1. NO-FAULT AND BODILY INJURY CASES WITH CAUSATIONBy
Jeannie Provo-Petersen, Esq.
St. Paul, Minnesota

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

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

4. Causation in No-Fault Cases

5. ACCIDENT?
VICTIM’S PERSPECTIVE
Unlike BI, UM or UIM claims which are viewed from the perspective of the tortfeasor, No-fault (PIP) claims are always viewed from the perspective of the victim.

6. MEDICAL EXPENSE BENEFITS
REASONABLE
NECESSARY
DIRECTLY RELATED

7. MEDICAL EXPENSE BENEFITS
BURDEN OF PROOF
Once insurer receives reasonable proof of a claimant’s entitlement to benefits by presenting evidence of causation and necessity, the burden of proof shifts to the insurance company to produce evidence that claimant is not entitled to benefits.
Insurer’s burden is most often met with an IME.

8. No-Fault Causation Cases
Minnesota Courts Interpret “Directly Related”
Rodgers v. Progressive (1993) - Court of Appeals
Great West v. Northland (1996) - Supreme Court
State Farm v. Zitzloff (1998) - Court of Appeals (unpublished).
Scheibel v. Illinois Farrmers (2000) - Supreme Court
Khawaja v. State Farm (2001) - Court of Appeals
Scheibel v. Illinois Farrmers (2001) - Supreme Court
Pususta v. State Farm (2001) - Supreme Court

9. Rodgers v. Progressive, 499 N.W.2d 61 (Minn. Ct. App. 1993)
ALLOWED APPORTIONMENT OF EXPENSES
Apportionment appropriate between pre-existing conditions and new injuries.
Ongoing treatment for prior condition when new injury occurs.
Medical opinion that laid out apportionment.
No-fault carrier only responsible for percentage allocated to the accident in question (e.g. 50%/50%).
No-fault insurer for 2nd accident only pays for treatment related to 2nd accident.

10. Great West v. Northland, 548 N.W.2d 279 (Minn. 1996)
NO MORE APPORTIONMENT
No ongoing treatment when new injury occurs.
Subrogation between insurers.
Supreme Court holds only 1 accident can be the cause of injury for subrogation between insurers.
A return to the No-Fault Act — instead of requesting apportionment opinion or paying all expenses regardless of how caused, insurer determines and pays for treatment made necessary by the accident.
Supreme Court questioned apportioning causation like Rodgers, but did not over rule Rodgers.

11. Scheibel v. Illinois Farmers, (I) 615 N.W.2d 34 (Minn. 2000)
Is Apportionment Back?
Scheibel injured in 2 separate MVAs 2 months apart.
1st MVA - 3/96 - injured neck.
2nd MVA - 5/96 - aggravated neck; surgery required.
Farmers on risk for both MVAs.
Paid $3,588 for medical expenses from 1st MVA.
Paid $20,000 limits from 2nd MVA.
Scheibel filed arbitration to recover additional benefits trying to attribute back to 1st accident.
Need for treatment related to both MVAs
Farmers paid for all under 2nd MVA - Great West

12. Scheibel v. Illinois Farmers, (I) 615 N.W.2d 34 (Minn. 2000)
Apportionment is back.
Arbitrator found expenses causally related to both MVAs (35% to 1st and 65% to 2nd).
After $20,000 exhausted from 2nd MVA, still had $6,953 in uncompensated medical expense.
Supreme Court holds:
When both MVAs contribute, 2nd MVA pays all, up to limits.
Return to 1st MVA if 2nd MVA limits are exhausted.
May only recover that unreimbursed portion of expense attributable to 1st MVA (e.g. 35%).
Reversed in part and remanded.

13. Calculating Apportionment
Scheibel v. Illinois Farmers, (II) 631 N.W.2d 428 (Minn. Ct. App ), rev. denied, (Minn. Sept. 25, 2001)
Calculating Apportionment
On remand, Court of Appeals holds:
Arbitrator’s findings of 35% 1st MVA, and 65% 2nd MVA are final and binding
Affirms decision of Dist. Ct., and gives “tacit approval of apportionment” in cases involving aggravation of pre-existing injury from prior accident.

14. Calculating Apportionment
Scheibel v. Illinois Farmers, (II) 631 N.W.2d 428 (Minn. Ct. App ), rev. denied, (Minn. Sept. 25, 2001)
Calculating Apportionment
District Court’s Method of Calculation:
$ 3,558 following 1st MVA
$20,000 following 2nd MVA
$ 6,953 uncompensated
$30,511 (total medical from both MVAs)
Dist. Ct. Took 35% of $30,511, or $10,678
Since Farmers already paid $3,558, it owed additional $7,120

15. Calculating Apportionment
Scheibel v. Illinois Farmers, (II) 631 N.W.2d 428 (Minn. Ct. App ), rev. denied, (Minn. Sept. 25, 2001)
Calculating Apportionment
Arguably inconsistent with Sup. Ct’s directive:
35% of uncompensated $6,953, or $2,433

16. Calculating Apportionment
Scheibel v. Illinois Farmers, (II) 631 N.W.2d 428 (Minn. Ct. App ), rev. denied, (Minn. Sept. 25, 2001)
Calculating Apportionment
Are calculations also wrong because they only make 1st MVA responsible for 35% of expenses incurred solely as result of 1st MVA.
Shouldn’t 1st MVA be responsible for:
$ 3,558 following 1st MVA
$ 9,433 following 2nd MVA (35% of $26,953)
$12,991 in total expense?

17. What Happens When 2nd MVA Settles for Less than Policy Limits?
Khawaja v. State Farm, 631 N.W.2d 106 (Minn. Ct. App ), rev. denied, (Minn. Sept. 25, 2001)
What Happens When 2nd MVA Settles
for Less than Policy Limits?
2 MVAs
After settlement, insurer for 2nd MVA had paid total of $19, (policy limits not exhausted).
Khawaja brought claim against 1st MVA insurer under Scheibel.
State Farm denied, claiming Scheibel required claimant to exhaust all limits from 2nd MVA.

18. What Happens When 2nd MVA Settles for Less than Policy Limits?
Khawaja v. State Farm, 631 N.W.2d 106 (Minn. Ct. App ), rev. denied, (Minn. Sept. 25, 2001)
What Happens When 2nd MVA Settles
for Less than Policy Limits?
Court of Appeals disagreed:
Scheibel does not require claimant to exhaust benefits from 2nd MVA.
But insurer for 1st MVA is responsible only for benefits over and above limits for insurer for 2nd MVA.
Claimant “eats the gap” of $

19. Pususta v. State Farm, 632 N.W.2d 549 (Minn. 2001)
Apportionment Between Prior
Non-MVA and MVA
horse accident with neck and back injuries.
chiro. tx. - health insurer only allows 24 visits/yr.
still treating with chiro. 1x/month.
Dec., MVA, aggravated prior neck and back injuries, and increased chiro. tx.
IME - some injuries related to prior horse accident, so no-fault insurer pay for tx. only through Apr., pre- accident status.

20. Pususta v. State Farm, 632 N.W.2d 549 (Minn. 2001)
Apportionment Between Prior
Non-MVA and MVA
Arbitrator refused to apportion, applying Great West.
State Farm argues should not have to pay for 24 annual chiro. visits pre-MVA.
Dist. Ct. and Ct. of Appeals both affirm based on Great West.

21. Pususta v. State Farm, 632 N.W.2d 549 (Minn. 2001)
Apportionment Between Prior
Non-MVA and MVA
Supreme Court reversed:
Distinguished Great West and Scheibel because they both dealt with multiple MVAs.
No-fault insurer should pay only for loss that arises out of maintenance or use of MVA.
A no-fault arbitrator must “only award those reasonable medical expenses for treatment of injuries caused by, or aggravated by, the automobile accident.” Id. at 556.

22. Pususta v. State Farm, 632 N.W.2d 549 (Minn. 2001)
Apportionment Between Prior
Non-MVA and MVA
Arbitrator must determine whether expense relates to an “injury that was a natural and reasonable incident or consequence of the use of a vehicle.”
If the expense is not for treatment solely related to the accident, it must be denied.
If the arbitrator does not think all expenses are causally related to the motor vehicle accident, but some are, it is appropriate for him to apportion those expenses as he sees fit.

23. What Does Causation (Directly Related) Now Mean?
No-Fault Carriers Pay for Loss Directly Related
to the Subject Accident.
Isn’t that what the No-Fault Act has Always Said?

24. Causation in Bodily Injury Cases

25. Aggravation of Pre-Existing Injuries
Pleading and Proof
Aggravation of Pre-Existing Injuries
Changes in Jury Instructions
CIVJIG 91.40
Does it improperly shift burden of proof?

26. 4A Minnesota Practice, CIVJIG 91.40
Jury Instructions
4A Minnesota Practice, CIVJIG 91.40
There is evidence that Plaintiff had a pre-existing disability or a medical condition at the time of the accident.
Defendant is liable only for any damages that you find to be directly caused by the accident.
If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then defendant is liable for all the damages.

27. Pre-Existing Conditions
Morlock v. St. Paul Guardian Ins. Co., 650 N.W.2d 154 (Minn. 2002), rev'g. 632 N.W.2d 268 (Minn. Ct. App. 2001)
If neither party’s theory of the case is aggravation, CIVJIG should not be used.
P claimed his injuries and damages resulted solely from the car accident.
UIM insurer argued all injuries and damages were solely the result of P’s pre-existing condition, and did not argue the accident resulted in any aggravation of P’s underlying condition.

28. 4A Minnesota Practice, CIVJIG 163
Jury Instructions
4A Minnesota Practice, CIVJIG 163
A person who has a defect or disability at the time of an accident is nevertheless entitled to damages for any aggravation of such pre-existing condition, even though the particular results would have followed if the injured person had not been subject to such pre-existing condition. Damages are limited, however, to those results which are over and above those which normally followed from the pre-existing condition had there been no accident- in this case, had there been no second accident.

29. Pre-Existing Conditions
Heine v. Simon, 674 N.W.2d 411 (Minn. Ct. App. 2004)
JIG 163 does not erroneously shift burden of proof to plaintiff. Generally, P in any civil case bears burden of proving damages by a preponderance of the evidence.
If there is a pre-existing injury that is aggravated by the negligence of another, P still has the burden of proving not only the injuries directly caused by the defendant, but also proving the extent to which plaintiff's condition was caused by D’s conduct.

30. Pre-Existing Conditions
Heine v. Simon, 674 N.W.2d 411 (Minn. Ct. App. 2004)
Recovery limited to additional injury caused by aggravation over and above pre-existing condition.
Damages for aggravation of a pre-existing condition are simply a means to assure that the defendant pays only for the harm the defendant causes, not the harm plaintiff already had.

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

32. Pre-Existing Conditions
Rowe v. Munye, 674 N.W.2d 761 (Minn. Ct. App. 2004)
CIVJIG 163 taken from 4 Minn. Prac. 163 properly follows Minnesota common law precedent and is the proper instruction to be given to the jury in cases where there is a pre-existing condition which defendant did not cause.
Blatz v. Allina Health Sys., 622 N.W.2d 376 (Minn. Ct. App. 2001), review denied (Minn. May 16, 2001)
Burden of proof issues created by CIVJIG impermissibly shifts burden of proof to defendant to show he did not cause the portion of plaintiff's damages attributable to the pre-existing condition.

33. DIRECT CAUSE
CIVJIG 27.10
A "direct cause" is a cause that had a substantial part in bringing about the injury.

34. BURDEN OF PROOF Definition of "burden of proof"
CIVJIG 90.15
Definition of "burden of proof"
A party asking for damages must prove the nature, extent, duration, and consequences of his or her injury.
You must not decide damages based on speculation or guess.

35. Special Verdict Form CIVJIG 65.90
What amount of money will fairly and adequately compensate plaintiff for damages directly caused by the accident, up to the time of this verdict, for:
a.Past pain, disability, and emotional distress?
b.Past wage loss?
c.Past health care expenses?
What amount of money will fairly and adequately compensate plaintiff for damages reasonably certain to occur in the future, directly caused by the accident, for:
a.Future pain, disability, and emotional distress?
b.Loss of future earning capacity?
c.Future health care expenses?

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

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

38. NO-FAULT AND BODILY INJURY CASES WITH CAUSATIONBy
Jeannie Provo-Petersen, Esq.
St. Paul, Minnesota