Tips from the 'Nuts and Bolts of No-Fault Claims' Seminar

By Shelley M. Peters and Michelle T. Hubert

The nuances and niceties of No-Fault cannot be taught exclusively by books and statutes: sometimes wisdom is only obtained through experience. You do not have to endure this experience first-hand, however! Learning through the collective experiences of our seniors can be a brilliant means of avoiding those nasty "try, try again," and "lesson learned!" encounters. Who better to go to than another paralegal when you need advice on filing for arbitration, appeasing a picky adjuster or calculating wage loss? The need for peer-to-peer gatherings is easily justified by questions such as these, and MNAJ Paralegal Section answered the call.

On February 10, 2010, the MNAJ Paralegal Section held its "Nuts and Bolts of No-Fault Claims" seminar and was once again able to demonstrate the invaluable ability for employees in similar occupations to teach, brainstorm and learn from one another in a way that can only be experienced through people in the same line of work. The speakers running the meeting were Shelley Peters and Deb Larson from Sieben, Grose, Von Holtum & Carey. Attendees arrived from several different firms throughout the Twin Cities, and we were able to hold an informal and amiable conference over lunch, discussing some of those pickier points of the No-Fault statute.

The first order of business (after everyone had sandwiches and cookies) was for Shelley to hand out the ever-useful "No-Fault Benefits: An Overview" article, designed and fashioned at Hauer Fargione Love Landy & McEllistrem, P.A. Novice paralegals' ears perked up when both Shelley and Deb admitted that they use this document on a regular basis, and learn something new every time they read through it. It really does cover pretty much anything a paralegal will need to know regarding No-Fault; and it served as a guide for our meeting. It also comes complete with case examples and summaries, both typical and obscure. (This article can be accessed via the Hauer Fargione website, at www.hfllaw.com.)

We started with the basics: When does a claim arise? We discussed what is meant by "use" of a motor vehicle and how the statute specifically mentions that activities must be incident to "occupying, entering into, and alighting from" a vehicle. One attendee mentioned an extraordinary case she currently had that arose after a man was working under his vehicle. Would that be covered under the No-Fault laws? It remains to be seen.

We discussed what it meant to be a "motor vehicle" as opposed to a motorcycle or lawnmower, and no, you cannot get No-Fault benefits if you were hit while racing, stealing a car, or deliberately running over another person. Minnesota does, however, ensure you No-Fault benefits from any motor vehicle accident occurring in Minnesota (exclusions excluded, of course). This means that, if you are a pedestrian-doing your part to "be green"-and are hit by an uninsured motorist while walking to your community co-op, there is still hope: you have the option of receiving No-Fault benefits through Assigned Claims, which assigns the claim to an insurance company. If you forgot to pay your insurance premiums for the last five years and you hit someone while bringing your daughter to daycare, she will be covered. You, however, are out of luck. There are always caveats and exclusions of course, which are suitably outlined and illustrated in the article.

The group then moved on to which benefits were available. This was old news (hopefully) to those attendees who had been working in personal injury for years, but some workers' compensation paralegals had some good questions regarding replacement service benefits and wage loss benefits. (At these responses, everyone was taking notes!) Wage loss benefits are equal to 85% of your gross wage loss (as opposed to net loss) -up to $250 per week-and made-up time is not considered a loss (just a hassle). An in-depth discussion unfolded regarding self-employed clients and how to calculate their wage loss. Remember to acknowledge vacation weeks, and remember to calculate the average weekly wage rate prior to submitting the wage loss claim to the adjuster. Mistakes are difficult-or impossible-to fix after five months of wage loss payments have already been made.

Great emphasis was placed on the need to effectively communicate to your client that, if your liability case is taken to trial, any No-Fault benefits that have been paid prior to trial may reduce the overall jury verdict by the amount that had been paid. For example, if No-Fault paid $15,000 of your client's medical expenses prior to trial and the jury awards her $15,000 in past medical benefits, the overall jury award will be reduced by that $15,000 which was already paid (if the jury awarded $10,000, the final award would only be reduced by $10,000). Though the grounds for this rule seem simple and straightforward-the courts want to avoid double-payments-it is not uncommon for clients to fail to understand why their verdict was reduced.

There was a discussion on the new state requirements for electronic billing of health care claims which took effect on July 15, 2009-unbeknownst to most of the paralegals present. See Minn. Stat. § 62J.536. Insurance carriers covered by the law include workers' compensation, auto and property-casualty carriers. This means, of course, that No-Fault adjusters may send notification that your client's bills are not being submitted properly if you are submitting them via regular mail, facsimile or in person. While it is very important to make sure your client's medical bills are being paid by the No-Fault carrier in a timely manner (regardless of how those bills are being submitted), it is equally important to know that you may obtain the electronic filing date from the medical provider to prove the No-Fault carrier received the bill. This proves very effective when claiming statutory interest on the unpaid bills during an arbitration hearing.

Another topic we went into great length to discuss was the conundrum regarding outstanding medical claims that existed at the time the Petition for No-Fault Arbitration was filed, but were not included in the Itemization of Claim at the time of filing. Can the arbitrator award these unpaid bills if the Claimant failed to amend the Petition in a timely manner? Some arbitrators may award payments of bills that have been disclosed right up to the date of arbitration. Others may deny any bills that were not included in the original Petition. Respondents in these types of cases may be looking to the decision of the Honorable Denise D. Reilly, Judge of Hennepin County District Court in the matter of Leigh Ann Stwalley v. American Family Insurance Company as authority for its position (Order, No. 27-CV-09-8955 (Aug. 28, 2009)). In Stwalley, the Claimant failed to itemize all outstanding claims at the time of filing the Petition, but sent an updated Itemization of Claim which included all outstanding claims to the attorney for the Respondent approximately 4 days prior to the arbitration hearing. Judge Reilly potentially referred to Minn. Stat. § 65B.525 and rule 5(e) of the Rules of Civil Procedure for No-Fault Arbitration as being controlling. Rule 5(e) states that:

Itemization of Claim. At the time of filing the arbitration form, or within 30 days after, the claimant shall file an itemization of benefits claimed and supporting documentation. Medical and replacement services claims must detail the names of providers, dates of services claimed, and total amounts owing. Income-loss claims must detail employers, rates of pay, dates of loss, method of calculation, and total amounts owing.

Judge Reilly stated that Rule 5(e) is unambiguous and the Minnesota legislature has defined "must" and "shall" as "mandatory;" therefore, Claimants have a statutory obligation to properly itemize their claims within 30 days of filing their Petition. In Stwalley, since Plaintiff did not update her itemization until approximately 80 days had passed, Judge Reilly ruled the claims were effectively waived and that the award amount relating to these claims was vacated. Claimants, however, may argue this case has no precedential value over Minnesota arbitrations, and the district court decision is inconsistent with Minnesota case law on waiver and amendment of arbitration petitions, both of which focus on prejudice to the opposing party.

We cruised through the remainder of the article, touching on some oldies but goodies: what to do when your client is collecting unemployment; a No-Fault carrier might have the right to be reimbursed if the client was hit by a large enough vehicle; and overpayments do not necessarily have to be reimbursed unless fraud is at hand. We followed the meeting up with a short question-and-answer session, and adjourned. Really, there's not enough time in a day-even in a month-to cover every aspect of the No-Fault laws, but there is no better way to learn and progress than this: share, discuss, divulge and impart wisdom with your colleagues. Each person learns their lessons via unique tactics and errors; sharing these experiences can make us all more proficient and learned paralegals. This makes us all the more valuable to our supervising attorneys and especially our clients.

Contact the law offices of Sieben, Grose, Von Holtum & Carey for a free consultation. We encourage you to make this first step toward resolving your legal matters so that you can get back to your life.