NO-FAULT AND BODILY INJURY CASES WITH CAUSATION

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NO-FAULT AND BODILY INJURY CASES WITH CAUSATION

• By
• Jeannie Provo-Petersen, Esq.
• St. Paul, Minnesota

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Causation in No-Fault Tort Cases
Is there a Difference?

• Causation in no-fault cases requires "something
  less than proximate cause in the tort sense and
  something more than the vehicle being the mere
  situs of the injury." Continental West. Ins. Co.
  v. Klug, 415 N.W.2d 876, 878 (Minn. 1987).
• Causation in tort (BI) cases requires proximate
  cause.
• CIVJIG 27.10 - a "direct cause" is a cause that
  had a substantial part in bringing about the
  injury.
• In both types of cases, the focus is on whether
  the injuries were caused by a particular event.

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Why Focus on Causation?

• Minn. Stat. 65B.42 - Pay costs allocated to
  motoring activities or injuries causally related
  to motoring.
• Minn. Stat. 65B.43, Subd. 7 - "Loss" means
  economic detriment resulting from the accident
  causing the injury.
• Minn. Stat. 65B.43, Subd. 11 - "Injury" means
  bodily harm to a person and death resulting from
  such harm.
• Minn. Stat. 65B.44., Subd. 1 - . .
  .reimbursement for all loss suffered through
  injury arising out of the maintenance or use of a
  motor vehicle . . . .
• (1) . . .for medical expense loss arising out of
  injury

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Causation in No-Fault Cases
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ACCIDENT?

• VICTIMS PERSPECTIVE

• Unlike BI, UM or UIM claims which are viewed from
  the perspective of the tortfeasor, No-fault (PIP)
  claims are always viewed from the perspective of
  the victim.

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MEDICAL EXPENSE BENEFITS

• REASONABLE
• NECESSARY
• DIRECTLY RELATED

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MEDICAL EXPENSE BENEFITS

• BURDEN OF PROOF

• Once insurer receives reasonable proof of a
  claimants entitlement to benefits by presenting
  evidence of causation and necessity, the burden
  of proof shifts to the insurance company to
  produce evidence that claimant is not entitled to
  benefits.
• Insurers burden is most often met with an IME.

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No-Fault Causation Cases

• Minnesota Courts Interpret Directly Related

• Rodgers v. Progressive (1993) - Court of Appeals
• Great West v. Northland (1996) - Supreme Court
• State Farm v. Zitzloff (1998) - Court of Appeals
  (unpublished).
• Scheibel v. Illinois Farrmers (2000) - Supreme
  Court
• Khawaja v. State Farm (2001) - Court of Appeals
• Scheibel v. Illinois Farrmers (2001) - Supreme
  Court
• Pususta v. State Farm (2001) - Supreme Court

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Rodgers v. Progressive, 499 N.W.2d 61 (Minn.
Ct. App. 1993)

• ALLOWED APPORTIONMENT OF EXPENSES

• Apportionment appropriate between pre-existing
  conditions and new injuries.
• Ongoing treatment for prior condition when new
  injury occurs.
• Medical opinion that laid out apportionment.
• No-fault carrier only responsible for percentage
  allocated to the accident in question (e.g.
  50/50).
• No-fault insurer for 2nd accident only pays for
  treatment related to 2nd accident.

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Great West v. Northland,548 N.W.2d 279 (Minn.
1996)
NO MORE APPORTIONMENT

• No ongoing treatment when new injury occurs.
• Subrogation between insurers.
• Supreme Court holds only 1 accident can be the
  cause of injury for subrogation between insurers.
  
• A return to the No-Fault Act instead of
  requesting apportionment opinion or paying all
  expenses regardless of how caused, insurer
  determines and pays for treatment made necessary
  by the accident.
• Supreme Court questioned apportioning causation
  like Rodgers, but did not over rule Rodgers.

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Scheibel v. Illinois Farmers, (I)615 N.W.2d 34
(Minn. 2000)

• Is Apportionment Back?

• Scheibel injured in 2 separate MVAs 2 months
  apart.
• 1st MVA - 3/96 - injured neck.
• 2nd MVA - 5/96 - aggravated neck surgery
  required.
• Farmers on risk for both MVAs.
• Paid 3,588 for medical expenses from 1st MVA.
• Paid 20,000 limits from 2nd MVA.
• Scheibel filed arbitration to recover additional
  benefits trying to attribute back to 1st
  accident.
• Need for treatment related to both MVAs
• Farmers paid for all under 2nd MVA - Great West

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Scheibel v. Illinois Farmers, (I) 615 N.W.2d 34
(Minn. 2000)
Apportionment is back.

• Arbitrator found expenses causally related to
  both MVAs (35 to 1st and 65 to 2nd).
• After 20,000 exhausted from 2nd MVA, still had
  6,953 in uncompensated medical expense.
• Supreme Court holds
• When both MVAs contribute, 2nd MVA pays all, up
  to limits.
• Return to 1st MVA if 2nd MVA limits are
  exhausted.
• May only recover that unreimbursed portion of
  expense attributable to 1st MVA (e.g. 35).
• Reversed in part and remanded.

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Scheibel v. Illinois Farmers, (II)631 N.W.2d 428
(Minn. Ct. App. 2001), rev. denied, (Minn.
Sept. 25, 2001)
Calculating Apportionment

• On remand, Court of Appeals holds
• Arbitrators findings of 35 1st MVA, and 65 2nd
  MVA are final and binding
• Affirms decision of Dist. Ct., and gives tacit
  approval of apportionment in cases involving
  aggravation of pre-existing injury from prior
  accident.

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Scheibel v. Illinois Farmers, (II)631 N.W.2d 428
(Minn. Ct. App. 2001), rev. denied, (Minn.
Sept. 25, 2001)
Calculating Apportionment

• District Courts Method of Calculation
• 3,558 following 1st MVA
• 20,000 following 2nd MVA
• 6,953 uncompensated
• 30,511 (total medical from both MVAs)
• Dist. Ct. Took 35 of 30,511, or 10,678
• Since Farmers already paid 3,558, it owed
  additional 7,120

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Scheibel v. Illinois Farmers, (II)631 N.W.2d 428
(Minn. Ct. App. 2001), rev. denied, (Minn.
Sept. 25, 2001)
Calculating Apportionment

• Arguably inconsistent with Sup. Cts directive
• 35 of uncompensated 6,953, or 2,433

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Scheibel v. Illinois Farmers, (II)631 N.W.2d 428
(Minn. Ct. App. 2001), rev. denied, (Minn.
Sept. 25, 2001)
Calculating Apportionment

• Are calculations also wrong because they only
  make 1st MVA responsible for 35 of expenses
  incurred solely as result of 1st MVA.
• Shouldnt 1st MVA be responsible for
• 3,558 following 1st MVA
• 9,433 following 2nd MVA (35 of 26,953)
• 12,991 in total expense?

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Khawaja v. State Farm, 631 N.W.2d 106 (Minn.
Ct. App. 2001), rev. denied, (Minn. Sept.
25, 2001)
What Happens When 2nd MVA Settles for Less than
Policy Limits?

• 2 MVAs
• After settlement, insurer for 2nd MVA had paid
  total of 19,896.69 (policy limits not
  exhausted).
• Khawaja brought claim against 1st MVA insurer
  under Scheibel.
• State Farm denied, claiming Scheibel required
  claimant to exhaust all limits from 2nd MVA.

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Khawaja v. State Farm, 631 N.W.2d 106 (Minn.
Ct. App. 2001), rev. denied, (Minn. Sept.
25, 2001)
What Happens When 2nd MVA Settles for Less than
Policy Limits?

• Court of Appeals disagreed
• Scheibel does not require claimant to exhaust
  benefits from 2nd MVA.
• But insurer for 1st MVA is responsible only for
  benefits over and above limits for insurer for
  2nd MVA.
• Claimant eats the gap of 103.31.

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Pususta v. State Farm, 632 N.W.2d 549 (Minn.
2001)
Apportionment Between Prior Non-MVA and MVA

• 1992 - horse accident with neck and back
  injuries.
• 1994 - chiro. tx. - health insurer only allows 24
  visits/yr.
• 1997 - still treating with chiro. 1x/month.
• Dec., 1997 - MVA, aggravated prior neck and back
  injuries, and increased chiro. tx.
• IME - some injuries related to prior horse
  accident, so no-fault insurer pay for tx. only
  through Apr., 1998 -pre- accident status.

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Pususta v. State Farm, 632 N.W.2d 549 (Minn.
2001)
Apportionment Between Prior Non-MVA and MVA

• Arbitrator refused to apportion, applying Great
  West.
• State Farm argues should not have to pay for 24
  annual chiro. visits pre-MVA.
• Dist. Ct. and Ct. of Appeals both affirm based
  on Great West.

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Pususta v. State Farm, 632 N.W.2d 549 (Minn.
2001)
Apportionment Between Prior Non-MVA and MVA

• Supreme Court reversed
• Distinguished Great West and Scheibel because
  they both dealt with multiple MVAs.
• No-fault insurer should pay only for loss that
  arises out of maintenance or use of MVA.
• A no-fault arbitrator must only award those
  reasonable medical expenses for treatment of
  injuries caused by, or aggravated by, the
  automobile accident. Id. at 556.

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Pususta v. State Farm, 632 N.W.2d 549 (Minn.
2001)
Apportionment Between Prior Non-MVA and MVA

• Arbitrator must determine whether expense relates
  to an injury that was a natural and reasonable
  incident or consequence of the use of a vehicle.
  
• If the expense is not for treatment solely
  related to the accident, it must be denied.
• If the arbitrator does not think all expenses are
  causally related to the motor vehicle accident,
  but some are, it is appropriate for him to
  apportion those expenses as he sees fit.

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What Does Causation (Directly Related) Now Mean?
No-Fault Carriers Pay for Loss Directly
Related to the Subject Accident. Isnt that
what the No-Fault Act has Always Said?
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Causation in Bodily Injury Cases
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Pleading and Proof
Aggravation of Pre-Existing Injuries

• Changes in Jury Instructions
• CIVJIG 91.40
• Does it improperly shift burden of proof?

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Jury Instructions
4A Minnesota Practice, CIVJIG 91.40

• There is evidence that Plaintiff had a
  pre-existing disability or a medical condition at
  the time of the accident.
• Defendant is liable only for any damages that you
  find to be directly caused by the accident.
• If you cannot separate damages caused by the
  pre-existing disability or medical condition from
  those caused by the accident, then defendant is
  liable for all the damages.

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Pre-Existing Conditions
Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d
154 (Minn. 2002), rev'g. 632 N.W.2d 268 (Minn.
Ct. App. 2001)

• If neither partys theory of the case is
  aggravation, CIVJIG 91.40 should not be used.
• P claimed his injuries and damages resulted
  solely from the car accident.
• UIM insurer argued all injuries and damages were
  solely the result of Ps pre-existing condition,
  and did not argue the accident resulted in any
  aggravation of Ps underlying condition.

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Jury Instructions
4A Minnesota Practice, CIVJIG 163

• A person who has a defect or disability at the
  time of an accident is nevertheless entitled to
  damages for any aggravation of such pre-existing
  condition, even though the particular results
  would have followed if the injured person had not
  been subject to such pre-existing condition.
  Damages are limited, however, to those results
  which are over and above those which normally
  followed from the pre-existing condition had
  there been no accident- in this case, had there
  been no second accident.

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Pre-Existing Conditions
Heine v. Simon, 674 N.W.2d 411 (Minn. Ct. App.
2004)

• JIG 163 does not erroneously shift burden of
  proof to plaintiff. Generally, P in any civil
  case bears burden of proving damages by a
  preponderance of the evidence.
• If there is a pre-existing injury that is
  aggravated by the negligence of another, P still
  has the burden of proving not only the injuries
  directly caused by the defendant, but also
  proving the extent to which plaintiff's condition
  was caused by Ds conduct.

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Pre-Existing Conditions
Heine v. Simon, 674 N.W.2d 411 (Minn. Ct. App.
2004)

• Recovery limited to additional injury caused by
  aggravation over and above pre-existing
  condition.
• Damages for aggravation of a pre-existing
  condition are simply a means to assure that the
  defendant pays only for the harm the defendant
  causes, not the harm plaintiff already had.

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Pre-Existing Conditions
The Single-Indivisible-Injury Rule

• If 2 or more persons through consecutive,
  independent acts of negligence closely related in
  time cause a single indivisible injury that is
  incapable of apportionment, the negligent actors
  are jointly and severally liable for damages.
• Whether the single-indivisible-injury rule
  applies is a question of law.
• To trigger joint and several liability under the
  single-indivisible-injury rule for damages, the
  injury must be incapable of being divided.

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Pre-Existing Conditions
Rowe v. Munye, 674 N.W.2d 761 (Minn. Ct. App.
2004)

• CIVJIG 163 taken from 4 Minn. Prac. 163 properly
  follows Minnesota common law precedent and is the
  proper instruction to be given to the jury in
  cases where there is a pre-existing condition
  which defendant did not cause.
• Blatz v. Allina Health Sys., 622 N.W.2d 376
  (Minn. Ct. App. 2001), review denied (Minn. May
  16, 2001)
• Burden of proof issues created by CIVJIG 91.40
  impermissibly shifts burden of proof to defendant
  to show he did not cause the portion of
  plaintiff's damages attributable to the
  pre-existing condition.

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DIRECT CAUSE
CIVJIG 27.10

• A "direct cause" is a cause that had a
  substantial part in bringing about the injury.

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BURDEN OF PROOF
CIVJIG 90.15

• Definition of "burden of proof"
• A party asking for damages must prove the nature,
  extent, duration, and consequences of his or her
  injury.
• You must not decide damages based on speculation
  or guess.

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Special Verdict Form
CIVJIG 65.90

• What amount of money will fairly and adequately
  compensate plaintiff for damages directly caused
  by the accident, up to the time of this verdict,
  for
• a.Past pain, disability, and emotional distress?
• b.Past wage loss?
• c.Past health care expenses?
• What amount of money will fairly and adequately
  compensate plaintiff for damages reasonably
  certain to occur in the future, directly caused
  by the accident, for
• a.Future pain, disability, and emotional
  distress?
• b.Loss of future earning capacity?
• c.Future health care expenses?

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What Evidence is Needed?
Issues of Causation Require Proof

• Medical Records (pre and post accident)
• 7 yrs. for No-Fault Claims
• Unlimited for BI Claims
• Employment Records
• Job descriptions, attendance records, FMLA
  requests, 1st reports of injury
• Is work contributing to the problem (repetitive
  use, nonergonomic, work injuries, etc.)
• Other Claims
• Work. Comp., disability, other insurance

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Use of an IME
Arm Your Doctor with Causation Proof

• Provide the IME doctor with all relevant
  information.
• Provide the IME doctor will all necessary records
  to render an accurate opinion on causation.
• Provide pre and post accident records.
• Provide pre and post accident diagnostics.
• Provide other relevant records/information, such
  as job descriptions, other claims, prior history.
• Provide photographs/damage estimates.

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NO-FAULT AND BODILY INJURY CASES WITH CAUSATION

• By
• Jeannie Provo-Petersen, Esq.
• St. Paul, Minnesota