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SPRING 2003 PRACTICE POINTERS

Copyright 2003 MAJ and T. Joseph Kane Crumley

Regular readers know that Joe Atkins, former co-editor of this column, was elected to the state legislature last November.

Joe was the coeditor of Practice Pointers for over ten years, starting with the Winter 1992 issue. Joe wrote about many interesting topics, but we would have liked to hear more about his time management skills. In addition to this column, Joe was in private practice with the firm of Thuet, Pugh, Rogosheske & Atkins in South St. Paul, served as Mayor of South St. Paul and found time for his wife, Julia, and three children. With his elevation to the state house, the increased responsibilities to his electorate led him to reluctantly retire from his role with Practice Pointers. His contributions will certainly be missed, but at deadline, his well-informed presence was already strongly evident at the capitol.

Lois Wiggins, MAJ Administrative Director and chief deadline-reminder, joins me in thanking Joe for his kind words last issue. All of MAJ thanks Joe for his hard work over the years, and wishes Representative Atkins the best of success in the Legislature.

Your remaining editor will not be alone for long; a new coeditor will appear next issue.

Mock Trials/Focus Groups – Cheaper than you think!

Do you want to know what a jury might think of your case? We all know that jurors, usually non-lawyers, often view our cases much differently than lawyers. Questions from deliberating juries often surprise and bewilder attorneys and judges. Often, the issues the jury identifies make lawyers wish they had presented their case differently. Of course, it’s too late to change your case once the jury is already deliberating!

Why not a test drive your case? Traditionally, hiring a consulting firm for to assemble a mock jury or focus group was reserved for only the highest value cases because of the prohibitive expense. MAJ members have a reasonably priced alternative that puts a mock trial or a focus group within the reach of most middle value cases.

For only $1,250, MAJ will assemble a group of ordinary citizens to listen to your evidence and discuss your case. You can choose whether the panel deliberates as a traditional mock jury (while you watch on a remote video monitor) or has an open discussion like a focus group. You can lead the focus group yourself or hire your own professional facilitator. MAJ even has a list of professional facilitators you can hire. An MAJ Mock trial or case evaluation can help you:

Regardless of what form you choose, MAJ’s focus groups are completely confidential. To schedule an MAJ Mock Trial in your county or at the office, call Sandy Benson at 612-375-1707 or 800-898-6852.

With this member benefit available, there may only be one question for you to answer. Can you justify not putting your case before an MAJ Mock Trial or Focus Group?

Case Evaluations-Regular or King-sized

Many of you already used MAJ Case Evaluations. For only $175, MAJ will set up a confidential three-lawyer panel to review your case for an hour to provide you advice on:

MAJ regularly schedules monthly panels at the MAJ office. However, to meet your schedule and case needs, they can set up a panel in particular areas of law such as Wrongful Death, Medical Malpractice, and Product Liability.

Telephone Case Evaluations. In certain cases, a telephone evaluation is helpful. Non-metro attorneys especially appreciate this benefit. The requesting attorney prepares any written materials and forwards them to MAJ in advance. The panel members typically meet at the MAJ office, with the requesting member on speakerphone. In some cases, such as death cases, there is simply no reason for the attorney to travel to Minneapolis. All the evidence can be put before the panel.

In certain other cases, such as a scar cases, or client control cases, the member and the client may get an appreciable benefit by meeting with the panel in person.

MAJ member Kalene Engel said “Although I was skeptical that phone evaluation would work, it was a complete success.”

Consider a telephone case evaluation. To schedule one, call Sandy Benson at 612-375-1707 or 800-898-6852, or just review the ad on page ??? of this issue.

Collateral Source Deadlines in No-Fault. The Collateral Source statute, [1] requires that motions to reduce a verdict for collateral sources be made within ten days of "entry of verdict."[2] Te No-Fault Act has a its own separate setoff provision, without any explicit time limit.[3] In Lee v. Hunt[4], won by MAJ member Richard O’Dea, the Court of Appeals ruled that the ten-day collateral source motion deadline applies to the no-fault setoff.

The Court of Appeals was very careful to distinguish some arguably contrary Supreme Court language, contained in a Supreme Court memorandum opinion, Wertish v. Salvhus.[5] Perhaps in response to that case, the Lee court went to great lengths to detail proper statutory interpretation, pointing out:

The court then distinguished Wertisch in a footnote:

Arguably, language in Wertish could be read as suggesting that the collateral source statute’s deadline does not apply. Wertish, 558 N.W.2d at 258. We believe, however, that the Wertish language is best construed as dicta , and trust that the public policy and statutory construction considerations set forth here would be consistent with the analysis by the supreme court were it to address this issue squarely on its merits. (Emphasis added)

If the defense attorney fails to move for a collateral sources (including no-fault benefits) reduction within ten days of the order for judgment, they have waived the statutory reduction, and the plaintiff must be paid the damages.

Collateral Sources – Don’t forget to deduct insurance premiums!

Even if the defense does properly move for the reduction, plaintiffs’ lawyers must not forget that the statute specifically allows plaintiffs a reduction of setoff for the “amounts that have been paid, contributed, or forfeited by, or on behalf of, the plaintiff or members of the plaintiff's immediate family for the two-year period immediately before the accrual of the action to secure the right to a collateral source benefit….”[6] This can be a substantial amount. In a recent unpublished case, Engle v. Fischer [7], a collateral source medical award of $8,190.50 should have been reduced by $2,488, the amount Engle paid in premiums. Unfortunately, the proof of the premiums was apparently not provided on a timely basis.

Given the short timelines involved in these matters, tell your clients early in the case to gather this information. The client may need to dig out their old checkbooks, or even contact their agent to get the information.

The no-fault setoff statute [8] does not explicitly contain the premium reduction. Since Lee v. Hunt applied the collateral source 10-day rule to the no-fault setoff, the premium reduction should also be so applied? The Engle case did involve auto insurance.

Winning a Lost Case: How do you tax costs when the jury awards only the paid special damages? Deducting the paid specials results in a zero verdict, unless you ask the court to reduce the no-fault setoff for premiums paid.

If the plaintiff qualifies, there often be a net verdict in the amount of the premiums, and plaintiff can tax costs pursuant to Borchert v. Maloney.[9]

Selective No-Fault Setoffs

A recent federal court victory by MAJ Member Mike Zimmer contains a nice tidbit on No-Fault setoff. Typically, defense attorneys ask that judges just deduct the full amount of the medical paid without reference to individual bills that were awarded or not awarded.

In Dvorak v. United States, [10] the No-Fault carrier had paid $20,000, including "$3,004.90 paid for QEEG treatments…" Judge Richard Kyle noted that since those treatments were not awarded, they were not available to be deducted .

It may be rare that we have a clear indication of just exactly what medical bills have been awarded and which ones have been denied. Some lawyers have taken to importing their entire list of special damages into the special verdict form, with a damage line after each entry. Others have been reserving this special treatment for controversial treatment.

In any event, Judge Kyle’s well-reasoned opinion may be cited in support of ‘selective’ setoffs.

Progressive not Licensed in Minnesota?

It may be coincidence, but two members have complained about what might be a new Progressive Insurance tactic. In each case, Progressive initially refused to conform out of state insurance policies to Minnesota coverages.

One list serve member had a Wisconsin client injured in a Minnesota accident while driving her Wisconsin titled and insured vehicle. The Progressive adjuster claimed that the client’s policy was issued by Halcyon Insurance Co., that Halcyon doesn't write business in Minnesota, and refused to provide Minnesota no-fault benefits. Insurers who do business in Minnesota must provide Minnesota No-Fault benefits while the vehicle is in the state.[11] Unfortunately, the company’s true name is Progressive Halcyon, a wholly owned subsidiary or affiliate of Progressive Casualty Insurance Company. The claim was being adjusted by local Progressive adjusters.

Your editor had a similar dispute, except that it involved a third party defendant insured for only $25,000 by Progressive County Mutual of Texas. The Progressive adjuster (officed in the Progressive office in Arden Hills) argued Progressive County was an out-of-state insurer, and had no obligation to ‘write up’ the policy limits under Murphy v. Milbank. This afforded your editor the opportunity to place the case into suit against both the Progressive insured and the client’s uninsured motorist carrier. Faced with a lawsuit that also included a named insurer, Progressive withdrew the defense.

Your editor questions the propriety of Progressive purchasing or establishing multiple subsidiaries (most headquartered in Mayfield Ohio) if the purpose is to avoid their responsibilities as a nationwide insurer. Progressive advertises essentially nationwide. They sell insurance through their website. They investigate and pay claims in the same little white trucks. This writer is no business organizations expert, but if it walks like a duck and talks like a duck, it’s my opinion that it should be construed as a Progressive policy.

Progressive certainly does business in Minnesota, and did sign a Minnesota no-fault certification in 1974. The Insurance Commissioner’s website hint at the official attitude toward members of insurance groups:

one should ascertain whether such a company is a member of a company group comprising companies that did sign a Minnesota No-Fault Certification Form. In such a case, Minnesota Basic Economic Loss benefits might be available from that company.

Serving discovery with Summon and Complaint- Many plaintiffs like to serve their full set of discovery on the defendant with the Summons and Complaint. Theoretically, this hits the defense attorney with a pile of work early in the case.

Mike Bryant reports one defense attorney loves it when plaintiffs do this. The defense attorney said that when the discovery must be done when the file is first opened, his file is completely empty. Thus, he has very little to disclose, and apparently feels little obligation to make a reasonable inquiry with the client or supplement the discovery later in the litigation. It also assures him that his client will have at least thought about the case by the time the deposition is taken.

Mike suggests reminding the insurer of their obligation to seasonably update discovery responses before key points in the litigation, such as depositions, before mediation and, of course, before trial.









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