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Katie Storms Elected to Lind, Jensen, Sullivan & Peterson, P.A. Board of Directors

On June 1, 2022, Katie H. Storms became a Director, joining the equity partners at Lind, Jensen, Sullivan & Peterson, P.A.  Ms. Storms graduated from the University of St. Thomas School of Law in 2006, and joined the firm as an associate in May 2015.  She became a shareholder in January 2019, and focuses her practice on the defense of workers’ compensation and employment-related disputes.  In addition to her legal practice, Ms. Storms mentors newer attorneys and law students, volunteers with multiple organizations, and enjoys spending time with her children and family.  She also serves on the Board of Directors for the Minnesota Defense Lawyer’s Association, and is a regular speaker on a variety of topics including ethics, insurance coverage, and Medicare issues.  Ms. Storms is licensed to practice in Minnesota and Wisconsin.

Sean Kelly is Now Co-Chair of the MDLA New Lawyers Committee

Timothy Jung Presented to League of Minnesota Cities

On May 18th, Timothy Jung presented to the League of Minnesota Cities on application of Minnesota’s Workers’ Compensation treatment parameters, including a discussion of Leuthard v. ISD 912, a decision of the Minnesota Supreme Court, in which our client prevailed.

COVID-19 and Work Comp Update – Legislature Passes New Presumption

On April 7, 2020, Governor Walz signed a bill put forth by the state legislature creating a presumption that certain categories of employees who contract COVID-19 are entitled to workers’ compensation benefits. In COVID-19 and Work Comp Update – Legislature Passes New Presumption, we take an in-depth look at the new legislation and what it will mean for employers and insurers moving forward. This law is effective April 8th, and covers injuries from April 8, 2020 through May 1, 2021.

We look forward to answering your questions and assisting you with navigating this complicated legislative framework.

Timothy P. Jung – timothy.jung@lindjensen.com

Mark A. Fredrickson – mark.fredrickson@lindjensen.com

Katie H. Storms – katie.storms@lindjensen.com

Molly H. de la Vega – molly.delavega@lindjensen.com

 

Families First Coronavirus Response Act (FFCRA) Update – April 1, 2020

Last night, on April 1, the U.S. Department of Labor issued a temporary rule that provides further detail about how to interpret the Families First Coronavirus Response Act (FFCRA).  As you know, the FFCRA became effective yesterday.

An introduction and overview of the temporary rule, along with links to other helpful resources and information from the DOL can be found here:

https://www.dol.gov/agencies/whd/ffcra

The DOL’s press release relating to the new temporary rule can be found here:

https://www.dol.gov/newsroom/releases/whd/whd20200401

The temporary rule itself runs over 100 pages, and the official published version is scheduled for release on April 6.  In the meantime, an unpublished PDF version of the temporary rule can be found here:

https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act

We expect that this new temporary rule will help to answer many of the questions that are arising about the FFCRA in practice.  Given its length, and given the different fact-specific issues that are arising depending on your organization’s operations, you should review the temporary rule to see how it might affect the decisions your organization is making and how you might be affected by the FFCRA.

We are continuing to monitor developments and provide guidance and directions regarding the FFCRA and other related employment issues and challenges to the COVID-19/coronavirus situation.

If you have specific questions, please contact any of these lawyers at the Lind, Jensen, Sullivan & Peterson firm:

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

COVID 19 – Business Interruption Insurance

The COVID-19 pandemic has had and will continue to have drastic impacts on the economy and many businesses will experience steep financial losses.  It is anticipated many businesses will look to their first party property coverage and try to assert claims for business interruption or business loss coverage.  Here is an article highlighting the issues that will be prevalent for such claims: COVID 19 Business Interruption Insurance

Update 9 DOL Guidance Update RE Families First Coronvirus Response Act March 30, 2020

Late Thursday night March 26 and again on Friday March 27, the U.S. Department of Labor issued updated guidance as to its interpretation of the Families First Coronavirus Response Act (FFCRA).  Update 9 DOL Guidance Update RE Families First Coronavirus Response Act March 30, 2020-125475 is an update as to some common questions and answers you might have concerning the new requirements of the FFCRA, which becomes effective April 1.

Please contact our employment legal team if you have specific questions.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

DOL Guidance RE Families First Coronavirus Act Released March 25th

On March 24, 2020, the United States Department of Labor issued some guidance for employers regarding the Families First Coronavirus Response Act. Importantly, the guidance states that the effective date of the Families First Coronavirus Response Act is APRIL 1, 2020, not April 2, 2020, as initially expected. Our lawyers have summarized the DOL’s guidance here, DOL Guidance RE Families First Coronavirus Response Act Released March 2…

Please do not hesitate to contact our employment team if any questions arise.

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

Families First Coronavirus Response Act & Taking Temp of Employees UPDATE – Employer Update

Last night, President Trump signed into law the Families First Coronavirus Response Act, implementing bipartisan legislation and changes underscored in the Emergency Family and Medical Leave Expansion Act in response to the recent pandemic.

So, what does that mean for you – as an employee and as an employer? At Lind, Jensen, Sullivan, & Peterson, P.A., we are committed to providing you with information to help you make the right decisions both personally and professionally, and we’re here for you. Day or night.  In Families First Coronavirus Response Act & Taking Temp of Employees- Employer Update, we analyze the new law for you, and address recent guidance from the EEOC relative to taking temperatures of employees at work.

Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

DHS Given Power to Waive or Modify Requirements by Executive Order – Employment Update

As Minnesota takes steps to respond to the COVID-19 pandemic, measures are being taken to provide relief to employers and service providers throughout the state. On March 21, 2020, Governor Walz issued two new Executive Orders (11 & 12) that gives the Department of Human Services (DHS) the power to modify and waive existing requirements to allow in-state programs to better provide service to those in need. In DHS Given Power to Waive or Modify Requirements by Executive Order – Employment Update, we take a look at DHS’ power and the requirements already waived by DHS.

 

In just a few days DHS has already made many waivers/changes, and we anticipate additional in the coming days. We recommend continued monitoring of DHS’ website for up-to-date information: https://mn.gov/dhs/waivers-and-modifications/

 

Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

 

Furlough v. Layoff – Employment Update

As employers around Minnesota are facing difficult decisions due to the COVID-10 pandemic, we have prepared an updated resource to assist you as your organizations analyze difficult decision.  In Furlough v. Layoff – Employment Update, we examine the difference between a furlough and layoff, what those processes generally look like, and identify some common issues that can arise (including COBRA notices, WARN notice, requirements under the Older Workers Benefit Protection Act, etc.)

Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

Eric Steinhoff Successfully Upheld a Dismissal of a Claim Against His Client at the South Dakota Supreme Court

Eric Steinhoff successfully upheld a dismissal of a claim against his client when the South Dakota Supreme Court affirmed the dismissal in a case involving Federal Government education dollars embezzled by an individual who then committed multiple murders and suicide.  The Court agreed that the Plaintiffs’ claim that the embezzled money would have provided them additional services under the program if it had not been stolen was properly dismissed because the Plaintiff’s did not have standing to bring a lawsuit.

The decision can be found here:  28740qdrwisg.

Executive Orders Re Commercial Carriers and Executive Branch Employees – Employment Guidance Update

While Minnesota reacts to the Coronavirus pandemic, Governor Walz has issued Executive Orders to help the State respond.  In Executive Orders Re Commerical Carriers and Executive Branch Employees – Employment Guidance Update, we analyze Executive Orders 20-06 and 20-07.

Executive Order 20-06 aims to provide motor carriers and drivers in Minnesota relief as they help with emergency relief measures.  Certain limitations, including weight and hours of service, have been modified to allow commercial carriers to better respond to the pandemic.

Executive Order 20-07 instructs the Commissioner of Management and Budget to develop and implement paid leave for executive branch employees, and explores ways the State can better mobilize executive branch employees to respond to the pandemic.

Things are changing frequently.  We encourage you to monitor the CDC and MDH websites, as well as monitor the progress of state and federal guidance on additional emergency procedures being considered to provide relief to employers and employees.  We will continue to provide updates in the coming days.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

 

Coronavirus Layoff Guidance – Employer Guidance Update

As the reality of doing business in the midst of the COVID-19 pandemic is becoming known, employers are having to take a hard look at their options in these trying times.  In Coronavirus Layoff Guidance – Employment Guidance Update, we address common questions you may be asking while weighing your options.

As with everything right now, things are changing frequently.  We encourage you to monitor the CDC and MDH websites, as well as monitor the progress of state and federal guidance on emergency procedures being considered to provide relief to employers and employees.  We will continue to provide updates in the coming days.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

Families First Coronavirus Response Act – Employer Guidance Update

In response to the COVID-19/coronavirus pandemic, the U.S. House of Representatives passed the Families First Coronavirus Response Act (FFCRA) (H.R. 6201) on March 14, 2020.  In Families First Coronavirus Response Act – Employer Guidance Update, we address what FFCRA will mean for employers and employees.

As with everything right now, things are changing frequently.  We encourage you to monitor the CDC and MDH websites, as well as monitor the progress of state and federal relief measures.  We will continue to provide updates in the coming days.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

 

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

 

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

 

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

 

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

COVID-19/CORONAVIRUS EMPLOYER CONCERNS AND QUESTIONS

COVID-19 is changing (temporarily) how we do business.  With these changes many employment questions arise: can we take the temperatures of our employees?  Can we send people home who are sick?  Can we stop our employees from traveling?  And so on.

We at Lind Jensen Sullivan & Peterson are here to help.

In COVID-19 Employment FAQs, we address the most common questions you will likely face.  As with anything right now, things are changing by the day and hour.  We encourage everyone to monitor the CDC and MDH websites for up to date guidance (listed below).  We will be updating these FAQs as necessary in the coming days as well.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

 

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

 

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

 

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

 

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

 

 

 

COVID-19 AND WORKERS’ COMPENSATION IN MINNESOTA

What is COVID-19?

COVID-19 is a novel coronavirus, a new strain identified in 2019.  It is different than coronaviruses that are common in the community.   These have been in our midst since the mid-1960s.

We have had severe strains in the past, some of which you may have heard of including SARS and MERS.  The term corona is used because the virus has a crown-like spike on its surface.  COVID-19 was first identified in Wuhan, China and since has spread throughout the world.

This virus easily spreads from person to person.  Researchers describe it as spread between people who are in close contact with one another, generally within 6 feet.  The CDC reports that most people spread the contagion when they are symptomatic, but they do not rule out that someone can be contagious before symptoms arrive.

When Should an Employer Fill out a First Report of Injury?

A First Report of Injury documents a known injury or an employee report of a potential injury.  It is not a determination of whether an injury occurred or is compensable.

A First Report of Injury is defined in Minnesota Rule 5220.2530, and discussed in Minn. Stat. § 176.231.

We recommend that an employer file a First Report of Injury whenever it has reason to believe a work-related injury occurred, and when an employee reports an alleged work-related injury.  The obligation to proceed with a First Report of Injury does not commence when an employee reports a health condition or that they are ill.

For example, if the employee reports “I am missing work today because I am sick and I believe I have COVID-19”, that would not trigger a basis for filing a First Report of Injury.

By contrast, if the employee reports “I was working with a client, Jane Doe, who has a positive test result for COVID-19.  I was assisting her in close quarters.  I now have been diagnosed with COVID-19 and believe it is connected.”  At that point it is recommended that a First Report of Injury be prepared. The insurer or administrator can then undertake additional investigation to determine whether primary liability should be admitted or denied.  A First Report of Injury is filled out regardless of later investigation and verification.

Evaluating Primary Liability For Occupational Disease

Minnesota law provides workers’ compensation coverage for personal injuries and occupational diseases that arise out of the course and scope of employment.  Occupational disease is defined carefully in Minn. Stat. § 176.011, subd. 15.

Occupational disease generally excludes ordinary diseases of life to which the general public is equally exposed.  The statute provides that an ordinary disease of life to which the general public is equally exposed outside of employment, is not compensable unless the disease follows directly from the employment.

An occupational disease arises out of employment only if there is a direct causal connection between the work, or the conditions under which the work is performed, and the disease. The occupational disease must be the result of exposure occasioned by the employment.

The statute is clear that “an employer is not liable for compensation for any occupational disease which cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to the occupation/employment, or which results from a hazard to which the worker would have equally been exposed outside of the employment.

There must be a proved connection between the ordinary disease of life and exposures on the job.  The exposure must be directly caused by the work or the conditions under which the work is performed.  The key language is that the disease is not compensable if it cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to that occupation.

Presumption – First Responders/Emergency Medical

According to Minn. Stat. § 176.011, subd. 15 (b), if immediately preceding the disablement the individual by nature of their job provides emergency medical care, or is an employee working as a licensed police officer, firefighter, paramedic, state correctional officer, emergency medical technician, or licensed nurse providing emergency medical care, a presumption of compensability applies.  If that employee contracts an infectious or communicable disease to which the employee was exposed during the course of employment outside of a hospital, then the disease is presumptively an occupational disease and shall be presumed to have been due to the nature of employment. This presumption may be rebutted by substantial factors brought by the employer or insurer.  Any substantial factors used to rebut the presumption which are known to the employer or insurer must be communicated to the employee at the time of denial.

You will note that this presumption is narrowly drafted.  They have to be a provider of emergency medical care or employed as a police officer, firefighter, paramedic, state correctional officer, emergency medical technician, or licensed nurse providing emergency medical care.

They must be exposed to the disease in the course and scope of their employment and it must be outside of a hospital.

If the conditions of this presumption are not met, then the employee has the burden of proof to establish the disease and that it arose out of the employment and is recognized as a hazardous characteristic of and peculiar to that employment.

As injury reports are filed, we invite you to give our office a call to discuss the evaluation of compensability within the framework outlined above.

RISK MANAGEMENT

In the meantime, as this fast-moving pandemic and risk is evaluated, we recommend robust risk management activities.  It would be appropriate to contact your insureds, members, and employers to firm up and bolster all appropriate hygiene standards, best practices, and protocols.

We welcome your phone calls.  We have experience dealing with all nature of work injuries and occupational disease, including exposures to viruses, pathogens, chemicals, and bodily fluids.  We have substantial experience dealing with public employers, medical providers, first responders, and law enforcement personnel.

Please do not hesitate to contact the Lind Jensen Sullivan & Peterson Workers’ Compensation Team with any questions.

Timothy P. Jung – timothy.jung@lindjensen.com
Mark A. Fredrickson – mark.fredrickson@lindjensen.com
Katie H. Storms – katie.storms@lindjensen.com
Molly H. de la Vega – molly.delavega@lindjensen.com

Please Visit Tom Jensen’s Blog and Monthly Jury Verdict Report

For information on malpractice, breach of fiduciary duty, and errors and omissions claims in Minnesota, North Dakota and Wisconsin see Tom Jensen’s blog at www.malpracticedefense.org. For access to Tom Jensen’s monthly Minnesota state court civil jury verdict report see www.mediatorminnesota.com.

2017 Five-State Midwest Law Update Webinar – Wednesday, October 25

Lind, Jensen, Sullivan & Peterson, P.A. will be hosting its annual 2017 Five-State Midwest Law Update webinar from 9:00 A.M. to 11:05 A.M. The webinar will consist of concise presentations for Minnesota, Wisconsin, Iowa, North Dakota and South Dakota legal updates. Continuing education credits have been approved. Additional information and the link to register can be found here: Registration

Sharpen Your Skills Seminar – Wednesday, Sept 20, 2017

Please join us for the 9th Annual Sharpen Your Skills Seminar. This year’s event will address the expanding world of workers’ compensation claims, technology in litigation, and the changing face of the Minnesota workforce. From investigating a claim, to returning an injured employee back to the work force, topics will include examining the changing nature of the employment relationship, new surveillance tactics, and the rapidly expanding nature of mental health claims. Our featured speakers will address post-traumatic stress disorder as a compensable work injury, and completing surveillance in a digital world. For more information, please click here, Skills.

Lind, Jensen, Sullivan & Peterson, P.A. Attorneys Obtain and Defend Dismissal of MGDPA Claim

The Minnesota Data Practices Act does not cover data practices requests to attorneys who are working for a governmental agency in a professional capacity. That is the state of the law in Minnesota after the Minnesota Supreme Court denied further review of a published decision obtained by the Minnesota Court of Appeals that dismissed a Minnesota Data Practices Act claim against city attorney represented by Lind, Jensen, Sullivan & Peterson, P.A.

Paul Peterson, Eric Steinhoff, and João Medeiros secured dismissal at the district court. On appeal, Peterson, Bill Davidson, and Medeiros successfully defended the dismissal. On April 27, 2017, the Minnesota Supreme Court denied review of the published Court of Appeals Opinion, which can be found here.

Thomas J. Evenson was reappointed by Governor Mark Dayton to serve as a public member on the Minnesota Automobile Assigned Claims Bureau.

Bill Davidson spoke on a panel discussion concerning Minnesota’s “informal conference” statute relating to medical malpractice claims.

Bill Davidson spoke on April 20, 2017 on a panel discussion concerning Minnesota’s “informal conference” statute relating to medical malpractice claims. The panel addressed what the future holds for informal conferences in light of the Minnesota Supreme Court’s recent decision in Howard v. Svoboda, 890 N.W.2d 111 (Minn. 2017). The 2017 Medical Malpractice Conference was sponsored by the Hennepin County Bar Association, Minnesota Defense Lawyers Association and the Minnesota Association for Justice. Bill presented the defense perspective, while Patrick Stoneking and Brandon Thompson of the Robins Kaplan firm presented the plaintiff perspective.

Bill’s practice addresses professional liability matters, employment disputes, and appellate representation of the firm’s clients.

The Minnesota Supreme Court recently sided with the arguments of Lind, Jensen, Sullivan & Peterson and denied further review of a summary judgment ruling in favor of a regional mental health center.

Hiawatha Valley Mental Health Center (HVMHC) had been sued for negligence and other claims arising from the death of a woman in 2013. The decedent’s next of kin argued that HVMHC breached a duty to the decedent and failed to provide services that may have avoided her death. Attorneys Tim Jung and Matt Sloneker argued to Judge Mary C. Leahy of the Winona County District Court that HVMHC did not owe a duty and therefore could not be held negligent. Judge Leahy agreed and granted summary judgment for HVMHC, dismissing the next of kin’s claims in their entirety.

On appeal, attorneys Bill Davidson and Grant Goerke successfully argued to the Minnesota Court of Appeals that Judge Leahy’s ruling was proper. The appellate court decided in an unpublished_opinion that HVMHC did not owe a duty based on tort, contract, or statute and affirmed Judge Leahy’s decision for HVMHC.

The next of kin sought further review, and Davidson and Goerke opposed that request on behalf of HVMHC. The Minnesota Supreme Court agreed that further review was unnecessary, ending nearly three years of litigation. Order – PFR – Deny

Tom Jensen Launches New Website and Blog

Tom Jensen has launched a website and blog at www.malpracticedefense.org that focuses on professional liability, breach of fiduciary duty and malpractice insurance coverage developments in Minnesota, North Dakota and Wisconsin.

Fredrickson and Goerke Win Motion For Summary Judgment

LJSP partner Mark Fredrickson and associate Grant Goerke successfully persuaded Scott County (MN) Judge Rex Stacey to grant summary judgment to their client ISD #719. Plaintiff sustained a bad broken ankle and leg when she went to pick up her daughter from a after school daycare facility run by the district at an elementary school building. The accident happened on a non-school day during the first winter weather of the year. Fredrickson and Goerke successfully argued that Minnesota’s mere slipperiness doctrine applied. Plaintiff argued that the daycare program was “for profit”, thereby depriving the district of the advantages of the doctrine which only applies to governmental entities. However, since state law specifically allowed the district to operate this program, and the fee it charged was not shown to be for anything other than to cover the cost of the program, the doctrine applied. Plaintiff admitted that she fell on glare ice, and that there was no accumulation of ice forming humocks and ridges. The court did not reach alternative theories including the continuing storm doctrine and the open and obvious doctrine. Congratulations to Mark, Grant and their client, ISD# 719. The order may be found here: Order for Judgment and Judgment 3-16-2017 12.54.13 61402370 D357C7A6-4444-462D-86E0-E34BB112966D

Thomas J. Evenson Appointed to the Compensation Council

On January 11, 2017, Governor Mark Dayton appointed Thomas J. Evenson, a Shareholder at Lind, Jensen, Sullivan & Peterson, PA, to the Compensation Council. The Council assists the legislature in establishing compensation for constitutional officers, justices of the Minnesota Supreme Court, judges of the Minnesota Court of Appeals and District Courts, and the heads of state and metropolitan agencies specified in statute. The appointment is effective January 15, 2017.

Bill Davidson & João Medeiros Prevail on a Plaintiff’s Appeal Challenging a District Court Victory By Jason Prochnow

The Minnesota Building Code means what it says, the Minnesota Court of Appeals recently ruled, affirming a summary judgment ruling obtained by Jason Prochnow. The construction-defect case involved a lawsuit by a general contractor who sued a masonry subcontractor for installing a single layer of 15-pound felt behind stone veneer siding that the subcontractor had installed on a house in Minnesota. A district court judge dismissed the lawsuit last year after finding that the 15-pound felt was required by the Minnesota Building Code and therefore the subcontractor had done nothing wrong.

The contractor appealed the decision to the Minnesota Court of Appeals, arguing that the district court should have applied the stucco provisions of the Code and that the district court should have let a jury consider expert testimony on what the Code required. Bill Davidson and João Medeiros represented the subcontractor in the appeal. The Minnesota Court of Appeals affirmed the lower court, ruling that expert testimony is not required to interpret an unambiguous provision of the Code. The appeals court agreed with the district court that the stone and masonry provisions of the Code controlled the installation of the stone-veneer siding, and that the subcontractor had used the materials required by the Code.

Eric Steinhoff & João Medeiros Secure Dismissal of Interest Claim

Interest does not accrue on money that is paid before it was due. That was the common-sense ruling recently obtained by Eric Steinhoff and João Medeiros in a lawsuit against a homeowners’ insurance company. The insurance company had helped the insured homeowners rebuild after their house had been damaged in a fire. Then, after a disagreement over the amount of the final payment, the insurance company and the homeowners asked a panel of appraisers to value the loss. The insurance company promptly paid the difference between what it had already paid and the appraisal value. The homeowners then sued the insurance company for interest on the award for the time between the fire and the payment of the appraised value of the loss—even for the amounts that the insurance company had already paid.

Relying on the text of the Minnesota Standard Fire Insurance Policy, which is written into state law, Eric Steinhoff and João Medeiros asked the district court to dismiss the case because interest would not begin to accrue until 60 days after the appraisal award was handed down— and the insurance company had paid its obligations in full within that time. The district court agreed and dismissed the lawsuit.

By coincidence, after Steinhoff and Medeiros filed arguments with the district court, the Minnesota Court of Appeals issued a decision in a different case reaching the same conclusion about the Minnesota Standard Fire Insurance Policy. The Minnesota Supreme Court is presently considering an appeal from the Minnesota Court of Appeals decision.

Timothy Jung Appointed Chair-Elect

For 2016-2017, Timothy Jung has been appointed Chair-elect of the Workers’ Compensation and Employers’ Liability Committee of TIPS – the Tort Trial and Insurance Practice Section of the American Bar Association.

Lind Jensen Sullivan & Peterson Successfully Moved to Dismiss a Personal Injury Action Based on a Recent Change to Minnesota’s “hip pocket” Service Rule

Lind Jensen Sullivan & Peterson successfully moved to dismiss a personal injury action based on a recent change to Minnesota’s “hip pocket” service rule, defeating a 7.5-year-old claim for more than $50,000 in damages.

The plaintiff had alleged that he slipped and fell on a staircase at the defendant’s apartment complex in December 2008. The plaintiff did not serve his summons and complaint on the owner until December 2014, mere days before the six-year statute of limitations expired. He then waited another 15 months to file his summons and complaint in the district court.

Under previous versions of Minnesota’s civil procedure rules, the plaintiff’s delay in filing his case would not have been an issue. The old rules permitted “hip pocket” service, by which a plaintiff could serve his papers on a defendant and initiate litigation but never actually file the suit in district court. As of July 1, 2014, however, such indefinite delays are no longer allowed. Rule 5.04 of the Minnesota Rules of Civil Procedure now requires plaintiffs to file their lawsuits within one year of service on defendants.

Relying on Rule 5.04, LJSP attorneys Brian Wood and Grant Goerke moved to dismiss the plaintiff’s slip-and-fall case, arguing that because the plaintiff filed his papers more than 3 months after the one-year deadline passed, the case should be dismissed. The Hennepin County District Court agreed and dismissed the plaintiff’s claim in its entirety. The district court also agreed with Mr. Wood and Mr. Goerke’s argument that the plaintiff was not entitled to relief for excusable neglect.

LJSP Congratulates Connie Armstrong

Lind, Jensen, Sullivan & Peterson, P.A. congratulates Connie Armstrong for her election as President of the Minnesota Women Lawyers. A copy of the MWL press release can be found here : MWL Press Release

Eric Steinhoff and João Medeiros Obtain Dismissal of Malpractice Lawsuit

Minnesota law protects members of specialized professions such as doctors, lawyers, or accountants from frivolous malpractice lawsuits by requiring plaintiffs to submit a declaration from an expert in the professional field attesting that the claim has merit. Attorneys Eric Steinhoff and João Medeiros recently invoked this law to obtain dismissal of a legal malpractice suit brought against a local divorce attorney.
The plaintiff was a client who had asked the attorney to represent her in a divorce proceeding. Before any papers were filed in court, the client stopped communicating with the attorney. The attorney wrote a letter to the client ending the attorney-client relationship and closing the file.
Two years later, the client sued the attorney for legal malpractice. Steinhoff and Medeiros requested that the plaintiff provide the expert-review declaration. Even after obtaining an extension from the Court, the plaintiff was unable to find an expert to attest that the divorce attorney had committed malpractice. Citing the expert-review law, the Court dismissed the case.

Brian Wood and João Medeiros Obtain Dismissal of So-Called “Gross Negligence” Claim Against Health Club

Minnesota common law does not recognize a separate claim of “gross negligence.” That is the conclusion reached by a district court judge in dismissing a lawsuit brought against a local health club represented by attorneys Brian Wood and João Medeiros. Instead, Minnesota courts only apply the concept of “gross negligence” when required to do so because the legislature has use the term in a statute or the parties have used the term in a contract.
The plaintiff was a member of the health club who initially sued for negligence, claiming to have been injured by hot steam in the club’s steam room. But Wood and Medeiros pointed out that the health club’s membership agreement waived the negligence claim.
The plaintiff attempted to save the lawsuit by amending the claim and alleging that the health club had not only been negligent, it had been “grossly” negligent. Relying on more than a century of Minnesota legal history stating that Minnesota does not distinguish between degrees of negligence, Wood and Medeiros asked the Court to dismiss the amended claim. The Court agreed. It dismissed the negligence claim based on the membership agreement and dismissed the “gross negligence” claim because it was not recognized by Minnesota law.
The Court also held that the new consumer contracts statute regulating waivers of “greater-than-ordinary negligence,” Minnesota Statutes § 604.055, did not apply to the membership agreement, which was signed before the effective date of the statute.

Jack Moore and Amber Garry Named North Star Lawyers by the MSBA

Lind, Jensen, Sullivan & Peterson is proud to announce that Jack Moore and Amber Garry have been named North Star Lawyers by the Minnesota State Bar Association. This honor recognizes the strong commitment that each of these attorneys made to providing legal services to those in need in 2015. The Minnesota State Bar Association’s North Star Lawyer program recognizes attorneys who provided a minimum of 50 hours of pro bono services to the community in a one-year period.

Tom Jensen and Liz Brotten to Speak at FETTI Conference in Chicago

Lind Jensen Shareholders Tom Jensen and Liz Brotten will speak at the Forum on Environmental and Toxic Tort Issues (FETTI) conference to be held September 21-23, 2016 at the Union League Club in Chicago. Their presentation will address the rapidly growing litigation in which female plaintiffs allege that they have developed ovarian cancer as a result of their use of products containing talcum powder. Jensen and Brotten will address disease data, scientific findings, litigation strategies, and predictions for the future of this area of toxic tort and product liability litigation.

The FETTI Conference is held each year in Chicago and focuses on a broad range of environmental issues with nationally recognized speakers. The conference offers informative programs to enhance the understanding of ever-changing environmental and toxic tort issues. Conference registration will be available at: http://www.fetti.org/annualconference/.

Tom Jensen wrote on “Cybersecurity and Data Breach Litigation Update” in the spring 2016 issue of Professional Liability Defense Quarterly.

Visit www.pldf.org to review the article.

Thomas Evenson Presenting at IASA Annual Education Conference

Thomas J. Evenson along with David Riley from Schechter Dokken Kanter will be presenting “I’ve Been Damaged – I Want Money” at the IASA Annual Education Conference and Business Show in San Antonio, Texas on June 14, 2016.

Jury Renders a Defense Verdict in Abuse Case

Jack Moore recently successfully defended a case in Hennepin County District Court where plaintiff sustained a serious injury when his girlfriend drove over his foot with her car while backing out of the driveway. A few moments earlier the two got into an argument during which plaintiff’s mood turned ugly. Based on prior physical abuse, the girlfriend feared that plaintiff might soon hit her, so she ran to her car to get away. Plaintiff was standing next to the car and pounding on the window when the left front tire ran over his foot. The judge properly allowed the jury to hear about plaintiff’s prior physical abuse of the girlfriend. The jury determined plaintiff’s fault exceeded the girlfriend’s, so there was no recovery.

 

Minnesota Supreme Court Affirms Dismissal of Defamation Claim Against a Church and its Pastors

Tim O’Connor and Bill Davidson recently were successful in defending St. Matthew Evangelical Lutheran Church and two of its pastors against defamation claims from two excommunicated church members. The Minnesota Supreme Court affirmed the dismissal of the lawsuit, agreeing with both the district court and the Court of Appeals “that the First Amendment prohibits holding an individual or organization liable for statements made in the context of a religious disciplinary proceeding when those statements are disseminated only to members of the church congregation or the organization’s membership or hierarchy.” The decision, which addressed First Amendment concerns and the Ecclesiastical Abstention Doctrine, is Pfeil v. St. Matthews Evangelical Lutheran Church, A14-605 (Minn. Apr. 6, 2016). The opinion is available at OPA140605-040616

Lind, Jensen, Sullivan & Peterson, P.A. Submitted an Amicus Brief to the Minnesota Supreme Court Addressing a Pregnancy Discrimination Claim in Support of the Employer

Bill Davidson and Lind, Jensen, Sullivan & Peterson, P.A. represented the Minnesota Defense Lawyers Association as an amicus curiae, or “friend of the court” in a recently-filed brief with the Minnesota Supreme Court. The case, LaPoint v. Family Orthodontics, P.A., A15-0396, addresses a claim of pregnancy discrimination. Following a court trial, the district court found that the dental clinic did not discriminate against a job applicant. The Minnesota Court of Appeals reversed, 872 N.W.2d 889 (Minn. App. 2015), and found discrimination as a matter of law. The Minnesota Supreme Court accepted review and will likely hear oral argument in August or September on the matter.

On behalf of the Minnesota Defense Lawyers Association, Davidson and Lind, Jensen, Sullivan & Peterson, P.A., as co-counsel, argued that the district court’s conclusion should be reinstated and that the Court of Appeals decision improperly substituted its judgment for that of the district court judge who saw and heard from the witnesses at trial.

Numerous other groups, including the Commissioner for the Minnesota Department of Human Rights, will be appearing as amici in the case—all on behalf of the employee. Following oral argument, the Minnesota Supreme Court will likely issue a decision at the end of 2016 or some time in 2017

The Amicus Brief can be viewed here: MDLA_Amicus_Curiae_Brief

2016 Five-State Midwest Law Update Webinar

On April 19, 2016, Lind, Jensen, Sullivan & Peterson, P.A. presented a live online webinar which provided a summary of current law and updates on law developments in the states of Minnesota, Wisconsin, Iowa, North Dakota, and South Dakota. The webinar consisted of 5 separate 20 minute presentations summarizing law updates in the areas of civil litigation relevant to your practice, including updates on topics such as negligence, indemnification, contract, and other law developments pertaining to litigation areas including but not limited to trucking accidents, professional liability, legal malpractice, medical malpractice, construction, premises liability, personal injury, commercial litigation, and insurance coverage.

The webinar may be viewed by clicking this link: 2016 Webinar

Attorneys Armstrong, Brotten, and Garry Recognized as “Top Women Attorneys in Minnesota”

Lind, Jensen, Sullivan & Peterson is pleased to announce that three of its women attorneys have been recognized by Super Lawyers® as among the 2016 “Top Women Attorneys in Minnesota.” The list includes Connie Armstrong, Elizabeth Sorenson Brotten and Amber Garry. The selections were made from the women attorneys who were selected as 2015 Minnesota Super Lawyers and  Rising Stars and were featured in the April 2016 issues of Twin Cities Business and Mpls. St. Paul Magazine. Super Lawyers® is a registered trademark of Thomson Reuters.

Armstrong has been selected as a Minnesota Rising Star since 2012 and included in the Top Women Attorneys in Minnesota list for the past three years. She is licensed to practice in Minnesota, Wisconsin, and Iowa and focuses her practice on counseling and defending employers in labor and employment matters and defending clients in business, construction and professional liability litigation.

 Brotten has been recognized as a Minnesota Rising Star every year since 2011 and has been named an “Up and Coming Attorney” by Minnesota Lawyer.  Brotten focuses her practice on the defense of personal injury claims, with a focus on the defense of product liability and toxic tort claims.  Brotten has tried cases to verdict in both Minnesota and North Dakota, and is also licensed to practice in South Dakota and Wisconsin.    

 Garry has successfully represented clients at all phases of civil litigation, including dispositive motion practice, mediation, and at trial. She focuses her practice on professional liability litigation for healthcare providers. Garry handles a wide variety of claims, including those alleging negligence and negligent nondisclosure, as well as claims involving health care providers in administrative proceedings before licensing boards.

 

 

 

Tim O’Connor and Elizabeth Brotten Win Motion for Summary Judgment for Insurance Client in Declaratory Judgment

An insurance company client represented by Tim O’Connor and Elizabeth Brotten was recently dismissed via summary judgment in a declaratory judgment action in U.S. District Court for the District of Minnesota.  Lind Jensen’s client asserted that the homeowners policy it issued did not provide coverage for personal injuries arising out of its insured’s operation of a John Deer Gator utility vehicle owned by a vineyard.  The accident at issue happened on the vineyard’s property. 

 The court agreed that the motorized land vehicle exclusion in the policy excluded coverage.  At issue was whether a “recreational use” exception to the motorized land vehicle exclusion applied and provided coverage for the alleged personal injuries.   The court agreed with the position advanced by Lind Jensen’s client that “recreation use” exception did not apply because the utility vehicle at issue was not “principally designed for recreational use.”  To reach this conclusion, the Court relied heavily on language from the Gator’s operator’s manual and promotional materials, the general use of the Gator, testimony from witnesses about their use of the Gator, and warning labels on the Gator.  The Court ultimately concluded that Lind Jensen’s client had no obligation to provide coverage, defense, or indemnity to its insured because the Gator did not fall within the plain language of the exception to the motorized land vehicle exclusion.  

 

Matt Sloneker Awarded Gold Gavel Award By Westfield Insurance Group

Matt Sloneker was recently awarded a Golden Gavel award by Westfield Insurance Group for obtaining summary judgment on behalf of a general contractor client in a multi-million dollar construction defect case.

Golden Gavel - Matt Sloneker

Brotten Authors North Dakota Chapter for DRI’s Duty to Defend Compendium

Elizabeth Sorenson Brotten, a shareholder at Lind, Jensen, Sullivan & Peterson, P.A. authored the North Dakota Chapter for the 2016 Edition of the Defense Research Institute’s Duty to Defend Compendium

The Duty to Defend Compendium analyzes whether an insurer has a duty to defend its insured and the extent of that duty.  The Compendium surveys the law and provides guidance for insurance professionals to navigate through these issues under the law of every jurisdiction in the United States, Canada, the Virgin Islands, and Puerto Rico. 

 Brotten focuses her practice on defending clients in high-risk toxic tort, product liability, and general liability cases in Minnesota, North Dakota, South Dakota, and Wisconsin.  Within DRI, she serves in leadership positions on the national steering committees for Toxic Tort and Environmental Law, Women in the Law and Young Lawyers. 

 

Paul Peterson and Amber Garry Obtain Medical Malpractice Defense Verdict

Mr. Peterson and Ms. Garry obtained a defense verdict following an eight-day jury trial in Hennepin County. The plaintiff sued the defendant neurologist and neurology clinic alleging defendants failed to diagnose an infection in her spine, resulting in permanent paraplegia. Plaintiff sought damages in excess of $6 million. The jury returned a defense verdict, finding no negligence.

 

Amber Garry Won a Grant of Asylum for Refugee Client

Ms. Garry won a grant of asylum for a refugee client from Mexico and her two daughters. Ms. Garry handled the case on a pro bono basis through The Advocates for Human Rights.

 

Tim Jung Speaking at ABA Midwinter Workers’ Compensation Conference

Tim Jung will be speaking at the American Bar Association Midwinter Workers’ Compensation Conference (Tort Trial and Insurance Practice Section) in New Orleans, LA on March 12th.   He will lead a panel discussion concerning medical marijuana and its impact on the work place including workers’ compensation. 

 

Bill Davidson and João Medeiros Obtain Summary Judgment for Local Non-Profit

On January 27, 2016, Attorneys Bill Davidson and João Medeiros obtained a summary judgment that dismissed the claims brought against local non-profit DARTS, Inc. by Kevin Raun and Robert Loeffler.  Raun and Loeffler quit their positions at DARTS in 2014.  In their lawsuit, they asserted that DARTS was liable for defamation and for retaliating against them in violation the Minnesota Whistleblower Act.  They also alleged that former DARTS executives Gregory Konat and Subramanian “Kris” Krishnan wrongfully interfered with their employment relationship with DARTS.  The Dakota County District Court dismissed all of the claims.  The Court stated that all of the allegedly defamatory statements were substantially true and were made upon a proper occasion, from a proper motive, and based on probable cause.  The Court stated that DARTS did not penalize or retaliate against either plaintiff.  The Court also concluded that neither plaintiff “blew the whistle,” and noted that each had voluntarily left his position with DARTS.