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Joe Crumley
Joe Crumley
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Practice Pointers for Lawyers

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No-Fault Insurance in the Age of Uber.  About 25 years ago, your editor put together a little flow chart to help remember the no-fault priorities when asked to do research on the subject. After a few drafts, Version 1.0 was floated around the office for critique. Many lawyers at the old firm thought they had found an error in the chart. It became a little game over time to try to stump the chart. Each time someone floated a strange new scenario, your young editor panicked a little, then relaxed.  The chart was always right.

The chart gained some popularity, and was distributed through the firm, and then, after some touching-up, throughout the state, on distinctive yellow ledger-sized paper with an article in this very magazine. Seminars were held, and audiences of lawyers would call out the strange fact scenarios that they though would ‘break’ the chart. But the chart was always right.

The Minnesota No-Fault Priorities Chart, like the law it was based on, has had very few and very minor changes since version 1.0. Sure, police squad cars were declared NOT to be motor vehicles[1] and there were a few nervous years for Metro buses (the chart was right), but not much has changed, other than the law firm name and number.

But the 21st century came along, and Uber and Lyft arrived in our fair state.  Two years ago, in a 1700-plus word new subsection[2] (even longer than this article), the legislature laid out the details of 21st century Ride Share Auto Insurance. Most of the law relates to liability, uninsured and underinsured motorist coverages and shifting responsibilities.

But a few sections address no-fault priorities. To summarize, a Lyft or Uber driver is “deemed to be in the business of transporting persons” when “the driver is logged on to the transportation network company’s digital network; or … while the driver is engaged in a prearranged ride.”

Turns out, the chart is still right. Your editor is smiling smugly.

Restricted Financial Identifiers. Here’s another heads up from MAJ Stalwart Matt Brenengen. Matt got spanked by a Court Clerk for including an insurance policy number in his Complaint against the No-Fault insurer (which most of us have done forever on these direct actions).  It turns out that the clerk considered an insurance policy number as a Restricted Financial Identifier, and thus banned from filings for the past few years under Court Rule 11.2:

(a) “Restricted identifiers” shall mean the following numbers of a party or other person: complete or partial Social Security number, complete or partial employer identification number, and financial account numbers other than the last four numbers of a financial account number that is not also a Social Security number.

(b) “Financial source documents” means income tax returns, W-2 forms and schedules, wage stubs, credit card statements, financial institution statements, check registers, and other financial information deemed financial source documents by court order.

Matt points out that it is arguable that a policy number is not any of these things, and in a Declaratory Judgment action regarding enforcement of the terms of an insurance policy, it seems wrong not to cite to the policy number.

Worse, different counties were handling policy numbers differently, with some accepting them in pleadings.

The smartest move would be to leave the number out, or maybe use the xxx-xxxxx-5493 method (barred from use in SSNs or employer numbers) But if you need to include the number, probably best to a Redacted S&C and the Confidential Form 11.02.so you don’t end up refiling the case and paying the $324 filing fee again like Matt!

Member Jim Reichert suggested it was worthwhile to get a copy of the Hennepin County Civil Filing Cheat Sheet, which I found at: http://www.mncourts.gov/mncourtsgov/media/scao_library/LegalCounselDivision/Financial-Account-Numbers-Cheat-Sheet.pdf

But the content is short enough to include here:

Number Type Banned?
State agency case number (county attorney, child support, etc.)  

No

Billing number from service provider (medical facility account, fuel oil account, telephone account, etc.)  

Yes

Number from a charged-off credit or debit account Yes
Certificate of Deposit number Yes
Annuity contract number Yes
Credit account number Yes
Series EE Bond serial number No
Treasury Direct account number Yes
Property tax ID number No
Vehicle title number No
Medicaid Recipient ID (MMIS) Yes
High School student ID number No
College student ID number Yes
Insurance policy number1 Yes
Insurance claim number No

No-Fault Benefits and Workers’ Compensation.  Lawyers should be aware that no-fault automobile insurance is not off the hook when workers’ compensation benefits are primary.  For years, your editor has taught seminars to other lawyers about this.  However, on a recent severe injury case the file was closing after payment of the policy limits and your editor realized that the client had never submitted her replacement services.  A letter to her no-fault carrier resulted in a check for over $12,000.  Intrepid MAJ paralegal member Gail Schmit put the icing on the cake.  Your editor was unaware of the 3-day waiting period for wage loss benefits in workers’ compensation, which was worth another $500.00 in no-fault wage benefits, thanks to Gail!

It’s called a CRASH, not an ACCIDENT!  Your editor has been whining about the new DPS “police reports.” If you’re unaware, the new report removed all the familiar numeric codes (the ones you learned many years ago, but still kept a cheat sheet in your desk drawer for the obscure ones.)

I’m sure the new reports are easier for most people to read, since all those numbered codes have been replaced by the actual words.  But where? … the reports are three or four pages long minimum, and it seems to take old eyes forever to find stuff that was easy to find on the old single sheet reports.

What I didn’t notice till now …. It’s actually entitled “Crash Report” and doesn’t use the dreaded “A” word. Three Cheers for the DPS!  We can now whine vociferously when defense attorneys try to use the word accident!

Old Web Page Discovery. On the list, one member was looking for a Craigslist archive (No one asked why!).  I don’t know if Craigslist keeps an archive, but the Internet Archive (anachronistically dubbed “The Wayback Machine”) does keep archives of that and 286 billion other webpages!

https://web.archive.org/

Here you can find multiple versions of web pages you thought were long gone.  There are also archives of books, music, and other interesting things. Go back and look at what you looked like in 2001.  Better yet, find out what the defendant was advertising!

 Know your judge.  Trial lawyers crave information about judges.  Every judge is different, and lawyers just want to know what the judge expects so they can perform within those expectations.  For years your editor, familiar with the inner workings of a large metropolitan district, would send courtesy copies of motion papers on every case, usually with positive response.  Imagine the surprise 25 years into practice when a judge started yelling at your editor for the same practice.  (This was before e-filing as well).

We talk to our friends and colleagues and we dig around to find whatever we can.  Does the judge do preliminary voir dire?  Does the judge limit voir dire?  Do I sit or stand when questioning jurors or witnesses?  Who does the judge expect to attend pretrials?

There is still nothing better than personal knowledge and networking.  Absent that, there is a valuable tool available on the Minnesota State Bar Association website. It’s found here:

http://www.mnbar.org/members/committees-sections/msba-sections/civil-litigation-section/judges’-courtroom-preferences/

or simply google “Minnesota judges’ courtroom preferences” and you will find results of a survey of questionnaire responses provided by most of the state’s 293 District Court judges answering just those questions.  There is also a downloadable e-book version on the site as well at:

http://www.mnbar.org/tools-online-resources/practice-resource-center/ebooks/

Medical Authorizations Refusals. Our staff has noticed a substantial uptick in claims from insurance companies and defendants that the medical providers will not accept our limited authorizations.  In almost every circumstance when we have contacted the medical provider directly, they have told us that our authorizations are perfectly fine as long as they are used properly (original authorization only and used before they expire obviously).

Often the problem is that the insurers ask that the authorization be mailed to a scanning center, where the originals are scanned and shredded, and an electronic version forwarded to the adjuster.  Of course, all our limited authorizations require originals, not copies, so this is often the problem.  Most insurers, after a small adjustment, will provide a local address for the authorization.

Other times, it makes no sense. While I can hope that the mischaracterizations by the insurance adjusters that my authorizations are no good, I suspect that in at least some of the cases it is the insurance company’s attempt to get unrestricted or unlimited authorizations by misstating the problem with the insurer.

It is illegal for a medical provider to deny a medical request which has a valid HIPAA authorization attached to it.  If you get such requests from insurers or defendants, check with the medical providers to see what the real problem is and I think you will find it is the defendant’s use of a scanned or photocopied authorization or maybe they just want to talk to your doctors in person and screw up your case.

[1] Mutual Serv. Cas. v. League of Mn Cities, 659 N.W.2d 755 (2003).

[2] Min. Stat. §65B.472 (2016).