Minnesota Injury Law

Caution with Cars.com - How to buy a used car

2011-10-13T23:13:00.000-05:00

Of course we all should have leaned by now that there are plenty of scammers on the internet looking to take advantage of others. Recently, I ran across a whole lot of fraudulent ads on Cars.com.

Check this out:

If it seems too good to be true, it certainly is.

Can you spot the fraudulent ads in this picture? Hmmmmm... maybe the three that use the same photo, and are less than half the price of the others? I found this to be a very common scam on Cars.com. They are pretty easy to spot - limit your search to "Individual Seller", sort by price, with the lowest price first, and the top listings are often fake. None of them have phone numbers attached to them either.

This really burns me. I browsed around on the site for 10 minutes and found at least 8 fake ads. Why does the company allow this to happen? If you happened to have been ripped off by a seller on Cars.com, I would like to talk to you. FWIW, Car.com does have its own fraud awareness page you should check out here.

I have purchased many used cars, and many I have purchased off the internet, sight-unseen, paid for them, then flew or drove across the country to collect them, and drove off without so much as taking a test drive. And I have never gotten a bad deal. If you can save $2,000, isn't it worth flying just about any place to pick it up and drive it back? Enjoy the trip. It is like a free vacation. Here is how I go about not getting scammed.

I like to purchase used cars from individual owners - in fact, I don't think I would ever by a car from a used car dealer. Most individuals are honest, and if they have owned the car for awhile and have repair invoices to verify the mileage and upkeep, it can be a low risk affair. This is especially true if you are buying a car that still has a factory warranty. What do you care if it breaks after you buy it if the company will fix it for free. Remember, individual sellers, as opposed to dealers, are trying to sell their own car because they were shocked by how little the dealer was going to give them to trade it in. They will sell much less than a dealer, and still get more than they were offered. If they really wanted to dump a lemon, they would have traded it in.

Never buy anything expensive without getting the seller's phone number. Don't ever deal just by email. Don't let the person call you, rather get her phone number so you know it is real. Once you get the phone number, google it and the email address. If you are buying an expensive car, ask them to fax or email you a copy of the title. And don't fall for the classic scam (I can't believe people actually do) where the seller tells you she will ship it to you from some far-flung region and you only have to pay for it if you want to keep it. Really?

Find out as much information as you can about the person. I sometimes find that the phone number is attached to many, many Craigslist ads. This means the person is a dealer, and you are not going to get the best deal and they are not as likely to be honest with you. Google the address (off the title) and the name of course. Figure out what county the person lives in and find the county property tax website. Check out what their house is worth, use Google maps or Bing to look at it, check out whether they are behind on their taxes. Remember, the more you know, the better.

Do a criminal background check on the seller. Most states, I presume, allow you to check records online. In Minnesota, you can do this from this link. One of the primary rules for car shopping is that there is no once-in-a-lifetime deals. If anything seems fishy (like you seller just got out of prison for grand larceny), walk away.

Get the VIN number off the title. Ask you local dealer of that make vehicle to run the VIN through their computer. They can tell you when and where the vehicle was serviced, and whether there were any major problems with it. Ask the service manager what some of the typical problems can be with that year, make and model.

Carfax can be good, too. It used to have an unlimited three-month option, which was great for checking everything you were interested in. Now, it is one for $35 or 5 for $45 - I would spend the extra $10. If you don't need it, someone you know probably will. Again, if you are buying an expensive car, the more information you get on it, the better - it is worth $45.

I have made some big purchases, and after carefully checking the seller's background, was comfortable wiring the money to his bank account. Once everything cleared, he was comfortable giving me the car and the title. If I were a seller, I would never take a certified check. That is a most favored scam. Too many people have given their car to someone in exchange for a certified check, only to find out later it was counterfeit. Sometimes, it is much later, like weeks. Cash? Bad idea if it is more than a couple of grand. I am afraid that many Craigslist buyers and sellers have been robbed of their cash and even killed trying to buy or sell a car. Aside from a wire transfer, I actually would prefer a personal check - but in advance. Give me the check, and you can get the car after it clears.

Of course, you can be careful and still get scammed - heck, you could pay full MSRP at a dealer and still get a lemon (I am a lemon law arbitrator, so I have seen this happen many, many times). I can't promise you that you will not get scammed, but I can promise that if you follow my advice, you can significantly reduce the risk that you will get scammed. If you have any particular questions and live in Minnesota, I am always happy to talk to you.

Business Use Exclusion for UIM OVERTURNED

2011-09-06T13:41:00.002-05:00

The Minnesota Supreme Court overturned the Court of Appeals decision in Latterell v. Progressive this week. The Court held UNENFORCEABLE, the policy exclusion that denied underinsured motorist coverage to the family of a person that died while delivering books.

You can thank one of Minnesota's hardest working trial lawyers, Michael Bryant, for this important clarification of the law. It serves as a reminder however, that if you are mixing business and personal use with your own motor vehicle, check with your agent. After an accident is not the time to discover you may not be insured.

Please feel free to if you have any questions.

Matt Brenengen

Are you Insured?
If you ever deliver items for work, you might not be.

A troubling unpublished decision from the Minnesota Court of Appeals on March 2, 2010, highlights a loophole in many drivers' auto insurance policies that would allow insurance companies to deny claims presented by any person injured while delivering items for work. This ruling is likely to embolden many insurers to deny claims that otherwise would have been paid.

The case of Gregory Latterell, as Trustee for the heirs of Jared Travis Boom, decedent v. Progressive Northern Insurance Company and AIG Insurance Company, A09-1138, describes the case of Jared Boom. Mr. Boom was killed in a car accident. He was insured at the time with Progressive Northern Insurance Company (Progressive Insurance). At the time of the crash, Mr. Boom was working as an independent contractor, delivering books to a library. He got paid $148 per day to complete the route. When Progressive found out that he died while delivering books, it denied insurance benefits through his Progressive policy, citing an exclusion of coverage while carrying property for “compensation or a fee.” The court found that this “business-use exclusion” did not violate Minnesota law. The rational is that the commercial use goes beyond the intended scope of the personal auto policy.

In my opinion, this broad interpretation of the exclusion will unfairly invalidate the coverage of many Minnesota drivers who otherwise assumed they were fully covered. This means no no-fault coverage, no payment for medical expenses and wage loss, no property damage coverage, no liability protection, and no UM or UIM benefits. Yes, if one's vehicle were used exclusively for delivery purposes, then an exclusion would be appropriate and expected. An exclusion for incidental commercial purposes, however, is overly broad and unfair. This decision seems to leave no room for the incidental-business use. The decision states that if the person is “compensated” for delivering something, then there is no coverage.

BEWARE! If you have ever delivered something for work, then you may well have been completely uninsured while you were doing it. Think about that. If you caused an accident, not only would you be personally responsible for paying to repair or replace the other car (as well as your own), you would be liable for personal injury damages, and even your own medical expenses.

Don't think this applies to you? Think again. Surely, if you deliver pizza, and you have Progressive Insurance, you are driving uninsured. What about just dropping off documents, samples or products from one business to another or to a customer – are you being paid while you do it? If so, the insurer could use this decision to deny you coverage.

And how could you get around this exclusion? It is imperative that you read your insurance policy and see what it says about such an exclusion. Then you need to have a conversation with your insurance agent. Obviously, if you are delivering pizzas, you need to make sure your policy is going to cover you while you are working. I had a discussion about this with my State Farm insurance agent. She told me that pizza delivery would not EXCLUDE coverage. Their policy indicates that coverage is excluded, "while maintaining or using a vehicle in connection with that insured's employment in or engagement of any kind in a car business. The policy defines "car business" as one that sells, leases, rents, repairs, services, modifies, transports, etc. vehicles. That is not pizza (or book) delivery.

Be prepared to move your business to another insurance company if your current insurer is unwilling or unable to cover you in these situations. What about these incidental situations? Talk to your agent again, but I would say you need to use extreme caution before you agree to deliver something for the company. For the time being, however, if your boss asks you to deliver something, make sure you are not on the clock while you are doing it.

If you have questions and want to talk through your particular concerns, please do not hesitate to contact me.

Insurance Unjust Unfair Denials

2011-01-28T10:56:00.004-06:00

I just resolved a case for a client whose home was damaged when the supply line hose under her bathroom sink burst. Because this client was a single, retired 68-year-old who was not mechanically inclined, she purchased Allstate Insurance's "Deluxe Plus" Homeowners policy. She thought it would ensure her coverage no matter what happened.

In June 2010, she awoke to the sound of running water. She walked out of her bedroom and into more than a inch of standing water. Water was shooting out from under the bathroom sink on the main floor of her modest one-story. Rushing downstairs to shut off the water main, she found water pouring though the ceiling of her recently finished basement bathroom. Water soaked the carpet in the basement, was running out the electrical outlets and soaking up the drywall in her finished basement bedroom, hallway and laundry room.

After she got the water shut off, she called her insurance agent who told her to call Steamatic of the Twin Cities. The client was under the impression that Steamatic was an independent company that would take care of everything for her. Imagine the client's surprise when she found out the Steamatic bill was more than $7000. The total damages to her home were more than $18,000. Imagine her shock when her adjuster told her that Allstate was not going to cover any of the damages other than the first three days of Steamatic's services, leaving the client with a bill she had to pay for more than $3200 to Steamatic.

Even more troubling was the fact that Steamatic came into the client's house less than three hours after she discovered the flood. Its crew quickly cut up and disposed of the carpet on the main floor of the house. It pulled all the drywall off the walls of the bathroom in the basement, and cut the bottom two feet of soaking wet drywall off all the other walls. Steamatic even cut a long slit in her kitchen flooring and pulled it back to check for water. None of this damage, the adjuster told her, was covered.

Why? The reason the adjuster gave for the denial was that Steamatic claims to have discovered mold in the hallway in the basement of her house. The "Deluxe Plus" policy clearly states, "We Do Not Cover... [damage from] Mold, fungus, wet rot, dry rot or bacteria. This includes any loss which, in whole or in part, arises out of, is aggravated by or results from mold, fungus, wet rot or bacteria."

So that was it. Allstate denied the entire claim, except for a portion of the Steamatic bill. The soaked carpet, the cut flooring in the kitchen, the drywall soaked with water - not covered because there was mold discovered in the basement hall. No adjuster ever went to the client's house to inspect. The client never saw all the mold that was supposed to be there. Steamatic refused to turn over any of the photographs that were taken, giving them instead to Allstate.

When the client got me involved in the case, it seemed so clear to me that the denial was unjustified. A mistake of facts perhaps. It seemed that I would be able to send some pictures I took of the damage and the burst hose, and point out how the adjuster was mistaken, and the whole misunderstanding would be corrected. I was wrong. Allstate and its attorney stood steadfastly behind its denial. We litigated the case for six months, incurring a great deal of expense for the client, not to mention stress. At mediation in January, the mediator, himself an insurance defense attorney, was also incredulous. He asked the Allstate for its justification. Having none, Allstate agreed almost immediately to pay 100% of the damages. But not before the client incurred another $300 in charges from the mediator.

Was this a happy ending for the client. Not really. While she was relieved that she didn't have to go to court, and was reimbursed for all her expenses, litigation cost her thousands of dollars. Is this a deliberate policy of this insurance company? Is it possible that insurance companies sometimes deny cases believing that most denials will not be challenged. Many of these claims are not valuable enough to merit getting an attorney, and most claimants probably just go away. If the insurance company gets stuck paying a claim after litigation in 1 of 10 of these cases, it may see it as a good business decision.

If you have been a victim of an unjust denial of a homeowners claim, you have to fight it. Even if there is not a lot of money at stake. If the case is too small for a lawyer to get involved, contact me anyway. I may be able to arm you with the tools you need to bring the claim on your own.

Red Light Green Light - A Cautionary Tale

2011-01-07T09:05:00.005-06:00

If you are reading this, it may be too late. A relative of mine was in an accident on Christmas day when another driver downtown Minneapolis ran a red light. The snow banks were really high, and my relative didn't see her until she was out in front of his car. The impact totaled both vehicles. Fortunately, no one was hurt.

When he was telling me the story later in the day, he indicated that the other driver was very sorry about what happened, and she said she just wasn't paying attention. I asked whether the police gave her a ticket, and was surprised to learn that the Minneapolis Police Department had refused to come to the scene. I knew there was going to be a problem.

Of course, once the other driver had a chance to think about the situation, she decided to lie about it. On Monday, she told her insurance company that she had a green light and my relative when through the red. The insurance company - both had Progressive Insurance - decided it was a 50/50 accident. Now, he is out his $1000 deductible.

We are going to fight this in conciliation court (small claims court), but it will be hard to win. We have my relative's testimony that his light was green. His wife was with him at the time who also will testify the same. I have requested the 9-1-1 transcripts to show what he told them right after the accident and to show that the other driver did not call police on the theory that if you were not at fault, the first thing you would do is call 9-1-1, and if you were at fault, you probably would not. That said, it is going to be a difficult case because it really is just he said/she said. None of the surrounding businesses have video of the accident.

How could this be prevented? Get the at-fault party to commit at the scene, immediately to liability. Most phones now have built in recorders as well as video cameras. If the police are not going to come, then in a situation like this where the other party is clearly at fault and is still acknowledging it, get it recorded. At the very least, have the other driver sign a statement acknowledging fault. If her or she refuses to do so, then insist that police come to the scene.

What Really Happens at an IME

2010-12-17T16:51:00.006-06:00

I didn't write this, but I could have (if I were more clever). This is what you can expect from an "Independent" Medical Examination (IME). I wrote some more about what to do when you have an IME in a post below. If you have particular questions, however, please do not hesitate to contact me.

Auto Insurance Advertising - Can you really save money by switching?

2010-06-22T10:35:00.003-05:00

It seems that everywhere we look, there is an ad from an automobile insurer promising lower rates. I read a decent article this morning about the reality of all that auto insurance advertising. (Link)

This article has some good tips on how to save money on auto insurance, but I was a bit concerned about what it doesn't say.

First of all, not all insurance companies are equal when it comes to automobile insurance. I have been working with auto insurers, as an accident lawyer, for nearly 15 years, and consistently see the same bad conduct from a few of the big name insurers. For example, one company that markets itself to new immigrant communities, is the same one that will consistently try to prematurely terminate medical and wage loss benefits for those people. Like clockwork, if the person has a foreign sounding name, I have seen this company pay for a month to three months of treatment, then summarily terminate benefits. Other companies, which do not have claims offices in Minnesota, don't have a firm grasp on Minnesota No-Fault law. While I have seen this benefit some claimants, usually what it means is the insurance adjusters don't follow Minnesota law.

The point is, there are good insurance companies and there are ones that consistently try to unfairly deny claims. Don't go with an insurance company just because they have the cheapest premium. You may regret the decision if the particular insurer denies thousands of dollars in claims. Ask friends and neighbors whom have actually made auto claims about their experiences and go with a reputable company.

Another recommendation I would have when you narrow your choice down to a few companies is to meet in person with its agent to get a final quote. I have always dealt with "captive" agents, rather than independent agents. While they are by definition, tied to only one company, they have for me been incredibly knowledgeable and willing to go toe-to-toe with the adjusters at the company on my behalf. You need to meet your agent in person to see if she or he is someone with whom you can be comfortable. If you build a relationship with this agency, it should be an advocate for you - not the company. If you feel that the allegiance is more for the company, move to another agency until you find someone you can trust.

Also, I would caution you from constantly price checking and switching to save a few dollars. First off, if you have a troubled record, and that includes one accident or two moving violations in the last three years, many insures will not take you as a new policy holder. Also, most insurers have big discounts and loyalty bonuses for accident-free periods, or even just being a policyholder for a long period of time. Remember, build a relationship with your agency.

Finally, DON'T SKIMP. Obviously, having less coverage will cost less money. Since I deal with people mostly after they have had an accident, I see many who regret their short-sightedness. Remember, many of us who may never have been in an accident many be completely dependent upon our auto insurers to bail us out of our darkest days.

If you are a moderate wage earner (making more than $500 per week) and have more than one family vehicle, make sure you have STACKING COVERAGE - check the index on the right for an posting I wrote about stacking and why it is so important (even if your insurance agent tells you its not).

Make sure you have enough liability coverage. In Minnesota, the minimum limits will generally not be enough. The minimum insurance limits in Minnesota for property damage is only $10,000. If a person with $10,000 in coverage totals most any car, the damage will exceed this amount. What happens to the excess? The person with insufficient insurance will be forced to pay the difference.

The situation can be even worse when it comes to liability insurance. Minimum insurance limits in Minnesota for liability coverage is $30,000. Injure someone with your car, and the damages are usually greater, and the underinsured, at-fault vehicle owner (not necessarily the driver) will be responsible for all damages above $30,000.

Are you a higher wage earner? Unless you can afford to be off of work for a year or two, make sure you not only have an Umbrella Policy that protects you against big liability claims (BI coverage). You probably need an Umbrella policy that includes FIRST PARTY coverage. That is, make sure it has a UIM (underinsured motorist) component that pays you if you are injured by another driver who is insufficiently insured.

This article only touches on some additional considerations you should be making, other than price. Many factors need to be considered when buying car insurance. Make sure you have a long conversation with an knowledgeable agent you can trust. Or contact me. I would be happy to discuss with you any questions you might have.

How is "Necessary" Defined for No-Fault Act Purposes

2010-04-26T14:10:00.004-05:00

A couple of years ago, I wrote an article on what "necessary" means in terms of the Minnesota No-Fault Act. I find it fascinating that whether a medical bill is paid or not by the no-fault insurer hinges on the meaning of this word, yet, nowhere in the Act, nor in Minnesota case law is it really defined.

I warn you that the article is rather technical and wonky. If you have particular questions about the topic, I am happy to engage in conversation about it either via email or phone.

Here is the article:

Successful Resolution of No-Fault Disputes Through Issue Identification – Just what does Necessary mean?
Medical bills arising from a car accident, as we all know, generally become the responsibility of the injured party’s no-fault insurance company. How many of us, however, have actually taken time to contemplate the statutory language that delegates the responsibility for payment of these bills to the no-fault insurer?

The statute is pretty straight forward:

Basic economic loss benefits shall provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle… Medical expense benefits shall reimburse all reasonable expenses for necessary [covered medical treatment].

Minn. Stat. §65B.44, subd. 1 & 2.

There are actually three separate elements that need to be proved: (1) that the bills were proximately caused by an accident; (2) that the amount of the charges for the claimed medical bills is reasonable; and (3) the medical treatment rendered was necessary.

Attorneys frequently lump the last two factors together, claiming that no-fault is responsible for all “reasonable and necessary” medical bills related to an accident. Actually, the phrase attorneys should consider using in the no-fault context is, the insurer is responsible for “the reasonable value of all necessary medical treatment related to the accident.”

Proximate cause can be a complicated issue, involving many facets and covered by vast body of case law. The issue is well beyond the scope of this article.

Element number two, in contrast, has historically been rather simple. Technically, it is the insured’s initial burden to prove that the claimed medical expenses are within a range customarily charged in the community for similar services. “Reasonable” in this context is not a synonym for “necessary.” Itemized billing statements are generally sufficient to shift the burden over to the insurer. It is even better to have a narrative report or doctor testimony that the charges are reasonable. Once sufficient prove of the reasonableness of the charges is made, the burden shifts to the insurer to prove the charges are not reasonable. Because defense attorneys generally do not appreciate the distinction of “reasonable” and “necessary,” it is only on rare occasions that they provide any evidence at all that the charges are not reasonable. Beware, however, of the movement by the defense bar to challenge the foundation of experts to testify to the reasonableness of charges.

An excellent article on proving “reasonableness” of medical expenses was written by Sharon L. Van Dyck, entitled "Recovery of Medical Expenses in a Personal Injury Case" and can be found in the Spring 2006 MTLA Magazine.

In many cases, success in getting no-fault benefits awarded, rises and falls on the insured’s attorney’s recognition of element number three as the issue in question, and her or his use of evidence to support the “necessary” finding. Whether in an arbitration or district court action, it is useful to highlight the issue for the fact-finder and focus the evidence towards proving necessity. One problem is, however, that the term “necessary” has never been defined by Minnesota case law. Until a Minnesota case clearly defines what the legislature meant by “necessary” we can look to case law from foreign jurisdictions and some analogous Minnesota case law for meaning.

The Minnesota No-Fault Act is remedial in nature. Dahle v. Aetna Cas. & Sur. Ins. Co., 352 N.W.2d 397, 401 (Minn.1984). Remedial statutes must be liberally construed for the purpose of accomplishing their objects. Miklas v. Parrott, 684 N.W.2d 458, 461 (Minn.2004), citing State v. Indus. Tool & Die Works, 21 N.W.2d 31, 38 (Minn.1945). One of the prime objectives of the Minnesota No-Fault Act, is “to encourage appropriate medical and rehabilitation treatment of the automobile accident victim by assuring prompt payment for such treatment.” Minn. Stat. §65B.42(3). The Minnesota No-Fault Act must be liberally construed to effectuate its purpose of encouraging appropriate medical treatment.

Evidence that the Act intended insureds wide latitude in tailoring medical treatment to their particular needs, is the broad scope of medical treatment covered by the Act, including, “remedial treatment and services recognized and permitted under the laws of this state for an injured person who relies upon spiritual means through prayer alone for healing in accordance with that person's religious beliefs.” Minn. Stat. §65B.44, subd. 2(5)(c). If the legislature had intended to allow insurers the ability to strictly control the type and frequency of medical treatment, would they have allowed such a generous pool of benefits?

It should be up to the treating doctor to set appropriate treatment modalities and parameters in accordance with her or his patient’s particular needs. No-fault insurers do not now, nor have they ever had the right to dictate what is “necessary” care and demand pre-approval of medical procedures. In 2001, in response to health insurer, Medica’s efforts to team up with no-fault providers in Minnesota to provided managed care of the no-fault system, the Minnesota legislature quickly placed a one-year moratorium on the practice. It then enacted permanent restrictions of managed care. Minn. Stat. §65B.44, Subd. 1(2)(c). Auto insurers have no right to dictate the terms of the treatment plan.

This does not mean the insurer is without recourse. Insurance companies have the right to an IME. If the IME doctor’s opinion is that the claimant is cured and needs no further treatment, the insurance company has a right to terminate benefits. Likewise, if it is the insurance company’s doctor’s opinion that a particular procedure or test was medically inappropriate, that evidence can be considered by the fact-finder in determining whether to award payment.

The only Minnesota no-fault case in which the term “necessary” in regard to medical treatment has even been discussed is Krummi v. MSI Ins. Co. The Appeals Court’s handling of the term follows the liberal construction of the Act. “The factors to be considered in deciding whether a doctor’s examination is necessary medical treatment are: 1) was the treatment necessary; and 2) did the patient go to the doctor for the purpose of necessary treatment.” Krummi, 363 NW2d 856, 857 (Minn.App.1985). “Since the pain was a result of the original accident, the examination comes within the No-Fault Act’s concept of the word ‘necessary’”. Id. Practioners are cautioned from reading too much into the overly-liberal construction of Krummi.

The Court also gave an overly-conservative definition of “necessary,” in regard to replacement services in the unpublished case of Pauls v. Depositors Ins. Co., 1997 WL 406297 (Minn.App.1997). In that case, the court suggested that “necessary” should be given its ordinary meaning, which it took from the American Heritage Dictionary as “absolutely essential” or “indispensable.” If this standard were applied to no-fault medical treatment, it would defeat the underlying goals of the Act. If this were the standard, insurers would be challenging ambulance trips when the patient could well have walked to the hospital or taken a cab, negative MRIs would never be paid, and nearly every chiropractic, massage therapy and physical therapy bill would be denied.
More credible guidance on the meaning of “necessary” may be gleaned from other states, which, like Minnesota, adopted a no-fault system from the Uniform Motor Vehicle Accident Reparations Act. For instance, Massachusetts, which utilizes the same “necessary medical expenses” language, has defined “necessary” medical treatment as that which amounts to a “bona fide effort to alleviate and ameliorate the injury.” Victum v. Martin, 326 NW2d 12 (Mass.1975)), see also Pietroforte v. Yellow Cab of Somerville, Inc., 473 NW2d 1148 (Mass.1985).

In the New Jersey case of Therographic Diagnostics, Inc. v. Allstate Ins. Co., the court held that the “need” in “necessary” is proved if the treating physician performs the treatment or diagnostic test upon his or her “sincere belief that the procedure will further the diagnosis and treatment of [the] patient.” Id., 530 A.2d 56, 66 (NJ.Super.1987). The New Jersey court went even a step further and held that “necessity” of a medical expense is to be left to the sole providence of the insured’s treating physician:

The “necessity” of a medical expense must be decided by the treating physician, the one most qualified to make such a judgment. It should not be the province of the Judiciary to decide, in the face of conflicting expert medical testimony, highly complex questions of medicine and science. Surely the Legislature could not have intended for the Judiciary to sit in the capacity of a medical board of review.
Id.

Workers’ Compensation law can also be helpful for trying to show Minnesota legislative intent behind making all “necessary” medical treatment compensable through the Minnesota No-Fault Act. Minn. Stat. §176.135, subd. 1(a) is workers’ compensation’s equivalent of Minn. Stat. §65B.44. It states:

§176.135 Treatment; appliances; supplies.

Subdivision 1. Medical, psychological, chiropractic, podiatric, surgical, hospital. (a) The employer shall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment, including nursing, medicines, medical, chiropractic, podiatric, and surgical supplies, crutches and apparatus, including artificial members, or, at the option of the employee, if the employer has not filed notice as hereinafter provided, Christian Science treatment in lieu of medical treatment, chiropractic medicine and medical supplies, as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury. This treatment shall include treatments necessary to physical rehabilitation. (Emphasis added).

The Minnesota Supreme Court, reviewing a workers compensation decision, held that gastric bypass surgery was compensable under a workers’ compensation claim because it was a reasonable and necessary procedure, “to cure or relieve the effects of a compensable thrombosis.” Hopp v. Grist Mill and Kemper Ins Co., 499 NW2d 812 (Minn.1993).

In a recent trial I had where the primary no-fault issue involved unpaid medical bills related to a surgery, rather than ask the jury to identify the reasonable amount of the all the medical bills that were incurred for necessary medical services related to the accident, defense counsel agreed to the following question on the jury form:

3. Was the surgery by Dr. DOE necessary medical treatment for injuries related to the April 27, 2005 accident.

Yes _____ No _____

Counsel stipulated prior to the verdict that jury finding of “yes” would represent a verdict equal to all the charges related to the surgery and follow-up care, including the surgeon’s fee, anesthesia, operating room, prescription medication, physical therapy, etc.

In a jury trial situation, it is critical that the jury receive guidance on how “necessary” is to be determined. Failure to do so subjects your client to the risk the jury will take a strict interpretation like the court in Pauls v. Depositors Ins. Co. did. Because there is no JIG on point, one had to be crafted for the trial. The defense counsel agreed to, and the court adopted the following jury instruction which was based on the case law cited above:

Necessary Medical Care

You are to determine what was necessary medical care. Necessary medical care is medical treatment that is medically appropriate to cure, relieve or improve injury or disability.

In this particular case, careful attention was paid to developing the evidence to support a “necessary” finding. Questioning of both experts was tailored to the above-instruction, i.e. “Doctor, is it your opinion that the surgery performed on November 12, 2005, was medically appropriate to improve plaintiff’s shoulder injury?” A simple “yes” was elicited from the plaintiff's expert; the defense doctor agreed that the surgery was something that could be done, but he might have tried physical therapy for 6 weeks first to see if that produced results. The jury quickly decided that the surgery was in fact medically necessary and the plaintiff recovered all the medical bills related to the surgery.

In conclusion, next time you present a no-fault case to a fact-finder, pay close attention to the three elements necessary to prove your no-fault claim. Generally, you will find that just one of the three is really in dispute. Educate your arbitrator, judge or jury on what that element is and how it can be proved. Use summary proof for the elements not in dispute (remember, the claimant has the initial burden of proof, then the burden shifts to the insurer to disprove the element), and focus your testimony and evidence to specifically proving the element in dispute. If the insurer is not disputing the relatedness or reasonableness of the charges, take time to show what “necessary” means under the law. Apply your evidence to the case law and language provided in this article to guide the fact-finder and you will have a greater chance at receiving a favorable award for your client.

Deliver Items for Work? You May Be Uninsured.

2010-03-11T15:55:00.005-06:00

Are you Insured?
If you ever deliver items for work, you might not be.

A troubling unpublished decision from the Minnesota Court of Appeals on March 2, 2010, highlights a loophole in many drivers' auto insurance policies that would allow insurance companies to deny claims presented by any person injured while delivering items for work. This ruling is likely to embolden many insurers to deny claims that otherwise would have been paid.

The case of Gregory Latterell, as Trustee for the heirs of Jared Travis Boom, decedent v. Progressive Northern Insurance Company and AIG Insurance Company, A09-1138, describes the case of Jared Boom. Mr. Boom was killed in a car accident. He was insured at the time with Progressive Northern Insurance Company (Progressive Insurance). At the time of the crash, Mr. Boom was working as an independent contractor, delivering books to a library. He got paid $148 per day to complete the route. When Progressive found out that he died while delivering books, it denied insurance benefits through his Progressive policy, citing an exclusion of coverage while carrying property for “compensation or a fee.” The court found that this “business-use exclusion” did not violate Minnesota law. The rational is that the commercial use goes beyond the intended scope of the personal auto policy.

In my opinion, this broad interpretation of the exclusion will unfairly invalidate the coverage of many Minnesota drivers who otherwise assumed they were fully covered. This means no no-fault coverage, no payment for medical expenses and wage loss, no property damage coverage, no liability protection, and no UM or UIM benefits. Yes, if one's vehicle were used exclusively for delivery purposes, then an exclusion would be appropriate and expected. An exclusion for incidental commercial purposes, however, is overly broad and unfair. This decision seems to leave no room for the incidental-business use. The decision states that if the person is “compensated” for delivering something, then there is no coverage.

BEWARE! If you have ever delivered something for work, then you may well have been completely uninsured while you were doing it. Think about that. If you caused an accident, not only would you be personally responsible for paying to repair or replace the other car (as well as your own), you would be liable for personal injury damages, and even your own medical expenses.

Don't think this applies to you? Think again. Surely, if you deliver pizza, and you have Progressive Insurance, you are driving uninsured. What about just dropping off documents, samples or products from one business to another or to a customer – are you being paid while you do it? If so, the insurer could use this decision to deny you coverage.

And how could you get around this exclusion? It is imperative that you read your insurance policy and see what it says about such an exclusion. Then you need to have a conversation with your insurance agent. Obviously, if you are delivering pizzas, you need to make sure your policy is going to cover you while you are working. I had a discussion about this with my State Farm insurance agent. She told me that pizza delivery would not EXCLUDE coverage. Their policy indicates that coverage is excluded, "while maintaining or using a vehicle in connection with that insured's employment in or engagement of any kind in a car business. The policy defines "car business" as one that sells, leases, rents, repairs, services, modifies, transports, etc. vehicles. That is not pizza (or book) delivery.

Be prepared to move your business to another insurance company if your current insurer is unwilling or unable to cover you in these situations. What about these incidental situations? Talk to your agent again, but I would say you need to use extreme caution before you agree to deliver something for the company. For the time being, however, if your boss asks you to deliver something, make sure you are not on the clock while you are doing it.

If you have questions and want to talk through your particular concerns, please do not hesitate to contact me.

Minnesota No-Fault Insurance Law - The Basics

2009-12-13T21:30:00.006-06:00

No-Fault Insurance or Personal Injury Protection (P.I.P.)

Minnesota No-Fault guarantees up to $20,000 for wage loss and $20,000 for medical expenses arising out of an accident-related injury.

Under a No-Fault system, like the one used in Minnesota, the injured person’s own automobile insurance pays medical bills, wage loss and other benefits. These benefits are supposed to be paid quickly and according to guidelines set by the Minnesota legislature. There is up to $20,000 available for medical expenses, including transportation and prescription expenses, and up to $20,000 for wage loss and replacement services caused by an accident. For serious accidents that result in death, there are survivor benefits available to help those left behind with funeral expenses and loss of earnings.

The following video explains what no-fault insurance is, what benefits are available, and to which policy one would look for coverage:

The Minnesota No-Fault Act states that an injured person's wage loss is to be reimbursed at a rate equal to 85% of the total wage loss with a weekly maximum of $250.00. Those making more than $300 per week will only receive $250.00 per week in wage loss payments. Unless you feel you can meet all your financial obligations with $250 per week, those with higher incomes should seriously consider stacking their policies. If your family owns two vehicles, stacking increases the maximum weekly benefit to $500; with three vehicles, the maximum is $750, and so on. Best of all, stacking coverage is very affordable.

While there is a complicated list of exceptions, in general, people injured in a motoring accident, whether they are driving their own car, riding is someone else's car or on a bus, or hit while crossing the street or riding a bike, would look to their own insurance policy for coverage. If the injured person has no policy of her own, she would look then to the insurance covering any resident relative - whether that person is a spouse, parent, even a brother, sister, aunt or cousin.

The next level of coverage, if the person has none, nor does she live with anyone who does, would be the insurance on the vehicle she was in at the time of the crash. If that person had no insurance on the vehicle, she may be entitled to coverage from the Minnesota Assigned Claims Bureau. Exception - and really the only time a person would not be entitled to no-fault coverage - is she were not insured, didn't live with anyone who had insurance, and the car she was in was uninsured, AND she owned a car without insurance, or even lived with someone that drove an uninsured car, she may be disqualified from coverage through Assigned Claims. This is pretty rare, so please contact me first before deciding you don't have coverage. If the accident was not your fault, even if you can't get no-fault coverage, you should be able to get medical bills and wage loss paid by the at-fault driver's liability insurance policy.

To be really clear, because even insurance people and experienced lawyers get this wrong, a person driving their own uninsured vehicle would still be entitled to no-fault insurance benefits if they have another car that is insured, or live with a relative that has coverage.

The issue of priority - whose insurance policy pays no-fault benefits - is extremely complicated. Please don't assume anything, and frankly, don't trust just any lawyer to give you the right answer. Contact an attorney that focuses on personal injury law.

`Even if you caused the accident, you are entitled to No-Fault benefits.`

While the No-Fault system not only protects the innocent victims of automobile accidents, it also provides important benefits to those who are at fault for the accident. When you think about your friends or family members who may have caused an accident due to their inattention, inexperience or just bad luck, you can appreciate the safety net that is in place. No-Fault insurance ensures they will get good medical treatment and can maintain a base income while they are unable to work.

"Is fault unimportant in a No-Fault state?"

The Minnesota No-Fault system is misunderstood. Just because we operate in a No-Fault state does not mean that fault is unimportant. No-Fault insurance ensures that everyone hurt in an automobile accident will get good medical treatment and a base level of wage loss payment while unable to work. These benefits can be minor compared to the damages which an innocent victim is entitled. A person who is seriously injured due to the negligence of another, in addition to wage loss and medical expenses, can sue the at-fault party for other damages. These damages include compensation for past pain and suffering, future pain and suffering, and loss of earnings capacity.

What Rights do I Have if I Caused the Accident?

2009-12-08T21:15:00.007-06:00

"The insurance company says I am not covered."

The Minnesota No-Fault system not only protects innocent victims of automobile accidents, it also provides important benefits to those who are at fault for the accident. When you think about your friends or family members who may have caused an accident due to their inattention, inexperience or just bad luck, you can appreciate the safety net that is in place. No-Fault insurance ensures that the at-fault party will also get good medical treatment and can maintain a base income when unable to work. Often an insurance adjuster will tell people they are not covered when they actually are. I see it all the time.

No-Fault insurance is surprisingly comprehensive and covers nearly every person hurt by a vehicle in Minnesota, including many people whom you would not expect would be entitled to coverage:

Negligent or Careless Drivers

As mentioned already, a driver whose own negligence, carelessness or even drunkenness causes an accident is entitled to No-Fault benefits. Exceptions: there is no coverage in situations where an insured person is hurt in an official race off public roads or was intentionally trying to hurt himself or others.

Resident Relatives

An otherwise uninsured relative, connected by marriage or blood (i.e. brother, aunt, cousin, father-in-law, etc.), who lives in the same house as any insured person may be entitled to no-fault benefits from the insured person’s insurance company.

For example: Fred’s son recently married Susan. Due to downsizing at Susan’s firm, she was laid off. The couple can no longer afford their own apartment and move in with Fred. Neither Fred’s son, nor Susan have a car or carry insurance. One morning, a friend is giving Susan a ride to the store when a drunk driver runs into the car and Susan is injured. In this case, Susan would be covered under Fred’s policy since she is one of Fred’s resident relatives.

Uninsured Drivers

It is against the law to drive a car without its own policy of insurance in Minnesota. Minn. Stat. §65B.48. Uninsured drivers face stiff penalties if caught. Nonetheless, in many cases, a person injured while driving his own uninsured car, can get no-fault coverage through a policy for another owned, but insured car, or through any insured resident relative’s policy.

For example: Fred’s son recently married Susan. Due to downsizing at Susan’s firm, she was laid off. The couple can no longer afford their own apartment and move in with Fred. Unfortunately, due to their financial situation, Susan’s insurance policy lapses and her coverage is terminated. One morning, she is driving her now uninsured car to the store when she runs a red light, crashes into a truck and is injured. In this case, Susan would be covered under Fred’s policy since she is one of Fred’s resident relatives. Many insurance adjusters will tell you that an uninsured driver, driving her own car is not entitled to coverage they are wrong. I don't believe they are necessarily fraudulently trying to avoid coverage, but they get this situation confused with one where a person is looking for coverage through the Minnesota Assign Claims Bureau. So long as some relative in the household has coverage, the uninsured driver is covered.

Uninsured Passengers or Pedestrians

When a person who has no insurance of her own is injured through the maintenance or use of an automobile, they would look to the priority section of the Minnesota No-Fault Act (Minn. Stat. §65B.49 Subd. 4) to determine which insurance company will provide coverage. Generally, these people would be covered through the insurance the car's owner has on the vehicle - even if the injured passenger owns a car that is not insured (this is another scenario where the insurers have a habit of trying to deny coverage).

If the injured passenger has no coverage through a resident relative, and the car she was in was uninsured, she may be entitled to no-fault coverage from the Minnesota Assigned Claims Bureau. Exception: if the injured person is a competent adult that either owns or lives with a family member (or even in some cases, someone who is not a family member) who owns an uninsured motor vehicle that is not being stored, she is not entitled to benefits through the Minnesota Assigned Claims Bureau.

Slip & Fall Injuries

A person injured by falling while getting in or out of a car may be entitled to no-fault benefits. Minnesota motorists have been entitled to No-Fault coverage for injuries sustained in slip and falls where they are pumping gas or returning to the car after closing the garage door. We have successfully gotten no-fault medical coverage in two separate cases where the client broke an arm falling on the ice as they were getting into or out of their car.

Injuries without Contact with a Motor Vehicle

A person whose injuries result from an accident where a car was only tangentially involved may be entitled to no-fault benefits. Minnesota case law has found that a person who was hurt diving out of the way of an approaching car was covered by No-Fault benefits.

Car Thieves

A person injured while stealing a car will actually be covered under her own no-fault insurance policy or that of any resident relative. If the car thief is under 15 years of age, and no one else in her family is insured, she can look to the Minnesota Assigned Claims Bureau for coverage.

The following video discusses some of these issues:

Minnesota drivers pay for no-fault coverage, and they are entitled to its benefits even if they were at fault for the accident. It is not necessary to establish fault for the accident to be entitled to benefits. If the injury was caused by the maintenance or use of a motor vehicle accident, the no-fault insurance company is responsible for paying at least up to $20,000 for medical expenses and $20,000 for wage loss. This is true whether a person was hurt on an icy road, or even if they were drunk and hit another car.

Because most lawyers only make money on cases where they can sue an at-fault driver's insurance, few are willing to stand up for the no-fault rights of the at-fault driver. Insurance company adjusters know this and take advantage of unrepresented insureds. Benefits are cut off, wage loss is not reimbursed, and medical bills go unpaid.

If you find your self in a situation where your insurance company is not treating you fairly, yet you have been unable to find an attorney willing to litigate on your behalf, contact me. I have stood up to the insurers on behalf of dozens of folks just like you who have been injured in an accident that may have been their fault. I have found that even relatively small claims can be handled effectively without requiring the client to pay money out-of-pocket for legal fees. If you are interested in trying to handle the case without an attorney, I would be happy to point you towards resources that can make your fight easier.

Contact me at brenengenlaw@gmail.com to discuss your particular case without cost or obligation.

Minnesota No-Fault Insurance Termination of Benefits

2009-12-08T14:02:00.004-06:00

One of your no-fault insurance adjuster's jobs is to minimize claims paid under the Minnesota no-fault insurance policy. Especially when your adjuster perceives that there is an excess of medical care - usually chiropractic, the adjuster is likely to make efforts to terminate no-fault coverage. The way an adjuster achieves termination of benefits is to schedule the insured for an Independent Medical Examination or IME.

The IME doctor is a practitioner hired by the insurer to review the insured's medical records and examine the insured person. Typically what we see in at least 90% of cases is the IME doctor finding that the insured person has no injury at all, is completely healed if she did have an injury, and needs no additional medical treatment. On the basis of this report, the insurance company can terminate future benefits, or even deny payment of bills incurred in the past.

In addition to terminating benefits based on an IME, an insurer may deny benefits because it deems them "unreasonable" or "unnecessary" or not related to a motor vehicle accident. Benefits may also be terminated if the injured person goes more than a year without seeking medical treatment for accident-related injuries. Minn. Stat. §65B.55, Subd. 2.

The following video expands on some of these concepts of Minnesota no-fault insurance termination and arbitration:

The Insurer Does not have the Last Word

Every denial or termination by a No-Fault insurance adjuster can be appealed. Minn. Stat. §65B.525 states that all disputes under $10,000 must be settled through a dispute resolution system called Arbitration. Arbitration is a process where an Arbitrator, who is usually an attorney practicing in the area of injury law, is selected to hear the evidence and make a final, binding decision as to whether No-Fault benefits were properly denied. Any person, who has had No-Fault benefits denied may file a claim with the American Arbitration Association (AAA). Whenever an insurer denies a claim, it must provide information on how to contact AAA.

In St. Paul and Minneapolis, contact the American Arbitration Association. You can file for arbitration at the following link:

http://www.adr.org/sp.asp?id=29543

At an Arbitration, typically what happens is the lawyer for the Claimant (the injured person) presents proof of a valid claim for No-Fault benefits. The Claimant's lawyer will submit a short statement of the facts, along with a written argument as to why the insurer should pay denied benefits. She would also probably provide a letter from her doctor explaining the need for the denied medical treatment or need to stay off work. Finally, the Claimant would also provide the Arbitrator a copy of all the medical records, bills, accident reports, photos of the cars, etc. A lawyer hired by the insurance company would submit a similar book including an explaining why the Claimant is not entitled to benefits.

Both parties then meet with the Arbitrator, usually at the Arbitrator's office, where they argue their case and let the Arbitrator ask questions. The Arbitrator then considers the evidence and issues a written decision within a week or two.

I am a AAA certified arbitrator, and has chosen more than 135 times by the AAA and local attorneys to arbitrate these No-Fault disputes. If you have any questions regarding the process, please feel free to contact me by phone or email with any particular questions you may have.

Do You Have Enough Minnesota No-Fault Coverage?

2009-04-22T08:49:00.000-05:00

Because almost no one understands what Minnesota No-Fault insurance is; I suspect that few people know or understand how much coverage they have. Even if you tell your agent you want "full coverage" do you really know what that is? Are you getting the coverage you need? Consider this - minimum no-fault coverage limits in Minnesota will pay only $250 per week in wage loss if you are disabled because of an accident. If you are normally making $1000 per week and you can't work because of a car accident, can you really pay your bills on $250 per week? The simple answer is no.

Because no-fault pays 85% of your actual wage, if you are making (gross - before taxes) more than $295 per week ($7.35/hour), you will not have adequate no-fault coverage if you are totally disabled for any period of time because of an accident.

Also, note that typical coverage for medical expenses from an accident is only $20,000. I have had cases where that amount was gone within hours of an accident. If you have great health insurance, fine - so long as you can pay the co-pays and deductibles. Keep in mind, however, that you can increase your no-fault medical limits easily. Talk to your agent about what that would cost. Keep in mind that there really is no finer medical insurance coverage then what is afforded by no-fault. No-fault medical coverage provides for automatic payment of the reasonable charges for necessary medical care. There are no co-pays or deductibles. You do not have to stay "in-network" but can seek the very best and most appropriate care available. And if you do not have health insurance, like so many others now, you should be increasing your limits as soon as possbile.

What are your options? The first thing you should consider is STACKING your no-fault coverage if your family has multiple vehicles. Check my post on stacking below for more information, but suffice it to say that stacking not only multiplies your total available coverage, but it also multiplies the maximum weekly cap. For instance, if you stack two auto policies, you will have a maximum of $40,000 in wage loss available at $500/week. Three cars and it is $60,000 and $750/week. Medical coverage would also increase in multiples of $20,000.

If you only have one vehicle in the household, you should contact your agent to increase your no-fault limits to ensure adequate wage replacement and medical coverage. Most insurance companies offer increased limits for wage loss and medical expenses at a reasonable increased premium.

You should also strongly consider umbrella insurance coverage that includes first AND third party coverage. This is typically a low-cost insurance that offers $1million or more in protection, not only if you or a family member is sued, but also will provide you with adequate coverage if you or a family member is injured by an uninsured or underinsured driver. Umbrella coverage is also important if you have kids or dogs, as they frequently seem to be the ones inadvertently causing serious injury to others (i.e. when you son shoots out the eye of a classmate with a rubberband, the umbrella insurance will cover damages that exceed your homeowners coverage).

What if it is too late? I suspect that many of you that read this are looking for information because you have found out only after an accident that you do not have adequate coverage relative to your earnings or medical expenses. What I recommend is that if at all possible, you work with your doctors and employer to get back to work part time. If you can work four hours a day instead of eight, or three days a week instead of five, you will still have some income, and still be entitled to up to $250/week from your no-fault insurer. Also see what you can do about keeping your medical expenses low. Get copies of your bills so you know what treatment is costing. Work with your own family doctor to make a plan that will not bankrupt you.

Remember, even if you were at fault for an accident, you are entitled to Minnesota No-Fault benefits. I have found, however, that it can be hard for those responsible for an accident to find legal help. Please feel free to contact me directly if you have questions about Minnesota No-Fault Law. I have handled many, many no-fault cases for people at fault for an accident. I am also happy to talk to you about your particular case, even if you are not interested in hiring a lawyer.

Pioneer Press - I'm Disappointed

2009-03-24T08:28:00.000-05:00

I am not sure why this bugs me so much. Times are tough for my St. Paul newspaper. Beggars can't be choosers - right? When a company like "Universal Media Syndicate, Inc." comes calling once a month with interest in publishing a full page color ad, sometimes professional ethics need to take a back seat, is that it?

Shame on you Pioneer Press.

I wrote below about the "Universal Health Card" (link) that was printed in the Pioneer Press on February 6, 2009. I know I saw one other hoax-like ad from Universal Media since then. Today, March 24, 2009, The Press, has sold out to Universal Media Syndicate, Inc. once again with "7 smart places to stash your cash" written by "Aaron Robinson" of Universal Media Syndicate. Click here to see a copy of the ad. You will note that the first link was to the ad that was printed in the Salina Journal in Missouri. Here is a link to one from Michigan. Notice the map of the nation? In the Pioneer Press ad, only Minnesota is eligible for "free" Armored Safes (what other kinds are there?) and the rest of the country is "Not Eligible". Of course in Missouri, only Missouri is eligible. In Michigan, only Michigan is eligible...

On its face, this new ad, like the others is so obviously a scam. At the same time, the nice folks at Universal Media Syndicate, are very careful about what they are selling. I am pretty sure that if push came to shove, a person that got into this transaction would have a real hard time getting out. That is perhaps why I am so steamed about my paper choosing to assist in such (in my opinion) a con.

Let's look at the ad. What are the 7 smart places to stash your cash? Apparently not a FDIC-insured bank: "Insured or not, the fact is this. The FDIC has only enough cash on hand to cover above 2% of nation-wide deposits. Pretty scary stuff." Says alleged Universal Media Syndicate writer Aaron Robinson. He recommends buying coins and keeping them in your house in a safe.

"Well, Gertie, that sure is an informative article. I wonder where we could go to get a safe and some coins?"

"Gee, Frank, look at this! The World Reserve Collection is doling out FREE ARMORED SAFES! They also are selling coins."

Yes indeed, Shawn Oyler, also of Universal Media Syndicate has written the follow up informative article, "Free armored safes being doled out to public." And to get your safe, all you have to do is agree to 19 payments of $98 - that's $1862 plus shipping for a safe - whatever that costs. I am pretty sure you also have to pay shipping on the coins.

And what do you get for $2000 dollars? Apparently you get a safe. You also get a "personal HOARD"! And just how much money is in a hoard? Apparently a hoard consists of 4,100 coins with a face value of $300.

That's right, you get $300 for $2000. That is the definition of scam, con or hoax, isn't it? Folks, there is nothing special about these coins. These are new $1 coins and nickles. If you want your own hoard, go to a bank. They would be happy to sell you a hoard of coins for $300 - no shipping. If you really want a safe, go to Lowes and buy one for about $100.

If you care to comment to the Pioneer Press about its advertising, you might consider calling the Reader Advocate at 651-228-5446.

Here are some additional links regarding this advertisement and others from Universal Media Syndicate:

http://answers.yahoo.com/question/index?qid=20070521205211AA9BNmo
http://www.complaintsboard.com/complaints/world-reserve-monetary-exchange-c108961.html
http://forums.collectors.com/messageview.cfm?catid=26&threadid=593173&STARTPAGE=1
www.gradethenews.org/2005/microads.htm
http://coincollector.org/archives/003358.html
http://www.coinclub.com/wwwboard/messages/29323.html

Radiofrequency Neurotomy Insurance Claims and Lawsuits

2009-02-18T22:03:00.000-06:00

Radiofrequency Neurotomy Insurance Claims and Lawsuits

I recently wrote an article that was published in the Minnesota Association for Justice’s magazine on Radiofrequency Neurotomy or RFN. The following is a distillation of that article and some of the elements of RFN that you might be interested in knowing. If you have particular questions, or have a hard time finding the source documents, please feel free to contact me directly.

The whiplash motion of the head caused by a car accident can frequently lead to the development of neck pain. Many accident who are genuinely motivated to get better can suffer significant pain and disability in the neck even after exhausting conservative treatment remedies such as medication, activity modification, chiropractic manipulation, physical therapy, and joint injections. While these modalities can help resolve injuries of the soft tissues of the neck, they cannot cure facet joint pain.

Facet joint injuries can cause intense pain in people who have normal MRIs. Through autopsy studies, doctors have been able to determine that chronic neck pain can be caused by injury to the facet joints in 49% to 60% of patients with whiplash injury.[i] Facet or zygapophysial joints are the small joints that connect vertebral bodies to each other. Facet joint pain can be temporarily alleviated by a procedure commonly referred to as radiofrequency neurotomy.

Radiofrequency neurotomy or RFN was developed in the mid 1970’s, and has provided significant relief for many whom have exhausted conservative remedies for alleviating their neck pain. The procedure, also known as radiofrequency ablation or rhizotomy, uses a probe heated to burn the nerves to the facet joint, or the cervical dorsal rami. This disrupts the pain signals the nerve normally sends from the facet joint to the brain.

Because RFN is a relatively invasive and expensive procedure, it will not be pursued unless the patient has failed conservative treatment[ii] and not without careful diagnosis. Facet joint pain can only be diagnosed through a series of investigative nerve blocks, including placebo injections. The facet joint diagnostic process usually requires several injections of different anesthesia to numb different facet nerves in the suspected area of injury, without telling the patient which level is being injected. Placebo injections may also be used. The RFN candidate must be able to demonstrate complete pain relief for a short or long term depending upon the anesthesia agent used. She or he must also demonstrate no relief if a placebo is used in the diagnosis. Using this diagnostic procedure, doctors can determine with accuracy greater than 91% whether the patient’s pain is emanating from the facet joints, and if so, at what level in the spine they have been injured.

Once the facet joint injury has been accurately diagnosed, the RFN doctor – generally a radiologist, will perform the procedure under a local anesthetic. Using fluoroscopic guidance, an electrode, similar to the one pictured here, is inserted into the joint area, parallel to and against the targeted nerve. Lesions are created in the nerve by heating the electrode to 80 degrees Centigrade or 176 degrees Fahrenheit. Patients generally experience a week or two of post-operative pain, but subsequent to that, the interruption of these nerves often provides complete relief of pain and eliminates disability.[iii] Others whom are dealing with multifaceted pain, such as continuing soft tissue injury, may not experience the “magic bullet” effect that many do, but should experience significant pain relief. When the procedure is performed correctly, multiple studies have shown that RFN is successful, meaning that it provides complete pain relief, approximately 71%[iv] to 74%[v] of the time.

The cost for RFN can vary significantly depending upon whether it is performed in a hospital or as an out-patient procedure in a clinic. The hospital procedure can cost approximately $10,000, while an out-patient procedure performed in the Twin Cities at Medical Advanced Pain Specialists (MAPS) Clinic costs approximately $2,500. The diagnostic procedures, which are supposed to be repeated prior to every subsequent procedure, can cost approximately $3,000.

Unfortunately, RFN cannot cure facet pain. Over time, the ablated nerves regenerate and pain signals from the injured facet joint once again travel from the permanently injured nerve to the brain.

As long as the ganglion of the nerve remains intact, the nerve will recover. Once the nerve heals, conduction is reestablished, and pain recurs. Destruction of the ganglion is not recommended, because it would incur the risk of side effects and complications.

Recent studies put a median duration of 36 weeks before the pain starts to return.

The good news is that years of performing the procedure and multiple studies have shown no contraindication to repeating RFN as many times as may be necessary to allow the patient fully function without pain.[vi][vii][viii]

Under Minnesota law, if one person injures another in an accident, the at-fault party's insurance is responsible for all the medical expenses a person is likely to incur in the future. The challenge we plaintiff’s attorneys have is in convincing an insurance company that they need to pay now for all the RFN procedures an person with injured facet joints is likely to need in their lifetime to keep neck pain at bay. If RFN is needed every 12-14 months, that can equal 30 or more procedures for a 50-year-old. At $5,000 a procedure, that adds up to $150,000. It is not fair to make the person who was injured through no fault of their own pay that amount out of their pocket, or even to have that person's health insurance pay it. In Minnesota, those expenses are supposed to be paid by the at-fault party's insurer. Not surprisingly, the insurers will fight hard to keep from paying for this treatment.

There are many obstacles that the insurance company lawyers use to try to prevent accident victims from obtaining compensation to pay for these future procedures. To ensure you receive adequate compensation for your injury, you need to make sure that your attorney knows well how to handle RFN cases. Effective representation requires a working knowledge of all the recent medical research into the area, and knowledge of how best way to present the evidence and how to respond to the defense motions to exclude your doctor from testifying about the future RFN.

If you have questions about RFN litigation, please do not hesitate to contact me. I would be happy to discuss your case without fee or obligation. In many situations, especially if there is limited insurance coverage, you may be able to settle for policy limits without an attorney. There are a few VERY IMPORTANT things you need to know, however, before you settle anything. Failure to protect your underinsured motorist's right of reimbursement may cause you to unwittingly forefit an extra layer of insurance coverage you are going to need if the at fault party is not adequately insured. Please, please, please talk to a lawyer that is very experienced in personal injury law and RFN litigation before you settle any case!

[i] Schofferman, Bogduk, Slosar: Chronic Whiplash and Whiplash-Associated Disorders: An Evidence Based Approach. J Am Acad Orthop Surg 2007: 15:596-606.

[ii] Deen, Fenton, Lamer. Minimally invasive procedures for disorders of the lumbar spine. Mayo Clinic Proc 2003;78:1249-1256.

[iii] Hooten, Schellhas, Schultz, et al. Precutaneous radiofrequency ablation for facet-mediated neck and back pain. Inst Clinical Sys Improvement, 2005.

[iv] McDonald, Lord, Bogduk. Long-term follow-up of patients treated with cervical radiofrequency neurotomy for chronic neck pain. Neurosurgery 1999;45(1):61-7.

[v] Barnsley. Percutaneous radiofrequency neurotomy for chronic neck pain: outcomes in a series of consecutive patients. Pain Med. 2005;6:282-286.

[vi] McDonald, Lord, Bogduk. Long-term follow-up of patients treated with cervical radiofrequency neurotomy for chronic neck pain. Neurosurgery. 1999;45(1):61-7.

[vii] Prushansky, Pevzner, Gordon, Dvir. Cervical radiofrequency neurotomy in patients with chronic whiplash: a study of multiple outcome measures. J Neurosurg Spine. 2006;4:365-373.

[viii] Schofferman, Bogduk, Slosar: Chronic Whiplash and Whiplash-Associated Disorders: An Evidence Based Approach. J Am Acad Orthop Surg 2007: 15:596-606.

Stacking Minnesota No-Fault Insurance Coverage

2009-02-12T11:38:00.000-06:00

Many people have asked, "what is stacking," or "do I really need stacking," or "do I need to stack no-fault coverage?"

Your No-Fault coverage can easily and inexpensively be increased if you own more than one vehicle. Stacking your No-Fault insurance coverage multiplies the amount of coverage available from $20,000 for wage loss and $20,000 for medical expenses to $40,000 for each. Perhaps more importantly, it also multiplies the weekly maximum wage loss coverage.

In addition, stacking also multiplies your medical no-fault coverage. Even if you have health insurance, you should consider the benefits of stacked no-fault medical coverage. No-fault provides "dollar one" coverage, which means there is no deductible and no co-pay. No-fault insurance allows you to see any doctor - not just those in your network or plan, so long as the treatment is "necessary" to treat injuries from a car accident. Also, if you are injured in a crash that is someone else's fault, and your health insurance pays medical bills, you will have to pay the company back if you receive a personal injury settlement from the other driver's insurance.

The medical coverage limits have not been changed in decades. As we all know, the cost of medical care has exploded. It is not unusual for a brief hospital stay, or one surgery to cost more than the $20,000 minimum limits. Talk to your insurance agent about the cost of stacking. I think you will find that the assurance that the coverage will be there if you need it is worth the small cost of obtaining it.

Here is a link to the medical and wage loss benefits required under the No-Fault Act.

Minnesota Property Damage Statute - Claims Handling

2009-02-11T11:03:00.000-06:00

I was reminded today about how important it is sometimes to go to the source. In law, the source can be either the Minnesota Statute or caselaw interpreting a legal issue. In regard to property damage matter, I would encourage you to read what the statute has to say. Go to Minn. Stat. §72A.201, subd. 6. When you click the link, you will have to scroll down quite a bit to get to subd. 6. The section deals with what constitutes Unfair Insurance Claims Handling practices. If you are dealing with an insurance company about the repair or replacement of your wrecked car or motorcycle, I highly recommend a careful read of the statute.

Property Damage Settlements

2009-02-10T21:08:00.000-06:00

Q. My car was totaled by another driver. Do I have to accept what her insurer offers? How do I know what my car is worth?
A. No, you do not have to accept what the other insurer tells you your car is worth; there are a range of options.

If your car is totaled in an accident, you are entitled to the fair market value or FMV of your vehicle at the time of the accident plus sales tax and license tabs (even loss of use of the vehicle if the insurance company didn't pay for a rental car). FMV does not mean blue book value which is usually higher. FMV means the price you would have to pay to buy a very similar car in your area. The first thing you should do is to figure out your FMV.

What I do is go to cars.com if it is a newer car, or traderonline.com if it is older. Using the search function, try to find at least 6 to 10 cars in your geographic area that are a pretty close match to yours in terms of condition, mileage and options. This is simple if you were driving a 2000 Toyota Camry, but for odd-ball cars like, say a 2006 Bentley or grandpa's 1984 Lincoln Town Car with 34,000 miles, you will have to expand your search to the entire state or the whole Midwest or even country to get an adequate sample. Assuming you can find a fair number of similar vehicle, I usually thrown out the first one or two highest priced ads that are asking thousands more than anyone else, then average the rest to get the FMV.

If the offer you are getting from the other person's insurance company isn't close to the FMV you figured, and you have collision coverage on your car, tell your own insurance company you want them to deal with the property damage claim. That is, after all, what you have insurance for. Have a frank discussion with your insurance agent (not the claims adjuster) about whether making the claim with affect your insurance rates at all. If you were not at all at fault for the accident, then it probably will not affect your rates. Your own insurer will then give you its estimate of what the car is worth. While it will reduce the offer by the amount of your deductible, it will give that back to you when it gets reimbursed by the other insurance company (make sure the adjuster does, I have seen too many times where the insurance adjuster just "forgot" to send it).

Of course, if your own insurer offers an amount less than the other party's insurer, it is time to start negotiating. There is no reason why you cannot negotiate with both insurers at the same time. Remember always, and this is very important, BE NICE. I promise you, you will not get anywhere by being a bully. Adjuster deal with bullies all the time - they are professional bully-dealers. You will not intimidate them. Instead, try this. Be nice. Make a written, polite and reasoned arguement why the insurance company should pay more based on documentation, not threats or pleas. If you can adequately document the FMV of your vehicle, it is likely that they will increase the offer.

If you are not able to negotiate a settlement with either insurance company, then you may have the option to sue the other party directly in conciliation (small claims) court. That is an issue for another whole post on another day. The important thing to know, however, is that you cannot sue in conciliation court if the vehicle is in your name and you were hurt in the accident. If you do, you can easily lose your right to obtain damages for medical expenses, wage loss and other compensation. Even if you think you were not hurt, talk to a personal injury attorney first. I would be happy to discuss it with you, but any lawyer that does primarily personal injury work would do. If you have other questions, please do not hesitate to contact me.

No-Fault Mileage Reimbursement Rate of $.585

2009-02-10T12:11:00.000-06:00

This is timely. A day after writing about no-fault insurance medical mileage reimbursement, a client of mine received a check for reimbursement at a rate of $.585 per mile, which was the IRS tax rate in 2008. Just goes to show that if you ask for it and you make a legitimate argument that the IRS tax rate is an accurate reflection of the actual costs of driving, you can be fairly compensated.

No-Fault Pays Travel Expenses for Medical Treatment

2009-02-09T21:58:00.000-06:00

Q. I was injured in an accident and my no-fault insurance company is paying the medical bills. Am I also entitled to reimbursement for my travel expenses to the doctor, and if so, how much does the insurance company have to pay per mile?

A. Yes, you are entitled to reimbursement of "reasonable transportation expenses" (statute).

Interesting, there is no fixed amount that all insurers must pay for mileage expenses. Generally, insurers pay around $.32 per mile. We would argue that the proper rate of reimbursement is closer to the IRS tax business rate, which for 2009 is $.55 per mile. The insurance company is not likely to pay you this amount, but there is an argument that they should and we usually get them to pay it when push comes to shove. If you have extraordinary expenses, or have to take a taxicab to appointments, you should discuss the matter with your no-fault adjuster prior to incurring the expenses.

The Universal Health Card - Scam or Hoax?

2009-02-09T21:53:00.000-06:00

The St. Paul Pioneer Press printed this full page advertisement in first section of the February 6, 2009, St. Paul paper. You can view a similar copy of this ad at this link. The advertisement, written (supposedly by Jonathan M. Moorhead) to look like a newspaper article (I know - it says Advertisement across the top), claims that everyone, regardless of past or current health conditions can get the free card. It suggests that you need to call within the next 48 hours. It then charges you $18 for the free card.

The advertisement has many things in common with the hoax and scam emails we have all been accustomed to receiving. It claims to offer a free product, but then indicates there is an $18 "registration fee." It suggests that you need to call within the next 48 hours. It has unnecessarily capitalized words. The advertisement is careful not to say what benefits it provides.

I went to the card's website, which has a link for participating providers and downloaded that list and started calling. Not one provider that we called had ever heard of the "Universal Heath Card."

Check out this blog: http://daughternumberthree.blogspot.com/2008/11/universal-health-card-money-for-nothing.html

The author has a similar reaction to mine when he saw the ad. "Is the paper so hard up for money that they will print any scam that come along?"

I am not saying that this is a scam or a hoax. I don't know. What I do know is that none of the listed providers that we called knew anything about the card, and were surprised (or shocked) to hear that their name and clinic was associated with the "program." As always, we urge you to use caution when responding to any advertisement you see in the paper or any email you receive.

If you do learn anything else about the Universal Health Card that you would like to share with us, by all means let use know.

Introduction and Purpose

2009-02-09T21:35:00.000-06:00

Hi - I am Matt Brenengen - a personal injury lawyer with the law firm of Brenengen & Associates. I have been working to help injured people since 1993. I get many calls from people with questions about their claims, and thought that this would be a great place to post some of those questions and answers, general information about Minnesota accident and no-fault insurance law, and to just blog about personal injury issues. If you have questions about your rights after a car accident or motorcycle accident, I hope you will feel free to email me privately. It is my goal to develop this blog as a resouce people can use to get information about Minnesota injury law. Along with answering specific questions, I will try to point the reader to additional resources and information. Please, please, please remember that this site pertains to Minnesota law only and is designed for general information. Information on this blog should in no way be construed as formal legal advice. Emails and answer do not establish a lawyer/client relationship.