclerosis, Mumps, Muscle Cramps, Narcotic Drug Abuse, New Year’sResolutions, Novovirus, Obesity, Oral Allergies, OTC Meds, Otitis Media, Pancreatitis, PediatricEmergencies, Pediatric OTC Meds, Plantar Fasciitis, Peptic Ulcer Disease, Personal Emotions, PesAnserine Bursitis, Pine Allergies, Poisoning, Prescription Drug Abuse, Prostate Screening, PsoriaticArthritis, Pulmonary Embolism, Rabies, Reye’s Syndrome, Rheumatoid Arthritis, Rhinitis, Rocacea, RotatorCuff Injury, Salmonella Poisoning, SARS, School Year Preparation, Sciatica, Scoliosis, Seasonal AffectiveDisorder, Seasonal Allergies, Seatbelt, Safety, Septic Shock, Shingles, SIDS, Sleep Apnea, SnowBoarding Injuries, Spina Bifida, Spinal Anesthesia, Spinal Cord Injuries, Sports Injuries, Sports physicals,Statins, STDs, Stroke, Summer Camp Medicine, Summer Problems, Sunburn, Swine Flu, Syphilis,Syncope, Tamiflu, Tennis Elbow, Tetanus, Typhoid Fever, TIA, Tinnitus, Transdermal Medications,Transient Global Amnesia, Traumatic Brain Injury, URI Prevention, UTI, Varicose Veins, Violence, Vioxx,Vitamins, Walking Health, Warts, Water Intoxication, Water Safety, West Nile virus, When to Go to ER,Whooping Cough, Women and Heart Disease

FACULTY APPOINTMENTU W Medical School-P.A. Program- Clinical Instructor of Emergency MedicineMarquette University-P.A. Program: Clinical Associate Professor of Emergency MedicineMedical College of Wisconsin, Medical Student Preceptor, Emergency MedicineFinch University-Chicago Medical School-Clinical Instructor, Emergency Medicine

AWARDSWisconsin Hospital Association 2006 Employee Pride Award, Sheboygan, WI

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Ministry Health Care Circle of Excellence Award, 2000. Stevens Point, WIStar of Life Award, 1999. Leadership in Portage County EMS, Stevens Point, WIWho’s Who in Health Care and Medicine, 1997-1998, 1998-1999 EditionAmerican Heart Association Good Samaritan Award 1994 Recipient - State of WisconsinAmerican College of General Practitioners Preceptorship Grant 1989 Recipient-Chicago, ILCentral Wisconsin Health Foundation Scholarship 1984 Recipient - Stevens Point, WIWho's Who Among Students in American Universities and Colleges 1981, 1982 Recipient - MarquetteUniversity Academic Scholarship 1978-1982 Recipient - Milwaukee, WIAmerican National Red Cross/President Carter National Merit Award for Selfless and Humane Action 1977

PROFESSIONAL ACTIVITIES AND MEMBERSHIPSAmerican College of Emergency Physicians (1990-present)American Osteopathic Association (1986-2011)American College of Physician Executives (2001-2006)American Association of Physician Specialists (1993-present)Associate Medical Producer-Ministry Healthcare Network/Marxx Productions (1998-2005)Association of Emergency Physicians - Board of Directors (1992-1994)Bylaws Committee, St. Michael’s Hospital: Chairman (2003-2005)Cardiovascular Service Development Team, St. Michael's Hospital (2000-2002)Chairman, Department of Emergency Medicine, St. Michael’s Hospital (1997-2001)Chairman, Cardiovascular Services Quality Assurance, St. Michael’s Hospital (2003-2005)Continuing Medical Education Committee, Saint Michael's Hospital (1993-1995)Corporate Physician Marketing Committee, Ministry Healthcare Network (1998-2001)Credentials Committee, St. Michael’s Hospital, (2005)Emergency Care Committee CQI Facilitator, St. Michael’s Hospital (1999-2001)EMT Program Advisory Committee, Mid-State Technical College, WI Rapids (1998-2003)Executive Committee, St. Michael’s Hospital (1998-2001)Marketing Oversight Committee, Ministry Health Care Network, Milwaukee, WI (1998-2003)Medical Detoxification Continuous Quality Improvement Committee (1997-2002)National Association of EMS Physicians (1995-2005)Pharmacy and Therapeutics Committee, Saint Michael's Hospital (1993-1996)(2003-2004)Quality Assurance Committee, Saint Michael’s Hospital (1996-1998, 2005)Utilization Review Committee, Saint Michael’s Hospital (1997)Wisconsin Medical Society (2004-present)

COMMUNITY SERVICEBoys and Girls Club of Portage County, Board of Directors (2002-2004)Community Leadership Memorial Steering Committee (1996-present)Community Alcohol and Drug Abuse Center (CADAC), Board of Directors (1993-2006)Eske Social Club Ltd, Board of Directors (2000-2003); President (2002-2003)Portage County Home Health Care Advisory Committee, Board Member (1993 - 1997)Pacelli High School Capital Fund Drive, Committee Member (1993)Mid State Epilepsy Association - Professional Advisory Board (1994-1997)Portage County Child Protective Services Board (1995-1997)Portage County Death Investigation Committee (1995-1997)

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SPACS Capital Campaign 2001-2002: Chairman. Raised $2.5 million.Saint Michael’s Foundation-Board of Directors (1995-2001); Sec./Treasurer (1996-2000), Chairman (2001-2003), Chairman Emeritus, (2004)Stevens Point Area Catholic Schools (SPACS) Endowment Fund, Board of Trustees, (1999-present)Stevens Point Airport Strategic Planning Team (2004)Stevens Point Business Pilot’s Association (2004-present)

EMERGENCY MEDICAL SERVICESEMS Medical Director-Portage County (1990-2002)EMS Advisory Council of Portage County-Chairman (1998-2002)EMS Professional Advisory Board, Mid-State Technical College (1998-2008)Portage County Ambulance Service and EMS - Medical Director (1990-2002))Portage County Ambulance Service ET Intubation Program, Medical Director (1993)Portage County Medical Society-Mini-Internship Preceptor (1994-1996)Portage County Corporation Counsel, District Attorney's Office, and HumanServices: Psychiatric, Alcohol, Drug and Competency Medical Examiner (Current)Portage County Strategic Planning Committee for Emergency Medical Services (1995, 1999-2000)Stevens Point Mayor’s EMS Advisory Committee (1996-1997)Waupaca County HAZMAT Drill - Medical Director (1993)

FAA LICENSURE and TrainingPrivate Pilot ((7/00)Instrument Rating (5/02)Commercial Pilot License (12/03)FAA Wings Program-Phase 1Beech Pilot Proficiency ProgramFAA Senior Aviation Medical Examiner (First, Second, Third Class Medicals)

REFERENCESMinistry St. Michael’s Hospital/Ministry Health Care, Stevens Point, WI (715) 346-5000

Mr. Jeff Martin, President and Regional CEODr. Robert Tillotson, Emergency Department Medical DirectorPatti Groholski, Employer Solutions Executive Director

September 2016

2019 Minnesota Automobile Law Seminar September 26, 2019

Arthur, Chapman, Kettering, Smetak & Pikala, P.A. 1

2019 MinnesotaAutomobile Law Seminar

September 26, 2019

September 26, 2019 2019 Minnesota Automobile Law Seminar 2





Agenda

• Case Law Update

• A Road Map to No-Fault Arbitration Success

• The Current State of Bad Faith Litigation in Minnesota and Techniques to Combat It

• Combating Plaintiff Attorney Trends

• No-Fault-Related Panel Discussion

• Guest Speaker, Dr. Randal Wojciehoski – Emergency Medicine and Defending Personal Injury Claims


Case Law Update

Steven J. Erffmeyer

Beth A. Jenson Prouty



Nichols v. State Farm Auto. Ins. Co.927 N.W.2d 334 (Minn. Ct. App. 2019)

Facts:

• Ms. Nichols (insured) injured in motor vehicle accident on November 27, 2014.

• Treated at North Memorial Hospital emergency department

• Insured applied for no-fault benefits in January 2015.

• State Farm paid.


Nichols (continued)

• Insured received additional treatment at North Memorial Hospital from April 2015 – December 2015.

• North Memorial submitted charges to Ucare within six months of treatment.

• Ucare pays.

• North Memorial never submitted charges to State Farm.

• Insured pursued No-Fault arbitration against State Farm.


Nichols (continued)

Issue: Whether North Memorial complied with Minn. Stat. §62Q.75, Subd. 3, requiring health-care provider to submit charges within 6 months of treatment.

• Holding: North Memorial’s submission of bills to “a health plan company” rather than the “responsible health plan company” is sufficient to comply with the statute.




Other RecentMinn. Stat. §62Q.75 Cases

• West. Nat’l Ins. Co. v. Nguyen

– Supreme Court affirmed denial of benefits for bills not submitted by provider to known PIP carrier within 6 mo.

– Because provider was not entitled to payment, claimant suffered no loss, so no PIP benefits.

• Bach v. Lib. Mut. Fire Ins. Co.

– Court of appeals held PIP benefits available for bills not submitted within six months because no evidence that provider had been given PIP carrier information.


Rodriguez v. State Farm Auto. Ins. Co.931 N.W.2d 632 (Minn.2019)

Facts:

• Ms. Rodriguez, a bus driver, injured in motor vehicle accident during course and scope of employment.

• Rodriquez obtained chiropractic care from ChiroFirst.

• Workers’ compensation insurer paid for 12 weeks of treatment, but discontinued due to certain workers’ compensation parameters.


Rodriguez (continued)

• Rodriguez discontinued treatment with ChiroFirst and began treatment with Core Health Chiropractic.

• Rodriguez sought No-Fault benefits from State Farm.

• State Farm denied benefits because of determination by worker’s compensation carrier that more than 12 weeks of care was excessive, unnecessary, or inappropriate.





Issue: Whether No-Fault insurer can take advantage of Minn. Stat. §176.83, subd. 5(c) to deny benefits.

• If it is determined by the [worker’s compensation] payer that the level, frequency, or cost of a procedure or service of a provider is excessive, unnecessary, or inappropriate according to the standards established by the rules, the provider shall not be paid for the procedure, service, or cost…and the provider shall not be reimbursed for the procedure, service, or cost from any other source, including…another insurer…



• Holding:

– Minn. Stat. §176.83, subd. 5(c) only applies to the specific provider whose services the workers’ compensation payer determined to be excessive, not the procedure or service deemed to be excessive.

• Note:

– Court suggests State Farm could have relied on statute had Rodriguez continued treatment with same chiropractic provider.


UIM Cases

Minnesota Statute § 65B.43, subd. 3a(5)

If at the time of the accident the injured person is occupying a motor vehicle, the limit of liability for uninsured and underinsured motorist coverages available to the injured person is the limit specified for that motor vehicle.

However, if the injured person is occupying a motor vehicle of which the injured person is not an insured, the injured person may be entitled to excess insurance protection afforded by a policy in which the injured party is otherwise insured. September 26, 2019 2019 Minnesota Automobile Law Seminar 15



UIM Cases

Minnesota Statute § 65B.43, subd. 5

“Insured” means an insured under a plan of reparation security … including the named insured and the following persons not identified by name as an insured while (a) residing in the same household with the named insured and (b) not identified by name in any other contract for a plan of reparation security complying with sections 65B.41 to 65B.71 as an insured:

1) a spouse,

2) other relative of a named insured, or

3) a minor in the custody of a named insured or of a relative residing in the same household with a named insured….


Visser v. State Farm2019 WL 1757888 (Minn. App. 2019) (review granted)

Facts:

• Cheryl Visser had insurance coverage from State Farm on two vehicles:

– 2000 Pontiac (UIM of $100,000/person)

– Chevrolet (UIM of $250,000/person)

• Amanda (daughter) insured on policy for Pontiac because related to Cheryl and lived with her

• Amanda additional named insured on policy for Chevrolet

• Amanda injured in MVA while driving Pontiac; recovered from at-fault motorist; claim UIM of up to $250,000

• State Farm argued limited to UIM for Pontiac.September 26, 2019 2019 Minnesota Automobile Law Seminar 17

Visser v. State Farm

Both State Farm Policies provided:

If Underinsured Motor Vehicle Coverage provided by this policy and one or more other vehicle policies issued to you or any resident relative by the State Farm Companies apply to the same bodily injury, then:

b. the maximum amount that may be paid from all such policies combined is the single highest applicable limit provided by any one of the policies…





Issue: Do both State Farm policies apply so Visser can recover up to the higher limit of UIM coverage

• Court of Appeals held: Look to Section 65B.49, subd. 3a(5) to determine if both policies apply

– Policy for Chevrolet does not apply because Visser was an insured under policy covering occupied vehicle and so not entitled to claim excess UIM

– Visser could not claim higher limit of UIM



Visser Argued: So long as minimum UIM limits provided by either policy, look to the policy, not to the Section 65B.49, to determine if both policies cover the bodily injury.

– Under terms of policy, both policies cover the bodily injury and so Visser is entitled to claim benefits up to the higher limits.


State Farm v. Merrill353 F. Supp.3d 835 (D. Minn. 2018) (appeal pending)

Facts:

– P.B. (minor) lived with both mother and grandmother

– P.B. killed in a motor vehicle accident while passenger in grandmother’s vehicle

– Mother and grandmother separately insured their vehicles

– Grandmother’s policy with Geico provided UIM of $50,000

– Mother’s policy with State Farm provided UIM of $100,000/person

– Trustee claimed excess UIM limits under mother’s policy




State Farm v. Merrill

Holding:

– P.B. was insured on the policy covering the occupied vehicle because he lived with his grandmother and was not identified by name on his mother’s policy.

– Trustee for P.B. could not claim excess UIM from mother’s State Farm policy even though P.B. was an insured on that policy.


Berkely Nat’l Ins. Co. v. Franklin357 F.Supp.3d 871 (D. Minn. 2019)

Facts:– Franklin on a business trip for employer (School District) and

driving a rented vehicle– Killed in motor vehicle accident

– Recovered $100,000 liability limits from at-fault driver– Claimed UIM coverage under commercial vehicle policy issued

to the District– Policy did not provide UIM coverage to Franklin because he was

driving a vehicle the District did not own


Berkely Nat’l Ins. Co. v. Franklin

Issue: Does the No-Fault Act require the Policy to provide UIM coverage even though the District is not a “natural person”?

• The No-Fault Act requires:

– all commercial automobile liability policies “wherever issued, insuring a natural person as a named insured, covering private passenger vehicles ... must ... extend [its] ... uninsured and underinsured motorist coverages to the operation or use of the rented motor vehicle.” Minn. Stat. §§ 60A.08, subd. 12; 65B.49, subd.5a




Berkely Nat’l Ins. Co. v. Franklin

Held: The No-Fault Act requires commercial automobile liability policies to provide UIM coverage even when issued to corporations.

• Did not address the argument about “natural persons”


Getz v. Peace918 N.W.2d 233 (Minn. Ct App. 2018)

Facts

• Ms. Getz injured in a motor vehicle accident on September 25, 2012.

• Getz received Medicaid benefits through contracted manager-care organization (MCO).

• Jury determined Getz incurred past medical expenses of roughly $225,000.

• Defendant sought collateral source offset for amount actually paid by Getz’s MCO.


Getz (continued)

• Issue:

– Whether Defendant is entitled to offset negotiated discounts that MCO negotiated for Medicaid beneficiaries.

• Holding:

– No.

– Discounts negotiated for Getz by her MCO were obtained according to the authority granted by the Social Security Act and constituted payments made pursuant to the United States Social Security Act.




Depositors Ins. Co. v. Dollansky919 N.W.2d 684 (Minn. 2018)

Minn. Stat. § 60A.41(a)

An insurance company providing insurance coverage or its reinsurer for that underlying insurance coverage may not proceed against its insured in a subrogation action where the loss was caused by the nonintentional acts of the insured.


Depositors Ins. Co. v. Dollansky919 N.W.2d 684 (Minn. 2018)

Minn. Stat. § 60A.41(a) is not limited to named insureds. Rather, it precludes a subrogation action against any person or entity that falls within the definition of an insured under any provision in the insurance policy, including the “Who Is

An Insured” provision.


Althaus v. Krueger929 N.W.2d 907 (Minn. Ct. App. 2019)

Facts:

• Defendant served Mr. Althaus with Rule 68 total obligation offer of judgment in the amount of $21,500.

• Althuas rejected Rule 68 offer.

• Jury returned verdict of $22,300.60, but found Althaus 35% at fault and Krueger 65% at fault.

• Court determined that Althaus was the prevailing party.




Althaus (continued)

• Court awarded Althaus costs and disbursements as prevailing party, incurred both before and after offer of judgment.

• Court awarded Defendant certain costs and disbursements, but declined to award other items because is would result in undue hardship and inequity to the jury’s ultimate factual findings.


Althaus (continued)

• Issue:

– Whether Court properly awarded costs and disbursements.

• Holding:

– Court may reduce the amount of Rule 68 obligations if it would impose undue hardship or otherwise be inequitable.

– Court not allowed to award costs and disbursements to Althaus after Rule 68 offer.

– Court may reduce an obligation imposed by Rule 68, but Court cannot impose an obligations contrary to plain meaning of rule.


State Farm v. ThompsonNo. A18-0672, 2019 WL 1510946 (Minn. App. April 8, 2019)

Facts:• Newly-purchased Pathfinder• State Farm mailed Von Mendes’s a balance-due notice:

premium due by 1/10/16• State Farm mailed declarations page showing former

vehicle removed from policy insuring Gabriela Von Mendez and Pathfinder added

• Von Mendes’s did not pay premium; policy cancelled 2/3/16• Pathfinder involved in accident on 2/24/16September 26, 2019 2019 Minnesota Automobile Law Seminar 33



State Farm v. Thompson

Holdings:

• Declarations page defines the scope of an individual’s insurance coverage

• Claims for negligent procurement of insurance survived summary judgment

– Alleged agent was negligent in failing to procure insurance in manner requested or by agreeing to procure insurance in a manner State Farm could not provide


Peterson v. Western National930 N.W.2d 443 (Minn. App. 2019)

(appeal pending)


Contact

Steven J. Erffmeyer

612 375-5945

[email protected]

Beth A. Jenson Prouty

612 375-5927

[email protected]




A Road Map to No-Fault Arbitration Success

Shayne M. Hamann

John C. Wittmer

Topics to be Discussed

• Initial case handling strategies – for No-Fault cases: records, statements, documents

• Using Your Tools – Resources for Navigating a Claim – IME and Preparing for an Arbitration Petition

• Approaching Your Destination – From Denial to Arbitration Hearing and Beyond


Starting Up




Initial Case Handling

• Did a motor vehicle accident occur or was “maintenance and use” of a motor vehicle involved?

• Has the automobile insurance carrier been appropriately identified?

• No-Fault coverage available? Stacked or non-stacked benefits?

• Is insured/claimant represented by an attorney?

• Start-up cover letter/PIP application/authorizations/prior medical provider information.


Initial Case Handling – INVESTIGATION

• Eye toward No-Fault arbitration – most cases after an insured goes to an IME, arbitration petition will follow;

• What additional investigation can be done at the outset of a No-Fault claim;

a. Statement of the claimant/injured party;

Subpart #1 Helps to ferret out injuries – what parts involved and to what extent;

c. Determine if wage loss is at issue;

d. Will a claim for replacement services be made?

• Property damage informationSeptember 26, 2019 2019 Minnesota Automobile Law Seminar 41

Recorded Statements

• Very helpful in a No-Fault Arbitration Setting – No chance to take a deposition of the claimant.

• Early-on after an accident – the injured party will often be more “truthful” about injuries/severity .

• May have not been treated or referred to a chiropractor.• Can discuss if wage loss or future replacement services are likely and extent

of same.• Discuss care and treatment to date:

– Paramedic come to the scene;– Ambulance transport Claimant from scene;– Medical Emergency room treatment and imaging;

• Means likely a medical bill for some other facility to read and review scans – IE. St. Paul Radiology; EPPA.

– Where is Claimant currently treating or going to treat?September 26, 2019 2019 Minnesota Automobile Law Seminar 42



Medical Bills and Medical Records

• Make sure to advise Claimant/Claimant attorney where medical bills and medical need to be sent for payment.– Date of loss

– Adjuster/Carrier

– “No-Fault Standard”

– Will be examined for – “reasonable, necessary and causally related to the accident in question.”

• Medical records are absolutely required (past and present).– Not a private health insurer – need more than CPT codes.


Chiropractors/Other Medical Clinics

• Chiropractors are savvy with Minnesota No-Fault – They want it all!

• All other medical providers may struggle to determine what needs to be done.

• Plaintiff/Claimant attorney will generally assist with this.

• Insured should be knowledgeable as well.

• Some medical providers will carry-on as though this is a foreign concept – to bill an auto insurer!

• Discuss in “Start-up” letter.September 26, 2019 2019 Minnesota Automobile Law Seminar 44

Using Your Tools




No-Fault Application for Benefits —COOPERATION

• If possible use our form – as it is very thorough and gets you the most information right away.

• Do not begin to pay No-Fault benefits until the claimant/insured.

a. Fully completed the application.

b. Sign and date the application.

c. Returned it to the carrier with authorizations and any other paperwork needed by carrier, i.e., prior and current medical provider listing.



When to IME

• Excessive medical care and treatment.

• All chiropractic care.

• Chiropractic care with fancy “chiropractic” diagnostic tests that are unwarranted (i.e., Spinal Kinetics).

• No active physical therapy.

• Positive history of same or similar symptom.

• Records say the same thing at every visit.




When to IME Continued

• Prior MVA or WC injuries.

• Providers may be the problem too – overzealous medical providers.

• Minor or major accident – the more you know about the mechanism of injury and facts of loss the better off the carrier will be in defending the claim.

• No immediacy of symptoms at scene of accident or shortly thereafter.

• Gaps in treatment.September 26, 2019 2019 Minnesota Automobile Law Seminar 49

Adjusting the No-Fault Claim and Heading Toward an IME

• Prior medical records of Claimant – especially prior medical records – with same or similar injury as alleged in MVA.

• Wage loss/replacement services documentation and disability note pertaining to same. Tax records if you can get them.

• IME doctor and Claimant’s injuries – chiropractor versus orthopedist/neurologist.

• Questions for IME doctor – which track the No-Fault Law.


IME Doctor Questions

1. What injury/injuries, if any, do you feel Claimant sustained as a proximate result of the motor vehicle accident in question?

2. Did Claimant, sustain any injury or aggravation to a prior injury or condition as a result of the motor vehicle accident? If so, please describe said injury, condition, or aggravation, and indicate if it is a temporary or permanent injury and include any objective findings and prognosis, including any future care or diagnostic testing you deem necessary solely as a result of the motor vehicle accident in question.




IME Doctor Questions

3. What medical care, treatment, and diagnostic testing, if any, would Claimant have required relative to any claimed injury/injuries from the motor vehicle accident in question here? Is Claimant in need of any future medical care, or treatment for any alleged injuries from the motor vehicle accident?

4. Do you feel that Claimant is capable of performing her/his activities of daily living including social activities and household chores and tasks?

5. Do you feel that Claimant is capable of working in a full time capacity?


Minn. Stat, 62Q.75

• Healthcare providers and specified facilities must submit their charges within six months of the date of service.

• No reimbursement if charges not submitted within six months.

• Subdivision applies to all healthcare providers and facilities that submit charges ... to reparation obligors (No-Fault carriers) for treatment of an injury under chapter 65B.


The IME

• The IME is the best defense to your No-Fault claim.

• Do your research on your IME doctor – is he/she credible, are reports well-written and thought out – or cookie-cutter – (the same all the time).

• IME has to occur in the city/town/statutory residence of the claimant – but there can be exceptions.

– Where case is venued if already in arbitration;

– Where the Plaintiff works.




No-Fault and UM/UIM Interplay and Experts and Workers’ Compensation Case

• Be mindful of the UM/UIM portion of the case when selecting a No-Fault examiner.

• Communicate with the UM/UIM adjuster, if it is conceivable that another first party claim will be advanced.

• Workers’ compensation cases

– No replacement services

– Only 12 weeks of chiropractic care

– Need your own IME in No-Fault context


IME Follow-Up

• Follow-up with the IME vendor on anything missing.

• Read the IME report and make sure the IME doctor addressed everything you requested.

• Anything new arise for the first time at the IME – i.e., MRI, referral.

• Wise to “hold” the IME while you get those records or obtain and Addendum IME report.


Denial Letter – After IME

• Use our Sample IME Letter

• Denial of No-Fault benefits

– Suspension of No-Fault Benefits Date

– Date of IME

– Some other date

– What are you denying

• Medical expense benefits

• Wage loss benefits

• Replacement service benefitsSeptember 26, 2019 2019 Minnesota Automobile Law Seminar 57



Denial Letter – After IME Continued

• Everything paid that was recommended by the IME doctor.

• Additional recommendations – i.e., PT or MRI – set date that Claimant has to complete.

• Handle anything else that needs to be paid after IME.

• Put a limit on – i.e., PT or seeing a specialist or an MRI - > 60 days.


Approaching Your Destination


Kiess v. American Family Insurance Company, 697 N.W.2d (Minn. 2005)

• Make sure to put the Kiess provision in the IME denial letter.

• Carrier wants to continue to receive medical records/medical bills.

• Interest accrues at 15% per annum on the 31st day after carrier has received medical records and medical bills for continued care.




Kiess v. American Family Insurance Company, 697 N.W.2d (Minn. 2005)

• What to do if you only receive medical bills.

• Documentation is KEY!

• Helps adjuster and carrier determine next steps of Claimant/attorney and to set reserves on file.


“Clues” as to when a Claimant Attorney is Going to File for Arbitration

• An updated PIP log is requested.

• You get a flurry of medical bills (and maybe medical records) you have never received before.

• Close in time to an IME OR an IME has been set.

• Close in time to a denial of No-Fault benefits.

• A suspension of No-Fault benefits.

• A chiropractic IME and Claimant has sought care now with a neurologist, or orthopedist or undergone MRI scans.


The Arbitration Petition and the American Arbitration Association

• Watch the petition to make sure the information alleged by CLAIMANT and the AMERICAN ARBITRATION ASSOCIATION is correct.

• Some Claimant attorneys will file arbitration for medical bills a No-Fault carrier has already paid or never received.

• Incorrect venue – hope inappropriate venues – Anoka, Woodbury, Roseville, and Hastings.

• Make sure Plaintiff counsel knows who to send Petition to.




The Arbitration Petition and the American Arbitration Association

• Watch for vague venue reference – “Twin Cities” or “Minneapolis/St. Paul” – AAA does not watch for an incorrect venue.

• The American Arbitration does not check to verify documents are appropriately filed and valid.

• Watch for appropriate carrier named as a Respondent.

• Appropriate basis for right to be in arbitration – denial of a claim –or non-payment of a medical bills and 30 days has lapsed.


Watch the American Arbitration Association Correspondence and Pleadings

• You are arbitrating amounts in dispute up to the date of the arbitration hearing.

• You will never arbitrate those amounts referenced above again.• A Claimant can arbitrate until No-Fault benefits exhaust or a No-Fault claim

is settled/closed-out.• The arbitration result will determine if any IME can continue to deny No-

Fault benefits.• Parties have to agree for a case to be held “in abeyance.”• No “bad faith” in No-Fault arbitration.• Arbitrators cannot decide questions of law – only questions of fact.• Read disclosure forms of arbitrators – claimant attorneys can be sneaky!










Post Award Situations

• Full award – need a new IME to continue to deny No-Fault benefits.

• Partial award – maintain denial/new IME.

• Full denial – maintain denial of No-Fault benefits based upon existing IME.

• Insurer has 30 days to pay award post-decision and this includes working out (Bennerotte and Schmidt) interest with Claimant’




Post Award Situations

• Do you need another IME to continue to deny No-Fault benefits that remain.

• Take a wait-and-see approach.

• Try and negotiate a full and final No-Fault close-out with claimant/claimant attorney.


Key Things to Remember When Dealing


Contact

Shayne M. Hamann

612 375-5996

[email protected]

John C. Wittmer

612 375-5908

[email protected]





Refreshment Break

The Current State of Bad Faith Litigation in

Minnesota and Techniques to Combat It

Paul J. Rocheford

Key Components of First-Party Bad Faith Statute

• Cannot assert a bad faith claim in original complaint

• Must bring motion for leave to do so

• Must make out prima facie case of bad faith –supported by affidavits/evidence (at least in state court)

• Not bad faith to conduct timely investigation into arson or fraud




What Is First-Party Bad Faith?

1. Absence of reasonable basis for denying benefits

and

2. Knowledge of lack of reasonable basis or reckless disregard of lack of reasonable basis.

• No bad faith if coverage position “fairly debatable”

• Whether reasonable insurer would have denied or delayed payment under same or similar circumstances.


Pre-2019 Case Law Interpretations –Likely Not Bad Faith


• Being wrong, but honestly and in good faith

• Gap between demand and offer, by itself

• Position based on IME (if supported by all relevant records)

• Legitimate dispute over question of law

• Position based on attorney recommendation

Pre-2019 Case Law Interpretations – Bad Faith

• Inadequate/incomplete investigation

• Delayed investigation

• Outright denial (where not warranted)

• Manipulating information provided to experts (holding back harmful records, e.g.)

• Failing to get supplemental records to expert

• Changing experts if first one gives unfavorable opinion

• Baseless legal arguments




Current Landscape – State CourtPeterson v. Western National

• Potential game-changer (negatively)

• Greatly expands scope of potential bad faith

• Substantially reduces viable defenses to bad faith claim

• Supreme Court has accepted review (faint hope?)


Peterson v. Western National – Facts

• UIM Claim after low-speed, light impact collision

• Claimed whiplash injury with daily headaches

• Botox injections reportedly reduced headaches by 50%

• Treating neurologists (2) concluded permanent injury which would require ongoing Botox

• $46k in past medical; projected $300k future medical



• Claimant settled liability claim for $45k out of $50k limit

• Claimant demanded $250k UIM limit

• Insurer did not formally respond for 11 mo.

• Insurer did request additional medical documentation (court found many of these had already been provided)

• Claimant brought suit after no response to demand





• IME concluded headaches not causally related to accident; pointed to pre-existing

• Assigned counsel concluded claimant was fully compensated by liability settlement

• Offer of $2k at mediation

• Highest pre-trial offer was $50k



• Jury verdict of $1.4 million, most of which was for past and future medical

• Trial court allowed amendment of pleadings to assert bad faith claim

• After bench trial, court held claimant had proven bad faith in that insurer lacked reasonable basis to deny claim and acted with reckless disregard of the lack of reasonable basis.


Peterson v. Western National –Court of Appeals Holdings

• Adopts Wisconsin’s Anderson framework

• Insurer must conduct reasonable investigation and fairly evaluate results

• If after doing both, claim is fairly debatable, no bad faith in denying claim.

• Rejects insurer argument that any “competing evidence” will defeat bad faith claim

• Also declines to read reliance-on-counsel defense into statute




Peterson v. Western National –Court of Appeals Holdings

Concludes district court justified in finding bad faith because:

• Delay in responding to demand

• Taking position before IME that headaches caused by pre-existing, not collision

• Claims adjuster presented slanted version of facts and records to claims board

• Relied only on IME, without weighing competing evidence


Peterson v. Western National –Why The Sky Might Be Falling

Can no longer rely on medical expert as defense to bad faith

• Unless can establish that consideration given to competing evidence

• Don’t IME doctors always do this?

• Don’t defense counsel always do this?

• What additional documentation will be needed to meet this requirement?


Peterson v. Western National –Why The Sky Might Be Falling

• Can no longer rely on advice of counsel as defense to bad faith

• Delay unavoidable if IME needed to properly evaluate claim

• Can’t get pre-suit IME without agreement from claimant

• Why would claimant’s counsel agree to pre-suit IME now?

• Incentivizes delay in bringing UM/UIM claim




Current Landscape – Federal Court

• Rule in Federal District of Minnesota is now that claimant need not meet statutory prima facie case requirement to bring claim.

• Need only satisfy Rule 15 pleading amendment requirements.

• Much looser standard

• Expect more first-party cases to be sued out in federal court (if diversity jurisdiction requirements satisfied).


Responding to The Demand

• Language matters

• Denying claim outright or just rejecting demand amount?

• If not outright denial, tell them that

• Specify reasons for rejecting demand (especially opinion of medical expert)

• If reason is need for additional investigation, specify what you need and don’t ask for things you already have

• ASK FOR PRE-SUIT IME

• Follow up


Questions and Answers

Mark S. Brown

612 375-5926

[email protected]




Combating Plaintiff Attorney Trends

William J. McNulty

Gregory J. Duncan

Medicare Issues

• Satisfying Medicare liens upon settlement are justifiably a concern for insurers to protect the company from future exposure.

• Possible settlement agreement requirements:

– Acknowledging Medicare’s interest.

– Demanding conditional payment letter.

– Demanding evidence of satisfaction of lien.

– Medicare set-asides.

• Need to know any specific company requirements for Medicare liens prior to mediation.


Rocket Docket

• 2013 – Minnesota Supreme Court promulgated new rules for an “expedited litigation track” for certain civil cases, including personal injury actions. Commonly referred to as the “Rocket Docket”

• Started in Dakota and St. Louis (Duluth) County.

• Now also in Hennepin, Olmstead, Carleton, Cook, Lake, and the rest of St. Louis County




Rocket Docket

• Automatic Disclosure of Information within 60 days of case filing– Statement summarizing each claim and defense

– Likely lay and expert witnesses

– Copy of all relevant documents– Precise description of damages

• Case Management Conference 45-60 days after case filing– Set trial within 6 months


Rocket Docket

Limitations on discovery• Discovery period is 90 days (can be extended by 30 days for good

cause shown)– 15 interrogatories– 15 requests for production of documents– 25 requests for admission

• Depositions allowed within discovery window– Non-party witness only in lieu of in-person testimony at trial

• Meet and confer requirement


Rocket Docket

Motion for exclusion from Rocket Docket

• Multiple parties or claims

• Complex theories of liability, damages, or relief

• Complicated facts

• Likelihood of dispositive motions

• Demonstration that a party’s right to a fair and just resolution of the matter is in jeopardy




Difficult Plaintiffs’ Attorneys

• We all advocate for our clients, but some plaintiff’s attorney advocate to a fault

• Regardless of who is on the other side, the law is the law and the facts are the facts

• A difficult plaintiff’s attorney creates much more work for a claim representative up front and make litigation much more expensive



Objecting to IMEs• Minn. R. Civ. P. 35.01: “In an action in which the physical or

mental condition or the blood relationship of a party, or of an agent of a party, or of a person under control of a party, is in controversy, the court in which the action is pending may order the party to submit to, or produce such agent or person for a physical, mental or blood examination by a suitably licensed or certified examiner. The order may be made only on motion for good cause shown and upon notice to the party or person to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made.”



Objecting to IMEs

• Significance of court ordered deadline for IMEs in scheduling order.

• Risk in waiting to conduct IMEs later in the case.

• Waiting seems to generate 11th hour objections based upon lack of court order or supposed lack of good cause shown.

• Often try and use motion requirement to impose conditions on IMEs.





Placing parameters or limits on IMEs, examples:• No signing of questionnaires or consents.• Only one exam be taken.

• Payment of mileage, wage or other expenses.

• All correspondence or other communications be disclosed. • Demands regarding prior no-fault IME.

• Waiver of objection to plaintiff calling IME doctor if not called by defendant.

• Audio or video recording of IME. September 26, 2019 2019 Minnesota Automobile Law Seminar 100


• RFNs

– Was popular for a while. Then seemed to cool off. Popular again.

• Traumatic Brain Injury and Headache claims

– Subjective claims

– Neuropsychologist versus neurologist

– Verdicts are all over the place• TBI clinics, Botox treatment



Unreasonable demands and time periods

• Some states (Florida and New Jersey) have very tight rules for time limit demands. We are not there . . . Yet.

• Insurers have a right to complete a reasonable investigation into a plaintiff’s claims

– Takes a while to get medical records and other pertinent information

• Pre-suit mediation





• Refusals to execute standard protective orders to protect personnel records, video, proprietary or confidential information.

• Demands for recorded statements taken by insurers:– Are recorded statements worth the hassle?

• Cell phone records; inspection of cell phones for deleted messages/content; spoliation.

• Threats of bad faith or punitive damages.


Deposition of Claims Representative

Rule 30.02(f) Deposition

• Demand that corporate representative be produced to testify about certain topics.

• First party versus third party claims.

• Protection of mental impressions.





Deposition of Claims Representative

• Serve objections to the notice of taking deposition

• File a motion for a protective order

• Insured will argue that insurer is a party to a breach of contract claim and discovery broadly allowed

– Claim representative could be deposed

• KNOW THE FILE


Contact

William J. McNulty

612 375-5939

[email protected]

Gregory J. Duncan

612 375-5967

[email protected]


No-Fault-Related Panel Discussion

Panelists – William J. McNulty and

Gregory J. DuncanModerated by Shayne M. Hamann



Topics to be Discussed

• Founders v. Yates

• Uber/Lyft and Ride Sharing

• Workers’ Compensation and No-Fault Claims Coordination

• Psychological Treatment and No-Fault Benefits

• Employer Furnished Vehicles and No-Fault


Founders v. Yates

• If a visitor to MN is insured under a motor vehicle policy issued in another state, the out-of-state insurance policy will be obligated to provide No-Fault benefits when the accident occurs in Minnesota;

• The insured motor vehicle needs to be physically present in Minnesota at the time of the alleged accident.


Founders v. Yates and Minn. Stat. Sec. 65B.50, Subd. 2

Minn. Stat. Sec. 65B.50

Subd. 2.Contacts of liability insurance as security covering the vehicle.Notwithstanding any contrary provision in it, every contract of liability insurance for injury, wherever issued, covering obligations arising from ownership, maintenance, or use of a motor vehicle, except a contract which provides coverage only for liability in excess of required minimum tort liability coverages, includes basic economic loss benefit coverages and residual liability coverages required by sections 65B.41 to 65B.71, while the vehicle is in this state, and qualifies as security covering the vehicle.September 26, 2019 2019 Minnesota Automobile Law Seminar 111



Be Mindful of the Following

• An out-of-state insurance company, that does not write auto or other insurance in MN will not be aware of the Yates case.

• Make sure the insured motor vehicle is in the state of Minnesota at the time of the accident – an initial statement is extremely helpful here.

• PIP Priorities – Minn. Stat. Sec. 65B.47, Subd. #1.

• Stay on top of the coverage issues and keep lines of communication open with the claimant/plaintiff attorney.


Uber/Lyft and Transportation Network Law

Minn. Stat. Sec. 65B.472

• Driver or company he/she drives for must provide primary auto insurance while drive logged on to company’s network.

• Driver is engaged in a pre-arranged ride.

• Why? Minn. PIP. Priorities at 65B.47, Subd. 1 – Vehicle is in the business of transporting persons or property for a fee and does not fit into any exception.


Basic Economic Loss Benefits

Wage loss

• 85% of average weekly wage.

• Maximum of $500 per week.

• There must be a physical disability causing an inability to work.

• There must be an actual loss of income caused by the inability to work.




Economic Loss Scenario

Jamie Lannister cannot complete his landscaping job that pays $600 per week due to the loss of his hand in a MVA. His landscaping company offered him a desk job that pays the same rate but half the hours he would have worked otherwise. He did not take the desk job. Jamie’s compensable wage loss for one week off work is:




A. $500.00

B. $300.00

C. $255.00

D. $200.00





Peter Parker, aka Spiderman, was out for a Sunday drive and involved in a motor vehicle accident. As a result of his injuries from the accident Spiderman missed four weeks of work at his paid internship at Stark Industries. Although he received benefits other than his wage at this internship, Iron Man continued to pay Peter during the time he missed from work. Is Peter entitled to no-fault wage loss benefits?




A. No because it’s an internship.

B. No because his employer continued to pay him.

C. Yes because he was an employed person who lost time from work because of the accident.

D. None of the above.




Basic Economic Loss Benefits

Replacement Services

• Reimburse value or expense of replacement of non-income producing household chores and other services formerly performed by injured person.

• Primary homemaker vs. non-primary homemaker.

• Maximum of $200 per week.

• Must be services that injured person would have ordinarily performed but cannot because of the injury.

• Schroeder v. Western National – 2015 Supreme Court case holding that claimant can recover the value of services not actually replaced.


Replacement Loss Scenario

Dr. Stephen Strange severely injured his hands in a motor vehicle accident. Before Dr. Strange became well . . . Dr. Strange, he lived alone in the apartment he owned and was primarily responsible for his household care and maintenance which he was unable to perform due to his injuries. Dr. Strange submitted a claim for replacement services, but did not actually seek out or have the services performed. Is he entitled to benefits?





Replacement Loss Scenario

A. No because Dr. Strange suffered no economic loss.

B. No because Dr. Strange never solicited or received replacement services.

C. No because he lived alone.

D. No because he was kind of an arrogant jerk to his one friend after the accident.

E. None of the above.


Survivor’s Economic Loss

No-Fault Act allows for survivor’s economic loss benefits when the decedent’s death has resulted in a loss of “contributions of money or tangible things of economic value.” As the Court of Appeals has noted: “‘Tangible things of economic value’ is not limited to wages, but may extend to insurance benefits, disability coverage, and pensions, as well as other items.” Hoper v. Mut. Serv. Cas. Ins. Co., a, 321 (Minn. Ct. App. 1984).


Survivor’s Economic Loss Scenario

Odin was legally married to, but living in a separate home, than his wife Frigga at the time she was killed in a motor vehicle accident. As a result of her death she no longer received $2,000 per month in social security income, of which she regularly gave $500 per month to Odin and $250 per month each to her adult sons Thor and Loki.





Survivor’s Economic Loss Scenario

Which of the following is most likely:

A. Thor and Loki are entitled to survivor’s economic loss benefits.

B. Odin is entitled to survivor’s economic loss benefits.

C. No one is entitled to survivor’s economic loss benefits.


Coordination of MN No-Fault Benefits with Workers’ Compensation Benefits

• Workers Compensation benefits would be primary.

• No-Fault benefits would coordinate with workers’ compensation benefits.

• Make sure to stay in touch with Claimant attorney and Workers’ Compensation carrier.

• Have insured sign an authorization if need be, so you can obtain copies of workers’ compensation medical records/investigation/medical bills.




Coordination of MN No-Fault with Workers’ Compensation Benefits

• If a denial of a medical bill or claim by the workers’ compensation carrier – same claim can be submitted to the No-Fault carrier.

• Workers’ compensation carrier only pays for 12 weeks of chiropractic care – then No-Fault is on the hook!

• No mechanism for replacement services in the workers’ compensation arena.

• You need your own No-Fault IME to deny/cut-off No-Fault benefits.


No-Fault Indemnity —Procedural Nuts and Bolts

• Statute of Limitations: six years from date of first payment to insured (Minn. Stat. § 541.05, subd. 1(2)).

• Only enforceable through Arbitration Forums (§ 65B.53, subd. 4) and Bulletin 2007-1.

• Need not await final payment of benefits (§ 65B.53, subd. 7).

• Arbitration Rules found in Minnesota Administrative Code at Minn. R. 2770.3100 – 2770.5200.

• Insurer need not be signatory to be compelled to arbitrate disputes in Arbitration Forums.





No-Fault Indemnity —Substantive Nuts and Bolts

• Who gets it: A reparation obligor paying or obligated to pay PIP

• Who pays it: A reparation obligor providing residual liability coverage, subject to the limits of applicable residual liability coverage?

• Limited to: Commercial vehicle of more than 5500 lb. curb weight (with exceptions).

• Negligence based.

• Deduction provisions of § 65B.51, subd. 1.September 26, 2019 2019 Minnesota Automobile Law Seminar 133

Commercial Vehicle of More Than 5,500 lb. Curb Weight

Per Minn. Stat. § 65B.43, subd. 12, “Commercial vehicle” means any motor vehicle:

A. Used as a common carrier;

B. Having curb weight in excess of 5,500 pounds apart from cargo

capacity (except passenger vehicle defined in section 168.002, subdivision 24); or

C. Used in the for-hire transportation of property.


No-Fault Indemnity – Negligence Res Judicata

• Court proceedings have no res judicata effect in arbitration.

• Determination of liability in one arbitration proceeding res judicata on the liability issue in all companion arbitration matters involving the same companies. (Minn. Rule 2770.4600).




No-Fault SubrogationGeneral Principles

• May only be asserted against the insured or the insured’s recovery.

• Only available to extent of duplicate recovery.

• Subrogation available in only 2 Circumstances:

– Out-of-state accidents

– Liability not arising from motoring negligence:

• Intentional torts;

• Strict or statutory liability; and

• Negligence other than negligence in the maintenance, use, or operation of a motor vehicle.


No-Fault SubrogationOut-of-State Accidents

• PIP carrier may have greater rights of subrogation if law of foreign state controls.

• Depends on choice-of-law analysis and particulars of foreign state’s laws.


Psychological/PTSD Claims

• Head and mental injuries have been ever increasing over the past decade.

• What does a No-Fault insurer owe in this situation?

• No-Fault Act defines “injury” as bodily harm.

• Most policies also define injury as some sort of bodily harm.





• What is bodily harm?

• Concussion?

• Post Traumatic Stress Disorder?

• Psychological issues stemming from a bad accident?



Anderson v. AMCO Ins. Co., 541 N.W.2d 8 (Minn. App. 1995)

• Insured had some physical injuries that quickly resolved.

• Anxiety from memories of the accident persisted.

• Court held that anxiety was not bodily harm and was not covered under No-Fault policy.

• This decision was handed down 24 years ago. A lot has changed since then.

• Probably will be a test case in the next few years.



What is covered?

• Psychological claims without any physical injury?

• Psychological claims that arise because of gruesome injuries from accident?

• Psychological claims that result in minor injuries but major mental claims because of tragic circumstances (i.e., death of child in the accident)?





The future of these claims

• Plaintiff’s bar wants these covered.

• Research shows that PTSD claims arise much like concussions – i.e., brain hits skull, thus making it a “physical” injury

• Work comp now pays claims that have only mental injury aspect.

• Argue that but for the auto accident there would be no need for psychological care, so why doesn’t No-Fault Act cover?


Priority Issues

Minn. Stat. Sec. 65B.471. Injury resulting while the vehicle is being used in the business

of transporting persons or property.2. Injury to an employee while driving an employer furnished

vehicle.3. A pedestrian if struck by a vehicle under subd. 1 or 2. 4. All other cases

a. Where injured person is an insuredb. If not an insured, vehicle in which person is ridingc. If pedestrian with no insured, any involved vehicle’s coverage


Priority Issues

Right of contribution – Minn. Stat. Sec. 65B.47, subd. 5

• Benefits only payable one time.

• Insurer against whom a claim is asserted must process and pay the claim then seek contribution on a pro rata share against any other applicable insurer.




Priority Issues

Workers compensation issues

• Workers compensation states that employee is really an independent contractor (or deviating from course and scope)

– Minn. Stat. 65B.61, subd. 1 requires no-fault to pick up the claim.

– Can intervene in work comp action (but cannot commence own action in work comp court)

• Coordination of wage loss and survivors benefits


Contact

William J. McNulty

612 375-5939

[email protected]

Gregory J. Duncan

612 375-5967

[email protected]

Shayne M. Hamann

612 375-5996

[email protected]



Lunch Break



Local. Global. Reliable.

148ExamWorks Confidential

Click to edit Master subtitle style

Service Organizations AICPA Service Organization Control ReportsFormerly SAS 70 ReportsSOCaicpa.org/soc

Thursday September, 26, 2019

Motor Vehicle InjuriesRandal F. Wojciehoski, D.P.M., D.O.



www.drwojo.com Emergency Physician, Ascension St. Michael’s

Board Certified Physician, EM & IM

Podiatrist

Medical Director, Ascension Wisconsin at Work

Medical Director, Church Mutual Insurance

Medical Director, Kohls Corporate Clinic

Medical‐Legal Consultant

“To Your Health with Dr. Wojo”

Clinical Prof at Marquette, UW, Chicago

Commercial Pilot

Husband and Dad



N1885W









Trauma Triage

Triage: “To Sort”Mechanism of Injury

Anatomic Criteria

Medical Criteria

EvaluationTreatment





Initial Management

A: AirwayB: BreathingC: CirculationD: Disability E: Exposure



MVA and Injury Patterns

Frontal Collision

Abrupt stop

Patient connects with vehicle

Injury Pattern

Lower extremities

Fracture/Dislocations

Head, C‐Spine, Torso hit windshield and steering wheel








Lateral Impact

Patient is accelerated from side

Injuries

Pelvic Fractures

Pulmonary Contusions

Solid organ injury

Diaphragmatic Rupture






Rear Impact Patient is accelerated forward Injury Inertia of head makes C‐Spine

vulnerable to injury Ejection Results in the most serious injury Seatbelts prevent this from occurring





Acceleration/Deceleration Adverse movement

Cervical Injury –Whiplash

Aortic Tear

Shear forces cause rupture and tear

Similar motions occur with the kidneys

Brain

Lap seat belts decrease chance of injury by 30%

Death reduction by 11% in all MVAs



Low Impact Accidents



Speeds at 10‐15 mph

Usually minimal damage

Whiplash

Low Back Pain

Soft Tissue Injury

Low Impact Injury





Seven cervical vertebrae

Twelve thoracic vertebrae

Five lumbar vertebrae

Sacrum and Coccyx

Anatomy



Causes are diverseMuscular, articular, tendinous

Pain is secondary to nerve irritationProximal and Distal Pain

SciaticaFacet Joint Disease

Pathophysiology



Specific Evaluation





Death/Trauma‐‐>Brain Injury

7/100,000 dieOver 50% Head Injuries secondary to MVA

Large contributor to disabilityFocal: Direct blow‐‐>Contusion, LacerationsDiffuse: Sudden movement‐‐>Diffuse axonal injury

CT Scan has improved outcome

Head Injury





Range of motion injury of neck

Pain due to strain and tearing

Pain may last days to weeks

Headaches, Dizziness, Pain

Muscle damage and nerve damage

Resolves within 6 weeks

Whiplash





Whiplash



Whiplash Mechanism



Comprehensive Evaluation

History and Physical

Radiographs

Conservative management

NSAIDs, Early Mobilization, PT

Avoid immobility

MMI within 6 weeks

Treatment









Neck Injury





X‐Ray

CT Scan

MRI

Bone Scan

Diagnostics



Cervical Spine injuries occur in 1‐5% of blunt trauma cases

One third of these cases have neurological impairment

Tradition: C‐spine on all trauma patients

Minimum: AP, Lateral, Odontoid

Cervical Spine Radiographs



Canadian C‐Spine Rules





Subjective neck pain or neuro complaints

Objective neck pain or neuro complaints

Altered mental status and trauma

Major distracting injury

Mechanism of injury‐Axial load

Appropriate Use



Cervical Spine Fracture



Normal mental status

No neck pain

No neck tenderness on exam

No neurological symptoms

No distracting injury

Minor mechanism of injury

Alternative Evaluation is CT Scan, not MRI

Inappropriate Use





Extremity Injury



Involves 1 of 4 muscles

Acute Tears

Chronic Tears

Bursitis

Tendonitis

Impingement

SLAP Tear

Rotator Cuff Injury



Shoulder Anatomy





Mechanism of injury

Physical Examination

X‐Ray and MRI

Conservative Treatment

Physical Therapy

Surgery

Evaluation and Treatment



Range of Motion



Appley’s Scratch Test





Supraspinatus(Empty Can) Test



Internal/External Rotation



Neer’s Impingement Test





Hawkins Impingement Test



Spurling’s Foraminal Compression Test



Arthroscopic Surgery





Arthroscopic View



SLAP Lesion



Superior Labrum Anterior to Posterior

Biceps tendon insertion at Labrum

Catching Sensation

Trauma and Overuse

SLAP Lesion





SLAP Lesion Repair



Chest Trauma



Blunt chest trauma

Pulmonary Contusion

Cardiac Contusion

Pneumothorax

Hemothorax

Chest Trauma





Aortic Injury



15% of MVA fatalities

Most die prior to hospital

Co‐existing injuries

Chest X‐Ray: Wide mediastinum

Helical CT Scan is initial test

Aortography is the “gold standard”

Aortic Injuries



Range from minimal EKG changes to cardiac rupture

Few clinical signs

Elevated cardiac enzymes

May require hospital admission

Cardiac Arrhythmias

Blunt Cardiac Injury





25% cause of death in trauma

85% of cases do not require surgery

Conservative management

Pneumothorax

Aortic rupture

Pulmonary Contusion

Thoracic Injury



Splenic injury is most common

Encapsulated requires observation

Rupture requires surgery

Hepatic Injury

85% of all cases are stable

Non‐operative management

CT Scanning is mainstay of diagnosis

Hollow Viscus Injury

Abdominal Injury







Pelvic Injury



Marker for severe injury

Must be assessed in multiple trauma

Large blood loss

Genitourinary injury

CT Scan and Angiography

Pelvic Stabilization required

Pelvic Injury



Closed head trauma: 51%

Long Bone Fracture: 48%

Nerve Injury: 26%

Bladder Injury: 10%

Spleen: 10%

Liver: 7%

GI Tract: 7%

Kidney: 7%

Associated Injuries with Pelvis Fracture







Trauma Resuscitation

A,B,C’s

Fluids/Blood/Lab Studies

X‐Rays

C‐Spine, Chest, Pelvis

CT Scan

Re‐Assessment

Avoid Hypothermia

Surgical Intervention

Golden Hour



1899 first MVA fatality

Improvements in safety

Stricter alcohol laws

Improvement in treatment/research

Recognition of injury pattern

Continued cause of disability

Conclusion







History of injury is important

Evaluate information

Evidence based medicine

Physical examination

Final review and opinion

Summary



THANK YOU!



MinnesotaAutomobile Law Seminar

Thank you for attending!


GENERAL RULES FOR PIP PRIORITY IN MINNESOTA WHO IS PRIMARY?

AUTOMOBILE PRACTICE GROUP COLBY B. LUND WILLIAM J. MCNULTYEUGENE C. SHERMOEN JUAN M. AVILAPAUL J. ROCHEFORD GREGORY J. DUNCANJAMES F. MEWBORN STEVEN J. ERFFMEYERLEE A. MILLER CHARLES B. HARRISJONATHON M. ZENTNER ALLISON V. LAFAVESHAYNE M. HAMANN JOHN C. WITTMERKAFI C. LINVILLE STEPHEN M. WARNER


VEHICLE DRIVER OCCUPANT PEDESTRIAN

PERSONAL VEHICLES 1st — policy where driver is statutorily defined insured.

2nd — policy covering occupied vehicle.

1st — policy where occupant is statutorily defined insured.

2nd — policy covering occupied vehicle.

1st — policy where pedestrian is named insured.

2nd — submit claim to any involved vehicle. 3rd — if no insurance on involved vehicles

— go to assigned claims plan.

BUSINESS VEHICLES USED IN

BUSINESS OF TRANSPORTING

PERSONS OR PROPERTY (AT THE TIME OF THE

ACCIDENT) * SEE EXCEPTIONS

1st — policy covering business vehicle. 2nd — policy where driver is statutorily

defined insured.

1st — policy covering business vehicle. 2nd — policy where occupant is statutorily

defined insured.

1st — policy covering business vehicle. 2nd — policy where pedestrian is named

insured. 3rd — submit claim to any involved vehicle. 4th — if no insurance on involved vehicles


BUSINESS VEHICLES

EXCEPTIONS

The rule governing vehicles used to transport persons or property does not apply to the following: Bus Commuter Van Passenger in a taxi Taxi driver (for policies issued/renewed between 9/1/96 & 9/1/97) Vehicle being used to transport kids as part of a family or group family day care program Vehicle being used to transport kids to school/school-sponsored activity

BUSINESS VEHICLES EMPLOYER FURNISHED

(ACCIDENT NEED NOT OCCUR IN

COURSE & SCOPE OF BUSINESS)

1st — if driver is an employee, spouse of employee, or resident relative of employee - policy covering business vehicle.

2nd — if none of the above, policy where driver is statutorily defined insured.

1st — if occupant is an employee, spouse of employee, or resident relative of employee - policy covering business vehicle.

2nd — if none of the above, policy where occupant is statutorily defined insured.

1st — policy covering business vehicle. 2nd — policy where pedestrian is a

statutorily defined insured. 3rd — submit claim to any involved vehicle. 4th — if no insurance on involved vehicles


FLEET VEHICLES IN INTERSTATE COMMERCE

If the vehicle occupied is 1 of 5 or m ore vehicles under common ownership, and regularly used in the business of transporting persons or property — PIP coverage is not available if the accident occurs outside the State of Minnesota.

EXCLUSIONS TO PIP The following exclusions bar no-fault coverage in Minnesota: Converted Motor Vehicles (car thieves & joy riders) — if under age 14 can go to the assigned claims plan Races - if injury/death results from official racing contest Intentional Injuries - if intentionally causing or attempting to cause injury to self/others Motorcycles - unless a pedestrian, or motorcycle PIP coverage purchased

Determining the Source of UM/UIM Coverage in Minnesota

UM/UIM Claimant

Occupant of MotorVehicle?

Pedestrian May Select Any One UM/UIM

Policy Where Claimant is “Insured”

Yes

Occupying a Vehicle of which

Claimant is a Statutory

“Insured”?

May Select OneUM/UIM Policy Where

Covered and May Claim the “Surplus” only

Cannot Collect Under Any Other UM/UIM Policy

Example: Claimant had 50/100 UM, but was riding in friend’s car (with its

25/50 UM) when injured by a phantom motorist. First collects 25K

UM limit on host vehicle. Then collects maximum of 25K more (50K personal limit less host’s 25K limit)

from claimant’s own insurer.

Primary UM/UIM Coverage “Available” on

the Occupied Vehicle

Yes

No

No


500 YOUNG QUINLAN BUILDING

81 SOUTH NINTH STREET

MINNEAPOLIS, MN 55402-3214

PHONE 612 339-3500FAX 612 339-7655


AUTOMOBILE PRACTICE GROUP

COLBY B. LUND WILLIAM J. MCNULTYEUGENE C. SHERMOEN JUAN M. AVILAPAUL J. ROCHEFORD GREGORY J. DUNCANJAMES F. MEWBORN STEVEN J. ERFFMEYERLEE A. MILLER CHARLES B. HARRISJONATHON M. ZENTNER ALLISON V. LAFAVESHAYNE M. HAMANN JOHN C. WITTMERKAFI C. LINVILLESTEPHEN M. WARNER





JOHN C. WITTMER

© 2019 Arthur, Chapman, Kettering, Smetak & Pikala, P.A. | All Rights Reserved | www.ArthurChapman.com

MINNESOTA NO-FAULT BENEFITS WAGE LOSS BENEFITS CHEAT SHEET

M.S.A. 65B.44: Basic Economic Loss Benefits **Compensate for 85% of the injured person’s loss of gross income from the inability to work, proximately caused by an injury related to the subject motor vehicle accident and subject to a maximum of $500.00 per work. **Disability and income loss (wage loss) benefits are not intended to compensate for loss of earning capacity. Instead, the benefits are intended to reimburse the actual economic loss resulting from a disability and the related inability to work. Does Claimant have a disability?

o Disability = Reduction in physical function that leads to inability to work caused

by motor vehicle accident. o Once a person is released to return to work without physical disability,

entitlement to No-Fault wage loss benefits ends, even though income loss may continue.

o Is part-time or a reduced work schedule available?

Does Claimant have an inability to work?

o Inability to work = lack of ability to work full time or return to same type of work formerly performed by injured person due to disability caused by the motor vehicle accident.

o Substitute work is material in computing amount of benefits, but usually does not go to initial question of inability to work.

Require proof of disability and inability to work with disability slip from medical provider.

To what extent is economic loss suffered as result of disability and inability to work?

o Must be an actual, calculable economic loss suffered based upon: i. Insureds employment and wages as time of accident;

ii. Definite offer of employment at a certain wage existing at time of accident; or

iii. Consistent history of employment such that a specific period of employment at a certain wage can be reasonably predicted.

o Includes salary, wages, tips, commissions, and earnings. o Also includes income (including vacation or sick leave) that is lost due to medical

treatment.





JOHN C. WITTMER


Requirements - provide proof of economic loss with pre/post-incident timesheets, payroll information, paystubs, certifications from employer of lost time/profits, disability slip, etc.

Substitute work. Amount of income earned from substitute work will reduces the amount of PIP disability income loss benefits.

Self-employed persons. May recover income loss benefits by proving (1) cost incurred for substitute employees, (2) loss of tangible things of economic value, or (3) a reduction in gross income produced by self-owned business.

Job unavailability after release to return to work. Disability income loss benefits are

only payable during the period of disability from your job and inability to work due to injuries sustained in the automobile accident.

Loss of eligibility for unemployment benefits. During the time of disability, can

recover up to 100 percent of the amount of unemployment benefits, subject to a maximum of $500 per week

Be wary of flexible employers. Many employers these days allow employees who miss time from work, to make-up the time and not deplete paid-time-off (PTO). A wage verification form substantiating missed time from work or depletion of PTO is necessary.

IME. Make sure the independent medical examiner addresses the wage loss issue and is aware of any claimed past or current wage loss and has the documentation to examine. The IME doctor can also inquire as to additional information, or job specifics that he/she can incorporate into your IME report, that may further assist in defending the case.





JOHN C. WITTMER


MINNESOTA NO-FAULT BENEFITS REPLACEMENT/ESSENTIAL SERVICES BENEFITS CHEAT SHEET

65B.44: Basic Economic Loss Benefits

Reimbursement is required for all expenses reasonably incurred by or on behalf of an injured claimant in obtaining substitute services for his/her household (normal and ordinary duties), up to a maximum of $200 per week, beginning at least 8 days after the accident. **Note ~ Replacement Service Benefits are not compensable for the day of the accident, or the entire week following the accident. ** Note ~ Similarly there should be a corresponding disability slip which describes what and how the claimant requires assistance with normal and ordinary household duties/chores What value of services is Claimant entitled to?

o Whichever is greater between: i. Reasonable value of service to be replaced OR

ii. Expenses of providing the same iii. Documentation required showing what was done/incurred

Does Claimant usually provide the services being replaced?

o Not required to be a full-time homemaker o Is required to show they are “primarily responsible for [service being replaced]” o There can be only one primary homemaker

i. Even if they are employed full-time, a Claimant can still make a claim for replacement services as long as they are primarily responsible.

ii. Documentation required showing what was done/incurred What evidence must Claimant provide?

o Claimant must show: i. out-of-pocket expense OR

ii. that such expense was actually incurred iii. Documentation required showing what was done/incurred

o If services involve fulltime responsibility, where Claimant is alleging status as the “primary

homemaker” of the home ~ Claimant must show: i. Necessity for service OR

ii. Reasonable value of the service iii. Documentation required showing what was done

Practice Tips:

o Cross-reference claimant’s disability slips from medical records with work they claim to be unable to do

o Ask for updated disability slips from treating provider before continuing to honor replacement services claims





JOHN C. WITTMER


o Watch out for construction or remodeling projects that are passed off as normal work o Hiring friends to remodel kitchen o Constructing barn outside of house from start to finish

o Watch out for the infamous 20 hours of vacuuming/week, heavy cleaning for multiple hours

each week, extensive gardening and landscaping charges, etc. o Is the amount of time appropriate for the task?

o Does Claimant have children?

o If he/she is hiring snow-removal services. Are the kids able to do it? o If he/she is claiming his/her kids performed the replacement work, are they not already

required to perform chores and assist around the house? Replacement services are only available if the injured person was primarily

responsible for the work being replaced.

o Recorded Statements can be used to verify that the claimant is/isn’t the person primarily responsible for the work before the accident

o Useful later on during arbitration for impeachment purposes, or if the Claimant decides to expand the scope of services being replaced

o Insured has reasonable duty to cooperate with Insurer’s investigation

o EUOs o More expensive and time consuming than recorded statements, but will provide more

information o Must be reasonable part of investigation

If claimant/counsel objects – the arbitrator has to decide Arbitrator decides if request is reasonable

o To Pay or Not to Pay?

o Do the medical records support inability to perform service to be replaced? Up to date disability slips?

o Is there something that does not “sit right” with the claimed replacement/essential

service request? Are these services necessary everyday tasks? Is it reasonable that the Claimant would be the one expected to perform all of

these activities? Is the frequency of the tasks performed reasonable? Has the claim for replacement services gone on longer than it should?

o Make sure the IME doctor addresses any claimed replacement services

o If in doubt, ask for more information or do not pay the claimed charge until you investigate further. Claimant will have to prove the claim at arbitration. If it seems odd to you, it’s

likely that an arbitrator could be convinced as well.





JOHN C. WITTMER


SAMPLE – PIP START-UP LETTER TO INSURED Date: Insured Address: Insured: Claim Number: Date of Loss: Injured Party: Dear ___________: We have received notification of a claim under the Personal Injury Protection (PIP) benefits of __________________ Automobile Policy for _________________. All further correspondence regarding this claim should be directed to the attention of ______________ Insurance Company’s No-Fault Department and at the above address. Please be sure the claim number referenced-above is clearly identified on all correspondence as well as my name. In accordance with the Minnesota No-Fault Automobile Insurance Act, the PIP benefits available to you for the above date of loss, are as follows: $________ for medical expense benefits and $________ for wage loss/replacement service benefits. Loss of income will be paid to a maximum of $___________ not to exceed $500.00 per week at a rate of 85% of your gross wages. For replacement services, we will pay for such services, not exceeding $200.00 per week; which would be payable under the maximum coverage of the loss of income benefits available of $_________. Replacement service benefits are not available for the day of the accident or the first full week after the accident. Please note that a $______ deductible for medical expenses and a $______ deductible for lost wages will also apply. To consider payment of this claim for personal injury protection benefits, we need the following information: The ______________ Insurance Company’s completed PIP application, which is attached to this correspondence. If the injured person is under the age of 18, a parent or guardian will need to sign and date the PIP application. The enclosed medical and wage loss authorizations will need to be signed and dated. Again, if the person is under the age of 18, a parent or guardian will need to sign and date the attached authorizations. A listing of any and all medical providers from seven years prior to the above-referenced motor vehicle accident up to the present, including any and all medical providers for your alleged accident-related injuries. See the attached form for providing the requested information. In addition, this is an ongoing request for medical provider information, so if you treat with additional medical providers as your care and treatment continues, you need to provide the additional medical provider information to my attention.





JOHN C. WITTMER

Sample – PIP Start-Up Letter to Insured © 2019 Arthur, Chapman, Kettering, Smetak & Pikala, P.A. | All Rights Reserved | www.ArthurChapman.com

In order for ___________ Insurance Company to consider payment of related charges for medical care, we need your medical providers to send us both medical records and medical bills. Your medical bills will not be paid without the corresponding medical records, so please advise your providers of this and they can contact me with any questions. Medical records in support of any and all medical bills/charges are necessary for consideration of payment for any and all medical care and treatment you receive. If lost wages are being claimed, we will request a wage loss verification form from your employer upon receipt of the wage authorization from you. A disability slip/statement from your treating physician/medical provider is also required. Medical expense benefits include mileage expense incurred to and from your medical providers. Please note the ______________ Insurance Company, reimburses mileage at __ cents per mile, with appropriate documentation concerning mileage to and from treatment. Mileage is paid out at the IRS medical mileage rate. If replacement services are being claimed, a disability statement from your treating physician is also required. Verification of the services provided and the amount paid is required from the service(s) provider as well. Documentation is also required pertaining to the alleged services where assistance is needed or claimed, along with appropriate documentation pertaining to what you need assistance for, and the type of tasks you cannot perform. Please be advised that all medical expenses submitted for payment under the Personal Injury Protection coverage may be audited to determine the reasonableness of the charge. Expenses may also be reviewed for necessity of treatment and care provided. Upon confirmation of coverage, payment will be mailed separately. If there is a lapse of a period of one year for disability and medical treatment, your eligibility for No-Fault benefits will be terminated under this policy. Pursuant to Minnesota Insurance Code 60A.955, Section 5, a person who files a claim with intent to defraud or helps commit a fraud against an insurer is guilty of a crime. Please promptly return the requested information as soon as possible, so that we can begin processing your claim. Please note – Insurance Company will not be paying any medical charges associated with your care until the attached PIP application and authorizations are completed and documents are executed. If you should have any questions regarding the above information, please feel free to contact me directly. Very truly yours, Adjuster’s name Title and Insurance Company Contact Information Including Email Address





JOHN C. WITTMER

SAMPLE –NO-FAULT APPLICATION FOR BENEFITS


To enable us to determine if you are entitled to benefits under the provisions of the No-Fault insurance law, please complete this entire form and return it promptly.

Date Our Policyholder Date of Accident Claim Number

Applicant’s Name Cell Phone Home Phone Work Phone

SSN# Date of Birth

Home Address (#, Street, City, Zip)

Date and Time of Accident Place of Accident (Street, City, State)

Description of Accident and whether it is a vehicle you own.

Vehicle Riding In (or struck by if a pedestrian)

Describe vehicles owned by you or household members. If other Insurance policies also apply, please list next to each vehicle. 1. 2.

Were you injured as a result of this accident? (check the appropriate

box.) Yes No Did police investigate accident? (check the appropriate box.) Yes No

Was a police report filed? What police department responded?

Describe your injury / injuries:

Were you transported to a hospital via ambulance? (check the appropriate box.) Yes No

Were you treated by a doctor? (check the appropriate box.) Yes No

Name, address, phone # of doctor(s)

Were you treated at a hospital? (check the appropriate box.) Yes No

Name, address, phone # of hospital

Amount of Medical Bills to Date $_________________________

Will you incur more medical bills? (check the appropriate box.)

Yes No

Were you working at the time of accident? (check the appropriate box.)

Yes No

Did you lose wages as a result of your accident? (check the appropriate

box.) Yes No If yes, $ amount lost to date Average weekly wage

If you lost wages: Date disability began. Date you returned or anticipate to returning to work.

Are you eligible to receive workers’ compensation benefits as a result of this accident? (check the appropriate box.) Yes No

Are you eligible to receive Medicare? (check the appropriate box.) Yes No If yes, what is your Medicare ID # ____________.

Have you ever made a workers’ compensation or automobile no-fault claim before? (check the appropriate box.) Yes No If yes, describe how injury occurred, injuries received and date of claim.

Have you ever suffered similar injuries to the injuries suffered in this accident? (check the appropriate box.) Yes No If yes, describe injuries, cause of injuries, date of injury, and places & addresses of prior providers

List names and addresses of your current employer and other employers for two years prior to accident date.

List all prior medical providers for 7 years prior to accident date.

As a result of this accident, will you have any other medical treatments? If yes, please explain.

Signature of applicant or guardian. Print Name Date

The State of Minnesota requires that we tell you: “A person who files a claim with intent to defraud or helps commit a fraud against an insurer is guilty of a crime.”



SHAYNE M. HAMANN, CHAIR EUGENE C. SHERMOEN STEPHEN M. WARNER WILLIAM J. MCNULTY

ALLISON V. LAFAVE JOHN C. WITTMER


WAGE AND SALARY VERIFICATION FORM

RE: Policyholder: _______________

Claimant: _______________

Claim Number: _______________

Date of Loss: _______________

Employer’s Name: _________________

Employee’s DOB: _________________

Employee’s SS #: _________________ Dear Employer:

The above-named person has applied for benefits under the MINNESOTA NO-FAULT AUTOMOBILE INSURANCE ACT As a result of alleged injuries in an automobile accident on the date indicated above. We understand this person is your employee or former employee.

To assist us in determining benefits that may be owed to the above-referenced claimant, please provide us with the answers to the following questions. Please also make sure to include payroll information/documentation as well. We cannot complete our investigation until every question has been answered and all requested documentation provided.

1. DATES OF EMPLOYMENT: From __________ Through __________

2. JOB TITLE: ____________________________

3. LENGTH OF JOB TITLED ABOVE: ___________________

4. JOB DUTIES:____________________________________________________

5. WAGE OR SALARY AS OF THE DATE OF THE ACCIDENT:

a. Average number of hours per week: ______________

i. Paid: (please check one): _____Hourly _______Salaried

1. Rate of Pay: _____________






6. DATES ABSENT FOLLOWING ACCIDENT: _______ TO ________.

7. WAS THE EMPLOYEE PAID WAGES DURING THIS ABSENCE:

a. ____ Yes

i. Amount Paid to date: _________

b. _____ No

8. IS EMPLOYEE ENTITLED TO RECEIVE BEENFITS UNDER ANY WORKERS’ COMPENSATION LAW AS A RESULT OF THIS ACCIDENT?

a. _____ Yes

b. _____ No

9. IF THE ANSWER TO QUESTION #8 ABOVE IS YES, PLEASE PROVIDE THE NAME AND CONTACT INFORMATION OF THE WORKERS’ COMPENSATION CARRIER.___________________________________________.

Date: _____________ _____________________________ Signature of authorized company human resources

individual

______________________________ Printed Signature

______________________________

______________________________

______________________________ Title and contact information

**Please ensure that payroll documentation for the alleged time of any missed time from work is included, as well as the two months prior to the alleged missed time following the accident in question.

A person who submits an application or files a claim with intent to defraud or helps commit a fraud against an insurer is guilty of a crime.




ALLISON V. LAFAVE


SAMPLE –PROVIDERS TIMELY BILLS Date: _________________ To: Medical Provider RE: Insured: Claimant: Date of Loss: Claim Number: Dear: __________: We have been informed that ________________, was involved in a motor vehicle accident and is initiating care and treatment with your facility. Please be advised that we expect to receive medical records and medical bills within a timely fashion after medical care and treatment has occurred. Medical records and medical bills should be sent to ______________ at ______________ Insurance Company. The address and contact phone number is as follows: ______________________________ _____________________________________________. Please be advised that medical bills must accompany medical records, as we will need both for processing payment. If medical records are not received, with the medical bills, this will further delay payment of your bill. In addition, if you do not promptly provide us with the medical records and medical bills, shortly after medical care and treatment is initiated, this may cause further issues with the No-Fault benefits available to _________________. Thank you and please advise of any questions. Very truly yours, Claims Adjuster




ALLISON V. LAFAVE


SAMPLE –PROVIDERS DENIAL BILLS

Dated: ________________ To: Medical Provider RE: Insured: Claimant: Date of Loss: Claim Number: Dear: ________________: We have received your recently submitted medical records and medical bills for ___________. The records and bills were for care and treatment that occurred on ________________. We did not receive these medical records and medical bills until ________________. Because medical records and medical bills were not provided in a timely fashion after medical care and treatment occurred we will not be paying any of the recent medical bills provided from ______________. In addition, _________’s Minnesota No-Fault benefits have been denied based upon the independent medical examination of __________________________________. Thank you. Please call or write with any questions. Very truly yours, Claims Adjuster





JOHN C. WITTMER


SAMPLE --DENIAL OF NO-FAULT BENEFITS LETTER LETTER SHOULD BE SENT TO INSURED AND ATTORNEY

EMAIL | U.S. MAIL | CERTIFIED MAIL (HOWEVER THE COMPANY PREFERS) Date: ________________ Insured Name: Policy Number: Loss Date: Claim Number: Dear Mr./Ms./Mrs. _________________: Enclosed is a copy of the Independent Medical Examination report, relative to the above-captioned matter, dated ________, and prepared by Dr. ______________. As the report states, any treatment beyond ___________ from the date of the accident in question is not reasonable, necessary or causally related to this accident. It is Dr. _________’s opinion that your condition has stabilized to the point where you have received maximum benefit from _____________ care. Further, Dr. ________ has opined that you require no additional medical care, or diagnostic testing. Moreover, you are capable of performing your activities of daily living and are not in any way disabled from working.

Consequently, based on Dr. _______’s report, all No-Fault benefits otherwise payable for this loss will be terminated as of ___________. (Date of IME, or date you want to deny No-Fault benefits, date of ROR or suspension letter. Use the earliest possible date to deny benefits, to protect company.) Pursuant to American Family Insurance Group v. Kiess, 697 N.W.2d 617 (Minn. 2005), we require that your medical providers continue to submit all medical bills and medical records, to my attention in order to maintain any claim for the accrual of interest on outstanding medical bills. In addition, any continued wage loss or replacement services should also be sent to me, in order to maintain a claim for interest on these benefits as well. Under the Minnesota No-Fault Statute, you have the right to demand arbitration of any payments in dispute up to $10,000 through the American Arbitration Association. Information on arbitration procedures may be obtained from the American Arbitration Association at U.S. Bank Plaza, Suite #700, 200 South Sixth Street, Minneapolis, MN 55402-1092, or via email at [email protected]. Please note that ____________ Insurance Company is not bound to submit any claim over $10,000 to voluntary arbitration with the American Arbitration Association. Should you have any questions concerning this matter, please do not hesitate to contact me. Very truly yours, Claims Representative ______ Insurance Company Enc. IME Report





JOHN C. WITTMER


SAMPLE –KIESS LETTER

Date: ________________ Address of Plaintiff Attorney Insured Name: Claimant / Plaintiff Name: Policy Number: Date of Loss: Claim Number: Dear Mr./Ms./Mrs. _________________: ___________________ (Insurance Company) is in receipt of your letter dated ___________, in which you state that you will no longer send medical bills to ___________________ (Insurance Company) because of your client’s recent termination of No-Fault benefits pursuant to the independent medical examination conducted by Dr. _____________ on _______ and the denial of No-Fault Benefits on _____________.

Please be advised that ___________________ (Insurance Company) still requires that all medical bills and corresponding medical records continue to be sent to us in a timely fashion. As you are aware in the case of, American Family Insurance Group v. Kiess, 697 N.W.2d 617 (Minnesota 2005), interest on any outstanding medical bills does not begin to accrue until 30 days after an insurer receives copies of both your client’s medical records and medical bills from various medical providers. If medical bills and medical records are not sent to ___________________ (Insurance Company) after your client undergoes treatment, we will dispute any allegation that interest is due from the date of treatment to the time of any arbitration hearing.

Should you have any questions concerning this matter, please do not hesitate to contact me. Sincerely,

Claim Representative

500 YOUNG QUINLAN BUILDING 81 SOUTH NINTH STREET MINNEAPOLIS, MN 55402-3214

PHONE 612 339-3500 FAX 612 339-7655





JOHN C. WITTMER

SAMPLE –SUSPENSION LETTER To be put on insurance company letterhead


Date: To: RE: Claimant:

Claim No.: DOL:

Dear_______________: __________Insurance Company’s investigation of this claim is ongoing and as part of its investigation we are suspending payments of all No-Fault benefits effective _________________ (DATE SUSPENSION WILL TAKE EFFECT). All No-Fault benefits are suspended until such time as this investigation is complete, including attendance of your client/our insured (DEPENDING UPON IF ATTORNEY REPRESENTED OR NON-REPRESENTED), ________________ (FILL IN NAME OF INSURED OR CLAIMANT) at an independent medical examination. Pursuant to Minnesota case law, we have the right to conduct a reasonable investigation, which may include the need for an independent medical examination. We also have the right to suspend No-Fault benefits while we complete our investigation. Depending upon the results of this investigation and the independent medical examination, additional No-Fault benefits may or may not be paid in the future. We will be in in touch with you in the near future pertaining to the scheduling of the independent medical examination of _____________. (OR - HERE IS THE INFORMATION REGARDING THE INDEPENDENT MEDICAL EXAMINATION.) Please be advised if your client fails to show for her/his (SWITCH DEPENDING UPON IF THE PERSON IS MALE OR FEMALE) independent medical examination all No-Fault benefits will continue to remain suspended for failure of ____________ (FILL IN NAME OF INSURED) to cooperate. Upon receipt of the independent medical examination and our investigation, __________Insurance Company will determine if the outstanding medical bills and ongoing treatment are reasonable, necessary and causally related to the motor vehicle accident of __________ (FILL IN DATE OF LOSS).

Very truly yours, Adjuster name and contact information






SAMPLE -- INDEPENDENT MEDICAL EXAMINATION CORRESPONDENCE TO INSURED To be put on your company letterhead

Date: ______________

VIA CERTIFIED MAIL – RETURN RECEIPT REQUESTED

Insured’s Name and Address

RE: Independent Medical Examination

Insured:

Policy Number:

Claim Number:

Date of Accident:

Dear (Insured):

Pursuant to the terms and conditions of the No-Fault coverage under your _________ Insurance Policy, we have scheduled an independent medical examination for you as follows:

Date and Time of Examination

Dr. _____________________

Address: ________________

Phone Number to Call for Directions: ______________________

This examination has been scheduled for purposes of determining the compensability of your claims under the No-Fault coverage of your insurance policy. Significant costs in the amount of $_________ will be incurred for a missed appointment with the above independent medical examination or a late cancellation. It is imperative that you make every effort to attend this examination. If you cannot attend on the above date please let me know by ________, which is _____ business days from the date of this letter. I will work with you to schedule a new date and time for your independent medical examination. If I do not hear from you I expect that you will attend the independent medical examination as outlined above.

In scheduling this examination, we do not waive our rights to schedule further medical examinations as may be required. We specifically preserve our rights pursuant to the terms and conditions of the uninsured and/or underinsured motorist coverage of your policy to schedule such further independent medical examinations as may be required in the event that you have made or will make an uninsured or underinsured motorist benefits claim under this policy.

If you have any questions or concerns relative to the independent medical examination, please contact the undersigned. Thank you for your anticipated cooperation.

Very truly yours,

Claims Representative

Phone Number

cc: Insured’s attorney - if applicable


AUTOMOBILE PRACTICE GROUP SHAYNE M. HAMANN, CHAIR JUAN M. AVILACOLBY B. LUND GREGORY J. DUNCANEUGENE C. SHERMOEN STEVEN J. ERFFMEYERPAUL J. ROCHEFORD CHARLES B. HARRISJAMES F. MEWBORN ALLISON V. LAFAVELEE A. MILLER BETH A. JENSON PROUTYKAFI C. LINVILLE JOHN C. WITTMERSTEPHEN M. WARNER WILLIAM J. MCNULTY


KEY THINGS TO REMEMBER WHEN DEALING WITH MN PIP 1. When Does a Claim Arise?

Minn. Stat. Sec. 65B.41 – 65B.71 comprise the Minnesota No-Fault Automobile Insurance Act.

Policies of automobile insurance must comply with the requirements of the statute. 2. Maintenance or Use of a Motor Vehicle:

The phrase “maintenance or use of a motor vehicle” is defined at Minn. Stat. Sec. 65B.43, subd. 3. The definition generally includes all activities incident to “use of a motor vehicle as a vehicle” and specifically mentions “occupying, entering into, and alighting from it.”

The statute excludes (1) conduct within the course of a business of servicing or maintaining motor vehicles if the conduct is on the business premise and (2) loading and unloading a vehicle unless the conduct occurs while occupying, entering or alighting from the vehicle.

Clear principles have been established to determine whether or not an injury arises out of the maintenance or use of a motor vehicle.

1. There must be a causal relationship between the injury and the use of a vehicle for transportation purposes.

2. The vehicle must be more than just the place where the injury occurs;

3. The injury must be a natural and reasonable incident or consequence of the use of the vehicle.

See, North River Ins. Co. v. Dairyland Ins. Co., 346 N.W.2d 109, 114 (Minn. 1994). 3. Exclusions to MN PIP Coverage:

Intentional injuries;

Motorcycles;

Races; 4. Who Pays for No-Fault Benefits?

See the Arthur Chapman PIP flow chart / Priorities chart


AUTOMOBILE PRACTICE GROUP SHAYNE M. HAMANN, CHAIR JUAN M. AVILACOLBY B. LUND GREGORY J. DUNCANEUGENE C. SHERMOEN STEVEN J. ERFFMEYERPAUL J. ROCHEFORD CHARLES B. HARRISJAMES F. MEWBORN ALLISON V. LAFAVELEE A. MILLER BETH A. JENSON PROUTYKAFI C. LINVILLE JOHN C. WITTMERSTEPHEN M. WARNER WILLIAM J. MCNULTY


5. What Benefits are Available?

Under Minn. Stat. Sec. 65B.44, basic economic loss benefits include $20,000 for medical expenses and an additional $20,000 for income loss, replacement services/essential services, funeral expense loss and survivor’s losses.

The Maximum amount covered for funeral benefits is $5,000; 6. Handling a No-Fault Claim:

Start-up Letter – see, our sample;

Know the amount of coverage available to the insured;

Application for No-Fault Benefits – see, our sample;

Medical and Employment authorizations;

Investigation of Claim – Property Damage Photos and Estimates;

Social Media Investigation;

Statements;

Examination Under Oath;

Obtain medical records on insured from seven years prior to motor vehicle accident up to the present time including the motor vehicle accident in question;

Obtain employment and tax records on insured from two years prior to the motor vehicle accident up to the present time including the employer at time of the accident in question;

Pay medical bills, when received with medical records for care and treatment that is reasonable, necessary and causally related to the accident in question;

Compile medical bills paid via a PIP log;

Monitor file for independent medical examination – use only licensed medical doctors – orthopedists/neurologists; We do not recommend chiropractic IMES.

Deny benefits after IME/or otherwise handle results of IME report;

Monitor file for PIP arbitration.

A claimant has six years from the date of denial of his/her No-Fault benefits to initiate a No-Fault arbitration or a lawsuit pertaining to reinstating PIP benefits.

AMERICAN ARBITRATION ASSOCIATION

INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION

U.S. Bank Plaza, 200 South Sixth Street, Suite 700 Minneapolis, MN 55402

Telephone: (612)332-6545 Fax: (612)342-2334

March 18,2019

5 North 3rd A venue West Suite 401 Duluth, MN 55802

Allene Gunter AAA Insurance Company 25510 W. I1 Mile Road Southfield, MI 48034 Via Mail

Shayne Hamann, Esq. Arthur Chapman Kettering Smetak & Pikala 81 South 9th Street 500 Young Quinlan Building Minneapolis, MN 55402 Via Email to: [email protected]

Case Number: 01-19-0000-7929

Renato Figueroa -VS

AAA Insurance Co. -vs- IMT Insurance Company / 53308

Claim File No : 201 W8823 Policy Number :

Claim Fi le No : 1002-96-0828 Policy Number :

Date of Accident : 9/5/2018 Policyholder

Date of Accident : 9/5/2018 Policyholder

, EXHIBIT

A- Dear Parties:

The American Arbitration Association (AAA) received a petition for mandatory No-Fault arbitration, pursuant to M.S.A. 65B.525. This case will be administered according to the Minnesota Rules of No-Fault Arbitration Procedure effective January 1, 2019. The Rules can be found on our website at: www.adr.org/MNNOFAULT. Pursuant to Rule 5(e), the claimant must provide respondent with a copy of the filing materials and is responsible to ensure all filing requirements under Rule 5 have been satisfied As part of administration, the AAA will communicate with you and professional associates at your firm. ff you prefer that we only communicate with you, please advise your case administrator.

Respondent will have thirty days to file a response to the petition from the date of this letter, pursuant to Rule 5(g). If supporting documents prescribed under Rule S(f) are not provided at the time of filing, the respondent will have 30 days upon receipt of such documents to respond. A copy of the response must be sent to the AAA and the Claimant. Please use our case number on all correspondence to our office. Filing fees not already paid will be billed in accordance with Rule 39 and are clue upon receipt. If a hearing locale request has been made, the request is as follows: Duluth.

1/14/2019 Gmall - Figueroa, R. Your Claim No. 1002-96-0828 Our Client's No-Fault Claim

[] Gmail

Figueroa, R. Your Claim No. 1002-96-0828 Our Client's No-Fault Claim 1 message

Mon, Jan 14, 2019 at 2:27 PM To: "Pegg, Melody" <[email protected]>

Re: Our Client/Your Insured: Renato Figueroa Your Claim No.: 1002-96-0828 D/I: 9/5/2018

Dear Ms. Pegg:

As you know, our office represents Renato Figueroa in relation to the bodily injuries he suffered in the automobile collision of September 5, 2018.

Our client has a claim for No-Fault benefits regarding payment of medical expenses and lost wages and/or Homemaker Replacement Service Benefits.

For your review, enclosed please find our client's that equal $4,660.

medical records and medical bills

At this time, we would ask that you please review the medical records and bills and make the appropriate payment of these medical expenses.

If you should have any questions about this email or anything else, please feel free to call one of our legal assistants or myself. Thank you.

Very truly,

2 attachments

n) Figueroa Renato Assoc Chiro records.pdf UJ 938K

~ Figueroa Renato Assoc Chiro medical bill.pdf UJ 499K

3

EXHIBIT

_P)

https://mail.google.com/mail/u/1 ?ik=0b959e2a1 e&view=pt&search=all&permthid=thread-a%3Ar6597028025532249931 &simpl=msg-a%3Ar-43118122... 1/1

e AMERICAN ARBITRATION ASSOCIATION' PETITION FOR MINNESOTA NO-FAULT ARBITRATION

The named Claimant(s), pursuant to M.S.A. 65B.525, hereby tender(s) the following dispute arising out of a no-fault insurance policy for resolution under the Minnesota No-Fault Rules of Procedures administered by the American Arbitration Association (AAA®),

Claimant Information

Name(s) of Claimant(s): Minor: [] Yes /I No

Address: . City: Duluth State: MN l Zip Code: 55802

Phone Number(s): NIA Email: NIA

If the person filing this petition is different than the claimant named above, please complete the below information:

Name: Address: 5 N. 3rd Ave. W., Suite 401

City: Duluth State: MN I Zip Code: 55802

Claim Information

Insurance Company: AAA and JMT } Claim#: 1002-96-0828 and 201W8823

Address: PO Box 24523 and PO Box 1336 Policy #: N/A

City: Oakland and Des Moines j State: CA and IA I ZiJ;: Code: Policyholder: Renato Figueroa and Janet Figueroa 623 and 50306

Claims Representative: Melody Pegg and Terry Reynolds Phone: (888) 335-2722 and (800) 274-3531

Total Amount Claimed: $I0,000 Accident Date: 9/5/201 8

Requested Hearing Location: Duluth, MN

Representative Information

If an attorney or other named individual will be representing you, please complete the below section:

Representative Firm (if applicable):

Address: 5 N. 3rd Ave. W., Suite 401 City: Duluth State: MN / Zip Code: sso2

Email· Phone: Fa ·

l A&'as» las k% a la»»s %A» + sol bes hr lee eris es lea beset rs er Lrrordeal rte

1. Filing Fee: A $40.00 filing fee payment made payable to American Arbitration Association.

Your filing should include one copy of the below documents:

2. Petition: A Completed Petition for No-Fault Arbitration, signed by the claiming party or representative.

3. Denial/Discontinuation Letter: Letter from the insurance company verifying that benefits have been denied or discontinued. If a denial letter has not been provided, the filing party may submit proof that bills have been submitted to the insurance company and remain unpaid after 30 days.

EXHIBIT

• 4. Itemization of the Claim: An itemization detailing what you are claiming for arbitration. The itemization, depending on the

nature of your claim, should include the name(s) of medical providers, the name(s) of employer(s), date(s) of service or loss and the amount(s) claimed for each.

5. Supporting Documents: Documentation supporting your claim. e.g. billing summaries, wage stubs, market value comparisons, etc.

File through mail: American Arbitration Association, 700 U.S. Bank Plaza, 200 South Sixth Street, Minneapolis, MN 55402 or online by visiting www.adr.org/Support and clicking Sign in to Access & Manage a Case. For questions contact us at 612-332-6545.

Automobile Law Practice Group Shayne M. Hamann, Chair Juan M. Avila Blake W. Duerre Gregory J. Duncan Steven J. Erffmeyer Charles B. Harris Bradley L. Idelkope Beth A. Jenson Prouty Allison V. LaFave Kafi C. Linville Colby B. Lund William J. McNulty James F. Mewborn Lee A. Miller Jessica L. Ringgenberg Paul J. Rocheford Eugene C. Shermoen Stephen M. Warner John C. Wittmer ********** Insurance Coverage Practice Group Stephen M. Warner, Chair Steven J. Erffmeyer, Co-Chair Corey S. Bronczyk Mark S. Brown Sarah E. Bushnell Gregory J. Duncan Adina R. Florea Shayne M. Hamann Charles B. Harris Beth A. Jenson Prouty William J. McNulty Perssis Meshkat James F. Mewborn Noelle L. Schubert


Minnesota Court of Appeals Affirms Award of Bad-Faith Damages Against Insurer

June 21, 2019 by Gregory J. Duncan and Steven J. Erffmeyer

On June 3, 2019, a divided panel of the Minnesota Court of Appeals issued a decision applying Minnesota’s first-party bad faith statute affirming the district court’s award of bad-faith damages and fees. In Peterson v. Western National Insurance Company, No. A18-1081, 2019 WL 2332400 (Minn. Ct. App. June 3, 2019), the Minnesota Court of Appeals, in a case of first impression, ruled that an insurer must conduct a reasonable investigation and fairly evaluate the results in order to have a reasonable basis for denying an insured’s first-party insurance benefits claim. The Court of Appeals was asked to determine whether the district court misapplied Minnesota’s first-party bad faith statute, Minn. Stat. § 604.18 (2018). The decision affirmed the district court’s application of the statue, finding that Western National lacked a reasonable basis to deny its insured’s underinsured motorist (UIM) claim. The Court of Appeals further determined that Western National knew, or acted in reckless disregard, of a lack of reasonable basis for denying the claim. The decision is significant not only because of how the Court of Appeals evaluated proper claim handling, but due to the stark difference of opinion between the majority and the dissent over the proper application and interpretation of the statute. Alison Peterson sustained a whiplash injury in a motor vehicle accident on October 21, 2009, that resulted in severe daily headaches. Peterson was not at fault for the accident. In December 2012, Peterson began receiving periodic Botox injections that reduced her headaches by 50%. Two neurologists opined that Peterson would require Botox injections every three to four months to manage her permanent and chronic headaches. In 2014, Peterson notified her insurer, Western National, that her past medical expenses were $46,235, her future medical expenses would likely exceed $300,000 and that she had settled her liability claim against the at-fault party for $45,000 (out of $50,000 liability policy limits). On June 22, 2014, Peterson demanded Western National’s $250,000 UIM policy limits. Western National made several requests for medical documentation, but neither accepted nor denied Peterson’s UIM coverage demand before she brought suit in August 2015. During the UIM case, Western National requested an IME. The IME doctor concluded that there was no casual relationship between the collision and Peterson’s headaches and that Peterson suffered only minor soft tissue injuries. Peterson’s claim was also evaluated by a Western National claims board which assigned zero value to Peterson’s claim. Western National’s experienced defense counsel concluded that a prior similar Botox-headache trial, in which a plaintiff was awarded damages over $1.1 million, had no impact on the value of Peterson’s claim because Peterson had a prior history of headaches and the IME doctor in the prior case had “made a very bad witness for the defense.” Peterson’s last demand was $200,000; Western National’s last offer was $50,000. The jury in the UIM trial awarded damages over $1.4 million, including more than $900,000 in past and future medical expenses. Western National paid its $250,000 policy limits and Peterson was granted leave to amend her complaint to add a bad-faith claim pursuant to Minn. Stat. § 604.18. The bad faith claim was tried to the district court judge who awarded $100,000 in costs (the most allowed by the statute in this case) plus $97,940.50 in attorney fees.

Minnesota’s first-party bad faith statute provides that the court may award as taxable costs an amount equal to one-half of the proceeds awarded that are in excess of an amount offered by an insurer up to $250,000, plus reasonable attorney fees actually incurred to establish the insurer’s violation of the statute of not more than $100,000. Minn. Stat. § 604.18, Subds. 2 and 3. The statute provides a two-prong test for the imposition of this discretionary penalty: 1) the absence of a reasonable basis for denying the benefits of the insurance policy; and 2) that the insurer knew of the lack of a reasonable basis, or acted in reckless disregard of the lack of reasonable basis, for denying the benefits of the insurance policy. Id. at Subd. 2. The dispute in Peterson involved interpretation of the phrase “absence of a reasonable basis” which the Court of Appeals determined was undefined, ambiguous and a matter of first impression. In finding ambiguity in the phrase “absence of a reasonable basis,” the Court of Appeals concluded that “an insurer must conduct a reasonable investigation and fairly evaluate the results to have a reasonable basis for denying an insured first-party insurance-benefits claim.” After this, if the “claim is fairly debatable,” then an insurer does not act in bad faith in denying the claim. The district court found that Western National lacked a reasonable basis for denying Peterson’s claim because Western National: 1) delayed settling or denying the claim for a year without properly investigating the claim, 2) ignored Peterson’s evidence in support of her claim, 3) prepared a claims summary that misstated significant facts, and 4) failed to evaluate and weigh the competing medical opinions. On Appeal, the Court of Appeals found no abuse of discretion in the district court’s conclusion. Additionally, the Court of Appeals agreed Peterson met the second prong of the statute because Western National knew, or acted in reckless disregard, of the lack of reasonable basis in denying the claim. Specifically, Western National assigned nothing more than nuisance value to Peterson’s claim, whereas if the claim had been fairly evaluated, at least some probability of success should have been assigned to Peterson. A spirited dissenting opinion (Judge Schellhas) contended that the majority and the district court misapplied the unambiguous language of the statute by focusing on whether the evidence showed a reasonable basis for the jury to award UIM benefits. According to the dissent, the focus should be on the information that the insurer relied on in its investigation, evaluation and denial of Peterson’s claim and not on the evidence supporting the UIM claim or the insured’s likelihood of success. In other words, it does not matter if the insurer was ultimately wrong in its evaluation. Rather, what matters is whether evidence exists to make the claim “fairly debatable.” When such evidence exists the insurer is entitled to debate it. According to Judge Schellhas, the following evidence was sufficient to reverse the district court’s award of taxable bad-faith costs and fees: 1) Evidence of Peterson’s previous car accidents, including one where she struck her head, and history of previous headaches; 2) her history of chiropractic care; 3) the low-speed, side-swipe and low property damage nature of the accident; 4) the lack of records prior to litigation establishing a permanent injury or classification of her headaches as migraines; and 5) the opinions of the board-certified neurologist retained by Western National. This decision will likely impact insurers in first-party injury claims in cases that previously seemed unquestionably fairly debatable. Under the Court of Appeals’ analysis, UIM cases may require greater consideration to the weight of an insured’s evidence supporting his or her claim. Given the strongly worded and well-reasoned dissenting opinion, it is possible that review will be requested by the Supreme Court prior to the July 3, 2019 deadline. Until then, insurers should be particularly diligent in promptly and fully evaluating a first-party claim with all investigation and evaluation being fully documented in the claim file. Earlier evaluation by independent medical experts would be helpful in establishing an insurer’s reasonable basis to deny a claim, as the majority appeared to take issue with waiting until litigation was commenced before seeking expert opinions to support a denial of first-party benefits. Click here to read the opinion of the Court of Appeals. Contact any of the Arthur Chapman’s Insurance Coverage or Automobile attorneys to discuss this ruling.

612 339-3500 www.ArthurChapman.com

500 Young Quinlan Building | 81 South 9th Street | Minneapolis, MN 55402 811 1st St. #201 | Hudson, WI 54016

STATE OF MINNE SOTA

IN SUPREME COURT

A15-1174

Court of Appeals Anderson, J. Took no part, Chutich, J.

Founders Insurance Company,

Respondent,

vs. Filed: December 7, 2016 Office of Appellate Courts

James Yates,

Appellant.

Steven E. Tomsche, Erica A. Weber, Tomsche, Sonnesyn, & Tomsche, P.A., Golden Valley, Minnesota, for respondent.

Gregory J. Johnson, G Johnson Law PLLC, Apple Valley, Minnesota; and

Patrick R. Gillespie, Michael P. Gillespie, Gillespie Law Offices LLP, Rogers, Minnesota, for appellant.

Sharon L. Van Dyck, Van Dyck Law Firm PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

Tammy M. Reno, Kelly P. Magnus, Jessica C. Richardson, Stich, Angell, Kreidler, Unke & Scattergood, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

SYLLABUS

A motor vehicle insurance carrier that is not licensed to sell insurance in Minnesota

is still obligated under Minn. Stat. § 65B.50, subd. 2 (2014), to pay basic economic loss

1

benefits to the insured when the insured vehicle is in Minnesota and an accident occurs in

Minnesota.

Reversed.

OPINION

ANDERSON, Justice.

Appellant James Yates was injured in a car accident in Minnesota and sought basic

economic loss benefits under Minnesota's No-Fault Automobile Insurance Act, Minn. Stat.

§§ 65B.41-.71 (2014), from respondent Founders Insurance Company, his insurer.

Founders argued that the Act does not require it to provide basic economic loss coverage

because Founders is an out-of-state insurer that does not write motor vehicle insurance in

Minnesota. An arbitrator awarded Yates $19,128 in basic economic loss benefits, and the

district court confirmed the arbitration award. The court of appeals reversed. Because we

conclude that the plain language of Minn. Stat. § 65B.50, subd. 2, requires Founders to

provide no-fault benefits to Yates, we reverse the decision of the court of appeals.

I.

Yates was a resident of Illinois until October 2013, when he signed a one-year lease

agreement for a residence in Saint Paul and moved there. While living in Illinois, he

purchased a motor vehicle insurance policy from Founders. The insurance policy was

written to comply with Illinois law and provided $1,000 for medical payments. Under the

Minnesota No-Fault Automobile Insurance Act (No-Fault Act), however, insurance

policies must provide at least $20,000 for medical expense loss. Minn. Stat. § 65B.44,

2

subd. l(a)(l ). The insurance policy that Yates had purchased did not contain a conformity

clause, which would have increased coverage as required to comply with applicable law.

On December 14, 2013, Yates was driving in Maplewood in snowy conditions when

his vehicle collided with another car that had spun out of control in front of him. Yates

made a claim for basic economic loss medical benefits (no-fault benefits) from Founders

for injuries he suffered as a result of this collision. Founders denied the claim, asserting

that the No-Fault Act does not require it to provide benefits to Yates because it is not

"licensed to write motor vehicle accident reparation and liability insurance" in Minnesota

under Minn. Stat. § 65B.50.

Yates pursued his claim for no- fault benefits under the arbitration process in the No

Fault Act. Minn. Stat. § 65B.525. Founders did not participate in the arbitration, except

to object to the proceeding, arguing that the No-Fault Act did not require Founders to

provide benefits to Yates. Yates argued that Founders is required to provide no-fault

benefits because, under Minn. Stat.§ 65B.50, subd. 2, "every contract ofliability insurance

for injury, wherever issued.. . includes basic economic loss benefit coverages." The

arbitrator awarded Yates $19,128 for chiropractic bills, medical mileage, and interest.

While the arbitration was pending, Founders filed a complaint in Ramsey County

District Court, seeking a declaratory judgment that it was not required to provide no-fault

benefits to Yates. After the arbitrator issued its ruling, Founders appealed the arbitration

award. These two cases were later consolidated.

The district court confirmed the arbitration award. Founders appealed, and the court

of appeals reversed the district court. Founders Ins. Co. v. Yates, 876 N.W.2d 344 (Minn.

3

App. 2016). The court of appeals concluded that it was bound by its own precedent, which

had interpreted Minn. Stat.§ 65B.50, subd. 2, to apply only to licensed insurers. Founders,

876 N.W.2d at 347-49. Accordingly, the court held that Founders was not required to

provide no-fault benefits to Yates. Id. at 350. We granted review to determine whether

Minn. Stat. § 65B.50, subd. 2, applies to an out-of-state insurer that is not licensed to write

motor vehicle insurance in Minnesota.

II.

Statutory interpretation is a question oflaw, which we review de novo. Christianson

v. Henke, 831 N.W.2d 532, 535 (Minn. 2013). The goal of all statutory interpretation is to

"ascertain and effectuate the intention of the legislature." Minn. Stat. § 645.16 (2014).

"[W]hen interpreting a statute, we read and construe the statute as a whole, giving effect

whenever possible to all of its provisions." Eclipse Architectural Grp., Inc. v. Lam, 814

N.W.2d 692, 701 (Minn. 2012). When the text of the law is unambiguous, we apply the

plain meaning of the statutory language. Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706,

708 (Minn. 2015). A statute is ambiguous only when it is reasonably susceptible to more

than one interpretation. Lietz v. N. States Power Co., 718 N.W.2d 865, 870 (Minn. 2006).

Here, the relevant statute is Minn. Stat. § 65B.50, subd. 2, which states:

"Notwithstanding any contrary provision in it, every contract of liability insurance for

injury, wherever issued ... includes basic economic loss benefit coverages and residual

liability coverages ... while the vehicle is in this state." (Emphasis added.) The plain

language of the statute is clear. By its terms, the statute applies to all contracts of liability

4

insurance for injury, wherever issued, including whether they were issued in Minnesota,

Illinois, or some other place.

But Founders argues that we should reject this interpretation of the statute because

it would make Minn. Stat. § 65B.50, subd. 1, unnecessary. Subdivision 1 states:

Every insurer licensed to write motor vehicle accident reparation and liability insurance in this state shall, on or before January 1, 1975, or as a condition to such licensing, file with the commissioner and thereafter maintain a written certification that it will afford at least the minimum security provided by section 65B.49 to all policyholders, except that in the case of nonresident policyholders it need only certify that security is provided with respect to accidents occurring in this state.

Founders maintains that the coverage requirements that apply to insurers "licensed to write

motor vehicle accident reparation and liability insurance in this state" in subdivision 1

would "become completely unnecessary" if the coverage requirements in subdivision 2

apply to nonlicensed, out-of-state insurers. Consequently, Founders argues that we should

read subdivision 1 and subdivision 2 together. Because subdivision 1 is limited to licensed

insurers, Founders argues that subdivision 2 is also limited to licensed insurers. We

disagree.

Subdivision 1 imposes additional requirements on licensed insurers that subdivision

2 does not impose on nonlicensed insurers. Specifically, subdivision 1 requires licensed

insurers to "file with the commissioner and thereafter maintain a written certification that

[they] will afford at least the minimum security provided by section 65B.49." Minn. Stat.

§ 65B.50, subd. l. Section 65B.49 describes in detail the minimum security required, which

includes basic economic loss coverage, residual liability coverage, uninsured and

underinsured motorist coverages, and rental vehicle coverage. Minn. Stat. § 65B.49.

5

Minnesota Statutes§ 65B.50, subd. 2, imposes fewer requirements, requiring nonlicensed

insurers to provide only "basic economic loss benefit coverages and residual liability

coverages." Therefore, applying subdivision 2 to nonlicensed, out-of-state insurers does

not make subdivision 1 unnecessary.

Founders also argues that applying Minn. Stat. § 65B.50, subd. 2, to nonlicensed,

out-of-state insurers would "void[] directives which limit the types of insurance for which

an insurance company can conduct business in Minnesota." Amicus Minnesota Defense

Lawyers Association similarly argues that this interpretation would eviscerate[] insurer

licensing requirements" and "render the licensing statutes meaningless." Again, we

disagree.

Multiple statutory rights and obligations accrue to licensed insurers that do not apply

to nonlicensed insurers. For example, licensed insurers have the right to sell and advertise

their insurance products in Minnesota; nonlicensed insurers do not. Minn. Stat.§§ 60A.07,

subd. 4, 72A.33-72A.35 (2014). Licensed insurers also have an obligation to file numerous

documents, maintain specified records, and respond to inquiries. See, e.g., Minn. Stat.

§ 60A.13 (2014) (requiring annual statements and imposing a duty to respond to inquiries

from the Commissioner of Commerce); Minn. Stat.§ 60A.27 (2014) (requiring a licensed

insurer to notify the Commissioner of Commerce when the insurer is disciplined by

another state); Minn. Stat.§ 60A.91 (2014) (requiring the filing of certain documents with

the National Association of Insurance Commissioners); Minn. Stat. § 70A.06 (2014)

(requiring the filing of rate changes); Minn. Stat. § 72A.2035 (2014) (requiring the

6

maintenance of certain records). Minnesota Statutes § 65B.50, subd. 2, imposes none of

these obligations on nonlicensed insurers.

Having rejected the arguments of Founders, we are left with the plain language of

subdivision 2. It clearly states that it applies to "every contract of liability insurance for

injury, wherever issued." Minn. Stat. § 65B.50, subd. 2 (emphasis added). Nothing in

subdivision 2 suggests that it is limited to insurers licensed in Minnesota. Because there is

no other reasonable interpretation of the statute, it is unambiguous and we must apply its

plain meaning. We therefore conclude that Minn. Stat. § 65B.50, subd. 2, applies to an

out-of-state insurer when its insured is in an accident in Minnesota and the insured vehicle

is in Minnesota, even though the insurer is not licensed by the State of Minnesota to issue

motor vehicle insurance. 1

Reversed.

CHUTICH, J., took no part in the consideration or decision of this case.

We recognize that applying Minn. Stat. § 65B.50, subd. 2, to nonlicensed, out-of state insurers could present one or more constitutional issues in an appropriate case. The issue of the constitutionality of Minn. Stat. § 65B.50, subd. 2, is not before us; Founders has not raised a constitutional challenge. We therefore express no opinion on the constitutionality of Minn. Stat. § 65B.50, subd. 2. See State v. Schweppe, 306 Minn. 395, 401 n.3, 237 N.W.2d 609,614 n.3 (1975) (declining to decide an issue not briefed or argued by the parties).

7

65B.50 INSURERS' CERTIFICATION OF BASIC COVERAGE.

Subdivision 1. Filing. Every insurer licensed to write motor vehicle accident reparation and liabilityinsurance in this state shall, on or before January 1, 1975, or as a condition to such licensing, file with thecommissioner and thereafter maintain a written certification that it will afford at least the minimum securityprovided by section 65B.49 to all policyholders, except that in the case of nonresident policyholders it needonly certify that security is provided with respect to accidents occurring in this state.

Subd. 2. Contacts of liability insurance as security covering the vehicle. Notwithstanding any contraryprovision in it, every contract of liability insurance for injury, wherever issued, covering obligations arisingfrom ownership, maintenance, or use of a motor vehicle, except a contract which provides coverage onlyfor liability in excess of required minimum tort liability coverages, includes basic economic loss benefitcoverages and residual liability coverages required by sections 65B.41 to 65B.71, while the vehicle is inthis state, and qualifies as security covering the vehicle.

History: 1974 c 408 s 10; 1978 c 674 s 57

Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.

65B.50MINNESOTA STATUTES 20181

65B.47 PRIORITY OF APPLICABILITY OF SECURITY FOR PAYMENT OF BASIC ECONOMICLOSS BENEFITS.

Subdivision 1. Injury resulting from business use. In case of injury to the driver or other occupant ofa motor vehicle, if the accident causing the injury occurs while the vehicle is being used in the business oftransporting persons or property, the security for payment of basic economic loss benefits is the securitycovering the vehicle or, if none, the security under which the injured person is an insured.

Subd. 1a. Exemptions. Subdivision 1 does not apply to:

(1) a commuter van;

(2) a vehicle being used to transport children as part of a family or group family day care program;

(3) a vehicle being used to transport children to school or to a school-sponsored activity;

(4) a bus while it is in operation within the state of Minnesota as to any Minnesota resident who is aninsured as defined in section 65B.43, subdivision 5;

(5) a passenger in a taxi; or

(6) a taxi driver, provided that this clause applies only to policies issued or renewed on or after September1, 1996, and prior to September 1, 1997.

Subd. 2. Injury resulting from use of vehicle provided by employer. In case of injury to an employee,or to the employee's spouse or other relative residing in the same household, if the accident causing theinjury occurs while the injured person is driving or occupying a motor vehicle other than a commuter vanfurnished by the employer, the security for payment of basic economic loss benefits is the security coveringthe vehicle or, if none, the security under which the injured person is an insured.

Subd. 3. Injury to other persons. In the case of any other person whose injury arises from themaintenance or use of a motor vehicle described in subdivision 1 or 2 who is not a driver or occupant ofanother involved motor vehicle, the security for the payment of basic economic loss benefits is the securitycovering the vehicle, or if none, the security under which the injured person is an insured.

Subd. 4. Other cases. In all other cases, the following priorities apply:

(a) The security for payment of basic economic loss benefits applicable to injury to an insured is thesecurity under which the injured person is an insured.

(b) The security for payment of basic economic loss benefits applicable to injury to the driver or otheroccupant of an involved motor vehicle who is not an insured is the security covering that vehicle.

(c) The security for payment of basic economic loss benefits applicable to injury to a person not otherwisecovered who is not the driver or other occupant of an involved motor vehicle is the security covering anyinvolved motor vehicle. An unoccupied parked vehicle is not an involved motor vehicle unless it was parkedso as to cause unreasonable risk of injury.

Subd. 5. Contribution. If two or more obligations to pay basic economic loss benefits are applicableto an injury under the priorities set out in this section, benefits are payable only once and the reparationobligor against whom a claim is asserted shall process and pay the claim as if wholly responsible, but thereparation obligor is thereafter entitled to recover contribution pro rata for the basic economic loss benefits


65B.47MINNESOTA STATUTES 20181

paid and the costs of processing the claim. Where contribution is sought among reparation obligors responsibleunder subdivision 4, clause (c), proration shall be based on the number of involved motor vehicles.

Subd. 6. Subrogation. Where a reparation obligor pays basic economic loss benefits which anotherreparation obligor is obligated to pay under the priority provided in this section, the reparation obligor thatpays is subrogated to all rights of the person to whom benefits are paid.

Subd. 7. Adding policies together. Unless a policyholder makes a specific election to have two or morepolicies added together the limit of liability for basic economic loss benefits for two or more motor vehiclesmay not be added together to determine the limit of insurance coverage available to an injured person forany one accident. An insurer shall notify policyholders that they may elect to have two or more policiesadded together.

History: 1974 c 408 s 7; 1976 c 180 s 1; 1976 c 233 s 7,8; 1985 c 168 s 8; 1986 c 444; 1986 c 455 s50; 1990 c 496 s 1,2; 1995 c 227 s 1; 1996 c 446 art 1 s 58


2MINNESOTA STATUTES 201865B.47

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MINNESOTA STATUTES 2019 65B.472

65B.472 TRANSPORTATION NETWORK FINANCIAL RESPONSIBILITY.

Subdivision 1. Definitions. (a) Unless a different meaning is expressly made applicable, the terms defined in paragraphs (b) through (g) have the meanings given them for the purposes of this chapter.

(b) A "digital network" means any online-enabled application, software, website, or system offered or utilized by a transportation network company that enables the prearrangement of rides with transportation network company drivers.

(c) A "personal vehicle" means a vehicle that is used by a transportation network company driver in connection with providing a prearranged ride and is:

(1) owned, leased, or otherwise authorized for use by the transportation network company driver; and

(2) not a taxicab, limousine, or for-hire vehicle.

(d) A "prearranged ride" means the provision of transportation by a driver to a rider, beginning when a driver accepts a ride requested by a rider through a digital network controlled by a transportation network company, continuing while the driver transports a requesting rider, and ending when the last requesting rider departs from the personal vehicle. A prearranged ride does not include transportation provided using a taxicab, limousine, or other for-hire vehicle.

(e) A "transportation network company" means a corporation, partnership, sole proprietorship, or other entity that is operating in Minnesota that uses a digital network to connect transportation network company riders to transportation network company drivers who provide prearranged rides.

(f) A "transportation network company driver" or "driver" means an individual who:

(1) receives connections to potential riders and related services from a transportation network company in exchange for payment of a fee to the transportation network company; and

(2) uses a personal vehicle to provide a prearranged ride to riders upon connection through a digital network controlled by a transportation network company in return for compensation or payment of a fee.

(g) A "transportation network company rider" or "rider" means an individual or persons who use a transportation network company's digital network to connect with a transportation network driver who provides prearranged rides to the rider in the driver's personal vehicle between points chosen by the rider.

Subd. 2. Maintenance of transportation network financial responsibility. (a) A transportation network company driver or transportation network company on the driver's behalf shall maintain primary automobile insurance that recognizes that the driver is a transportation network company driver or otherwise uses a vehicle to transport passengers for compensation and covers the driver:

(1) while the driver is logged on to the transportation network company's digital network; or

(2) while the driver is engaged in a prearranged ride.

(b) The following automobile insurance requirements apply while a participating transportation network company driver is logged on to the transportation network company's digital network and is available to receive transportation requests but is not engaged in a prearranged ride:

(1) primary coverage insuring against loss resulting from liability imposed by law for injury and property damage, including the requirements of section 65B.49, subdivision 3, in the amount of not less than $50,000 because of death or bodily injury to one person in any accident, $100,000 because of death or bodily injury

Copyright© 2019 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.

65B.472 MINNE SOTA STATUTES 2019 2

to two or more persons in any accident, and $30,000 for injury to or destruction of property of others in any one accident;

(2) security for the payment of basic economic loss benefits where required by section 65B.44 pursuant to the priority requirements of section 65B.47. A transportation network company and a transportation network company driver, during the period set forth in this paragraph, are deemed to be in the business of transporting persons for purposes of section 65B.47, subdivision I, and the insurance required under this subdivision shall be deemed to cover the vehicle during the period set forth in this paragraph;

(3) primary uninsured motorist coverage and primary underinsured motorist coverage where required by section 65B.49, subdivisions 3a and 4a; and

(4) the coverage requirements of this subdivision may be satisfied by any of the following:

(i) automobile insurance maintained by the transportation network company driver;

(ii) automobile insurance maintained by the transportation network company; or

(iii) any combination of items (i) and (ii).

(c) The following automobile insurance requirements apply while a transportation network company driver is engaged in a prearranged ride:

(1) primary coverage insuring against loss resulting from liability imposed by law for injury and property damage, including the requirements of section 65B.49, in the amount of not less than $1,500,000 for death, injury, or destruction of property of others;

(2) security for the payment of basic economic loss benefits where required by section 65B.44 pursuant to the priority requirements of section 65B.47. A transportation network company and a transportation network company driver, during the period set forth in this paragraph, are deemed to be in the business of transporting persons for purposes of section 65B.47, subdivision I, and the insurance required under this subdivision shall be deemed to cover the vehicle during the period set forth in this paragraph;

(3) primary uninsured motorist coverage and primary underinsured motorist coverage where required by section 65B.49, subdivisions 3a and 4a; and

( 4) the coverage requirements of this subdivision may be satisfied by any of the following:

(i) automobile insurance maintained by the transportation network company driver;

(ii) automobile insurance maintained by the transportation network company; or

(iii) any combination of items (i) and (ii).

(d) If insurance maintained by the driver in paragraph (b) or ( c) has lapsed or does not provide the required coverage, insurance maintained by a transportation network company shall provide the coverage required by this subdivision beginning with the first dollar of a claim and have the duty to defend the claim.

(e) Coverage under an automobile insurance policy maintained by the transportation network company shall not be dependent on a personal automobile insurer first denying a claim nor shall a personal automobile insurance policy be required to first deny a claim.

(f) Insurance required by this subdivision must satisfy the requirements of chapter 60A.

Copyright© 2019 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.

3 MINNE SOTA STATUTES 2019 65B.472

(g) Insurance satisfying the requirements of this subdivision shall be deemed to satisfy the financial responsibility requirements under the Minnesota No-Fault Automobile Insurance Act, sections 65B.41 to 65B.71.

(h) A transportation network company driver shall carry proof of coverage satisfying paragraphs (b) and ( c) at all times during the driver's use of a vehicle in connection with a transportation network company's digital network. In the event of an accident, a transportation network company driver shall provide this insurance coverage information to the directly interested parties, automobile insurers, and investigating police officers upon request pursuant to section 65B.482, subdivision 1. Upon such request, a transportation network company driver shall also disclose to directly interested parties, automobile insurers, and investigating police officers whether the driver was logged on to the transportation network company's digital network or on a prearranged ride at the time of an accident.

Subd. 3. Disclosure to transportation network company drivers. The transportation network company shall disclose in writing to transportation network company drivers the following before they are allowed to accept a request for a prearranged ride on the transportation network company's digital network:

(1) the insurance coverage, including the types of coverage and the limits for each coverage, that the transportation network company provides while the transportation network company driver uses a personal vehicle in connection with a transportation network company's digital network;

(2) that the transportation network company driver's own automobile insurance policy might not provide any coverage while the driver is logged on to the transportation network company's digital network and is available to receive transportation requests or is engaged in a prearranged ride depending on its terms; and

(3) that using a vehicle with a lien against the vehicle to provide transportation network services may violate the transportation network driver's contract with the lienholder.

Subd. 4. Automobile insurance provisions. (a) Insurers that write automobile insurance in Minnesota may exclude any and all coverage afforded under the owner's insurance policy for any loss or injury that occurs while a driver is logged on to a transportation network company's digital network or while a driver provides a prearranged ride. This right to exclude all coverage may apply to any coverage included in an automobile insurance policy including, but not limited to:

( 1) liability coverage for bodily injury and property damage;

(2) uninsured and underinsured motorist coverage;

(3) basic economic loss benefits as defined under section 65B.44;

(4) medical payments coverage;

(5) comprehensive physical damage coverage; and

(6) collision physical damage coverage.

These exclusions apply notwithstanding any requirement under the Minnesota No-Fault Automobile Insurance Act, sections 65B.41 to 65B.71. Nothing in this section implies or requires that a personal automobile insurance policy provide coverage while the driver is logged on to the transportation network company's digital network, while the driver is engaged in a prearranged ride, or while the driver otherwise uses a vehicle to transport passengers for compensation.


65B.472 MINNESOTA STATUTES 2019 4

Nothing in this section shall be deemed to preclude an insurer from providing coverage for the transportation network company driver's vehicle, if it so chooses to do so by contract or endorsement.

(b) Automobile insurers that exclude coverage as permitted in paragraph ( a) shall have no duty to defend or indemnify any claim expressly excluded thereunder. Nothing in this section shall be deemed to invalidate or limit an exclusion contained in a policy, including any policy in use or approved for use in Minnesota prior to May 19, 2015, that excludes coverage for vehicles used to carry persons or property for a charge or available for hire by the public.

( c) An automobile insurer that defends or indemnifies a claim against a driver that is excluded under the terms of its policy as permitted in paragraph ( a) shall have a right of contribution against other insurers that provide automobile insurance to the same driver in satisfaction of the coverage requirements of subdivision 2 at the time of loss.

( d) In a claims coverage investigation, transportation network companies and any insurer potentially providing coverage under subdivision 2 shall cooperate to facilitate the exchange of relevant information with directly involved parties and any insurer of the transportation network company driver if applicable, including the precise times that a transportation network company driver logged on and off of the transportation network company's digital network in the 12-hour period immediately preceding and in the 12-hour period immediately following the accident and disclose to one another a clear description of the coverage, exclusions, and limits provided under any automobile insurance maintained under subdivision 2.

History: 2015 c 48 s 1
