Timothy Jung was selected to edit and update the Workers’ Compensation chapter of the Minnesota Insurance Law Deskbook. The Insurance Law Deskbook is available through the Minnesota State Bar Association and Minnesota Continuing Education.
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.
Timothy Jung has been appointed chair of the Workers’ Compensation and Employer Liability committee of the Tort, Trial and Insurance Practice section of the American Bar Association, for 2017-18.
Tom Jensen’s Article “Building a Successful Mediation Practice” was published in this months edition of the DRI’s For the Defense.
More than half of Lind, Jensen, Sullivan & Peterson’s attorneys named Minnesota Super Lawyers or Rising Stars.
Super Lawyers
William L. Davidson
Appellate
Mark Fredrickson
Personal Injury / General: Defense
Thomas D. Jensen
Civil Litigation Defense
Patrick J. Larkin
Construction Litigation
Richard A. Lind
Civil Litigation: Defense
Jack D. Moore
Civil Litigation: Defense
Timothy J. O’Connor
Civil Litigation: Defense
Paul C. Peterson
Professional Liability: Defense
Matthew D. Sloneker
Civil Litigation: Defense
Eric J. Steinhoff
Civil Litigation: Defense
Brian A. Wood
Personal Injury General: Defense
Rising Star
Elizabeth M. Sorenson Brotten
Personal Injury Products: Defense
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations The list is published in all 50 states and D.C. and reaches over 13 million readers annually. All honorees are listed on the Super Lawyers website at www.superlawyers.com.
Lind, Jensen, Sullivan & Peterson employees are proud to have contributed to the efforts of the Defense Research Institute (DRI) to support our service members and their families. During the 2017 Toxic Torts & Environmental Law Seminar in New Orleans, Louisiana, seminar attendees joined forces with Operation Gratitude to assemble “Battalion Buddies” teddy bears to be sent to children of deployed service members. In just a few hours’ time, the group assembled nearly 300 bears to be included in care packages sent by Operation Gratitude.
LJSP was one of several firms that contributed funds to purchase and ship the Battalion Buddies. Together, LJSP employees contributed over $350 to the program.
The service project was spearheaded by LJSP shareholder Elizabeth Sorenson Brotten, who is a member of the DRI Toxic Torts national steering committee.
For more information on the project, see: http://portal.criticalimpact.com/newsletter/newslettershow5.cfm?contentonly=1&content=117551&id=8791.
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.
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.
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
Timothy Jung has been nominated to serve as Chair of the Workers’ Compensation and Employers’ Liability Law Committee of the Tort Trial & Insurance Practice Section of the American Bar Association, and to serve in that capacity for 2017-2018.
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.
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
Tom Jensen addressed chiropractic educators in a webinar on the subject of chiropractic risk management sponsored by NCMIC Insurance Company that aired on February 15 and will continue on April 12.
Tom Jensen analyzed optometric malpractice claims in the current issue of Professional Liability Defense Quarterly, published by Professional Liability Defense Federation.
Judge Swenson will be continuing his ADR practice in his Of Counsel role, and we look forward to using his many years of practical experience on the bench to assist us in continuing to provide our clients with the highest quality litigation services. Judge Swenson’s ADR practice includes adjudicative work as an arbitrator and consensual special magistrate, evaluative mediation and moderated settlement conferences, and service as a special master. Although his recent focus has centered on family law, Swenson is excited to return to his pre-bench focus on construction and other commercial matters. Please feel free to call him and join us in welcoming him to our firm.
Lauren received three favorable orders today for her pro bono clients. She represented a Laotian woman in seeking unpaid wages from her former employer in Hennepin County Conciliation Court. The referee awarded Lauren’s client $5,700. She also represented a homeless man seeking expungement of two criminal convictions. These convictions were preventing the client from finding work or housing. Lauren was able to obtain expungements of both convictions in separate orders, in Hennepin County District Court. Both clients were VLN clients. A job very well done, Lauren.
Kudos to the Lind Jensen Sullivan & Peterson P. A. Attorneys who are featured in the most recent edition of the Federal Bar Association Bar Talk Newsletter MN Chapter. Lead by Pro Bono Chairperson Jack Moore, LJSP attorneys have handled over 90 Pro Bono matters in the last six years. See attached article below. fba-bar-talk-article-september-2016
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.
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.
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, 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.
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.
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.
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.
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/.
Visit www.pldf.org to review the article.
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.
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.
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
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
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
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 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.
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.
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.
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 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.
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.
Connie Armstrong co-presented “Avoiding Common Pitfalls: Practice Tips from the Pros: Cases Involving a Product Manufacturer in a Construction Dispute” for a Joint MDLA meeting with Liz Poeschl of Meagher & Geer on February 16, 2016.
Matt Sloneker and Brian Wood obtained summary judgment on behalf of a general contractor in a construction defect lawsuit alleging more than $1.5 million in damages. They successfully argued that the plaintiff’s claims accrued more than two years before it brought suit, and that the 10-year statute of repose also barred the plaintiff’s claims. The Court agreed that the plaintiff’s claims against the contractor failed as a matter of law and dismissed all claims against the client.
Jack Moore recently obtained an emergency temporary restraining order blocking a landlord’s attempt to evict Jack’s client, a single mother of two young children, from her house. The landlord wrongly claimed the client hadn’t paid rent, and served the eviction notice just before Christmas. Jack produced evidence the rent has in fact been paid. The court ordered the eviction be suspended until further notice.
Lind Jensen Sullivan & Peterson P.A. was named as the Top Mid-Sized Litigation Firm in Minnesota for 2015. This will appear in the 2015 Super Lawyers Business Edition which is coming out in November.
Tom Jensen and Elizabeth Sorenson Brotten presented “Impact of the Reptile Strategy on Personal Injury Verdicts and How to Stop It” to RAM Mutual Insurance Company on October 13, 2015 in Esko, Minnesota.
Tom Jensen presented “Accelerating in Neutral: Starting a Successful Mediation/Arbitration Practice From the Ground Floor Up” at the Defense Research Institute’s Annual Meeting on October 9, 2015 in Washington, D.C.
Tom Jensen spoke on defense of informed consent claims in physician professional negligence cases at the NCMIC panel counsel conference in Scottsdale, Arizona on September 24, 2015
DRI, The Voice of The Defense Bar, appointed Mark Fredrickson as State Representative for Minnesota at DRI’s 2015 Annual Meeting in Washington DC. He will serve a three year term acting as DRI’s liaison to the Minnesota civil defense community. DRI is the largest civil defense bar organization in the country, at approximately 22,000 members, and takes a leading role in continuing education, advocacy, including Amicus Briefs in the U.S. Supreme Court and testimony before Congress regarding issues important to its members, and in supporting the efforts of State and Local Defense Organizaions, like the Minnesota Defense Lawyers Association. Mark’s appointment is another example of Lind Jensen’s continued leadership in the defense bar. If you have questions about DRI or believe that DRI can be of assistance to you in defending your client’s case, please give Mark a call or visit DRI’s web site: www.DRI.org
Also, at the DRI annual meeting, the MDLA received the Rudolph Janata Award as 2014-15 Outstanding State and Local Defense Organization. Mark Fredrickson, who was President and President emeritus of MDLA from 2013-2015 was present for the awards ceremony. This award reflects the successful leadership provided by the MDLA to the local defense bar and is the culmination of many years of hard work by a number of MDLA members and leaders. Congratulations to the MDLA on this well deserved award.
On October 16, 2015, Thomas J. Evenson and Patrick J. Larkin will be presenting “Effective Use of Experts in Construction Lawsuits” at the Premier Midwest Construction Defect and Dispute Conference. This conference is being held at the Minneapolis Convention Center.
Jason Prochnow recently helped his stone masonry subcontractor client win summary judgment dismissal of a $700K construction defect lawsuit for moisture intrusion and property damage, allegedly caused by defects in his client’s stone veneer masonry work.
As background, the Plaintiff General Contractor had absorbed and paid an earlier $700k arbitration award in favor of the homeowners, which had focused upon the extent of the water damage, allegedly caused by the contractors’ failure to provide 2 layers of grade D building paper behind the stone veneer. Mr. Prochnow’s client was not a party in the arbitration dispute. The arbitrator found the General Contractor liable, in large part, for failing to make sure the stone masonry sub had installed 2 layers of paper behind the stone, and awarded $700K in total damages.
Plaintiff General Contractor paid the homeowners, and then sued the stone masonry sub contractor for contribution and indemnification. Prochnow was able to help prove to the District Court Trial Judge that the International Residential Code (MN’s State Building Code during the relevant time) DID NOT require 2 layers of Grade D paper behind stone veneer siding. The Code had required 2 layers of Grade D paper behind stucco/plaster, but called for only one layer of Grade A paper behind the stone veneer. Thus, the Court concluded the stone mason had performed its work correctly pursuant to the MN Building Code and per the manufacturer’s instructions, and was entitled to summary judgment dismissal of all claims.
Mark Fredrickson and Lauren D’Cruz recently wrote an article for the MDLA’s Minnesota Defense magazine discussing whether fault can be apportioned between a tortfeasor who acted negligently and a tortfeasor who committed an intentional tort. Although this question has not been settled by Minnesota courts, the policies underlying the Minnesota Supreme Court’s holding in Staab v. Diocese of St. Cloud, 853 N.W.2d 713 (Minn. 2014) clear the way for the application of comparative fault principles to apportion fault between a negligent tortfeasor and a co-defendant who is an intentional tortfeasor.
The article can be found here: MDLA Apportioning Fault Article
The Minnesota Supreme Court recently held in Allan v. R.D. Offutt that permanency ratings (work-related or not) that do not impact employability may not be used to meet the permanency threshold required to pursue a claim for permanent total disability benefits . This is a significant development in favor of employers and insurers. Injured workers can no longer combine non-work related disabilities that have no impact on their ability to secure employment with their work-related permanency ratings in order to meet the PTD permanency threshold. As clearly declared by the Court: “We hold that Minn. Stat. § 176.101, subd. 5(2), unambiguously requires that disabilities that contribute to an employee’s permanent-partial-disability rating must affect employability.” See case summary below for full analysis and impact. Please give us a call with any questions. We look forward to discussing this and other cases with you.
Allan v. R.D. Offut, Co.
Background
The employee, Todd Allan, sustained a work-related injury to his lumbar spine in September 2010. The accident left him unable to perform a significant amount of work-related duties. Mr. Allan was assigned a 10% PPD rating relative to his work injury. He filed a claim petition seeking permanent total disability benefits. Because the PPD for his work injury did not meet the threshold 17% permanency rating required under Minn. Stat. §176.101 subd. 5, he also relied on his complete loss of teeth, which supported another 10% permanency rating. If he could not prove his minimum 17% PPD rating, his permanent total disability claim would be barred by statute.
The defense argued that the non-work related permanency, where it does not affect employability, cannot be considered to meet the permanent total disability PPD threshold.
The compensation judge denied the employee’s claim for permanent total disability benefits, choosing not to consider the employee’s complete loss of teeth, which had been corrected by dentures, to meet the statutory threshold. The employee appealed and the WCCA reversed and remanded, concluding that the loss of teeth could be used to meet the threshold. The WCCA further held that the loss of teeth need not affect Allan’s employability in order to contribute to the permanency rating. The employer and insurer appealed to the Minnesota Supreme Court.
Question for Supreme Court
Whether a disability that does not affect the employee’s ability to secure employment can be considered when determining if the employee is eligible for permanent total disability benefits under the Workers’ Compensation Act.
Holding
The Supreme Court found that Minn. Stat. §176.101 subd. 5(2) requires, unambiguously, that there must be a causal nexus between employability and the disabilities that contribute to the permanent partial disability rating used to meet the PPD threshold.
The establishing the required permanency is a threshold issue when determining whether an employee is eligible to claim permanent total disability benefits. While an injured worker is still allowed to combine permanency ratings for both work-related and non-work related conditions, an additional step has been added. Under the Allan holding, an employee must now demonstrate that these disabilities affect the employee’s ability to secure gainful employment.
Because the lower court failed to consider whether Allan’s loss of teeth affected his employability, the case was remanded for further consideration.
Impact
In Metzger v. Turch, Inc., the WCCA held that an employee’s non-work related hysterectomy could be considered in reaching the statutory permanent total disability permanency threshold. The Supreme Court’s holding in Allan, overturns this prior precedence. Therefore, the employee has the burden to show that any PPD rating to be considered affects the employee’s ability to secure suitable employment. The key question that must be asked is whether the permanency being claimed, whether or not it is work-related, affects the employee’s ability to secure more than sporadic, insubstantial employment.
Brian Wood, Bill Davidson, and Peter Stiteler successfully defended their clients, a rental car company and its insurer, against a declaratory judgment action brought by a plaintiff passenger injured while riding in a car rented from the car company. Plaintiff, without first obtaining judgment against the driver, sought a declaration from the district court that the insurance policy provided coverage to the rental car. Lind, Jensen, Sullivan & Peterson argued plaintiff lacked standing based on Minnesota’s prohibition of direct actions against insurers. The district court agreed and dismissed the case. On appeal, the Court of Appeals affirmed in a three page opinion, reasoning that plaintiff was improperly seeking a different declaration on appeal than he had in the district court without first amending his complaint.
