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FALL 2004 PRACTICE POINTERS

Copyright T. Joseph Kane Crumley

A True Story

A crisp and bright October Sunday morning. The kind of morning that inspires drives out of the city seeking clear air and crimson and amber trees by roads and rivers.

First things first, though. Mom teaches Sunday School and starts her class prep an hour before. Dad watches the kids until class starts, and when the weather is good, a nature walk along the creek fills the time. Today, however, something different.

It's the morning of the marathon. Dad has been drafted by best friend James to handle snack, first-aid, and petroleum jelly for socks at Milepost 18, which James won't reach for a couple hours. The church is near Milepost 4, and a check of his watch tells Dad the race is just now starting.

We wander to a bridge that crosses the creek. Beyond, the parkway is a broad, sweeping curve. Dad has done this before, and remembers the joy of clapping and cheering on the runners. But always in the middle of the course, arriving only in time to see the middle speed runners. For once, he wants to see the first runners, and taste the excitement of the leaders. Dad has told them about this, but has forgotten who usually leads the marathon.

The kids began to get bored after a few minutes, as the runners don't appear right away. They cavort and roll in leaves. A few more minutes and the sound of clapping and cheering starts weakly in the distance, then builds. At Dad’s yell, the kids come running back to the bridge. They huddle by him at the curb, all leaning out over the pavement, squinting into the distance.

The clapping gets ever closer, as do indistinct yells of encouragement. My eight-year-old boy looks intently down the road. He often does not care or pay much interest in sport, and his attention span may again soon wander.

Suddenly, a small, low-to-the-ground form comes sweeping past the trees through the beginning of the curve. There is a moment of confusion, then recognition. Not a runner, but a man in a racing wheelchair, and he's going fast. Another man in a wheelchair is coming up the outside, gaining on him. They're almost neck and neck as they sweep through the turn, across the bridge toward us.

I look at my son and note the gradual recognition of what he's seeing. His eyes grow big. It’s a wheelchair. Eyes grow bigger. His legs are really tiny. Atrophied, tucked almost like an afterthought into a pouch on the wheelchair beneath a paradoxically strong, rippling, upper body. He really can't walk or run.

My son is a sensitive boy, and his face begins to screw up at the immensity of what he's seeing. A man who cannot walk; a man who cannot run ... . is... .. flying. My boy’s eyes gleam and tears form at the corners of his eyes. Enviably large churning biceps, sweating forearms, and gloved hands literally beat power into the spinning rear wheels. Men who cannot walk are going to win this marathon. Misreading him, I move to comfort him but he brushes me back and responds quickly, almost as quick as the two men now sweeping by us tucked into their machines.

"Go, Wheelchair Guy, Go!” at the top of his lungs, his voice just cracking. I don’t know which of the two racers he is cheering, but it doesn’t matter. Both racers react immediately to the childish sincerity of that yell, which easily pierces the cheers of the other onlookers. The strain of their Herculean duel notwithstanding; both faces break into broad grins at the cheer.

In a moment they have swept around another corner, still neck and neck. Many more wheelchaired racers sweep by; men and women. Tears are streaming down my face, my son’s face, and his older sister. A quiet interval, and the running men arrive. Their muscles are lean, and their stride rhythmic and effortless. They are some of the most impressive athletes in the world; some have crossed oceans to run and ‘win’ this race. But they are not so impressive as they might have been a moment before.

The effort, the striving, indeed the full and complete meaning of sport, encapsulated in one innocent, sincere and robust cheer of an eight year old child. A simple expression of what we often struggle to explain in our closing arguments; the value of strength, the value of strength physical effort and competition. Not tears of sympathy for them, but a shout of encouragement and tears of joy and wonder.

Go, wheelchair guy, go.

Worker’s Comp List Serve. Your editor took a glance at the work comp list serve recently. One list member asked whether to strike a certain judge in a contested hearing. The members of the list responded quickly, indicating five to one that they would always strike that judge in a contested hearing. Fairly valuable information in any forum, especially one where the judge decides your case!

The list also includes numerous messages about work comp law, permanency percentages, various treating doctors, adverse examiners and their opinions. If you’re not a member, sign up! Call Derek at MAJ (612-375-1707) or e-mail him at dlamparty@mntla.com.

List Serve Inbox Flood? Signed up for one or more list serves and frustrated with all the messages? You don’t have to get your email Inbox flooded with List Serve messages if you don’t want to! The List Serve website allows you to customize how you get your messages. You can choose:

Waiting till day’s end for one message, rather than twenty may be your preference. You can have all your lists handled the same way, or customize each list. To change your settings, go to:

http://mntla.org:81/read/login/

You will need your e-mail address and password from MAJ.

Filter. If you prefer to get the messages throughout the day, there’s another way to stem the flood. Try setting your e-mail program to filter the messages from the list. Commands vary, but most programs allow you to:

In Outlook Express 6.0, click Tools - Message Rules – Mail. For Outlook 2003, click Tools – Rules and Alerts. For other programs, check the help file for more advice. Hint: Beware of the ‘delete’ option till you’re sure you’ve got your settings right.

Property Damage Catch-22. MAJ member Victoria Vang (attorney and licensed Hmong interpreter) had a client with a problem…. The insurer was refusing to pay the property damage. She was tempted to go to conciliation court, but wondered if that would cause a res judicata problem. Her concern was well-founded.

Property damage claims are some of the most vexing for personal injury attorney. The client is often frustrated with the confusing options available. The attorney can be frustrated to be working on a claim with little likelihood of payment. It is probably not good for client relations to charge the client 1/3 of the property damage settlement in the first month or so after being hired. It certainly makes it difficult for the client to buy a replacement vehicle or repair the damage… But it probably makes it easy for the client to want to hire another lawyer!

The smart lawyer will provide their frustrated clients with clear legal advice regarding their property damage claim; and make sure the client understands that they are providing this valuable advice free of charge.

Admitted liability. If the at-fault driver is insured, and the carrier admits 100% fault, that carrier is the best bet. Submitting to the at-fault insurer has several advantages:

Disputes. What happens when the liability carrier does not admit 100% fault, or makes an evaluation that your client thinks is way too low? The Fair Claims Practices Act, Minn. Stat §72A.201, Subd. 6 (2002) does require the insurer to make a “good faith assignment of comparative fault percentages in ascertaining the issue of liability,” the issue is not always easily resolved. Too many insurers adhere to the illegal and false myth that “a driver gets 10% for being there”, but other than complaining to the Commissioner of Insurance, what does the injured party do?

A civil action would be one way to resolve the dispute, and for lower value claims that means conciliation court? An injured person that brings their property damage claim to court before their injury claim is asking for trouble. The plaintiff may be found to have split their cause of action. As such, they would be barred from later bringing the personal injury claim unless the conciliation court judgment could be vacated. Mattson v. Packman, 358 N.W.2d 48 (Minn. 1984). It is usually difficult, and often impossible to get a conciliation court judgment vacated. Your client could be left with no remedy for their personal injuries!

This tough result may not always be automatic, by the way. Chuck Slane points out that all may not be lost when the client proudly comes to you, conciliation court victory in hand. In addition to attempting to vacate the judgment, you can argue:

Mattson is distinguishable. The Supreme Court said in Jorissen v. Miller, 339 N.W.2d 82, 84 (Minn. 1987),that a party is not precluded from later bringing a bi claim after a conciliation court claim had been litigated if the PI claim is not ripe at the time the conciliation court claim is brought. ("The extent of [Jorissen's] injuries apparently did not meet the threshold when he was forced to respond to appellants' claims in conciliation court. It was only when respondent consulted with an orthopaedic surgeon months after the judgment that he learned his injuries were permanent, causing him to meet or exceed the threshold for bringing a personal injury claim.").

Some might think Jorisson gives lawyers the green light on splitting their property damage claim into conciliation court. But why risk a bad result if some more conservative court finds your case more like Mattson than Jorissen? There are some good alternatives.

Spouse or co-owner can go to court. If there is a spouse or other co-owner that was not injured in the car accident, they can safely bring the conciliation court property damage action in their own name. As long as they are listed as an owner of the vehicle, they certainly have standing to bring the claim. Certainly the absence of the injured person from the caption will prevent them from being bound by the result.

First Party Property Damage Arbitration. If your client has minimal coverage, the liability insurer may be the only choice. Sometimes, even the 85% or 90% offer by the at-fault insurer may satisfy a plaintiff with minimal coverage or high deductibles. But if your client has so-called “full coverage”, including collision and comprehensive coverage, with a relatively low deductible, that may be a better alternative.

What happens, though, when your client’s own company makes a low ball offer on the property damage? Again, the Fair Claims Act requires the insurer to make a fair offer, but reasonable minds sometimes disagree on what’s reasonable.

Many lawyers are unaware that the familiar and well-used remedy of No-Fault Arbitration actually includes first party collision and comprehensive disputes. The rules are the same; in fact, they are literally the same set of rules. Simply take the form out of your desk, assemble your proof, and arbitrate that claim!

Worst case scenario. Finally, when the client has no collision coverage, the at-fault driver has no insurance, or the insurer is low-balling the property damage offer, the client may have to wait. For example when the car is drivable, your client may be best served by waiting until the liability case is tried or settled. If settled, when you’ve gotten their best offer on the injuries, send a separate demand for the property damage…. They have to make a separate offer! The Fair Claims Act prohibits them from handling the two claims together. They either pay you more, or they HAVE to allow you to exclude it on the release…. And then you can go to Conciliation court.

Sadly, if the car needs to be repaired, your client will be on the hook until the PI case is ready to settle









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